Criminal Law Outline NCA

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Criminal Law Outline April 2011
All cases:
R v Dudley and Stephens, (1884) 14 QBD 273, pg 876
Hungry sailors eat their friend, necessity no defense, guilty of murder
Facts Shipwreck leaves D, S, Brooks & Parker stranded. Run out of food, D‟s plan to kill
and eat P, B dissents but eats P anyway. They are picked up 4d later, prob wouldn‟t
have survived w/out eating P. Charged w/ murder.
Issues Murder
Does a moral duty to preserve one‟s life make cannibalism ok?
Held D‟s guilty of willful murder, sentenced to death, later commuted to 6 mos
imprisonment
Ratio The ct argued there was a separation from a moral duty to preserve one‟s own life
and the legal duty not to murder. There can be no defense for an arb decision to kill
another person. Temptation, necessity no defence for murder.
RULE Necessity is no defense for murder

Sources of Criminal Law
(a) Common Law
R v Sedley, (1663) KB
Note Nobleman gets rip roaring drunk and starts yelling and throwing bottles of his own
piss naked from the balcony. The ct found him guilty of “breaching the King‟s
peace”, using their CL discretion to punish “offences against Morality and
Christianity”.
The predecessor to the CC, statute based crim law.

Frey v Fedoruk [1950] SCR 517, SCC
Peeping tom gets caught, chased w/ knife, no offence known to law
Facts Frey was a peeping Tom looking at Fedoruk‟s mother. Was chased down by Fedoruk
and arrested w/out a warrant by the police. There was no estab CL or crim code
offence for what he did.
Issues Sources of Criminal Law
Can someone be convicted of an offence not in the CC?
Held No, there was “no offence known to the law”
Ratio The SCC acquitted b/c there was no offence in the CC for his behaviour. Parl should
decide if they want to make it one. Frey even succeeded in suing the cop for false
arrest. (Note: now there is an offence for this – voyeurism)
RULE If its not in the code, its not an actionable crim offence.

Note: In the 1955 revision of the CC, Parl went further than the SCC and in s.9 largely abolished CL offences.
The possibility of CL defences was preserved in s.8(3).
ii) Doctrine of Precedent (pg 6)
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Distinction b/w ratio decidendi of a case (the pt of pts it actually decides) and obiter dicta (other statements
made in the course of the decision which aren‟t strictly essential to a resolution of that particular dispute) (R v
Henry considered this distinction)
R v Henry, 2005 SCC 76, pg 6
 Sellars principle: whatever was said in a majority judgment of the SCC was binding no
matter how incidental to the main pt or how far removed
 Binnie in Henry: not all obiter are binding; don‟t all have the same weight

b) Statute (pg 10)
R v Clark, 2005 SCC 2, pg 11
Window masturbator, not a public place, statutory interpretation
Facts A seen masturbating in front of his open window. Charged w/ indecent exposure in
public, indecent exposure meant to offence, s.173(1)(a) and (b).
Issues Statutory Interpretation – what is the defn of public place for purposes of (a)?
Can actions done in a private home be considered “in public”?
Held A‟s action didn‟t apply to the charged offences, acquitted.
Ratio A wasn‟t aware anyone was watching him, tf his actions can‟t be said to have
intended to offend – (b) charge is thrown out (from trial stage).
The CC contains several other sections that draw a distinction b/w “public place” and
“visual access” to private places. Tf the offence in (a) must have been intended for
public places only. Acquitted.
Rule Words of statute must be read in their entire context, in their grammatical and
ordinary sense, harmoniously w/ the scheme of the Act, the object of the Act,
and the intention of Parliament.

Presumption that legislation is enacted to comply w/ constitutional norms, incl the rights and freedoms enshrined
in the Charter. Where two readings of a provision are equally plausible, the interpretation which accords w/
Charter values should be adopted.
Bilingual Interpretation:
 Principle of biling stat interp holds that where one version is ambig and the other is clear and
unequivocal, the common meaning of the two versions would be preferred
 Furthermore, where one of the two versions is broader than the other, the common meaning would
favour the more restricted or lim meaning
Principle of strict construction: When there is an ambiguity in interpreting words in statute, the ct has a duty to
endeavor to find Parl‟s intended meaning, but when ambig persists, interpretation falls to the one that most
favours the accused.
Re Xerox of Canada Ltd & Regional Assessment Commissioner Region No 10 (1980) (Ont
CA), pg 17

Note S.10-11 of the Interpretation Acts, which instruct judges to interpret statutes broadly
and liberally have been largely disreg in favour of the CL principle of strict
construction.

R v Goulis, (1981) (Ont CA), pg 18
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Note Clarifying strict construction: in a case of ambiguity, cts still have to strive to find
the intended meaning ascribed to a word by parl. If still uncertain, then go w/ the
meaning that favours the A. To convict, A‟s conduct must be w/in the proscription.

R v Pare [1987] 2 SCR 618, pg 19 *Leading case on strict interpretation*
Sexual assault then strangled victim, single transaction approach
Facts 17 yr old lures 7 yr old under bridge, sexually assaults him, then strangles him when
threatened to tell mother. Charged w/ 1
st
deg murder b/c CC makes it 1
st
deg to kill
“while committing” certain other offences, incl indecent assault.
Issues Statutory interpretation
Can it be interpreted that “while committing” includes A‟s actions?
Held Guilty of 1
st
deg murder
Ratio The “ord meaning” allows 2 interpretations: simultaneous and a broader approach
that incls A‟s actions. Simultaneous doesn‟t fit w/ the intentions of parl, it forces the
ct to draw arb and irrat boundaries around the A‟s actions.
The “single transaction” approach was used. If the actions are pt of a fluid seq of
events immed rel to the indecent assault, it satisfies “while committing”
Rule “While committing” can incl actions pt of a “fluid seq of events” and doesn’t
req simultaneousness
Ct can infer parls intent fairly broadly
Note Pare is authoritative determination that we do have a doctrine of strict interp (but
judges didn‟t apply it here b/c of the diffic in finding the start and end of the incident,
runs contrary to common sense)

R v Mac (2001) (Ont CA), pg 22
Fake credit cards, meaning of “adapted”, strict construction needs real ambiguity
Facts A was making fake credit cards. Charged w/ s.369(b) of CC. Meaning of “adapted”
at issue. “Suitable for” vs “altered so as to be suitable for” – the machines were
suitable but not adapted. JA found error in trial judges interp and used strict
construction to go w/ “altered”
Issues Strict Construction/Statutory interpretation
How much ambiguity must there be to revert to the most liberal interpretation
favouring the A?
Held SCC reversed CA ruling, convicted.
Ratio Bastarache J ruled that strict construction only comes in when there is real ambig in
the interpretation. In the French version, there was no ambiguity.
Rule Check the French version
There must be real ambig for strict construction to prevail.

Reference re Firearms Act (Canada) 2000 SCC 31, pg 24
Division of powers, criminal is Federal
Facts Parl wants to introduce Firearms Act. AB opposes, claiming that this falls under prov
juris (reg fns). Feds argue gun ctrl falls under s.91 and POGG
Issues Does the Act fall under Fed juris and power over crim law and POGG or prov juris
of property and civil rights.
Held Feds have juris
Ratio Substance directed towards public safety and moral evil and tf under juris of crim
law – there are reg aspects (provincial), but these are secondary.
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Note Division of powers analysis:
1) Find P&S of the law (i) purpose of the enacting body, & ii) probs the law is
intended to address (mischief approach) – public safety)
2) Classify essential character by reference to the essential heads of power to det
juris. (Legislation may be classif as crim if meets three reqmts of: i) it is a valid crim
law purpose, ii) backed by a prohib, and iii) penalty)

Charter of Rights and Freedoms: entrenched Legal Rights in Constitution, procedural law, protection against
unreasonable search and seizure, arbitrary detention, right to be informed of reasons for detention, retain counsel
without delay, not to be compelled to be a witness, against self incrimination, presumption of innocence. (pg 34)
Hunter v Southam I nc (1984) SCC, pg 35
Ct announced a purposive interpretation of any provision of the Charter. Charter is a purposive
doc. Its purpose is to guarantee and protect the enjoymt of the rights and freedoms it enshrines. It
is intended to constrain govtal action inconsis w/ those rights and freedoms, it isn‟t in itself an
authorization for govtal action. Judiciary is the guardian of the constitution.
2 types of Charter challenges:
1) challenge to conduct; remedy: exclusion of tainted evidence
2) challenge to law; remedy: law of no force and effect (unconst), can be saved by s.1

Crim laws can be challenged under s.7 of Charter for vagueness, overbreadth and arb
Overbreadth:
 If using means that are broader than is ness to accomplish that objective, POFJ will be viol (arbitrary or
disproportionate)
 Result of a lack of suffic precision in the means used to accomplish an objective: means that are too
sweeping in reln to the objective
 TEST: If the state uses means that are broader than is ness to accomplish that objective, the POFJ will be
viol b/c the indivs rights will have been lim for no reason (Balancing state interest against that of indiv)
leading case: Heywood
R v Heywood [1994] SCC, pg 37 *leading case: overbreadth*
Pedophile taking photos in a park, loitering too broad, unconstitutional
Facts Charged w/ 2 offences of committing vagrancy by being a person who had been
convicted of a sexual offence and “found loitering at or near a school ground,
playground, public park or bathing area” (s.179(1)(b) of CC)
Issues Charter, overbreadth
Does this offence viol s.7 and 11(d) of the Charter? (is the restriction on lib consis w/
the POFJ or is it too broad?)
Held s.179(1)(b) found to be unconst b/c too broad
Ratio Majority (Cory J): Parl must enact laws that achieve intended objectives w/out
infringing on Charter rights and can‟t be too vague or broad in the means of
achieving those objectives.
Law was too broad geographically, applied to too many places and ppl for an
indefinite time period w/ no review. It restricts the rights more than ness to
accomplish the goal. Public parks and bathing areas cover places that would pose no
risk. Law is too broad.
DISSENT (Gonthier): Wants to read in malevolent or ulterior purposes rel to the
offence to save the legislation.
Rule TEST: Are the means used in the legislation broader than is ness to achieve the
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stated objectives?

Vagueness (Charter challenge):
 Raised under s.7 (life, lib and sec of the person; except in accordance w/ POFJ)
 Vague laws put too much discretion in hands of lawmakers and prevent citizens from knowing that they
are entering an area of risk
 A law is unconst vague if it doesn‟t provide an adeq basis for legal debate
 A law must set an intelligible std both for citizens it governs and those who enforce it
 This provides clear direction for citizens and removes discretionary interp by officials, prevents discrim,
ad hoc ruling, subjective ruling (NS Pharma Society)
 Ppl should be gov by rule of law, not rule of persons
 Judicial decisions add precision to a statute, judges clarify if any uncert exists
 CC must be viewed in context, in an ord sense, and w/ a view to the legislative purpose and intention of
parl
 Result of a lack of suffic precision in the means used to accomplish an objective = not clearly defined
Cdn Fdn for Children, Youth & the Law v Canada (AG) [2004] (SCC), pg 47
Spanking Law, not vague, reading in limitations
Facts Fdn challenges s.43 of CC: “every school teacher, parent, etc, is justified in using
force by way of correction toward a child who is under his care, if the force doesn‟t
exceed what is reasonable under the circumstances”
Issues Vagueness/overbreadth
Is it too vague to allow spanking “by way of correction” and lim to “what is
reasonable under the circumstances”? Too overbroad? (Do these phrases provide
suffic precision to delin the zone of risk and avoid discretionary law enforcement?)
Held Legislation is upheld, ct reads in several limitations on the law. (1) 6-3 s.43
constitutional; 2) 6-2, not too vague; 3) 6, not overly broad; 4) 6-2 no viol of s.15)
Ratio s.43 sets real boundaries and delins a risk zone from crim sanction. It doesn‟t viol the
POFJ that laws must not be vague or arb.
Majority: “Reasonable” is common term in the law, interp practically by judges all
the time. The ct can use it to “rd in” lims such as not spanking children <2, kids w/
disab, or teenages (they wouldn‟t learn from it, so can‟t be by way of correction), and
no using objects. Teachers should be retricted to restraining force, not striking.
Somehow this is all implied in the text of the offence, so its not vague.
DISSENT (Arbour J): Creates too many acquittals where there should be
convictions. Too must discretion. “Reasonable” ult deps on sense of what is approp,
cultural opins, too much variability.
Rule TEST for vagueness: The law must:
1) Be precise enough to give rise to legal debate and analysis.
 Cts must have flex and an interpretive role; lang need not be precise, but must
have std of intelligibility
2) Give fair notice to citizens so they know what conduct will fall under legal
restrictions
3) Put a limitation on law enforcement discretion so as not to allow for a standard
less sweep – where a conviction automatically flows from a charge
4) Delin an area of risk
*Any penal law should be declared unconst if its too vague, POFJ that laws may be
not be too vague.
*Ct can “read in” limitations to clear up vagueness issues, instead of striking law
down.
Note Must not be too vague > citizens must know when they are entering a sphere of crim
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sanction > law enforcers must know when a crime has been committed

Arbitrariness (Charter Challenge):
 Must be arb and disproportionate, irrational (v hard to meet this)
 Probib against pot wasn‟t arb
R v Malmo-Levine
Marijuana laws, the harm principle not pt of the Charter
Facts Pot activist charged w/ possn for purpose of trafficking. Charter challenge to
“marijuana” laws, alleging its against s.7 b/c it is arbitrarily criminalized (opposed to
tobacco which is legal).
Issues Charter, arbitrariness
Are offences that viol the harm principle arb and unconst?
Held There doesn‟t have to be harm present for an act to be criminalized, and thus a
charge of possn doesn‟t viol s.7. Harm principle doesn‟t alone constitute what should
be made criminal.
Ratio There is no legal right to smoke pot. You can‟t strike down a law simply on the basis
that there is no reasonable risk of harm. MJ prohib isn‟t arb or irrat, effects to the A
aren‟t disproportionate. MJ laws don‟t offend s.7 under the provisions that its too
broad (only leave out the issue of med exemption). For something to constitute a
POFJ there must be large consensus, it must be a manageable std and reflect societies
consensus.
Harm principle: states that the state should only interfere when harm to others is
evident.
Malmo tries to say crimes need harm, and tf this charge was unconstitutional
Here the law was not found to be arb, and there is no const right to smoke pot for rec
use.
DISSENT (Arbour J): need harm to criminalize if imprisonment is a sanction – must
be able to show potl conduct of harm to others – majority addresses this w/ suicide –
this is crim but there is no harm to others per se, but the goal is to protect society as a
whole from harming itself.
Rule TEST: Law bears no reln to or is inconsis w/ the objective the lies behind the
legislation.
Something doesn’t need to harm another in order to be criminal.

Procedural Overview:
Procedural classification of offences: 3 types of offences
Offences triable only on indictment:
 Most serious, exclusive juris of Superior Ct of Crim J, no other cts can try these
 Accused can choose mode of trial
 Magistrate can decide that matter should be put before judge and jury (S.555)
 AG may override A‟s decision and compel jury trial if offence punishable by 5+ yrs (s.568)
 Under s.536(2): A will be asked whether to be tried by a provincial ct judge w/out a jury, a judge w/out a
jury or ct w/ judge and jury
 If A doesn‟t choose, will default to judge and jury (s.565(1)(c))
Summary Conviction Offences:
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 Trial before provincial judge w/out a jury and w/out prelim inq
 Max penalty $2000 or 6 mos imprisonment or both
Crown Election Offences:
 Known as hybrid offences
 In some cases the legislation makes the offence punishable on indictment or on summary conviction at
the option of the crown (ie sexual assault, touching vs rape, age of victim will det type of offence
(?????))
 Prosecutor can “judge shop” and go where ct might be more favourable to their case (although noone
admits to this)
 18 mos max for summary conviction
 only when prosecutor elects to proceed by indictment does the A have the choice under s.464
 prosecutor should indic the nature of the proceeding prior to trial
Jury Trials:
 judges role is to instruct the jury, not advise on the case
Evidence:
 cardinal rule of evidence: if its relev to a legal issue (material), and not subject to a discretion to exclude,
it is admissible in ct
 crown has obligations of proving allegations BARD via evidence
 call your own witnesses
 crown usually calls police officers first as witnesses – can‟t suggest answer (via leading questions), must
ask open questions
 at end of this, defence counsel can cross examine – in this you can lead witnesses
 direct evidence: witness used own senses in what they experienced: must be directly relev to the case
 circumstantial evidence: opposite of direct
Presumption of Innocence:
Woolmington v DPP [1935] HL, pg 65
Shoots wife, reverse burden inapprop, presumption of innocence
Facts Guy shoots wife by accident, only meant to scare her, no eyewitness, only
inference/guessing.
Issues Presumption of Innocence
Is it proper to shift the burden of proof to the A?
Held Conviction quashed
Ratio The original conviction was flawed. Shifting the burden was improper. The principle
they tried to follow should only shift the burden when the only facts of the case show
a conscious act causing death and nothing else. The presumption of innocence is a
central precept to crim law, should be v hard to circumvent.
Rule The presumption of innocence is v impt, should he hard to get around if at all.
Note This is old british case, so not the Charter, but the presumption of innocence is
entrenched in the Charter, s.11(d)
The crown must normally prove their case to std of BARD
If there is doubt, then it goes in favour of the accused
Crown has burden of RD, here didn‟t satisfy doubt, tf accused acquitted
Case (CL) lead to presumption of innocence and RD (crown has burden of RD)

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R v W(D) 1991, SCC, pg 72, 81 (in notes)
Jury charge error, only acquit if A is believable, Reasonable doubt
Facts Sexual assault charge. Judge instructed the jury that it turned on whether they
believed the A or the victim. Appealed based on the jury being misled to believe they
had to believe the A to acquit him.
Issues Reasonable doubt
Was it enough of an error to charge the jury this way to overturn the conviction?
Held Jury charge erred, but jury not misled enough to overturn.
Ratio Majority (Cory J): judges should instruct juries of a third option: not believing the A
but remaining unconvinced BA “RD” of his guilt. Offers a boilerplate jury charge.
Still found the jury charge didn‟t suffic mislead the jury to overturn the conviction.
DISSENT (Sopinka, McLachlin): The burden of proof is so fundamental, tampering
like this should trigger a new trial.
Rule The burden of proof is on the Crown to prove BARD that the A is guilty.
TEST for Reasonable Doubt:
1) If you believe evidence of the A, you must acquit (problem: if you believe
evidence, you can still acquit – R v Latimer)
2) If you don’t believe testimony of A, but are left in RD, you must acquit
(problem: even if no evid is believed, there may be an RD of guilt and acquittal
may not happen)
3) Even if you aren’t in doubt by the evid of the A, you must ask yourself
whether, on the basis of evidence you do accept, you are convinced BARD by
the evidence, of the guilt of the A (problem: fails to consider both inculpatory
and exculpatory evidence)
Note Criticisms of W(D):
 seems overly gen to the A
 often results in new trials when judge is using W(D) formula to instruct jury
b/c judge is criticized for how jury is instructed
 juries must be instructed that the burden never shifts from the crown to prove
the D‟s guilt BARD

R v S (J .H.) 2008 SCC 30

Facts 15 yr old told police stepfather sexually abused her since age of 4. She told mother
twice, didn‟t believe her. Daughter and Dad only witnesses, his word against hers.
Dad said she made it up after he threatened to send her to a Catholic school for her
uncontrollable behaviour.
Issues
Held Guilty
Ratio Trial judge suffic explained that RD should be resolved in favour of A, and that even
if they didn‟t accept all testimony, they could accept some of it.
Juries must be instructed that the burden never shifts from the crown to prove the D‟s
guilt BARD.
Judges instructions left jury w/ impression that they had to choose b/w the two
versions of events.
Lack of credibility of the A doesn‟t equate to proof of guilt BARD.
Oland JA: “The charge failed to direct that if the jury didn‟t believe the testimony of
the A but were left in a reasonable doubt by that evid, they must acquit”
Rule

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R v Mullins-J ohnson (2007) (Ont CA), pg 77
Wrongful conviction case
Facts Medical ppl jumped to concl, started to conduct autopsy, then wondered if it was a
child abuse case, so called child abuse expert. Autopsy began at 12:55, inspection of
body didn‟t begin until 4:50. Turns out the signs up child abuse are also normal signs
of death.
Issues
Held Appeal allowed – murder conviction quashed, A acquitted.
Ratio Only 2 verdicts in crim law – guilty and not guilty. No “factually innocent”
Policy reasons for this: concern that determinations and declarations of wrongful
convictions could degrade the meaning of the not guilty verdict. To recog a 3
rd

verdict in the crim trial would create 2 classes of ppl: those found to be factually
innocent and those who benefited from the presumption of innocence and the high
std of proof BARD.
Rule Only 2 verdicts in crim law – guilty and not guilty. No factually innocent.

R v Lifchus [1997] SCC, pg 78
Reasonable doubt in the legal sense is different from ordinary sense
Facts Fraud charge. A was convicted and appealed arguing that the judge instructed the
jury to interpret “reasonable doubt” in the everyday, ord sense of the words” offering
only “you understand” as instructions.
Issues Reasonable doubt
Does the jury need special instructions beyond what was given?
Held Yes – ordered a new trial
Ratio Cory J: The crim law meaning of “RD” may not be the “ord sense” of the word to
everyone. Juries should be applying the law based on the judge‟s instructions, not
making moral judgments. Cory offers a boilerplate charge to use.
Rule Juries must be given specific instructions on the crim law meaning of “RD”.
Don’t give the words “BARD” an everyday meaning.

R v Starr [2000] (SCC), pg 81

Facts A convicted on 2 cts 1
st
deg murder. Majority felt RD instruction fell prey to the
same issues in Lifchus & likely misled jury re content of crim std of proof
Issues Was jury properly instructed on RD?
Held Jury not properly instructed – appeal allowed
Ratio Jury not told how RD is defd (std of proof inc in crim cases than in everyday life,
etc). Less than abs certainty but more than probable guilt is reqd for jury to convict
(and its closer to abs cert than the BoP. RD hard to show via eg. Judge must define
for jury that RD falls b/w absolute certainty and BoP, but closer to abs cert.
Iacobucci reiterates that juries need special instructions.
Rule Reasonable doubt is somewhere less than abs cert, more than probable guilt.
Closer to certainty.

Reverse Onus, Presumption of Innocence, and the Charter
R v Oakes 1986 SCC, pg 83
I got my hash pipe, which doesn’t imply trafficking, no rev onus
Facts Charged under s.8 of NCA, created a rev onus provision (if possn was found, intent
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to traffic was presumed). Oakes was charged w/ posssn, challenged the const of s.8.
Issues Charter, presumption of innocence
Does s.8 viol s.11(d)? (Is a rev onus provision contrary to s.11(d) of Charter?)
Held The law was unconst, struck down. Couldn‟t be saved by s.1.
Ratio Just b/c two offences can be “rationally connected” doesn‟t make it ok to viol the
presumption of innocence in the Charter. It can‟t be proven BARD that he intended
to traffic based on this simple possn.
Rule Rev onuses gen viol the presumption of innocence.
TEST: Oakes Test
1) There must be a pressing and substantial objective
 The objective justifies limiting the relev Charter right
 The objective can’t be fully achieved w/out any govtal action
2) Is the measure rationally connected to the objective?
 The measure isn’t arb
 The measure is likely to further the objective
3) Does the measure lim the rights as little as possible?
 Is the measure likely to further the objective beyond what may be
achieved by using less restrictive measures?
4) Is there a proportionality b/w the infringement and the objective?
 Sharpeaddn: Does the addnl progress towards the objective (comp’d to
the progress achieved by less restrictive means) justify the harsher
limitation of the rights (comp’d to the limitation imposed by the less
restrictive measures)
Note This test was heavily founded in factual analysis so strict adherence isn‟t always
practiced. A deg of overlap is to be expected as there are some factors such as
vagueness, which are to be consid in multiple sections. If the legisln fails any of the
branches, its unconst. Otherwise the law passes & is valid.

R v Downey [1992] SCC, pg 88

Facts A charged w/ living off the avails of a prostitute per s.195 of CC (now 195(2))
Issues Burden of rebutting presumption of guilt put on A in the absence of evid to the
contrary.
Held Anything that puts burden of proof on A viols s.11(d).
Ratio Any rev onus creates an infraction of 11(d). A didn‟t have to prove anything but he
had to produce evid to the contrary of the accusation.
Rule s.11 is infringed when 1) A is liable for conviction despite RD; 2) A is reqd to
prove a BoP; 3) Rational connection is insuffic; 4) Legislation subbing one proof
for another is only ok if one thing leads inexorably to another BARD.
(saved by s.1, though)
Note Coupled w/ presumption of innocence, we don‟t req A to speak (right to remain
silent) (*this isn‟t in our Charter, but if they don‟t have a right to remain silent,
police could torture ppl they arrest, to force them to speak)

Coughlan: “Doubt Mountain” analogy. Crown must push proof beyond the Reasonable Doubt line. (see also pg
10 of crim stuart 1 2008)
Role of the Crim Justice Sys in Cdn Society:
a) Victims Rights:
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 Crim trial is abt det guilt and just punishment of A
 If victims impacted sentencing, wouldn‟t we be opening up idea of getting revenge or delivering
compassion to victims? Also, sentencing would vary for same crime dep on victims and what they ask
for (eg go lightly on him, etc)
 In past, victim put “on trial”, esp w/ sexual assault (if had promiscuous history then consented to present
assault)
 Victim impact statements now mandatory when requested by judge – only come into play after A is
found guilty (most are read by judge, but its discretionary)
 In R v O’Connor, victims rights recog for the first time (SCC, 1996)
 Ct adopted balancing procedure respecting discovery of medical records of possn of 3
rd
parties
 Victims no longer have to expose medical records (they are victims)
 L‟Heuruex-Dube saw need to balance accuseds‟ right to fair trial w/ victims right to privacy (Lamer saw
need to protect victims‟ rights under s.7 and 8) and eq w/out judgment.
 In s.15, eq rights for complainants in sexual assault cases were later asserted by SCC in R v Shearing
(2002)
 S.15 = only const protection for victim‟s privacy and eq interests – apply to sexual assault cases only
 There are not many rights for victims
R v Labaye; R v Kouri (2005) SCC, pg 120
Swinger’s case – legal test for indecency
Facts Owners of swingers clubs were charged w/ keeping a common bawdy house for the
practice of acts of indecency under s.210 of CC
Labaye: meet for grp sex on 3
rd
floor, marked PRIVE, locked w/ key pad, members
only
Kouri: curtain around dance floor
Issues Is operating a sex club criminally indecent?
Held Appeal by A allowed, conviction set aside. Indecency not found as per test below in
both cases.
Ratio **note: add in malmo: malmo was used in Labaye to read down the indecency
reqmts**
Switched from a community std to a harm test.
Community Std of Tolerance Test: Whether the community would tolerate others
acting this way  Majority abandons community std of tol test for indecency in
favour of objectively det harms approach
Labaye:
1(a) of test not satisfied, as patrons fully informed before conduct happened, what
was involved. Owners checked to ensure they were aligned w/ philosophy and knew
what they were getting into. As well, door to apt locked, etc, tf no societal harm.
1(b) of test not satisfied, noone was paid or forced to have sex or treated as an object
or degraded. Participation was voluntary and consentual.
1(c) of test not satisfied, no risk of harm to patrons (STIs not rel to indecency)
DISSENT (Lebel): social norms are against indecency, so the test fails. Can‟t set
community stds of what others would tol (not you or I). Main concern: nothing
wrong w/ community stds of tol test and we shouldn‟t abandon it. Whether there is
consensus or not, communities wouldn‟t tol it, so we should use community stds as a
measure of tol.
Rule Indecency TEST: (purpose is to create a neutral, objective test rather than
leaving it up to local communities to decide, which it too subjective and inconsis)
Indecent crim conduct will be satisfied where Crown proves BARD, both
1) By its nature, conduct causes harm or presents signif risk of harm to others
in a way that undermines or threatens to undermine a value reflected in (and tf
endorsed by) the Constitution or similar fund laws, eg
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 A) confronting members of public w/ conduct that signif interferes w/
their autonomy and lib, or
 B) Predisposing others to anti-social behaviour
 C) Phys or psych harming persons inv in the conduct
2) That the harm or risk of harm is of a deg that is incompatible w/ the proper
fning of society
*The hope is that the test will help ppl det on their own (based on case rulings or
applications of the test) what is crim and what isn’t re sexual conduct
*both 1 and 2 must be present for act to be consid indecent under CC
Note  Legitimizes sex clubs
 Sends msg almost everything is fine behind closed doors
 Legitimizes “swingers” industry in Montreal
 This isn‟t a charter case, not arguing on principles of constitution; rather this
argues on indecency test, old std was whether community would tol other ppl
doing this action (was a lenient test)
Problems w/ above test: too subjective – if principle of harm not workable std, then
this std of tol test is inconsis w/ ruling that can‟t have abs stds

Truths of Criminology – pg 129
Traditional Goals of Sentencing: ???
Roles and Responsibilities of Judges and Lawyers – pg 137
a) The Adversary System – see pg 14-16, Stuart 1_2008

R v RDS [1997] SCC, pg 157

Facts Black 15 yr old male charged w/ offences surrounding interfering w/ arrest of
another youth – thought police were roughing up buddies. Cop and A were only
witnesses and accnts of events differed. Trial judge was black female. At end she
said “cops overreact w/ non-white grps” – this didn‟t accuse this cop, but she said
she was suspicious.
Issues
Held A acquitted
Ratio Police have misled cts and overreacted in the past, and although this was not ness the
case here, she believed A and tf acquitted. Crown appealed citing reasonable
apprehension of bias (judge was black) – new trial ordered and A acquitted in SCC
(rare). Judges should avoid generalizing. There was no evidence to link officers
conduct w/ racial tension b/w black and white – there is gen evid that this may have
been the case, but nothing specific. Although inapprop comments did not give rise to
reasonable app of bias – judge mentioned racism as this is present in her community
and she was merely contextualizing the events.
DISSENT (Major): her comment abt sometimes officers lie and overreact w/ non
whites was saying that she believed this one was too, tf biased based on stereotypes.
For judge to base dsn on gen view and not evid (that there was racism) was an error
of law and new trial should be ordered. Judges can‟t be neutral but should strive for
impartiality and having an open mind.
Rule

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Ethical Obligations of Crown and Defence Counsel – pg 17-18, Stuart 1_2008
The Act Requirement (Actus Reus)
Actus Reus is the principle that there must be a criminal “act” by the accused for there to be a crime.
An act:
1) of commission, or
2) in certain cases only, of omission (where there is a duty to act)
3) by a human being,
4) that is voluntary, and,
5) if consequences are pt of the definition, have caused those conseq (eg causing bodily harm or death)
**if any of these are missing, the A must be acquitted**

Where do you go when you have a crime you‟ve never heard of?
 Look at the section
 Look at def of crime to see what you have to do to commit the crime (act, mentally)
 In most crimes, the conseq of the offence, what happens to the victim, is irrel
 Sometimes the offence penalizes certain conseq (eg murder v assault causing bodily harm)

R v Thorne (2004) NB CA, pg 190
Reading the riot act
Facts A convicted of an offence under s.68(b) of the CC – he “did not peaceably disperse
and depart from a place where the riot proclamation referred to in s.67 was made
w/in 30 mins after it was made” (Riot Act). At trial, the judge ordered the witnesses
to refrain from mentioning the words “for life” and that those same words would be
del from the text of the proclamation to be filed as an exhibit for the jury‟s
consideration. The proclamation read must be in the words ref to in s.67, or words
which have the same meaning and convey the same msg.
Issues A had to be read the Riot Act for charge to stick, as per wording of statute.
Held Acquitted – no proof he was read those words.
Ratio Crown must prove BARD that he failed to peaceably disperse and depart w/in the
provided time frame from a place where the proclamation was made. There can be no
offence under s.68(b) for failing to disperse unless the proclamation was made. If
proclamation wasn‟t made w/ correct words/meaning (ie for life) it can‟t stick. No
evid that proclam was made.
Rule

Teale v Noble (2005) QC SC, pg 195
No evid to satisfy reqmt that she would reoffend if her movement was not restricted – deals w/
possib of commiting future acts, tf effort to ctrl movements thwarted.

COMMISSION OF AN UNLAWFUL ACT (actus reus)
a) Causing Disturbance in a Public Place
Causing disturbance, indecent exhibition, loitering, etc.
175. (1) Every one who
(a) not being in a dwelling-house, causes a disturbance in or near a public place,
(i) by fighting, screaming, shouting, swearing, singing or using insulting or obscene
language,
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(ii) by being drunk, or
(iii) by impeding or molesting other persons,
(b) openly exposes or exhibits an indecent exhibition in a public place,
(c) loiters in a public place and in any way obstructs persons who are in that place, or
(d) disturbs the peace and quiet of the occupants of a dwelling-house by discharging firearms
or by other disorderly conduct in a public place or who, not being an occupant of a dwelling-
house comprised in a particular building or structure, disturbs the peace and quiet of the
occupants of a dwelling-house comprised in the building or structure by discharging firearms
or by other disorderly conduct in any part of a building or structure to which, at the time of
such conduct, the occupants of two or more dwelling-houses comprised in the building or
structure have access as of right or by invitation, express or implied,

is guilty of an offence punishable on summary conviction.

Evidence of peace officer
(2) In the absence of other evidence, or by way of corroboration of other evidence, a summary
conviction court may infer from the evidence of a peace officer relating to the conduct of a person
or persons, whether ascertained or not, that a disturbance described in paragraph (1)(a) or (d) or
an obstruction described in paragraph (1)(c) was caused or occurred.

R v Lohnes [1992] SCC
Yelling obsenities, Rules for Actus Reus, causing public disturbance
Facts A yells obscenities at neighbour, N complains to cops, A charged s.175(1)(a)
Issues Actus reus
What is the actus reus for causing a public disturbance?
Held Offence reqs externally manifested disturbance in or near public place
Ratio Look at three things to determine actus reus:
1) Perspective of authorities
2) Statutory Construction
3) Underlying policy issues
Shouting obsenities hasn‟t led to convictions in most cases. In R v. D.(C.) A
ramming his car repeatedly into another car and shouting was not a disturbance.
Enumerated conduct must cause an overtly manifested disturbance constituting
interference with ordinary and customary use by the public of the public place. Must
“disturb” regular public use of the place, not just an emotional disturbance
Rule For actus reus look at: authorities, statute, policy issues
Actus reus for public disturbance reqs an overtly manifested public disturbance
interfering w/ regular public use of the public place.
TEST: Whether the affect of the conduct was such as to interfere w/ the
ordinary and customary use of the premises at the time & place in ?.
TEST of Disturbance:
1) Did the accused commit the act?
2) Was there a disturbance to the public?

b) Deeming provisions (pg 203, Oct 12 notes):
 The task of the crown in proving that a partic element is met is sometimes made easier by presence of
“deeming” provision in CC
 Relates more to evidence matters
 Eg crime called break and enter – but don‟t actually have to “break” to commit
 Are deeming intent to have been proved – evidentiary assist
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c) Vicarious Liability (pg 204, Oct 12 notes):
 One person automatically responsible for the wrongdoing of another, solely on the basis of a relnshp b/w
the parties, irrespective of whether that person was at fault or even acted
 In tort, employer is responsible for employees conduct (master/servant)
 Vicar liab rarely used in crim law since purpose is punishment not compensation
R v Burt (1985) Sask QB, pg 204
Vicarious liability
Facts Owner of truck liab for actions of other ppl who drive his truck
Issues
Held Vicar liab under Sask Vehicles Act struck down as it‟s a viol of actus reus, tf
unconst. In addn, there was no thought (mens rea), so unconsti in this regard as well.
Ratio Violates POFJ – person not punished absent a wrongful act – tf viols s.7. Not saved
by s.1 b/c purpose is to coerce owner to say who was driving, but effect is to hold
owner responsible – out of proportion.
Rule

Possession Offences: (possession class exercise, Oct 14 notes)
S4:
Possession
(3) For the purposes of this Act,
(a) a person has anything in possession 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.

Marshall v R [1969] (Alta CA), pg 209
Road trip w/ pot in car
Facts Kid in car charged w/ unlawful possn of a narcotic (mj) for the purposes of
trafficking, contrary to provisions in s.4 ss.2 of NCA.
Issues Actus reus
What constitutes possn? Ctrl, knowledge, or consent? (Did M consent to the presence
of the pot in the car?)
Held Acquitted b/c although he had knowledge, had no ctrl or consent.
Ratio A main element of possn under s.3(4)(b) is consent. Marshall had knowledge of the
presence of the mj but no ctrl, right to ctrl, nor did he consent to the presence. He
passed pipe, tf touched it, ie ctrl. Was seen as reflex and not ctrl. Not informing the
police is ok b/c he had no legal oblig to do so.
Rule Possession reqs consent and ctrl of the prohib thing. Knowledge isn’t enough.
Passing along a pipe/joint is borderline, but ok.
Must have ACTIVE consent.

R v Terrence [1983] SCC, pg 212 Possn reqs knowledge, consent & ctrl (joint possn)
Stolen car joyride, A didn’t know it was stolen; knowledge and consent.
Facts A went for a ride w/ a friend in a stolen car.
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Issues Actus Reus
If A says he didn‟t know the car was stolen, can there be “possession”?
Held Not guilty. Didn‟t have knowledge of consent to riding in a “stolen” car.
Ratio Must have knowledge of the nature of the substance. A must have some measure of
ctrl. A must have consented (this is presumed by ctrl), rev onus on A to prove that
substance was there w/out his consent. (note: Marshall, consented to ride but not to
possn of pot, had no ctrl over it being there and had no practical alternative).
Knowledge and consent are the key elements of estab joint possn. Neither of these
was proven.
Rule Joint possn reqs proof of knowledge and consent. A must have some measure of
ctrl.

R v Pham [2005] (Ont CA), pg 216 CONSTRUCTIVE POSSESSION
Cocaine in shared apt, A not around, but mixed in w/ her toiletries.
Facts A and Lieng Van Nguyen jointly charged w/ possn of cocaine for purposes of
trafficking contrary to s.5(2) of the Ctrled Drugs and Substances Act
Issues Actus reus
If large amts of cocaine found in an apt you jointly reside in, is that enough to prove
ctrl, consent for joint possn? (do you need direct evidence for possn?)
Held A convicted based on circumstantial evidence.
Ratio Can use circumstantial evid to infer possn (infer knowledge, consent, ctrl). It isn‟t
essential that there be evidence of the A‟s knowledge of the presence of narcotics, it
may be estab by circumstantial evidence (R v Sparling).
Majority (Ritchie): Even w/ a RD that the drugs found could have been moved into
apt after A left, there is enough other evid to suggest that she consented and ctrled a
drug trafficking scheme from the apt, dating to before Nguyen lived there. The drugs
were in a common area of the apt, mixed in w/ her toiletries in the bathroom. Ample
evid to draw inference of requisite knowledge & ctrl to constitute constructive possn
either personally or jointly. Agreed that if possn was estab, if was possn for the
purpose of trafficking.
DISSENT (McMurtry): There is enough RD that A even knew abt the specific drugs
in question to rule that she didn‟t legally possess them.
Rule Ctrl and consent can be inferred from other evidence, doesn’t necessarily even
have to relate to the specific drugs found.

R v Chalk (2007) (Ont CA), pg 223

Facts Accused of possessing child porn, contrary to s.163.1(4) of CC. Videos found on
home PC. A admitted to looking at alone and w/ gf, but didn‟t intend to DL. Told gf
to delete after arrest b/c he knew comp would be investigated.
Issues What constitutes possn?
Held Conviction upheld.
Ratio This case isn‟t innocent possn. A knew abt porn on comp for mos and could have
deleted it at any time (had ctrl over comp and used it over the mos). Deleted files in
the end for fear of getting caught.
Rule Knowledge (of crim character of action) + ctrl over action = estabs possn.

e) Consent making Act Lawful (pg 226, Oct 19 notes)
R v J obidan [1991] SCC, pg 226
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Bar fight – can’t consent to assault causing serious hurt or non-trivial bodily harm
Facts Guy dies in bar fight. Rendered unconc and later blows kill him. A charged w/
manslaughter.
Issues Actus reus, consent
Can one consent to assault to oneself?
Held Guilty, convicted of manslaughter.
Ratio No one can consent to an assault that intentionally causes “serious hurt or non triv
bodily harm, in the course of a fist fight or brawl”. Noone can consent to being
beaten badly or killed. (A minor can‟t consent to an adults intentional application of
force in a fight. Doesn‟t apply to sports so long as intentional applications of force
consented to are w/in the customary norms and rules of the game). Consent it pt of
the actus reus for assault in the sence that the act reqs a lack of consent. Tf consent
can be used to negate the actus reus and defend against a conviction. However there
are policy based lims.
Rule Can’t consent to assault causing serious hurt or non-trivial bodily harm.
When someone actually consents to something, can be vitiated for policy
reasons.

Bolduc and Bird v R [1967] SCC, pg 238
Dr convinces patient that friend is a med student, is actually a pervert
Facts Patient consents to Bird watching a procedure as Dr told her he was a student.
Charge: Indecent assault contrary to the provisions of s.141
s.244: a person commits an assault when, w/out the consent of another person, or w/
consent, where it is obtained by fraud a) he applies force intentionally to the person
of the other, directly or indir (force may be mere touching)
s.141(2): An A who is charged w/ an offence under ss1 may be convicted if the
evidence estabs that A did anything to the female person w/ her consent that, but for
her consent, would have been an indecent assault, if her consent was obtained by
false and fraudulent reps as to the nature & quality of the act.
Issues Actus reus, consent
Does getting fraudul consent for another party to watch make it indec asslt?
Held No indecent assault.
Ratio A‟s actions may have been unethical, but it wasn‟t unlawful. Consent was reqd only
so far is it rel to the application of force. Bird just watched. (Note: CC was revised in
1983 to incl “exercise of authority”, likely would have made this a conviction)
Rule The fraud must be connected to the nature and quality of the act to elim
consent. Consent for assault only rels to the application of force (or now, the
exercise of authority).

R v Cuerrier [1998] SCC, pg 243
Didn’t disclose HIV, unprotected sex, signif risk of serious bodily harm
Facts A had HIV and had unprotected sex w/ 2 partners w/out disclosing. Charged w/
assault.
Issues Actus reus
Was the consent negated/vitiated b/c it was obtained fraudulently?
Held Convicted
Ratio In order for fraud to vitiate consent, it must go to the nature and quality of the act
(Bolduc). For fraud to vitiate consent in case of assault, must estab beyond a RD both
that: a) a complainant only consented to the physical contact by reason of the
deception, and b) that the deception was employed w/ the knowledge and intention of
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inducing the submission of the complainant. Tf, no longer needs to only relate to the
“nature and quality of the act”. If the fraud leads to signif risk of serious harm, then
yes it negates the consent (Cory). Any deceit which deprives autonomous choice
(L‟H-D). STD w/ high risk of infecting complainant (McLachlin)
Rule If fraud leads to signif risk of serious harm, then it negates any consent and
could lead to assault conviction.

R v Williams 2003 SCC, pg 249
Refining Cuerrier, HIV diagnosed after unprotected sex, no assault.
Facts A didn‟t disclose HIV to his girlfriend of 18 months after finding out in the middle of
the relationship. He found out 5 months in, they already were having unprotected
sex. She got infected but it could have happened before he knew. Aggravated
assault?
Issues Actus reus, consent
Does this negate the consent if the knowledge of HIV comes after the act?
Held Act can‟t exist w/out presence of mens rea and actus reus at same time. (No)
Ratio Refines Cuerrier rule: Actus reus must be simultaneous w/ mens rea. In this case
there was an endangering act w/ no knowledge, then knowledge w/ no endangering
act b/c she could already have been infected.
Rule Knowledge must come simultaneously w/ the act for consent to be vitiated by
fraud.

De Minimis Non Curat Lex – pg 253
 a common law principle whereby the judges will not sit in judgement of extremely minor transgressions
of the law
 view of Arbour in Cdn Fdn case: de minimis doesn‟t mean that the act is justified; it remains unlawful
but on account of triviality goes unpunished
 in Cdn Fdn, Mclachlan didn‟t deny existence of de minimis doctrine, said it was “equally or more vague
and difficult in application than the reasonableness defence offered in s.43
R v Kubassek (2004) (Ont CA), pg 254

Facts Kubassek charged with assault, was a strong opposer of same sex marriage, went to a
church, starting quoting scripture, etc, was escorted out by security screaming and
throwing pamphlets, pushed Reverend. Trial judge dismissed charge on the de
minimis principle: the law doesn‟t concern itself w/ trifles
Issues Does the de minimis principle provide a defence to a crim charge? Can it be used in
this case?
Held Appeal allowed, Kubassek convicted of assault
Ratio CA assumed de minimus to be a defence (SCC hasn‟t decided on this issue), but the
facts of this case don‟t fall w/in the ambit of the defence. Kubassek‟s conduct wasn‟t
trivial, she pushed him in a location that could have caused him harm, she chose to
come to the church and do everything she did. Tf can‟t be characterized as an
“irregularity of v slight conseq … a mere trifle, which, if contd in practice, would
weigh little or nothing on the public interest”.
Rule To fall w/in de minimis, conduct should be an “irregularity of v slight conseq …
a mere trifle, which, if contd in practice, would weigh little or nothing on the
public interest”

R v Carson (2004) (Ont CA)
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De minimis has no application to cases inv force or domestic violence.

Omissions

Omission is a legal duty to act. For an omission to be an Actus Reus, it makes it criminal to not do something.
Generally omissions are not criminal acts, but sometimes statute makes it one. Omission only an offence where:
 Criminal Code explicitly creates a duty
 Wording broad enough to include omission
 Common law duty

Moral and Legal Duties
How do legal duties arise?
 There is only crim responsibility in the face of a legal duty to act
 Such duties can arise in legislation:
Duty of persons to provide necessaries
215. (1) Every one is under a legal duty
(a) as a parent, foster parent, guardian or head of a family, to provide necessaries of life for a
child under the age of sixteen years;
(b) to provide necessaries of life to their spouse or common-law partner; and
(c) to provide necessaries of life to a person under his charge if that person
(i) is unable, by reason of detention, age, illness, mental disorder or other cause, to
withdraw himself from that charge, and
(ii) is unable to provide himself with necessaries of life.

Duty of persons undertaking acts dangerous to life
216. Every one who undertakes to administer surgical or medical treatment to another person
or to do any other lawful act that may endanger the life of another person is, except in cases of
necessity, under a legal duty to have and to use reasonable knowledge, skill and care in so doing.

Duty of persons undertaking acts
217. Every one who undertakes to do an act is under a legal duty to do it if an omission to do
the act is or may be dangerous to life.

What is an omission? – 2 reqmts for guilt:
1) The offence must allow for an omission (eg murder by not feeding a baby)
2) There must have been a legal duty to act (Moore v R: CL, prov statute, fed statute)

Fagan v Commissioner of Metropolitan Police [1968] (CA) (Identifying an omission)

Facts Charged w/ assaulting police officer, drove on foot, takes his time getting off.
Issues Actus reus
Is this a continuing act? Or an omission? (Can failing to drive off foot be actus reus
for assault?)
Held Convicted of assault
Ratio It isn‟t ness that mens rea be present at the start of the actus reus (though at some pt
they must be concurrent). The actus reus was constituted by driving onto the foot and
leaving it there, the mens rea came afterwards when he intentionally let it rest there
before moving it. Not a mere omission but an overt act w/ intention to cause harm.
DISSENT (Bridge): allowing the wheel to remain on the foot was just an omission,
no act, no offence
Rule An omission can be construed to be an intentional act as pt of a seq of events
linked together. Usually omissions not actus reus.
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An omission to act can’t be a crime unless there is a legal duty to act.
Note Gen CL tradition, v reluctant to have crim responsibility for doing nothing.
Under English CL can‟t convict someone on an omission, but can convict for assault.
Basis for this: act and mens rea occurred at the same time, can superimpose them,
when knew was on officers foot, kept it there, at that pt has actus reus and mens rea
at the same time.
Pare: indecent assault, whether it was in the course of committing the indecent
assault that the murder took place, in Cdn context, can‟t artificially segment it, have
to look at the course of the conduct

How do legal duties arise?
 Mens rea and actus reus don‟t have to be at precisely the same time (Fagan)
 Where you cause crim events and become aware, you have a duty to act (Miller)
 Cop under legal duty to enforce laws, tf must cooperate, or obstruction (Moore)
 Can only charge w/ obstruction when A viols cops statutory authority (Hayes)
 CL duty to refrain from conduct that‟s reasonably foreseeably harmful (Thornton)
 Wide reading of s.216 (Thornton)
 Undertaking must be clear, verbal commitment not enough (Brown)
R v Miller [1983] (HL)

Facts Man drunkenly & mistakenly starts fire, woke up, saw it, went to other room
Issues Actus reus
Is it arson to not put out a flaming mattress that you unintentionally lit?
Held Guilty
Ratio Where you are the cause of criminal events, and you become aware, you have a legal
duty to act. A is guilty if, when he does become aware that the events have happened
as a result of his own act, he doesn‟t try to prevent it or reduce the risk of damage by
his own efforts or if ness, by sending for help.
Trial: conviction b/c he had a “duty” to stop fire once aware. This is contrary to
principle that omissions aren‟t actus reus.
CA: held that whole seq was a “continuous act” (similar to Fagan)
HL: preferred “duty” approach, but would reword it to a “responsibility”
Rule When you cause criminal events, and become aware, you have a duty to act.
(Sometimes the ct can turn an omission into actus reus by inferring a
“responsibility” to do something like put out your flaming mattress).

Moore v R [1979] SCC, pg 271 (Leading case)

Facts Moore, on bike, goes through red, stopped by cop, won‟t give address (omits).
Charged w/ unlawfully and willfully obstructing a Peace Officer under CC.
Issues Actus reus, omissions
Can this stat omission provision by applied to bike riders?
Held Not convicted of Motor Vehicle Act offence, but guilty under CC.
Ratio Majority: The A was seen committing the offence by the officer, that gives him
authority to demand A‟s name, and he has a duty to answer. Although bike doesn‟t
meet descrip of motor vehicle, cop under legal duty to enforce laws, tf Moore under
duty to give name, otherwise obstruction. Implicit duty.
DISSENT: Moore was under no oblig to give name. There is no CL to id to police
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(Rice v Connolly) or stat duty, tf no duty. Duties can‟t be implied, must be derived
from CL or stat. The duty of a cop to ID someone they see committing a crime
doesn‟t infer a duty on A to self-ID.
Rule Duties are derived from CL, provincial and federal statutes.
If an cop sees you committing an offence, have you give them your name.

R v Thornton (1991) (Ont CA), pg 279, Oct 26, Authority for CL duties

Facts Knowingly donates blood that is HIV+. Charged w/ committing a common nuisance
contrary to s.180 of CC. Two agmts: failed to discharge duty to take reasonable care
inv w/ a med procedure (CL duty), OR, he committed an unlawful act by donating
blood he knew was HIV+.
Common nuisance
180. (1) Every one who commits a common nuisance who does an unlawful act or
fails to discharge a legal duty and thereby (THE DEFN RECOGNIZES THE
OMISSION)
(a) endangers the lives, safety or health of the public, or
(b) causes physical injury to any person,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding
two years.
(note: is this an act of commission or omission? Stuart thinks its commission)
Issues Actus reus, omissions
Can a legal duty arise at CL or must it be found in a statute? Is there a legal duty
arising at CL, the breach of which would const an offence under s.180?
Held Guilty (stat duty is always preferable)
Ratio Followed R v Coyne (NB) that said a “duty imposed by law” could be CL. Imposing
a tort-style “DOC”, they rule that A had a duty not to foreseeably cause risk of injury
to neighbours, which he breached.
Rule CL duty to refrain from conduct which one foresees could cause serious harm to
another person.

R v Thornton (1993) (SCC), pg 280, Oct 26 notes

Ratio S.216 imposed upon the [A] a DOC in giving his blood to the Red Cross. This DOC
was breached by not disclosing that his blood contained HIV AB. This common
nuisance obv endangered the life, safety and health of the public.
Rule “Legal duty” in crim law should always be a stat duty, not CL
Note Are opposed to finding a CL duty, they use statute.
Never actually said CA was wrong – we can use both.

R v Hayes (2003) (Ont CA), pg 283

Facts Biker stopped at roadblock, asked to remove helmet so police could check for safety
sticker. A refused and was charged w/ obstructing a peace officer.
Issues
Held Acquitted
Ratio Fine is the punishment for failing to submit to search under HTA - this is the
measure the legislature puts into place, not arrests (if A had interfered w/ officer
writing ticket, this would satisfy obstruction charge). S.216 of HTA requires him to
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stop upon request, which he did.
Rule Police can only charge w/ obstruction when the A viols the cops stat auth

R v Browne (1997) (Ont CA, leave to appeal, SCC, refused), pg 290

Facts Dealers, deceased swallowed bag of coke to conceal from cops. A found her shaking,
she was dead when they arrived at the hospital. He was charged w/ crim neg. He
failed to render assis by failing to take her immed to hosp after undertaking to render
such assis and tf caused her death.
Issues Actus reus, omissions, crim neg
Did A commence an “undertaking” creating a legal duty to rescue?
Held No undertaking, no duty, no offence, acquittal
Ratio Trial judge deemed “I‟ll take you to the hospital” as undertaking, tf duty to care for
her. Ont CA held this wasn‟t an undertaking under s.217.
“Undertaking” must be interp in context that max pen is life imprisonment.
Threshold should be equally serious. Their relnshp didn‟t create any understanding
that he would always take her to hosp if something happened. Evid doesn‟t disclose
“undertaking” of a binding nature.
Rule Crim neg reqs a serious breach of a DOC, an undertaking clearly made w/
binding intent.

R v Peterson [2005] (Ont CA, leave to appeal, SCC, refused), pg 293

Facts Man let father live in squalor, didn‟t feed him or get him med attn. A was charged w/
failing to provide the ness of life to father, tf endangering his life.
Issues
Held Conviction upheld, 6 mos in jail
Ratio When a parent is under the charge of a child thereby req‟ing the child to provide
necessaries of life to that parent under s.215 of CC.
When det charge, consider:
 the relnship of the parties to each other
 the rel posns of the parties and their abil to understand and appreciate their
circumstances
 whether one person has explicitly assumed responsibility for another
Rule


Voluntariness
a) Defining conduct that is not “voluntary”
 There can be no actus reus unless it is the result of a willing mind at lib to make a definite choice or
decision (R v King, [1962] SCC)
 Automatism: a state of impaired consciousness, no voluntary ctrl over action (R v Rabey, [1980] SCC)
 Voluntariness is the key legal element of automatistic behaviour since a defence of automatism amts to a
denial of the voluntariness component of the actus reus (R v Stone, [1999] SCC)
c) Examples not assoc w/ mental disorder
23
R v Lucki (1955) (Sask. Pol. Ct.), pg 312

Facts Operating a motor vehicle, Lucki skidded on ice, and failed to keep to the right side
of the highway, inconvenieved other ppl on the highway, contrary to s.125(9) of Sask
Vehicles Act.
Issues
Held Not guilty
Ratio A person who by an invol act for which he is not to blame gets onto the wrong
side of the road is not guilty under the s. in question. If mens rea wasn‟t an
essential ingred of the offence, he would be guilty b/c he drove on wrong side.
Rule

R v Wolfe (1975) (Ont CA), pg 313

Facts Guy getting punched turned around w/ phone as reflex and whacked the guy.
Charged w/ assault causing bodily harm.
Issues
Held Acquitted
Ratio Trial judge regarded the action of the A as being a reflex action. Some intent is ness
in an assault causing bodily harm.
Rule

R v Swaby (2001) (Ont CA), pg 314

Facts Police followed car, car pulled over, J ran into backyard where the cops later found a
loaded unreg, restricted handgun. J claimed the gun was the A‟s and the A gave it to
him to dispose of; the A said the gun was J‟s and he didn‟t know abt it till arrested.
Issues
Held Acquitted
Ratio To estab guilt on this accnt, the crown had to prove the coincidence of the 2 essential
elements of the offence as defd by s.91(3):
1) occupancy of the vehicle
2) appellants knowledge of the weapon
Act must be voluntary for there to be “actus reus” – if A only learned of gun while
driving, actus reus doesn‟t instantly kick in. If A reacts after he learns of gun, then
there is no voluntary act of mens rea. A claims no knowledge of gun until J left car.
The act must be the voluntary act of the A for the actus reus to exist. If the driver acts
w/ approp dispatch to either get the gun or himself out of the car, there is no
voluntary act for the crim law to punish. You can‟t be forced into voluntary sitns –
must allow for reaction time.
Rule Not guilty at instantaneous moment of knowledge, need time to leave sitn

R v Ryan (1967) (Aus HC), pg 316

Facts Man robbed a gas station. When he tried to tie the attendant‟s hands, the attendant
made a sudden movement, gun accidentally discharged, killed him.
Issues
Held Guilty – was voluntary (failed involuntary reflex defence)
Ratio This fully conscious man has put himself into the sitn where he has a loaded an
24
cocked gun pted at someone w/ his finger on the trigger. That he would be startled
and pull the trigger is a foreseeable conseq of his acts and is tf voluntary.
Rule Reflex actions not defence when A consciously put himself in sitn where act
resulted in death. Look to the probable and foreseeable conseq of prior acts.

Kilbride v Lake [1962] (NZLR SC), pg 318

Facts Man parked his car dt. When he got back, had ticket for failing to display a current
warrant of fitness. The valid warrant was there when he left, and was lost or stolen.
Offence was of strict liab, tf he was guilty, no mens rea needed.
Issues
Held Conviction quashed
Ratio Omission to put sticker on was involuntary since he didn‟t know it was gone.
A person can‟t be convicted of a crime unless he has committed an overt act prohib
by the law, or has made default in doing something at which there was a legal oblig
for him to do. The act or omission must be voluntary. No liab for 3
rd
party
interventions beyond your ctrl. Couldn‟t have acted any differently.
Rule If unable to act differently, no voluntary act
If there is an absolute prohib, and the prohib act is done then the abs of mens
rea affords no defence. Justification: general public interest, any consequential
injustice which might seem to follow in indivi cases has necessarily been
accepted.

Acting through Innocent Agent
R v Michael (1840) UK Case, pg 323

Facts A asked nanny to administer known poison to her child. Nanny refused but child of
nanny did accidentally. Baby died.
Issues
Held A guilty of murder.
Ratio Even though she gave poison to nanny, it is she who is guilty of murder, and just
used nanny as an agent to commit the act.
Innocent agent: someone who, had it not been for person (A), would not have
committed the crime.
Rule Where a person (A) attempts or achieves a result through an innocent agent (B),
it is as if that person (A) committed the act causing the result itself.

Causation
 Actus reus for some offences reqs proof that the prohib act/omission actually caused certain conseq
 Eg. For homicide you must actually cause the death of a person
 Div into factual causation (whether A caused B, from evidence) and legal causation (policy based, how
far should causation go), both must be proven
Smithers v R [1978] (SCC), pg 326
Hockey player kicks other kid in gut, malfning epiglottis, thin skull
Facts Fight after game (racially motivated). A kicked deceased in the gut. Autopsy: death
due to aspiration of foreign materials present from vomiting (rare).
Issues Actus reus, causation
25
How certain must causation be? What if the A has precond u/k to A making them
more vulnerable?
Held Conviction upheld (Guilty)
Ratio 1) Where two or more causes combine to produce the result, we don‟t have to decide
which caused it. There is contributing cause outside the de min range.
2) Thin skull rule: take your victim as you find them – phys vulnerability of malfning
epiglottis doesn‟t break chain of causation.
3) Causation is det by the jury, they don‟t have to listen to experts – Law of
causation in favour of Crown.
Rule Smithers TEST for causation for manslaughter: contributing cause outside the
de minimis range.
Thin skull: take your victim as they come. Preconditions irrelevant.

R v Blaue [1975] (CA) English case (Thin skull rule)

Facts A entered home of deceased asking for sex, when she refused he stabbed her 4x. At
hosp she refused operation and blood transfusion. Was against religion as Jehovah‟s
witness. Died.
Issues Actus reus, causation
Was the refusal of blood transfusion a break in the chain of causation? (What caused
death? Stab wound, or refusal of blood transfusion?
Held Guilty, conviction of manslaughter upheld.
Ratio Principle that those who use violence on other ppl must take their victim as they find
them – not just the physical aspect. The q for decision is what caused her death. The
stab wound was still the operative cause of death. Law doesn’t req a fatally
wounded person to mitigate their injuries. Can‟t be argued that refusal was
unreasonable. No break in the causal chain b/w stabbing and death.
Rule Must be a signif break in the causal chain to negate the operative cause.
Religious observance can be a thin skull.

R v Harbottle[1993] SCC, pg 336 (1
st
Degree murder – Substantial Cause)

Facts A and friend confined a woman, A watched while friend raped her. A held her feet
while he strangled her. Charged w/ 1
st
deg murder.
Issues Actus reus, causation.
Whether the A‟s participation was such that he could be found guilty of 1
st
deg
murder pursuant to s.214(5).
Held Convicted of 1
st
deg murder. A was a party to the murder while participating in her
forcible confinement and assault.
Ratio Substantial causation (Harbottle) Test: A must have played an active, usually phys
role in the killing, a substantial integ pt. A higher reqmt than Smithers test (only
manslaughter). A should be found guilty if participating in a substantial way, or if
death was pt of a transaction inv domination as a series of events A was pt of.
Rule Substantial Cause TEST for 1
st
Deg Murder: A must play an active, substantial,
integral role in the killing to have been a party to the offence of murder (1
st
deg)
Crown must prove that A has committed an act of such a nature that it must be
regarded as substantial and integ cause of the death. Conseqs of conviction for 1
st
deg
murder and the wording of the s. are such that the test of causation for s.214(5) must
be a strict one.
A may be found guilty of 1
st
Deg murder if the crown has estab BARD:
26
1) The A was guilty of the underlying crime of domination or of attempting to
commit that crime;
2) The A was guilty of the murder of the victim;
3) The A participated in the murder in such a manner that he was a substantial cause
of the death of the victim;
4) There was no intervening act of another which resulted in the A no longer being
substantially connected to the death of the victim; and
5) The crimes of dom and murder were pt of the same transaction; that is to say, the
death was caused while committing the offence of dom as pt of the same series of
events.

R v Nette [2001] (SCC), pg 338 (2
nd
Deg Murder: Significant Contributing Cause)
**Controlling authority on causation** (LEADING CASE)
Facts 95 yr old victim was robbed, bound, clothes tied around head and left on bed. Died of
asphyxiation due to upper airway obstruction.
Issues Actus reus, causation
Was there legal causation?
Held Guilty of 2
nd
deg murder
Ratio Factual causation: concerned w/ an inq abt how the victim came to his death in a
medical, mechanical or phys sense, and w/ the contribution of the A.
Legal causation: concerned w/ the q of whether the A should be held responsible in
law for the death.
The starting pt in the chain of causation is an unlawful act. Seeks to attibute the
prohib conseq to an act of the A.
Majority (Arbour): Harbottle didn‟t change the std, only made sure 3
rd
parties were
instrumental. Std is still de minimis for homicide. Should be expressed to jury in pos
terms (signif contributing cause) vs neg (not insignificant).
DISSENT (L‟H-D): This changes the std. Not insignif isn‟t the same as signif.
Thinks its being too soft.
Rule Arbour changes Smithers test (manslaughter) to apply to 2
nd
deg murder:
significant contributing cause (from contributing cause outside de mini)

R v Talbot (2007) (Ont CA), pg 346 (LEADING CASE IN ONTARIO)

Facts Fight outside restaurant, at least one party died as a result of the fight.
Issues Whether the initial blow or subsequent kick caused the death.
Held A acquitted. There was no evidentiary foundation for the kick being the significant
cause of death.
Ratio Factual causation: physical or medical cause of death (if victim wouldn‟t have died
but-for the actions of the A, causation is estab (Nette)
Legal causation: normative inquiry; who among those that caused factual death
should be held legally responsible for death
Juries asked to consider legal and factual causation together (Nette)
**this reconciles the use of both Netteand Smithers**
Did A‟s actions significantly contributeto the death? (this way we can combine
factual and legal causation per Nette)
Contributing cause can be that which exacerbates existing condition and thereby
accels death.
If crown sought to rely on the kick as contributing cause of death, it had to prove
BARD that kick was contributing cause w/in the meaning of Nette (significantly
27
contributed).
Rule TEST for legal causation of a “significant contributing cause”
Note V clarifying judgment, looks at Nette and recogs that causation has factual and legal
component (but-for answers factual)

Note: Smithers and Nette tests can sometimes apply to non-homicide sitns
R v F. (D.L.) (1989) (Alta CA), pg 348

Facts A charged w/ dangerous driving causing bodily harm. Found to have bld alc above
legal lim, no glasses, and hit jaywalker. Trial judge acquitted b/c found that it wasn‟t
the elements of dangerous driving, but his failure to see the jaywalker due to a
moments inattn that caused him to hit the guy.
Issues Actus reus, causation
What is the approp std? Is it “beyond de minimis”?
Held Yes it is, reversed trial decision and convicted.
Ratio McClung doesn‟t like Smithers rule b/c it has potl to ensnare substantially blameless
ppl, but he must apply it. The dangerous driving was proven w/in CC defn, and it
was beyond de minimis, so he must be convicted.
Rule For McClung the cause should be “real and truly contributing”

R v Smith [1959] (Cts.-Man. App. Ct.), pg 351
Soldier stabbed in lung, dropped twice, bad treatment, stab still cause
Facts A was ct marshaled for murdering another private. Stabbed him in neck and back
during a fight. Others tried to carry him to medics, dropped him 2x along way, he
received poor treatmt that could have impeded his chance of healing. Had 75%
chance of recovery if not dropped or treated poorly.
Issues Actus reus, intervening cause
If intervening events dec chance of recovery, is the original assailant still the cause of
death?
Held Yes, convicted
Ratio Similar to Blaue. To break the chain of causation it must be shown that there is
something ultroneous, something unwarrantable, a new cause that disturbs the seq of
events, something which can be desc as either unreasonable, or extraneous or
extrinsic.
Rule Breaking the chain of causation reqs something drastic, rendering the original
act not a cause. If act is still an operating and substantial cause at time of death,
still liable.

The Queen v Bingapore (1974-5) (S. Aus. S.C.), pg 354
Head injury, leaves hospital against advice, dies, causation chain not broken
Facts Man severely wounded to the head by A, bleeding. Taken to hosp, operated on and
warned of severe risk of leaving hosp, still left. W/in 6 hrs, was back, hemorrhaging
and died.
Issues Actus reus, intervening cause
If someone knowingly puts themselves at risk and an existing injury deteriorates,
causes death, does that break the chain of causation?
Held No, convicted
Ratio The original act causing injury doesn‟t cease to be the causative act b/c the victim
28
acts to his own detriment or some 3
rd
party is negligent.
Rule Negligence, acting to ones own detriment, doesn’t brk chain of causation.

R v Menezes (2002) (Ont SCJ), pg 355
Speed racers, liable for other participants injuries only during the race.
Facts A charged w/ crim neg causing death. A was in street race w/ D, admits to hacking
and playing w/ him. At one pt, A dropped back, ended the race, but D sped ahead at
same high speed and struck pole.
Issues Actus reus
To what extent does the other driver in race neg cause death to other driver?
Held Acquitted, only while the race is still going on.
Ratio Cts have held street racers in car B liab for car A hitting a non participant (R v
Rotundo), the drivers of car A and B liab for the death/injury of passengers in car B
as well. Only makes sense that if driver B killed in race, driver A is liab.
Distinguished: the evid shows that time elapsed after A slowed down, dropped back
for D to know race over. Continuing speed was an indep action, causation is thus
w/in RD.
Rule Street racers liab for death/injury of other co-participants, but only during the
race.

Mens Rea: The Fault Requirement
Mens rea is another essential element to any crim offence. Where actus reus is the phys prohib act, mens rea is
the mental element.
Subjective/Objective Distinction
 SCC accepts that there should be a clear distinction b/w the subjective std of whether the A was actually
aware of a risk, and the objective std of whether the A failed to measure up to the external std of the
reasonable person.
 Subjective std: all of the A‟s indiv factors are taken into accnt
 Objective (tougher since Creighton): no personal factors such as age, race, pov gender or experience can
be taken into accnt except where they rel to incapacity
 A low level objective std is pervasive for public welfare offences
 The subjective approach is still reqd for most crimes, but for a signif amt, there are now less demanding
stds of fault
R v Hundal [1993] (SCC)

Facts Dangerous driving charge.
Issues Fault reqmt for crime of dangerous driving, how to det mens rea?
Held Objective std for dangerous driving of a marked departure from the norm
Note Subjective TEST – diff from “reasonable person” test in negligence. Reqs drawing
inferences from the actions, words at the time of the act, or in the witness box to det
state of mind. The Std test for mens rea.
 Must consider all the evid relev to the fact (A‟s belief) at issue
 Can draw inferences from A‟s actions/words at time of event & A‟s
testimony
 Consider other relev facts
 Subjective test doesn‟t mean you take the A‟s word over other evid
Rule Subjective TEST: what was actually in the A’s mind at the moment of the
29
offence, which can be drawn from inferences through the A’s actions or words.
Proving that the A “must have thought” still meets this test, but not “must have
realized IF he had thought”
Negligence TEST: Test for negligence is an objective one, requiring a marked
departure from the standard of care of a reasonable person.

R v Theroux [1993] (SCC)
 Presumption that you intend the natural and probable conseq of the act is wrong. Its an
error to tell the jury that a man intends the nat conseq of his act.
 Crown need not show precisely what thought was in the A‟s mind at the time of the crim
act. In certain cases, subjective awareness of the conseq can be inferred from the act
itself. The fact that such an inference is made, doesn‟t detract from subjectivity of the
test.
 Even for subjective awareness, the approach to proof is OBJECTIVE
 Fraud charge. Mens rea? Use subjective test (also subjective for theft). Diff from
“voluntariness” reqmt of actus reus, meant to req a “wrongful intent” to prevent
convicting morally innocent. In this case, A defrauded investors but honestly thought
they wouldn‟t lose their money.
 Fraudulent conduct can include recklessness in the sense of “knowledge of the
likelihood of the prohibited consequences”
 Knowledge of wrongness not reqd: The A‟s belief that the conduct wasn‟t wrong would
be no defence, and there was no reqmt of subjective awareness of dishonesty
Rule Did the A subjectively appreciate the consequences as a possibility? NOT did
they foresee the conseq as probable

R v Mulligan (1974) (Ont CA), pg 366

Facts A repeatedly stabbed wife, told police he didn‟t intend to kill her.
Issues
Held Convicted of murder.
Ratio The subjective test doesn‟t mean that his word is more credible than the evid
The probability that harm will result from a man‟s act may be so great and so
apparent that it compels an inference that he actually intended to do that harm. But it
is misleading to say that a man is presumed always to intend the natural and probable
conseq of his acts.
Rule Despite A testifying he didn’t intend to kill, it can be inferred from his actions
that he did. (circumstances estab intent to kill)

R v Ortt (1968) (Ont CA), pg 367
Facts Murder charge. Trial told jury to presume A had intent to kill unless he could prove
he was incapable of that. If someone stabs someone in the heart, are they presumed
to intend to kill? – Presumption NO, but intent can be inferred from the actions.
Held Juries should be told that gen it‟s a reasonable inference that a man intends the nat
conseq of his act.
The word “presumption” should be avoided in the context of subjective test. Juries
should simply be told that gen it‟s a reasonable inference that a man intends the nat
conseq of his act.
Jury can infer intention, but the test is subjective knowledge. Presumed is confusing
b/c it implies that there is some onus on A. Replace “a person is presumed to have
intended the nat conseq of his acts” w/ “it is a reasonable inference that a man
30
intends the nat conseqs of his acts”
Rule No PRESUMPTION that a man intends that nat conseq of his act, but it’s a
REASONABLE INFERENCE that he does.

Fault for Public Welfare (Regulatory) Offences
Fault reqmt:
 To punish someone for something they couldn‟t have avoided seems immoral and unfair
 Crim responsibility w/out fault removes choice of lawful behaviour (not good)
 w/outr reqmt of moral culpability, society would have lim protected against the power of the state
 deterrence alone isn‟t good enough to stop crime – need to show fault which can hold one responsible
for the choice to commit a crime
 some offences don‟t req fault – absolute, strict liab
 for offences requiring fault – post Sault Ste Marie
o Mens rea: subjective test - reqs aware state of mind, guilty mind, intention, recklessness,
knowledge
o Negligence: objective test – considers carelessness, inadvertence, reasonable std
a) Common Law
Beaver v R [1957] (SCC), pg 368 (Subjective std for true crimes)
Authoritative contrib. to the law as to mental elem & mistaken belief in true crimes.
Facts A and friend had heroin and sold some to undercover cop, A claimed it was
something else. Trial judge said all that mattered was if he sold and possessed heroin,
convicted (suggests abs liab).
Issues
Held Quash conviction on charge of having possn of a drug. Affirm conviction on charge
of selling.
Ratio Crown must prove that A knew if was heroin. On face of statute, no fault reqmt (but
ct says legislature must be explicit if wants abs liab), & it‟s a reg offence, which
suggests abs liab (not more like real crime that harmful in itself than like reg
offence). Also mandatory jail time means mens rea reqd
Note: defn of possn now incl reqmt that A knows what they have
DISSENT (Fauteux): Look at nature of the act – to be tough on morphine and other
drugs. They sold morphine tf it doesn‟t matter what they thought.
Note: prior to Sault Ste Marie, was dichotomy – full mens rea or nothing
Rule To be convicted of possn of drugs, a mental fault element is reqd (defn of true
crime). When dealing w/ an offence that is truly criminal, then mens rea is reqd
unless parl explicitly says otherwise. Since Beaver, its been accepted that all
drug offences req subjective mens rea (s.4(3) expressly reqs knowledge)

R v City of Sault Ste Marie [1978] (SCC), pg 374 Creat’n of strict liab for reg offence
Strict liab categ of reqmt estab for reg offence – alternative to mens rea and abs liab
Facts City of SSM discharged materials that might impair the quality of the water in
Cannon Creek and Root River. Indep contractor hired to dispose of waste, put in
landfill next to creek. City said not responsible b/c contractor built landfill. New trial
ordered b/c abs liab unconst (viols s.7 w/ imprisonmt). Charged under s.32(1) of Ont
Water Resources Act.
Issues What is fault reqmt?
Held Strict liab (compromise b/w abs liab and subj fault) reqd here & in most reg offences.
31
Ratio Strict liab = presumption of guilt (like abs liab) but w/ defence of due diligence.
Strict liab presumed w/ reg offences unless statute says otherwise or uses language to
imply a reqmt of mens rea such as “willfully”, “w/ intent”, “knowingly” or
“intentionally”.
Three categ of offences:
1. True Crimes: Offences that require some positive state of mind (mens rea)
as an element of the crime. These offences are usually implied by the use of
language within the charge such as "knowingly", "willfully", or
"intentionally".
2. Strict Liability: Offences that do not require the proof of mens rea. The act
alone is punishable. The duty is on the accused to have acted as a reasonably
person and has a defence of reasonable mistake of fact (a due diligence
defence). The Court stated that the due diligence 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. These offences may properly be called offences
of strict liability." The reason for this is that the Court described a need for a
class of offence that had a lower standard to convict than True Crimes but
was not as harsh as Absolute Liability offences.
3. Absolute Liability: Similar to Strict Liability, these offences do not require
proof of mens rea either. However, the accused has no defences available.
This case recog need for categ of burden of proof b/w mens rea and abs liab.
Note: the crown doesn‟t have to prove neg in a strict liab case.
The role of strict liab was to lim harshness of abs liab offences that viol fund
principles of penal liab.
The onus to prove the defence of due diligence lies w/ the A
Rule Creates 2 types of liab for reg offences: strict and absolute.

R v Wholesale Travel Group I nc [1991] (SCC), pg 383

Facts Charge: misleading advertising contrary to s.60(2) of Competition Act (note: Stuart
thinks they should have been charged w/ fraud under CC – not a good decision)
Issues
Held
Ratio Reverses the onus of proof, A needs to show on BoP that they met a reasonable std
of care. Will be convicted if they don‟t meet std of care even if there is a RD. The
stigma attached to a reg offence isn‟t so great as to make subjective mens rea
constitutionally reqd.
Rule Act proved BARD, then A must show he lived up to std of care on BoP (either
reasonableness std or std in legislature)

R v Chapin [1979] (SCC), pg 390
Shows how to apply offence categ scheme in SSM.
1) Det if reg offence, if yes  2) Presume strict liab unless wording says otherwise (w/:
willfilly, intentionally, w/ intent, or knowingly) or if high penalty (jail time)
Facts Wife is hunting in her husbands club. She was w/in 1/4 mile of a baited area (w/out
knowing). Charged under s.383 Migratory Birds Act (not CC) (is a reg statute for the
public welfare of ducks and other migratory birds).
Issues
Held
Ratio The A may absolve himself of liab on proof that he took all the care which a
32
reasonable man might have been expected to take in all the circumstances, or, he was
in no way neg
Note: Charter arrives after this case in 1982 – Charter Stds alive then
Rule If CC has words: intentionally, willfully, knowingly, etc, implicitly making ref to
a mens rea offence
Note This is a “classic” eg of an offence of strict liab

b) Charter Standards
Reference re Section 94(2) of the Motor Vehicle Act (BC) [1985] (SCC), pg 396

Facts Act imprisoned drivers w/out defence, if found driving on susp license
Issues
Held
Ratio Absolute liab and imprisonment can‟t be combined – imprisonment w/out any
possible defence infringes on right to lib in Charter. The fund POFJ are an ever
changing qualifier for det what may viol a persons guarantee to life, lib and sec of the
person. There can be cases of abs liab under this s., but there can‟t be a restriction on
lib (ie can‟t have imprisonmt as punishment). The ct did something unique by
creating strict liab as an alt to abs liab in SSM.
Note: doesn‟t apply to corporations b/c s.7 deals w/ ppl. Can still create abs liab for
corporations b/c there is no risk to their lib (of going to jail, etc)
Rule Can’t have prison + abs liab, this is unconst

R v Pontes (1995) (SCC), pg 404
Facts SCC reconsid constitutionality of offence of driving while prohib under s.94 of BC
Motor Vehicle Act
Held Offence is constitutional – no charter viol b/c no risk of imprisonment

R v Cancoil Themal Corp. (1986) (Ont CA), pg 404
Makes provision const by taking away imprisonment
Facts A machine having an exposed moving part that endangered safety of a worker wasn‟t
equipped w/ and guarded by a guard or other device to prevent access to the moving
pt (charged under s.14(1)(c) of Occup Health and Safety Act). Also, charged under
s.14(1)(a) b/c failed to ensure that the equipmt, materials, and protective devices
prescribed by s.28 of the revised reglns of Ont were provided in an industrial
establishment (R v Wholesale Travel Grp Inc).

Issues
Held Ct takes away imprisonmt, creating a strict liab offence and making provision const
Ratio The exclusion of s.14(1)(a) from the defence would suggest that its an offence of abs
liab. But if it were treated as creating an abs liab offence, it would viol s.7 of Charter
(can be punished w/ imprisonment). Tf to avoid a viol of s.7, 14(1)(a) must be treated
as a strict liab offence. Legislative intent is being overridden b/c of new charter std
(as decided by SCC in Motor Vehicle Ref)
Rule Made provision const by taking away imprisonment tf creating strict liab
offence

R v Transport Robert, R v William Cameron Trucking (2003) (Ont CA, leave to appeal, SCC,
33
refused), pg 417

Facts s.84.1(1) of Highway Traffic Act:
 makes it a guilty offence if a wheel comes off a commercial truck when on
highway
 no defence if exercised due diligence
 Penalty: fine b/w 2k and 50k, D not liab to imprisonment or probation as a result
of conviction or for default in paymt of the fine
Issues Whether its open to the legislature to create an abs liab offence where there is no
possib of imprisonmt or probation if the D is convicted
Held
Ratio The diminished stigma isn‟t suffic to trigger the sec interest in s.7, even when
coupled w/ the fine.
Kinds of stress that have been recog to trigger s.7: attempt to take child away from
parents, crim prohib on assisted suicide for desperately ill patient, regulating
abortion.
This is the only reg offence in Ont that you can‟t go to jail for if you don‟t pay fine.
Sec of the person not viol if charged w/ abs liab offence b/c find that this doesn‟t
meet the defn of personal stress. Tf can‟t trigger agmt abt sec of the person in this
case and agmt fails.
Rule Abs liab offences are permitted when there is no viol of sec of the person (ie
prison). There is no viol even when penalty is big fine.

R v Beauchamp (1953) (Ont CA), pg 425
TEST for due diligence = reasonable man
Facts A charged w/ careless driving. Bus driver, in the process of parking, crushed an
already parked car. He checked his inside mirror, but the outside mirror was loose,
and b/c of vibration of bus, was useless. At trial: convicted.
Issues
Held Appeal allowed
Ratio
Rule TEST: Whether it is proved BARD that the A, in light of the circumstances,
failed to use the care and attn that the ord driver would.
(It must also be considered, even if it was proved the care was below the std,
that the conduct must be of such a nature that it can be consid a breach of the
duty to the public and deserving of punishment) – this has been used to get ppl off
careless driving since then

Fault for Crimes
a) Murder and the Charter
i) Murder under ss.229(a)(i) and (ii)
 These are still constitutional and can be split into 1
st
and 2
nd
deg
Murder
229. Culpable homicide is murder
(a) where the person who causes the death of a human being
(i) means to cause his death, or
(ii) means to cause him bodily harm that he knows is likely to cause his death, and is
34
reckless whether death ensues or not;
(b) where a person, meaning to cause death to a human being or meaning to cause him bodily
harm that he knows is likely to cause his death, and being reckless whether death ensues or
not, by accident or mistake causes death to another human being, notwithstanding that he does
not mean to cause death or bodily harm to that human being; or
(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 effect his object without causing death or bodily harm to any human being.

Simpson v R (1981) (Ont CA), pg 428
Judge said to jury they have to det if “death might result” but he should have said that “death is
LIKELY to result”.
Facts Attempted murder case
Ratio Mens rea for attempted murder and murder is the same. Must have some intent, can‟t
just be that you do something dangerous and someone dies.
Rule Liability under s.212(a)(ii) (now 229(a)(ii)) is a subjective std

R v Edelenbos (2004) (Ont CA), pg 430

Facts A went to victims home and sexually assaulted and strangled her. Claims he didn‟t
intend to kill her, he just wanted to stop her screaming. Trial convicted. Appeals
conviction on basis that trial judge erred in defining the word “likely” in his jury
charge regarding the intent reqmt for murder. Defn of likely was unness and potly
confusing to the jury.
Issues
Held
Ratio The jury would have given the word “likely” its common sense plain meaning as
other juries have across Canada. Where the jury doesn‟t need an analysis of a
commonplace everyday word, the trial judge should avoid entering into the possible
shades of meaning.
Subjective test, not objective.
Rule Once intent to cause bodily harm proved  crown must prove that A knew such
harm was likely to cause death (subjective std)

Vaillancourt v R [1987] (SCC), pg 434
s.230(d) of CC unconstitutional (Constructive murder)
Facts A convicted of 2
nd
deg murder in a jury trial in Montreal. Committed armed robbery
in pool hall, A had knife, had agreed to commit an armed robbery but just w/ knives
– his friend had a gun, A thought the gun was unloaded. Friend shot and killed
someone.
Issues
Held s.230(d) of CC is now unconst as some crimes have such stigma attached to
conviction or penalty that the POFJ req a mens rea reflecting the nature of that crime.
s.230(d) viol s.7 of the charter as there wasn‟t even a reqmt of subjective foresight of
death. The viol couldn‟t be saved under s.1.
Ratio
Rule Lamer estabs that the min reqmt for homicide is at least objective foreseeability.

35
R v Martineau [1990] (SCC), pg 443
Subjective mens rea for murder
Facts Break and enter a trailer, one w/ a rifle, the other w/ a pellet gun. The A said he
thought it would just be a break and enter. Tied up two occupants, robbed them,
accomplice shot the two occupants. Charge: 2
nd
deg murder, s.230(a).
Issues
Held s.230 unconsitutional, s.229(c) unconstitutional (the objective pt declared unconst –
“ought to”), new trial ordered
Ratio Lamer inc reqmt for homicide to subjective mens rea. Comes up w/ v clear charter
stds.
1) B/c of special nature of stigma attached to murder, mens rea must reflect
partic nature of the crime (similar to Vaillancourt)
2) Punishment must be proportionate to moral blameworthiness of the D
3) Causing harm intentionally must be punished more severely than causing
harm unintentionally.
4) There must be foresight of the particular result.
Rule

iii) First Degree Murder, s.231
 Both 1
st
and 2
nd
deg murder carry a sentence of life imprisonment, but 1
st
deg reqs parole ineligibility for
25 yrs, whereas 2
nd
deg sets parole ineligib b/w 15-25 yrs
 Planned and deliberate
 Killing a cop (or anyone in duty of preservation of peace)
 Where the A was committing or attempting to commit one of the following:
o Hijacking an aircraft
o Sexual assault
o Kidnapping, forcible confinement
o Hostage taking
 Where the A intended to cause the victim fear for their safety or that of their loved ones
 Where the offence also constitutes terrorist activity; or,
 Where the offence is commited for the benefit of or in assn w/ a crim org
All murder that isn’t first degree is second degree
R v Smith (1979) (Sask CA), pg 456
1
st
deg murder must be planned
Facts 3 friend went for drive and ended up in abandoned barn. Massier came back to see
Skwarchuk shot in the elbow. Smith reloaded gun, called Skw‟s name, Skw started
running. Smith shot 2x, pellets hit Skw in back, shot again, stayed down, Smith then
shot him in the back of the head. Charge: s.231, 1
st
deg murder, convicted at trial.
Issues Was this planned and deliberate?
Held Might have been deliberated, but wasn‟t planned (this is a gen interp according to
Stuart) – verdict of 1
st
deg set aside, conviction of 2
nd
deg subst.
Ratio Planned = arranged beforehand
Deliberate = considered not impulsive
His actions were the result of a sudden impulse.
It may well be that the killing was delib, but there can only be a conviction of 1
st
deg
if it was planned.
Planning doesn‟t have to be complicated, can be quick.
Rule 1
st
deg murder must be planned
36

R v Nygaard and Schimmens (1989) (SCC), pg 460
Case on “planned and deliberate”
Facts A repeatedly bashed deceased on head w/ baseball bat, after cheque bounced,
charged w/ 1
st
deg murder
Issues What is the specific mens rea reqd by s.229(a)(ii) to which the element of planning
and deliberation must be related?
Held
Ratio s.229(a)(i) demands a highly subjective mental element to be present, that of the
intent to cause the gravest bodily injuries that are known to the A to be likely to
cause death to the victim. It is to this intent that the s.231(2) reqmt of planning and
deliberation can be properly applied.
Note: don‟t have to plan the killing of a police officer, its an automatic categ
Rule Min std for murder means there has to be knowledge of the likelihood of death,
w/ “likelihood” having reqmt that death will probably occur.

R v Collins (1989) (Ont CA), pg 463
Refers to killing of occupational grps – must know it’s a cop on duty
The A must have knowledge of 1) the identity of the victim as one of the persons desig in the
ss, and 2) that such person was acting in the course of his duties or was reckless as to such
identity and acts of the victim. Tf off duty police officer might not be protected. Onus on crown
to prove that A knew it was a police officer.

R v Arkell [1990] (SCC), pg 464

Facts s.231(5) makes murder while committing certain offences automatically 1
st
degree
murder: SA, agg SA, kidnapping and forcible confinement, hostage taking, hijacking
an aircraft
Issues Whether s.231(5) contravenes s.7 of Charter (constructive murder)
Held Doesn‟t infringe s.7, is neither arb nor irrational
Ratio Found no POFJ that prevents parl from classifying murders done while committing
certain underlying offences as more serious, and tf attaching more serious penalties
to them. Distinction b/w 1
st
and 2
nd
deg and diffs in parole eligib – are neither arb,
not irrat. The relnshp b/w the moral blameworthiness and the classification exists.
In light of Martineau, it must be proved that the murderer had subjective foresight of
death. Principle that moral blameworthiness of the offender and other conditions
such as deterrence and societal condemnation of the acts of the offender are met.
Rule Automatic 1
st
deg murder categ for murder in the course of committing certain
offences (eg SA, hijacking aircraft, etc) NOT unconst

R v Strong (1990) (Alta CA), pg 466
Held 1
st
deg murder under s.231(5) didn‟t incl murder in the course of robbery. Tf not all
offences inv illegal dom of one person by another had been incl in the list of
offences.
Note
(from
treatise):
How can it be said that the list of murders under s.231 incls all murders inv unlawful
domination over the person? Doesn‟t any murder inv such domination? What of the
fact that murders commited in the course of break and entry or in the course of armed
robbery are NOT included? The classification was and is irrational and should have
37
been declared unconst.

R v Shand (2011) (Ont CA)

Facts A went to home of drug dealer planning to steal mj, dealers GF had bag of mj,
followed her to basement, A pulled gun, it discharged, killing F. Trial: charged w/ 2
nd

deg murder, convicted.
Issues Whether the gun was discharged accidentally or delib? On appeal also challenged
const of s.229(c) on basis that s.7 of charter demanded min mens rea of intent to
cause serious bodily harm to the victim to found conviction for murder, and, in alt,
that the s viol s.7 on basis of vagueness and overbreadth.
Held Appeal dismissed
Ratio Two elements to s.229(c) – an unlawful object and a dangerous act (reqmts met in
this case). Det s. was consti and didn‟t viol s.7 on overbreadth or vagueness.
Subjective foresight of the likelihood of death and the unlawful object met the const
min, specific intent to kill or cause bod harm not reqd. The act was drawing and
using his gun in an attmpt to subdue the occupants of the room. It was his choice to
use the gun to subdue, tf doesn‟t matter whether the gun was accidentally or
intentionally discharged. KEY ASPECT of the A‟s mens rea: the knowledge that his
actions were likely to result in death has to be assessed at the moment the dangerous
act was committed, not earlier in the robbery.
Rule s.229(C) will be satified when the following 6 elements present:
1) The A must pursue an unlawful object other than to cause the death of the
victim or bodily harm to the victim knowing that death is likely
2) The unlawful object must itself be an indictable offence req mens rea
3) In furtherance of the unlawful object, the A must intentionally commit a
dangerous act
4) The dangerous act must be distinct from the unlawful object, but… only in
the sense that the unlawful object must be something other than the likelihood
of death, which is the harm that is foreseen as a conseq of the dangerous act.
5) The dangerous act must be a specific act, or a series of closely rel acts, that in
fact results in death, though the dangerous act need not itself const an offence.
6) When the dangerous act is committed, the A must have subjective knowledge
that death is likely to result.
Note Only deal w/ this if the charge is 2
nd
deg murder, instead of only talking abt 229(a)(i)
and (ii), have to also talk about (c)

b) Subjective Awareness Guaranteed by Charter for Few Crimes
i) Common law presumption:
 If CC says “intentionally”, “willfully” or “knowingly”, we know parl intended it to be a subjective mens
rea offence
 If there are no mens rea words, and crime doesn‟t have objective neg wording, it should be interpreted as
a subjective mens rea crime
 There are only a few crimes that req subjective mens rea, but there is an assumption that most crimes req
this via CL
 Some offences carry both subjective and objective elements, in Lohnes, A needed objective foresight to
realize what causing a disturbance in public was, and a subjective element to the decision to swear and
fight during that disturbance.
38
ii) Motive
J. Hall, General Principles of Criminal Law
 (1) Mens rea distinguished from motive
o mens rea, a fusion of cognition and volition, is the mental state expressed in the voluntary
commission of a proscribed harm
 (2) motive not essential in mens rea
 motive impt in det guilt of the D
 questions of motivation and mitigating circumstances are allocated to administration which can explore
such issues thoroughly
 (3) mens rea must be given an objective ethical meaning
 D‟s conscience, not personal code of ethics of the judge or jury can be substituted for the ethics of the
penal law

Lewis v R [1979] (SCC), pg 469
Facts A and Tatley jointly charged w/ murder of T‟s daughter and son-in-law. A mailed
package on behalf of T but denied knowledge that package had bomb.
Issues Do we have to prove motive in this case?
Held Appeal dismissed, Lewis convicted.
Ratio “Motive” and “intent” freq used interchangeably, but in the crim law they are
distinct. As evidence, motive is always relev, but its no pt of the crime. If there is no
motive, its always an impt factor in favour of the A.
Motive not used b/c:
 Just b/c have motive, doesn‟t mean have intent to kill.
 Motive is something only A would know
Rule Mental element of crime reqs no motive. Role of motive legally irrel to crim
respon, tf not ness. Don’t have to prove motive.

R v Mathe (1973) (BCCA), pg 473
Fake bank robbery – motive can be used to prove lack of intent
Facts A entered Canada Permanent Trust Company office at around 10:15am, told teller he
had a gun and demanded she hand over the cash, emphasized it be done quickly, she
started getting out the cash, then he said “that‟s not what I want” and said he was
joking. In taking out the cash, the teller set off a soundless buzzer, accused was found
by police later at 11:10am. Charge is attempted robbery
Issues Were the A‟s actions a joke or did the words “that‟s not what I want” indicate a
change of plan?
Held Appeal allowed, conviction quashed and verdict of acquital entered
Ratio Appellant did this and it amounted to a joke. Cites R v Wilkins, and R v. Kerr, where
A was playing a joke and was let off
Rule Motive can be used to prove lack of intent

iii) Desire/Purpose
R v Hibbert [1995] (SCC), pg 476
Don’t have to prove desire in most cases.
Held Driver of a getaway car can‟t get off b/c they were participating in the crime so they
could make $100 rather than participating in the crime for purpose of aiding in the
crime.
39
Ratio A person who consciously performs an act knowing the conseq that will flow from it
intends these conseq or causes them on purpose regardless of what was desired.
Rule Don’t have to prove desire in most cases.

Subjective mens rea, pg 489
 Must be aware of risk, if not aware of risk, there is no subjective mens rea
 Have to get into mind of the accused and ask whether THIS person (not a reasonable person) was aware
of the risk
 Concept of willful blindness
 Most times when ppl talk about subjective mens rea, intent, knowledge, … willful blindness is the
package, however in some cases its limited to intent
 In terms of intent, (in murder sometimes talk about means to kill)
 Often when dealing w/ possession offences, have the word “knowledge”
 As long as its all subjective, its not a problem w/ the judges
 There are certain crimes that are limited to intent and you aren‟t supposed to extend to recklessness or
willful blindness

iv) Intention or knowledge
R v Buzzanga and Durocher (1979) (Ont CA), pg 489

Facts 2 french cdns in essex county, there was a debate about building a French language
high school, printed offensive flyer. Said that they intended it as satire. Ppl
responded to the flyer and there was a promotion of hatred. Charge: s.319.2, willful
promotion of hatred
Issues Mens Rea, recklessness
What std of mens rea does “willfully” imply in this case?
Held Usually, and in this case, it means intentionally. Appeal allowed, convictions set
aside, new trials ordered
Ratio “Willfully” can mean intentionally or recklessly. Recklessness being awareness that
your actions will cause a prohib result and doing it anyways. The wording of this
offence implies parl intended to lim it to intentional promotion of hatred. The trial
judges finding that A‟s intent was to cause “controversy, furor and uproar” was intent
to promote hatred wasn‟t correct. Defn of mens rea: The act was “willful”
(intentional) only if:
a) their 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]
Rule “Willfully” usually means intent is reqd to prove mens rea, sometimes
recklessness is also acceptable.

v) Recklessness or willful blindness
R v Theroux [1993] (SCC), pg 498
Leading case on fraud.
Facts A charged w/ fraud and convicted under s.380(1)(a) of CC. The company entered
into contracts and received deposits on the basis of a false representation by the
40
company that the deposits were insured. The A knew at the time that the insurance
was not in place but nevertheless made misrepresentations to induce potential home
purchasers to sign a contract and give a deposit.
Issues Whether the fact that the accused honestly believed that the projects would be
completed negates the guilty mind or mens rea of the offence
(Ct examined the question of what constitutes the mens rea for fraud)
Held Convicted of fraud. Ct held D was liab owing to his recklessness in dealing w/ the
buyers. Specifically b/c he had subjective knowledge of the risks assoc w/ the prohib
act, and yet persisted w/ the act, tf can be found reckless and criminally liab.
Ratio “in cases like the present one, where the accused tells a lie knowing others will act on
it and thereby puts their property at risk, the inference of subjective knowledge that
the property of another would be put at risk is clear”
 Proper focus in det the mens rea of fraud is to ask whether the accused
intentionally committed the prohibited acts knowing or desiring the
consequences proscribed by the offence
 Actus reus of the offence of fraud will be established by proof of:
o 1) the prohib act, be it an act of deceit, a falsehood or some other
fraudulent means
o 2) deprivation caused by the prohibited act, which may consist in
actual loss of the placing of the victims pecuniary interests at risk
 the mens rea of fraud is established by proof of:
o 1) subjective knowledge of the prohibited act, and
o 2) subjective knowledge that the prohibited act could have as a
consequence the deprivation of another (which deprivation may
consist in knowledge that the victims pecuniary interests are put at
risk)
 where the conduct and knowledge reqd by these defs are established, the
accused is guilty whether he actually intended the prohibited consequence of
was reckless as to whether it would occur
Rule Recklessness refers to having the subjective knowledge of the risks assoc w/
some specific prohib act and then persisting w/ the prohib act.

Sansregret v R [1985] (SCC), pg 500
Leading case on rape, mens rea, diff b/w recklessness and willful blindness
Facts Not impt
Issues Mens rea
What are recklessness and willful blindness?
Held WB=suspicion + didn‟t ask + didn‟t want to know = knowledge
Ratio Recklessness is diff from tort negligence. Not “reasonable man”, more subjective.
Person must be found to have KNOWN of danger/prohib act resulting from their
actions and still persist in it.
Willful Blindness allows for certain knowledge to be presumed of A where they
become aware of the need to inquire, declines to make that inq, preferring to remain
ignorant. That‟s as bad as actually knowing. No reward for trying to cheat the justice
sys.
Willful blindness is an aspect of recklessness.
In this case, A honestly believed his victim‟s consent wasn‟t caused by fear or
threats. Finding of recklessness in this case couldn‟t override the mistake of fact, but
willful blindness will (??)
Rule Willful blindness is when A knows he should ask something, doesn’t b/c
remaining ignorant would negate mens rea, is treated the same as actual
41
knowledge (the law presumes knowledge on the pt of the A).

R v Blondin (1971) (BCCA), pg 503

Facts A brought into Canada from Japan, narcotics concealed in scuba suit. Claims he
didn‟t know what was in the suit, and that he was paid to take it over.
Issues Mens rea
How much does A really need to know?
Held Appeal allowed, set the verdict of acquittal aside and order a new trial. Had to know
it was a narcotic, can be inferred from willful blindness/recklessness.
Ratio Sufficient to find Mens Rea in the broadest sense: Knowledge that it was narcotics.
Knowing it was illegal only would not be enough. Judge should have instructed
jury that they can find Mens Rea if they find A was reckless or willfully blinded
himself to what it was, infer that it was Narcotics.
Rule Mens Rea interpreted broadly. Only needs to be proven A knew it was a
narcotic (illegal substance not enough), but that can be inferred from Willful
Blindness or Recklessness.

R v Currie (1975) (Ont CA), pg 507
No longer a leading case
Facts A was charged with “uttering a forged document” for trying to cash a cheque for
over $400 at a CIBC in Welland payable to Edward Gerada with a fake signature
endorsing over to him. A had been approached by a guy in a bar he didn‟t know who
said he‟d give him $5 to cash it, he actually had stolen it out of Mr. Gerada‟s
mailbox. Trial Judge convicted on Willful Blindness.
Issues Does he have the sufficient mens rea? Can willful blindness be based on finding that
A ought to have inquired further?
Held No, acquitted.
Ratio Finding that A should have inquired further about the validity of the cheque is not
Willful Blindness. It must be found that A had his suspicions aroused and then
deliberately chose not to inquire further. This guy was just dumb.
Rule WB requires suspicion aroused and a deliberate choice not to inquire.

R v Duong (1998) (Ont CA), pg 510

Facts A charged with being an accessory after the fact to murder by his friend Lam. Lam
was in the media for murder, asked A if he could hide out at his place because he was
in trouble for murder. Police found him after two weeks and asked what Lam told A
about the crime, A said he told Lam not to tell him anything because he knew he‟d be
in trouble.
Issues Mens rea
Can willful blindness make you an accessory after the fact to murder?
Held Yes, convicted.
Ratio A‟s lawyer argued that even if he had made further inquiry Lam might not have told
the truth. But, WB does not turn on hypothetical answers to the required inquiry, or
what A would have hypothetically learned. That‟s all irrelevant. He clearly made the
choice not to inquire to avoid guilt.
Rule WB does not turn on what A would have hypothetically learned if they had
inquired further.
42

R v Briscoe [2010??]
 Briscoe got into his car, drove him to a secluded spot, then is saying that he wasn‟t actually at the scene
 Did give them equipment out of his car, but he wasn‟t at the scene
 Argues that he wasn‟t guilty of aiding during, didn‟t actually know they were going to murder these two
women
 Can extend willful blindness to this context
 This is the leading case on willful blindness
 Willful blindness is distinct from recklessness
R v. Jorgenson [1996]
 Stores can‟t be responsible for selling obsene films
 In this case, wanted to raid a bookstore on yonge street
 Get a conviction from three of them
 Goes to SCC, sopinka substitutes acquittal
o Says that there is a mens rea reqmt, have to show that accused had more then a gen knowledge
of the film as a sex film and were they aware of the particular scenes in the movie
b) Crimes of Objective Fault
i) Criminal Negligence, s.219
Criminal negligence
219. (1) Every one is criminally negligent who
(a) in doing anything, or
(b) in omitting to do anything that it is his duty to do,
shows wanton or reckless disregard for the lives or safety of other persons.

R v Tutton and Tutton [1989] (SCC)
Only talk about tutton when have charge of criminal negligence causing death or crim neg
causing bodily harm, or manslaughter causing death
Facts Charge is manslaughter, charging tutton w/ death of 5yr old son for omitting to
providing the necessities of life
Issues
Held Crim neg defd in CC: invs conduct that has to be a marked departure from the std to
be observed by the reasonable person.
Ratio In determining whether the conduct of the accused has shown, within the meaning of
the specific section of the Criminal Code in question, wanton disregard for the lives
or safety of other persons, the court will used an objective test (or a modified
objective test that allows the accused to raise the defence that there is reasonable
doubt that a reasonable person would have been aware of the risks of the impugned
conduct, as per R. v. Hundal
McIntyre and L‟H-D: Not a ruthlessly objective test, can‟t be made in a vacuum,
apply a reasonable person test to the circumstances in which they were
Wilson, Dickson, LaForest: Want a softer approach, subjective.
Rule Objective mens rea for crim neg – marked departure from the objective norm

Waite v R?? pg 526
43
Note: The greater the risk created, the easier it is to conclude that a reasonably prudent person would have
foreseen the consequences, until the conduct is so foreseeable that it can be deemed intentional, as per R. v.
Anderson, [1990] (SCC), pg 527.
ii) Marked Departure Test
 Most objective fault crimes use a marked departure test to see if the accused‟s conduct was a marked
departure from the standard of care that a reasonable person would observe in the accused‟s situation (R.
v. Hundal)

R v Hundal [1993] (SCC), pg 531
Leading case (along w/ Beatty)
Facts D drove his dump truck through a red light and killed the deceased. D is charged
with s. 233 [dangerous driving] of the Criminal Code.
Issues Whether there should be an element of subjective fault element for dangerous driving
offences.
Held Appeal dismissed, convicted. Dangerous driving offence should use a modified
objective test for fault element.
Ratio This modified objective test allows D to raise defence that there was a reasonable
doubt that the reasonable person would have been aware of the risks in the accused‟s
conduct.
Was gross negligence for driver to overload truck and go through intersection.
Rule Modified objective test for fault element. Must be a marked departure from the
norm
2 step test:
1) Was there a marked departure from a reasonable std?
2) If so, would a reasonable person in similar circumstances act the same way?

R v Creighton [1993] (SCC), pg 539

Facts A injected cocaine into deceased‟s body. Convicted of manslaughter at trial. CA
upheld conviction. The CL had decided that where the A had committed an unlawful
act, objective foreseeability of the risk of bodily harm which is neither trivial not
transitory was suffic and foreseeability of the risk of death wasn‟t reqd.
Issues Does CL defn of unlawful act manslaughter contravene s.7 of Charter?
Held Doesn‟t contravene s.7. (split on whether unlawful act manslaughter is consti)
Ratio Should foresee symmetry b/w element of fault and the consequences of the offence.
Rule Constitutional. If dealing w/ objective fault reqmt, must be marked departure
from the norm, can’t take into accnt invid factors except incapacity.

R v Beatty [2008] (SCC), pg 546
Leading case
Facts Beatty driving home, suddenly crosses median and kills 3 ppl, not driving erratically
beforehand. Don‟t know what happened, maybe lost consciousness, maybe fell
asleep. Charged w/ dangerous driving causing death under s.249(4) of CC. Trial ct
said not guilty. Overturned on appeal.
Issues
Held SCC reversed, not guilty.
Ratio The law doesn‟t lightly brand someone a criminal.
44
Here, wasn‟t morally blameworthy, b/c don‟t have a marked departure.
Shouldn‟t worry about the consequence, just have to look at the act.
Can‟t take into accnt indiv factors except for incap w/ objective test.
Rule Momentary lapse of attention – got off

c) Crimes based on Predicate Offences
R v Desousa [1992] (SCC), pg 558
This case abt defining the word unlawful
Facts A threw bottle against wall, injured bystander. Charged under s.269 of CC,
unlawfully causing bodily harm contrary
Issues What is the reqd fault element for predicate offences?
Held “Unlawful” in the context of “unlawfully causing bodily harm” reqs at least
objectively dangerous.
Ratio The ct will use an objective test to det both that the act was lawful, and one that is
likely to subject another person to danger of harm or injury that was objectively
foreseeable.
The unlawful act has to be objectively dangerous (corrects Smithers – kicking
someone and causing death)
In this case, all you need to foresee is non-trivial bodily harm.
Rule Elements of unlawful act causing bodily harm:
Actus reus: must have committed an underlying unlawful offence (predicate)
AND that offence must have caused the bodily harm
Fault: fault for predicate offence & something more from s.269
Predicate offence reqmts: offence under fed/prov statute; can’t be abs liab;
must be constitutionally valid
Use of the word “unlawful” means tha tit must be at least objectively
dangerous: TEST is of objective foresight of bodily harm beyond the trivial and
transitory

Criminal Harassment (s. 264)
Given that s. 264 contains a sufficiently blameworthy element in the actus reus to which the culpable mental
state attaches, foresight of the prohibited consequence of causing actual fear is not required in order to hold the
accused responsible for the results of his or her unlawful activity, as per R. v. Krushel (2000), 31 C.R. (5th) 295.
Actus reus involves: (1) doing the prohibited act; (2) the victim must be harassed by the impugned conduct; and,
(3) the resulting fear of the victim must be reasonable, as per R. v. Krushel (2000), 31 C.R. (5th) 295.
Fault element involves: (1) intentional harassing conduct; and (2) the accused must know, or be reckless or
willfully blind that the victim was being harassed by his conduct, as per R. v. Krushel (2000), 31 C.R. (5th) 295.
R v Krushel (2000) (Ont CA), pg 574

Facts Charge: s.264(2)(c), criminal harassment.
Issues Whether s.264 is unconst, per s.7 of Charter, for failing to req that the A have the
intention to cause the victim to fear for their safety (the “constructive liab” issue)
Held Because s. 264 contains a suffic blameworthy element in the actus reus to which the
culpable mental state attaches, foresight of the prohibited consequence of causing
actual fear is not required in order to hold the accused responsible for the results of
his or her unlawful activity. Tf, doesn‟t viol s. 7.
Ratio
45
Rule

Normative Theories
 Normative test: applies dir to the underlying policy; v descriptive test: specifies identifiable elements
that are consis from case to case.
 Prob w/ norm test: is discretionary, can change from day to day
 Prob w/ descriptive test: is rigid, may not accur reflect underlying principle or policy in every sitn
Rape and Sexual Assault
 Before 1982, had two offences: rape and sexual assault
 The majority don‟t report sexual assault b/c of distrust in system
 Sexual victimization of females worse than males, most victims know each other, and till recently, men
drafted the laws, were discrim against victims
 Discriminatory b/c: A has right to remain silent, C takes the stand, under the old laws, 1) C would be x-
examinated vigourously, would ask abt prior sexual history (A‟s wasn‟t relev), rape shield laws didn‟t
exist; 2) would ask when it was reported, if not reported right away would say that if she had really been
raped she would have reported it right away; 3) rule that there had to be corroborations, if only C had
testified, could never convict A b/c had to prove there was corrob, couldn‟t rely on sole word of C.
 S.143 of CC, old crime of rape, had abs immune for man who raped his wife, reqd proof of sexual
intercourse. S.143 had no express mens rea reqmt
 Laws got changed b/c were conc too much on the sex and not on viol, should see it as power imbalance
 Presently: s.265, 267, 268 of CC, assault; s.271-s.273 of CC, sexual assault
o Sexual assault provisions trump assault provisions

Pappajohn v R [1980] (SCC), pg 596 (BEFORE new sexual assault laws)
Defence of mistaken belief in consent.
Facts A was trying to sell his home, she was a sales woman, went to his house, she says
there was rape from the moment they got there, he tied her up, she was upset and
crying, he give diff story, says there was consent, she panicked when he tied her up,
convicted of rape at trial, affirmed at CA
Issues 1) Reqmt of no express mens rea in the offence; 2) Possibility of a defence of
mistaken belief
Held Appeal dismissed. Mistaken belief must be honest, but not ness reasonable. No AOR
for mistaken belief defence here.
Ratio When the accused and the complainant raise diametrically opposed stories about
whether there was consent, there must be some evidence beyond the mere assertion
by counsel for the accused of belief in consent. The evidence must appear from or be
supported by sources other than the appellant in order to give it any air of reality.
Majority (McIntyre): To advance the defence of mistake of fact, must be an air of
reality to it, not just a differing of stories (5-2), must be supported by other evid
beyond mere assertion by counsel (Creates corrob reqmt for A).
DISSENT (on the facts, but this is majority judgement) (Dickson): Defence of
mistaken belief should avail when there is an honest belief in consent or an abs of
knowledge that consent has been w/held. Irrel whether the mistake is rooted in an
A‟s mistaken perception or is based upon objective but incorr facts confided to him
by another (6-1).
(Note: becomes difficult to win on this defence)
Rule Defence of mistaken belief should avail when there is an honest belief in consent
46
or an abs of knowledge that consent has been w/held. Mistaken belief must be
honest, but not ness reasonable. Must be evid to show A took reasonable steps to
ensure he had consent.
*No rebuttable presumption of mens rea (REVERSES Kundeus), pg299T

Sansregret v R [1985] (SCC), pg 609 (AFTER new laws, but began when old in force)

Facts A sexually assaulted a woman twice, although the woman only consented out of fear.
She complained to the police the first time, and A became aware of it through his
parole officer.
During the second assault, A claimed he thought the consent was valid, despite the
fact it was clearly induced by fear of further harm.
Issues Application of defence of mistake of fact in rape case (mistaken belief)
Held Appeal denied, conviction upheld. The A could not have formed an honest belief in
consent, based on the fact that he knew the victim had complained to the police about
his earlier sexual assault.
Ratio Where the A asserts an honest belief in consent, the honest belief must encompass
more than the fact of consent. It must incl a belief that it has been freely given and
not procured by threats. Applies Pappajohn (must have mens rea, honest belief will
get you off, intentional recklessness meets mens rea reqmt), BUT extends it to willful
blindness: defence can‟t op where the A is delib ignor as a result of blinding himself
to reality the law presumes knowledge (in this case knowledge of the nature of the
consent).
Note: didn‟t go w/ finding of fact, A honestly believed she was consenting, if
applying subjective approach, should get off.
Rule Honest belief will get you off, intentional recklessness meets mens rea reqmt,
BUT no defence where A is delib ignor as a result of blinding himself to reality
the law presumes knowledge.

Crimes of Sexual Assault (new laws) (1983)
old structure:
 assault
 1) s.266, assault, max crime 5 yrs, or 6 mos (summary conviction)
 2) assault causing bodily harm (cbh) or w/ weapon, max 10 yrs, or 18 mos (sc), s 267
 3) aggravated assault, s.268, max life
new:
 s. 271 is sexual assault, max is 10 yrs or 18 mos summary conviction
 s. 272, sexual assault cbh or w/ weapon, max 14 yrs, 4 yrs min firearm
 s.273, agg sexual assault, max life
 corresponding to tier 1, 2, 3
o advantage to 3 tiers is its not gender specific, its neutral – spousal immun gone, have restrictions on
x-examination (rape shield laws), don‟t have a doctrine of recent complaint anymore, can‟t ask the
C when she reported, no corrob reqmt
Note: for policy issues arising out of sexual assault, shouldn‟t just think abt old crime of rape, think abt all sexual
actions.
R v Chase [1987] (SCC), pg 661

47
Facts A entered C‟s home w/out invitn, seized complainant around shoulders and arms,
grabbed breasts. Charge: sexual assault, found guilty. CA: dismissed, guilty of
common assault.
Issues What is defn of offence of sexual assault? (Is it gen or specific intent offence).
Held Guilty of SEXUAL assault.
Ratio TEST for recog of SA doesn‟t dep solely on contact w/ specific areas of the human
anatomy. Objective test – “viewed in light of all the circumstances, is the sexual or
carnal context of the assault visible to a reasonable observer?” Pts of the body
touched, nature of the contact, sitn, words and gestures used and all other
circumstances (v open) are relev in the objective test.
This is a GENERAL intent crime.
SA can be an attack by a member upon the same sex.
Rule TEST for recog of SA doesn’t dep solely on contact w/ specific areas of the
human anatomy. TEST for recog of SA should be objective.

R v Bulmer [1987] (SCC), pg 624

Facts Prostitute agreed to provide services to A, went to hotel room, discovered the other
two A‟s, told them to leave, left then came back, frightened, she performed sexual
acts w/ all three, she denied consent and receiving payment. A said complainant had
consented. Trial: L and I guilty of rape. B acquitted of rape, conv of indecent assault
(used honest but mistaken belief defence). CA dismissed appeals.
Issues
Held There was evidence of the mistake defence but ordered a new trial on basis that the
trial judge had wrongly instructed that the belief had to be both honest and
reasonable. The belief, if honestly held, need not be based on reasonable grounds.
Ratio Used air of reality test from Pappajohn: A‟s belief must be honest but need not be
reasonable. (Is a SUBJECTIVE test for honest belief).
Rule Belief can be unreasonable as long as its an honest subjective belief – the
presence or abs of reasonable grounds for the belief relev to det issue of honesty

R v Davis [1999] (SCC), pg 629
LEADING CASE on air of reality defence.
Facts
Issues
Held
Ratio Defence of honest but mistaken belief in consent is simply a denial of the mens rea of
SA (Ewanchuk, Pappajohn). The actus reus of SA reqs touching of a sexual nature
(OBJECTIVE test), w/out the concent of the C. Mens rea reqs the A to intend the
touching and to know of, or to be reckless or willfully blind as to the C‟s lack of
consent (SUBJECTIVE test) (Ewanchuk). If the A honestly believes the C consented
to the sexual touching (mistaken belief), the actus reus is estab but mens rea isn‟t.
Before the defence of honest but mistaken belief can be considered , there must be
suffic evid for a reasonable trier of fact to conclude:
 1) the complainant didn‟t consent to the sexual touching, and
 2) the accused nevertheless honestly but mistakenly believed that the
complainant consented (Osolin)
 (must be possible to conclude that the actus reus was made out but the mens rea
isn‟t)
 in these circumstances the defence is said to have an “aire of reality”, and the
48
trier of fact must consider it
 BUT if no “air of reality” then the defence shouldn‟t be considered as no
reasonable trier of fact could acquit on that basis (Park)
Determining whether there is an air of reality:
 Consider totality of the evidence
 Judge should “make no attempt to weight the evidence”, sole concern w/ “facial
probability of the defence”, judge should “avoid the risk of turning the air of
reality test into a substantive evaluation of the merits of the defence”
(Ewanchuk)
Above is evidence of a belief in consent, it isn‟t sufficient evidence of an “honest
but mistaken” belief in consent. SA gen not commited by accident.
The A‟s mere assertion that the complainant consented isn‟t enough to raise the
defence, but the requisite evidence can come from the A, it may also come from the
complainant, other sources or a combination
No air of reality where the evidence shows that the A was recklessly or willfully
blind as to whether the complainant consented (here the A has subjectively adverted
to the absence of consent, and tf can‟t have an honest but mistaken belief that the
complainant consented)
Rule No air of reality when the A is reckless or willfully blind as to consent.
Must be evid of a sitn of ambig in which A could honestly have misapprehended
that the C was consenting to the SA in question.

Rape Shield Laws:
R v Seaboyer; R v Gayme [1991] (SCC), pg 635

Facts Rape shield provisions inserted into CC in 83, s.276 and 277 challenged as unconst.
Provisions restrict the right of the defence on the trial for a sexual assault to x-
examine and lead evidence of a C‟s sexual conduct on other occasions.
Issues Do the rape shield provisions offend an A‟s guarantees under the Charter?
Held S.276 dealing w/ evidence of the complainants sexual activity as referable to the
issue of consent was declared unconstitutional.
S.277 dealing w/ evidence of the complainants sexual activity as referable to the
credibility of the complainant was declared constitutional.
Ratio Majority (McLachlin): s.277: C‟s credibility has no link to whether she is a truthful
witness, tf by limiting the exclusion to a purpose which is clearly illegitimate,
doesn‟t touch evidence which may be tendered for valid purposes and thus doesn‟t
restrict the right to a fair trial. S.276 on the other hand excludes evidence that may be
relevant. S.276 overbroad. Unfair to the A. Must balance the probative value of the
evidence and its potential prejudice w/ regards to s.276. Once struck down, afraid to
leave it up to judges, so came up w/ guidelines (pg 643).
DISSENT (L‟H-D): No charter viol, & any viol could have been saved by s.1.
Rule

New Legislation, Bill C-49 (1992)
a) Rape Shield
 in response to Seaboyer, minister of justice, the honourable Kim Campbell, initiated new legislation, along
w/ about 60 womens groups, they reached consensus and passed new s.276 that conformed almost exactly
to the limits set by J mclachlin for the majority in Seaboyer
49
Evidence of complainant‟s sexual activity
276. (1) In proceedings in respect of an offence under section 151, 152, 153, 153.1, 155 or
159, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273, evidence that the
complainant has engaged in sexual activity, whether with the accused or with any other person, is
not admissible to support an inference that, by reason of the sexual nature of that activity, the
complainant
(a) is more likely to have consented to the sexual activity that forms the subject-matter of the
charge; or
(b) is less worthy of belief.
Idem
(2) In proceedings in respect of an offence referred to in subsection (1), no evidence shall be
adduced by or on behalf of the accused that the complainant has engaged in sexual activity other
than the sexual activity that forms the subject-matter of the charge, whether with the accused or
with any other person, unless the judge, provincial court judge or justice determines, in
accordance with the procedures set out in sections 276.1 and 276.2, that the evidence
(a) is of specific instances of sexual activity;
(b) is relevant to an issue at trial; and
(c) has significant probative value that is not substantially outweighed by the danger of
prejudice to the proper administration of justice.
Factors that judge must consider
(3) In determining whether evidence is admissible under subsection (2), the judge, provincial
court judge or justice shall take into account
(a) the interests of justice, including the right of the accused to make a full answer and
defence;
(b) society‟s interest in encouraging the reporting of sexual assault offences;
(c) whether there is a reasonable prospect that the evidence will assist in arriving at a just
determination in the case;
(d) the need to remove from the fact-finding process any discriminatory belief or bias;
(e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility
in the jury;
(f) the potential prejudice to the complainant‟s personal dignity and right of privacy;
(g) the right of the complainant and of every individual to personal security and to the full
protection and benefit of the law; and
(h) any other factor that the judge, provincial court judge or justice considers relevant.

R v Darrach [2000] (SCC), pg 653.

Facts A charged w/ SA, at trial, tried to introduce evidence of the C‟s sexual history.
Unsuccessfully challenged the constitutionality of s.276.1(2)(a) of the CC (which
reqs that the affidavit contain detailed particulars of the evid), s.276.1 and 276.2(c)
(which govern the admissibility of sexual conduct evid generally) and s.276.2(2)
(which provide that the C is not a compellable witness at the hearing determining the
admissibility of evidence of prior sexual activity). After the voir dire, the trial judge
refused to allow A to adduce the evidence of the C‟s sexual history. Trial: A
convicted. CA: dismissed appeal, impugned provisions didn‟t viol the A‟s right to
make full answer and defence, his right not to be compelled to testify against himself
or his right to a fair trial as protected by s.7, 11(c) and 11(d).
Issues
Held Appeal dismissed, provisions are constitutional.
Ratio
Rule TEST for admissibility of evidence in s.276(2) requires not only that the
evidence be relevant but also that it be more probative than prejudicial.
50

b) Consent
 s.273.1 attempts to define consent in the case of SA, but isn‟t exhaustive
 The provisions attempt to give cts guidance as to sitns in which consent can be held to have been not
genuine and tf not consent in law
Meaning of “consent”
273.1 (1) Subject to subsection (2) and subsection 265(3), “consent” means, for the purposes
of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual
activity in question.
Where no consent obtained
(2) No consent is obtained, for the purposes of sections 271, 272 and 273, where
(a) the agreement is expressed by the words or conduct of a person other than the complainant;
(b) the complainant is incapable of consenting to the activity;
(c) the accused induces the complainant to engage in the activity by abusing a position of trust,
power or authority;
(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the
activity; or
(e) the complainant, having consented to engage in sexual activity, expresses, by words or
conduct, a lack of agreement to continue to engage in the activity.
Subsection (2) not limiting
(3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no
consent is obtained.
 2(a) someone else can‟t consent for another person
 2(c) eg I‟ll give you a job if you sleep w/ me – is an abuse of authority
 “by words or conduct” – 2(d) doesn‟t have to be words, conduct counts
 2(e) can consent then w/draw it
 *these are special rules applying only to assault, if it were physical assault, they wouldn‟t apply
c) Mistaken Belief in Consent
 under s.273.2, belief in consent isn‟t a defence where the belief arose from the accuseds self induced
intoxication or willful blindness or recklessness
Where belief in consent not a defence
273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused believed
that the complainant consented to the activity that forms the subject-matter of the charge, where
(a) the accused‟s belief arose from the accused‟s
(i) self-induced intoxication, or
(ii) recklessness or wilful blindness; or
(b) the accused did not take reasonable steps, in the circumstances known to the accused at the
time, to ascertain that the complainant was consenting.

R v Ewanchuk [1999] (SCC), pg 660 LEADING CASE ON SEXUAL ASSAULT
No “implied consent” defence.
Facts A initiated a number of touching incidents, each progressively more intimate
although the complainant clearly said “no” on each occxasion. The A argued that
there was “implied consent”, based on the victim‟s failure to leave the situation.
Trial: acquitted b/c although C‟s evid was credible and he believed she didn‟t
consent, her failure to communicate her fear projected a relaxed and unafraid visage,
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tf crown hadn‟t proven abs of consent BARD. CA: dismissed appeal.
Issues Is there a defence of “implied consent”?
Held Appeal allowed, A convicted. No defence of implied consent, and also det that the
actus reus for SA is det by a hybrid objective-subjective test.
Ratio C‟s fear: to be legally effective, consent must be freely given. To deem abs of
consent, trier of fact has to find that the C didn‟t want to be sexually touched and
made her decision to permit or participate in sexual activity as a result of honestly
held fear (s.265(3)). Fear need not be reasonable and doesn‟t have to be
communicated.
DISSENT (L‟H-D): Rejects notion of implied consent. Until an A takes reasonable
steps to ensure there is consent, the defence of honest but mistaken belief doesn‟t
arise.
Rule 5 Ewanchuk Limits on honest but mistaken belief:
1) In the context of mens rea – specifically for the purposes of the honest but
mistaken belief in consent – “consent” means that the C had affirmatively
communicated by words of conduct her agreement to engage in sexual activity
w/ the A. (most impt lim)
2) Not all beliefs upon which an A might rely will exculpate him. Consent in reln
to mens rea of the A is lim by CL and s.273.1(2) and s.273.2 of CC.
3) A belief that silence, passivity or ambig conduct constitutes consent is a
mistake of law, and provides no defence
4) An A can’t rely on his purported belief that the C’s expressed lack of
agreement to sexual touching in fact constituted an invitation to more persistent
or aggressive contact. Can’t say thought “no meant yes”.
5) Continuing sexual contact after someone has said “no” is at a min, reckless
conduct which isn’t excusable.

R v Cornejo (2003) (Ont CA, leave to appeal, SCC, refused), pg 675

Facts A charged w/ SA(party earlier in the evening, accused called C 3x, came over after
“mmm-hmmm” response, C was sleeping, refused, undressed her, when she realized
he was there (woke up), she refused more strongly. Trial: acquitted. Crown appealed
saying trial judge erred in leaving defence of honest but mistaken belief in consent to
jury when there was no AOR to def.
Issues
Held Appeal allowed, set aside acquittals, new trial ordered. A ought to have taken steps
before he engaged in any sexual activity to ascertain whether she was consenting.
Ratio Test is whether there is evid on the record upon which a properly instructed jury
acting reasonably could acquit (Cinous).
Defence of honest but mistaken belief in consent reqs 2 elements: 1) that the A
honestly believed the C consented; and 2) that the A have been mistaken in this
belief” (R v Livermore)
Rule Duty to take reasonable steps before engaging in any sexual activity to ascertain
whether she was consenting.

Charter Arguments
There are at least four possible Charter challenges to Bill C-49's substantive regime.
1. Section 273.2's exclusion on any intoxication defence imposes abs liab which threatens lib interest. (agmt
still ongoing – but if law were otherwise, womens interests would be threatened)
52
2. Sexual assault is one of those few offences requiring a minimum degree of mens rea in the form of
subjective foresight.
3. The duty to take reasonable steps in s. 273.2 is an objective standard which is unconstitutional because the
legislation does not require a marked departure from the objective nom.
4. Section 273.2 is unconstitutional because it violates the constitutional principle that those causing harm
intentionally must be punished more severely than those causing harm unintentionally.

R v Darrach (1998) (Ont CA, aff’d [2000] SCC) – Ont CA judgement in this chart
Facts Constitutional challenge to s.273.2(b).
Held Rape shield legislation upheld as constit valid. Ont CA not satisfied that SA is one of
those “v few” offences that carries such a stigma that its means rea componment
must be subjective. Despite this, decided that of the offence of SA carries suffic
stigma to req a subjective fault reqmt on the pt of the A. Although the offence can be
regarded as introducing an objective component into the mental element of the
offence, it is a modified one. It is personalized according to the subjective awareness
of the A at the time. The A is to “take all reasonable steps, in the circumstances
known to the A at the time, to ascertain that the C was consenting”.
The A isn’t under an oblig to det all the relev circumstances – the issue is what he
actually knew, not what he ought to have known.
Evidence of sexual activity can be permitted for its non-sexual features, such as to
show a pattern of conduct or a prior inconsis statement.

Mistake of Fact, pg 691
(a) General Principles
- Pappajohn leading decision on whether mistake of fact is a defence
o Mistake of fact defence constitutes a denial that the crown has proved the fault element
o In the absence of statutory wording to the contrary:
 1) when subjective mens rea reqmt, the mistake need merely be honestly held w/
reasonableness only relev to assessment of credibility (Pappajohn, Beaver (drugs))
 2) where fault element reqs objective negligence, the mistake must be both honest and
reasonable
 3) where there is a due diligence defence, mistake must be both honest and
reasonable, w/ an onus of proof on the accused in the case of regulatory offences
 4) where the offence is one of absolute liab, mistake of fact isn‟t a defence
 This could lead to const challenge (Hess)
**see crim robinson_stuart1_2010 pg 26 for exam approach**
R v Hess; R v Nguyen [1990] (SCC), pg 692
LEADING CASE
Facts H and N both charged w/ sexual intercourse w/ a female under 14 under s.146(1) of
the CC (Since repealed). H: trial, quashed conviction on ground that s. viol s.15 of
the charter, CA reversed the decision and ordered new trial
N: trial, convicted, CA, conviction upheld, found no viol of s.15 and even though s.
of CC viol s.7 of charter, it was justified under s.1
Issues Are charged w/ stat rape if you have sex w/ someone under 14, regardless of whether
the A had an honest belief the child was over 14. Tf this is an abs liab offence w/ no
mistake of fact defence allowed.
Held 5-2, infringes. S.7 and isn‟t saved under s.1 (fails propor stage), tf unconst
(Deterrance agmt failed, to deter a lot of ppl would have to know abt the provision,
53
would only protect a small subset of girls under 14 that look older. Punishing the
mentally innocent to advance certain objectives is fund unfair).
Doesn‟t infringe s.15
Ratio Majority (Wilson): Although there was a pressing and substantial concern to address
harm that may result to female children from premature sexual intercourse and preg,
BUT that abs liab didn‟t meet the propor test esp since parl had already enacted a
new scheme that allowed the DD defence.
DISSENT (McLachlin): Abs liab didn‟t extend beyond what was reasonably ness.
The alts of the offences of DD or reasonable belief wouldn‟t provide as effective a
deterrent.
Rule Denial of mistaken belief defence unconst for offences w/ const guaranteed fault
reqmts.
Note Although DD defence is less intrusive, this question still open (see Darrach)

c) As to nature of offence
- What if A thinks he is commiting one offence but is actually committing another?
- Tolson (UK Case): if the A he is commiting one offence, can that mens rea be transf to another offence? –
defence only allowed here if on the A‟s view he was innocent
- Beaver: says that you can‟t be guilty w/out knowledge of the character or substance
o Later on this is carried thorugh w/ Blondin – if you think you are doing something illegal, then
can‟t be guilty of the drug offence, b/c have to know its illegal (asks if the mistake rels to the
essence (essential elements) of the offence)
o Beaver: mistake only has to be honest and the existence or non-existence of reasonable grounds
for such belief is merely releve evid to be weighed by the tribunal of fact
o Beaver: often generalized and cts have held that a merely honest mistake will excuse in all
mens rea offences (OVERRULED by Pappajohn: subjective MR – belief only needs to be
honestly held; objective MR (or DD def), mistake must be both honest and reasonable)

R v Ladue [1965] (Yukon CA), pg 703

Facts Ladue either copulated or attempted to copulate w/ a dead woman, convicted at trial
under s.167(b) (now s.182(b) of CC)
Issues Whether the trial judge was right in holding that it wasn‟t open to the appellant to
contend that he wasn‟t guilty b/c he didn‟t know the woman was dead (Ladue was so
intox that he didn‟t know she was dead).
Held Appeal dismissed
Ratio An intention to commit a crime, although not the precise crime charged, will provide
the ness mens rea. This is applic of Tolson, Ladue had intent for rape, but she was
already dead (offence to have sex w/ dead person)  suffic to consti intent for this
crime.
Fund principle of crim law that unless excluded by statute, mens rea, is ness to
constitute a crime, a person doing an act isn‟t guilty if his mind is innocent.
The woman was unconc and tf couldn‟t have consented regardless, tf trial judge wsa
right in saying that he wouldn‟t entertain agmt that the A was innoc b/c he didn‟t
know the woman was dead (defence was he didn‟t know she was already dead, but if
so, then would have been raping her, tf not getting off)
Rule An intention to commit a crime, although not the precise crime charged, will
provide the ness mens rea.

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R v Kundeus [1976] (SCC), pg 703

Facts A charged w/ unlawfully trafficking LSD (acid) contrary to provisions of Food and
Drugs Act, cop asked for hash or acid, A said he was out but offered mescaline, cop
accepted, substance sold as mescaline was analysed to be LSD, A didn‟t know it was
LSD. Convicted at trial, set aside at CA.
Issues Was CA right in holding that the ness mens rea hadn‟t been proved?
Held Appeal allowed, restore trial judgment.
Ratio Majority (De Grandpre): Not possible to find that the A had an honest belief amting
to a non-existence of mens rea and the CA was in error in its concl.
Recall: R v Blondin – it was suffic to find, in reln to a narcotic, mens rea in its widest
sense.
DISSENT (Laskin): Doesn‟t agree that when mens rea is an element of an offence, as
it is here, it can be satisfied by proof of its existence in reln to another offence unless
the sitn involves an included offence of which the accused may be found guilty on
his trial of the offence charged.
Rule To prove guilt for drug offences, it need not be shown that the A intended to
traffic the actual drug, but only that they intended to traffic a narcotic; need
only mens rea in its widest sense (if you are selling one drug and it turns out to
be another, no defence). (Mens rea can be transferred) NOTE: Pappajohn
reverses this (1980), where mistaken belief need only be honest but not
reasonable. No more rebutable presumption of MR)
Note Rule based on policy agmt that there are many white powder drugs, and if we reqd
mens rea to the partic kind of drug, it would make it too easy for the A to say he
erred as to what type of drug it was due to their similar appearance. This agmt may
not hold up when comparing mj to cocaine, etc eg.
Fault for drug offences: all req subjective mens rea (Beaver, but now in pts of CC),
can be extended to willful blindness or recklessness. Mistake as to which drug it was
won‟t work (Kundeus).

Mistake of Law, pg 711
Inflexible rule, s.19 of CC:
Ignorance of the law
19. Ignorance of the law by a person who commits an offence is not an excuse for committing
that offence.

Policy Considerations:
 Don‟t want society to be lawless
 Impossible for everyone to know the law, but its impractical for everyone to get off b/c they don‟t know
the law
 If it was an excuse, then it would have abt proving someones knowledge of the law, attn would divert to
did the A know the law?
 Notion is that everyone knows the big crimes, roughly speaking
Note: doesn‟t matter if you were told by someone in posn of authority what the law was and they were wrong –
unless its officially induced error & meets Levis reqmts.
R v Esop (1836), 173 ER 203
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 chambers for the prisoner wasn‟t an offence in his own country
 a person who comes into England and does an act that he believes is innocent can‟t be found
guilty
 a party must know what he does is a crime
 found not guilty
Rule That is was not an offence in his native country was held to be no defence.

R v Campbell and Mlynarchuk (1972) (Alta Dist Ct)

Facts A unlawfully took part as a performer in an immoral performance at Chez Pierres in
Edmonton. Charged w/ s.163(2) (now 167(2)) of the CC. Earlier A had refused to do
the performance, but after she was given evidence from Pierre couchard that a
supreme ct judge said that they “ruled we could go ahead w/ bottomless dancing”, so
went ahead w/ it.
Issues Is mistake of law a defence? What abt when relying on solicitors opinion?
Held Mistake of law is no defence. Gave absolute discharge.
Ratio  mistake of fact is a defence to a crim charge where it can be said that the facts
believed by the accused, if true, would have afforded him a defence; mistake of
mixed fact and law is also a defence
 here though, her mistake was concluding that a statement of law from Pierre
couchard was the law, this isn‟t a mistake of fact, it‟s a mistake of law.
 In some sitns, mistake of law can be a defence, Mistake of law can negative a
malicious intent reqd for the crime, only when the law requires that a person
knowingly, or maliciously or willfully does something
 Here there is no such reqmt, the only mens rea reqd here is that the appellant
intended to do what she did
 S.19 of CC holds that mistake of law is no defence
 Removing mistake of law is a policy matter
o There will always be sitns where honest and reasonable mistakes as
to the state of the law will be the explanation of the conduct of the
accused, but normally this can‟t be a defence b/c the 1
st
reqmt of a
legal sys is that it work efficiently and effectively, if the state of
understanding of the law of an accused is relev, the trial would be
absurd
o Tf defence can‟t be allowed as a matter of public policy
Rule Mistake of law affords no defence.
Note Although mistake of law still is no defence, on the facts, this case may have falled
under officially induced error exception (Levis)
Also, the decision that was relied on in Campbell (J ohnson case, trial decision), that
was overturned on appeal (reason why Campbell was charged), was again reversed at
SCC, tf the info Campbell relied on wasn‟t wrong.

b) Distinguishing Mistake of Law and Fact
R v Prue; R v Baril [1979] (SCC), pg 719

Facts The two A‟s suffered automatic suspensions of their drivers licenses, afterwards they
drove motor vehicles and were charged under s.238(3) of CC. Neither accused knew
licence was suspended. Trial: convicted. Convictions set aside, found that proof of
mens rea was essential to a conviction of an offence under s.238(3). CA: affirmed
acquittal, said it was a mistake of fact.
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Issues Was it a mistake of law or fact?
Held Appeal dismissed; S.238(3) reqs mens rea. A not convicted. Mistake of fact.
Ratio Majority (Laskin): Distinction b/w true criminal offence and public welfare offence
is in crim, the crown must establish a mental element, namely that the accused who
commited the act did so intentionally or recklessly, w/ knowledge of the facts
constituting the offence, or w/ willful blindness towards them.
Whether there had been an effective suspension was a question of fact.
DISSENT (Ritchie): Mistakes by the accused is a mistake as to the legal
consequences of a conviction under s.236 of CC, mistake founded in ignorance of
the law, tf, have s.19 of CC which says that ignorance of the law is not an excuse.
Rule Distinction b/w mistake of fact and mistake of law turns on whether the A is
mistaken as to a fact underlying the invocation of a crim provision vs ignorance
of the legal provision itself (law).
Note Prue could be basis of const attack on the inflexible rule in s19 denying fund
principles of justice under s.7.

c) Colour of Right for Property Offences
Requirements of the COR Defence:
 There must be a mistake rather than simple ignorance, inadvertence rather than not thinking at all
 The belief must be as to a legal rather than moral right (Drainville).
 The mistake must be honest and not ness reasonable (Dorosh).

R v Dorosh (2004) (Sask CA), pg 723
Colour of right defence succeeded.
Facts A charged w/ stealing a trailer contrary to s.334(b) of CC. Convicted by provincial
ct. Appealed conviction to Ct of Queens Bench pursuant to s.813 of CC, appeal
dismissed.
Issues Whether the trial judge erred in interp phrase “w/out colour of right”, s.322 cc
Held Appeal allowed, direct new trial.
Ratio Actus reus of offence invs A taking the trailer. Mens rea more difficult. Term “colour
of right” refs to sitn where there is an assertion of a proprietary or possessory right to
the thing which is the subject matter of the alleged theft, one who is honestly
asserting what he believes to be an honest claim can‟t be said to be acting w/out
colour of right, even though it may be unfounded in law or in fact. Colour of right
also used to denote an honest belief in a state of facts, which if it actually existed
would at law justify or excuse the act done. Colour of right can have its basis in
either a mistake of civil law, or in a mistake in a right to the thing which is the
subject matter of the alleged theft or an honest belief in the state of facts which it is
actually existed would at law justify or excuse the act done.
Rule Honest belief in a legal right is enough, it doesn’t have to be reasonable.
Note 2 exceptions to rule that ignorance of the law is no excuse:
1) Colour of right defence (only in property cases, doesn‟t apply to protestors)
2) Officially induced error of law

R v Drainville (1991) (Ont Prov Div), pg 727
Colour of right defence failed.
Facts A charged under s.430(1)(c) of CC. Had blocked parcel of land to protect constuction
57
of a road, believed the abor rights should prevail despite province having title.
Issues Can belief in a moral claim of right constitute a defence of colour of right?
Held Guilty
Ratio Civil disobediance can‟t be condoned, but those who wish to resort to it are free to do
so but must also suffer the conseqs. Tf can‟t use it as a defence. Colour of right: an
honest belief in the existence of a state of facts which if it actually existed, would at
law justify or excuse the act done. Whether its an honest belief is a subjective test
(couldn‟t have had an honest belief of whether abors had title using an objective
test). Distinction b/w honest belief in a moral as opposed to legal or lawful right:
in Ont, an honest belief in a moral can‟t constitute a COR defence, but legal right
can. Moral convictions, though deeply and honestly held, can‟t transform illeg
actions into legal ones, only the rule of law must prevail.
Rule Belief in a moral claim of right can’t constitute a defence of colour of right.
Defence must fail.
Note This issue has arisen in Kingston w/ the shutting down of the prison farms.

d) Officially induced error of law
Levis (City) v Teteault; Levis (City) v 2629-4470 QC Inc [2006] (SCC), pg 733
LEADING CASE on reading into a provincial offence (the due diligence defence)
Facts T charged w/ driving w/out a valid licence contrary to s.93.1
 Raised defence of due diligence, thought date was payment date not expiration
date
Numbered company charged w/ operating a motor vehicle for which the registration
fees hadn‟t been paid contrary to s.31.1
 Raised defence of due diligence and officially induced error
Municipal ct of city found that both offences were strict liab, defences of due
diligence accepted and A‟s acquitted
Issues
Held Offences were strict liab, but held that defence of DD hadn‟t been estab. A‟s had
remained passive rather than attempting to discover nature of their legal oblig to pay.
Appeal allowed, convictions entered, imposed min fines.
Ratio For defence of officially induced error, must prove 6 elements:
1) That an error of law or of mixed law and fact was made;
2) That the person who committed the act consid the legal conseq of his or her
actions;
3) That the advice obtained came from an approp official;
4) That the advice was reasonable;
5) That the advice was erroneous (containing or characterized by error); and
6) That the person relied on the advice in committing the act.
Have to be active if want to claim DD, onus on you to prove you took DD, can‟t be
passive. This applies to both crimes and reg offences.
Rule Defence of officially induced error of law is available for any offence where fault
is reqd.

Incapacity
1) Age
 in 1982 the age of criminal responsibility was raised from 7 to 12 yrs, s.13 of cc
 young offenders act governs trials of all children over the age of 12 but under 18
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 young offenders act was replaced by the youth criminal justice act
 assume the substantive law principles we are exploring apply equally in youth ct
 R v B (D), SCC recog new principle of fundamental justice that young ppl who engage in crim conduct
should be presumed to have less moral blameworthiness and culpability than adults
o Majority constitutionalized a presumption of lower sentences for young offenders
Child under twelve
13. No person shall be convicted of an offence in respect of an act or omission on his part
while that person was under the age of twelve years.

2. Insanity (mental disorder)
a) Psychiatric Classification: Limited Truths
 diagram, pg 742
 DSM-IV, divides mental disorder into inter alia, “mental retardation”, psychoses, “anxiety disorders” and
“personality disorders”
o There is no assumption that each categ is discrete w/ absolute boundaries dividing it from other
mental disorders or from no mental disorder
 Psychopath: guiltlessness and lovelessness conspicuously distinguish them from other men
 Personality disorder charac by disregard for social oblig, lack of feeling for others, and impetuous violence
or callous unconcern, gross disparity b/w behaviour and the prevailing social norms
 Conduct disorders def: involving repetivitive and persistant patterns of violations of social norms falling
into 4 categ: aggression to ppl and animals, destruction of property, deceitfulness or theft and serious
violation of rules
 “phychopathic syndrome” label, appears to be a ragbad description of a persistent recidivist who carries on
commiting crimes for no apparent reason, label tells us nothing abt causation, prognosis, or treatment,
changing the label won‟t fix these critisisms
o lawyers should request that psychiatrists be as precise as possible in their descriptions of the actual
behaviour of the indiv before the ct rather than hide behind imperfect abstractions
o descriptions are too imprecise for use as legal criteria of responsibility
 the issue of legal insanity must be decided by the jury and judge, its most impt that they look at all the
evidence carefully, vigourous examination and cross examination are ness
 see notes, Feb 9, 2011
b) Mental Disorder under CC
Defence of mental disorder
16. (1) No person is criminally responsible for an act committed or an omission made while
suffering from a mental disorder that rendered the person incapable of appreciating the nature
and quality of the act or omission or of knowing that it was wrong.
Presumption
(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from
criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of
probabilities.
Burden of proof
(3) The burden of proof that an accused was suffering from a mental disorder so as to be
exempt from criminal responsibility is on the party that raises the issue.
 S.16 was a Cdn version of the M‟Naghten rules
Cooper v R [1980] (SCC)
LEADING CASE on how to interpret “disease of the mind” & LEADING CASE on what it
means to be incapable of apprec the nature and quality of the act.
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Facts A charged w/ murder of a patient at a psych hospital. Trial: defence of insanity not
raised by A but trial judge put it to the jury. CA: appeal dismissed
Issues Whether there was evidence that the A had a disease of the mind that would render
him incapable of appreciating the nature and quality of the act, or of knowing that it
was legally wrong.
Held Appeal allowed. There was evid suffic to req the judge to fully instruct the jury on
the issue of insanity, judge was of opinion that issue should go to jury.
Ratio The term “knowing” in s.16 means that the accused has an “appreciation” of the
emotional and intellectual characteristics of his act and the mental capacity to
measure and foresee the consequences of it. The test of appreciation embraces
“emotional as well as intellectual, awareness of the significance of the conduct”
The Crown may only raise the issue of mental disorder once the A has been
found guilty of the offence. The question of “disease of the mind” is to be decided
by the judge based on evidence at trial. If psychiatric evidence indicates that an
accused has a legally recognized disease of the mind (judge must decide), A may
raise the defence, the judge must leave it open to the jury to find, as a matter of fact,
whether the accused had disease of the mind at the time the crim act was committed,
& whether the A was incapable at the time.
Rule “Disease of the mind” embraces any illness, disorder or abnormal condition
which impairs the human mind and its fning, excluding however, self-induced
states caused by alcohol or drugs, as well as transitory mental states such as
hysteria or concussion.
TEST: Was the A person at the very time of the offence – not before or after –
by reason of disease of the mind, unable to appreciate not only the nature of the
act, but the natural conseq that would flow from it?

Kjeldson v R [1981] (SCC), pg 762
Ratio  Here doesn‟t believe the psychiatric evidence to be such that the accused was by
reason of emotional turmoil produced by disease of the mind incapable of
understanding or realizing what he was doing, but rather that he lacked normal
emotions and was therefore incapable of experiencing normal feelings
concerning the acts assuming he commited them
 Exemption provided by 16(2) doesn‟t extend to one who has the nessessary
understanding of the nature, character and conseq of the act but merely lacks
approp feelings for the victim or lacks feelings of remorse or guilt for what he
has done, even though such lack of feelings stems from “disease of the mind”
 Appreciation of the nature and quality of the act doesn‟t import a reqmt that the
act be accompanied by approp feelings abt the effect of the act on other ppl;
absense of feelings is a common characteristic of many who engage in serious
criminal conduct
Rule Psychopathy was a disease of the mind w/in meaning of s.16 of CC.
Failure to “appreciate” the nature and quality of the act doesn’t apply to one
who has the ness understanding of the nature, character and conseq of the act,
but merely lacks approp feelings for the victim or lacts feelings of remorse or
guilt for what he has done
**B/c of this case, v diff for an A to successfully raise defence of insanity if his
only disease of the mind is psychopathy**

R v Abbey [1982] (SCC), pg 763

Facts A charged w/ importing cocaine and unlawfully possessing it for the purpose of
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trafficking. Raised insanity in defence. Psych evid suggests he suffers a disease of
the mind, doesn‟t render him incap of apprec the nature and quality of the act, but
invs a delusional belief that he was committed to a course of action, no harm would
come to him and he wouldn‟t be punished. Trial: acquitted by reason of insanity w/in
16(2) b/c failed to apprec PENAL conseq of the act (ERROR).
Issues
Held Order new trial
Ratio - Cooper: the reqmt that the accused be able to perceive the conseq of a physical
act is a restatement, specific to the defence of insanity, of the principle of mens
rea or intention, and is a requisite element in the commission of a crime
- Punishment may be a result of the commission of a crime, it isn‟t an element of
the crime itself
- Delusion which makes an accused incapable of appreciating the nature and
quality of his act, goes to the mens rea of the offence and brings into operation
the “first arm” of 16(2): he isn‟t guilty by reason of insanity; delusion which
renders an accused incapable of appreciating that the penal sanctions attaching
to the commission of the crime are applicable to him doesn‟t go to mens rea, tf
cant‟ use defence of insanity
- It was his intention to import cocaine for the purposes of trafficking, he
appreciated the actus reus
- Second arm of 16(2)
o Schwartz case: “wrong” means wrong according to the law (**note:
this was overruled in Chaulk**)
o Abbey knew his act was wrong, tf his inability to appreciate the
penal conseq is irrel to the question of legal insanity
Rule Delusion which makes an accused incapable of appreciating the nature and
quality of his act, goes to the mens rea of the offence and brings into operation
the “first arm” of 16(2): he isn’t guilty by reason of insanity. A delusion which
renders an accused incapable of appreciating that the penal sanctions attaching
to the commission of the crime are applicable to him doesn’t go to mens rea
since punishment was not an element of the offence itself, tf cant’ use defence of
insanity.

R v Chaulk [1990] (SCC), pg 765
OVERRULES SCWARTZ!! (Didn’t actually cover Scwartz??)
Ratio  Inquiry can‟t terminate w/ the discovery that the accused knew the act was
contrary to the formal law, person may know an act is contrary to law, but as the
same time be incapable of knowing that the act is morally wrong according to
moral stds of society – in this case, accused should be entitled to by acquitted by
reason of insanity
 Essential that the accused know that they ought not to do the act in question, this
condition is met if the accused knows that the act is legally wrong
 Prob w/ making capacity to appreciate moral wrong the test for crim
responsibility where the incapacity is caused by mental illness is that of det what
societys moral judgment will be in every sitn
Rule Wrong means more than legally wrong – wrong means morally wrong.
TEST (M’Naghten one): whether the A for whatever reason, was incap of
apprec that his or her act was wrong.
Note  New chaulk test used in Oommen [1995], SCC confirmed that under s.16(2), a
person who lacks capacity to know that the act he is commiting is wrong is
exempt from crim responsibility, the inquiry is to focus not on general capacity
to know right from wrong, but rather on the ability to know that a particular act
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was wrong in the circumstances
 Question is whether the accused lacks the capacity to rationally decide whether
the act is right or wrong and hence to make a rational choice abt whether or not
to do it
o facts: accused shot and killed, w/out apparent motive, female friend,
he suffered from mental disorder and at the time, thought that
members of a local union had conspired to “destroy” him and they
have had given a commission to the victim to kill him

c) mental disorder negativing mens rea
R v Swain [1991] SCR, evidence of mental impairment short of insanity negativing the requisite mental element
includes for eg, planning and deliberation in the case of first degree murder, or the specific intent reqd for
murder (obiter in Swain, but accepted in J acquard (1997) SCC)
2. Automatism
R v Rabey (1977) (Ont CA), pg 769 (Went to SCC but CA judgment was adopted)
(Geo student hits girl w/ rock)
Facts Rabey and miss x were friends, rabey was emotionally attached to X but feelings
weren‟t reciprocated, X wrote letter to friend telling abt a person she liked (not
rabey), rabey found letter, went w/ x to squash cts, in stairwell, after asking her what
she thought of him (response was: as a friend), respondent struck her on the head 2x,
and choked her, respondent doesn‟t remember pts of the incident. Charge: causing
bodily harm w/ intent to wound and possessing a weapon for the purpose of
committing an offence (gets off the second charge at every level – there is never
mens rea for having a weapon for attempting to attack).
Issues
Held
Ratio Dissociative state is an occurrence, isn‟t a mental illness and isn‟t a “disease of the
mind”. Entry into dissoc state triggered by powerful emotional shock. Not likely to
reoccur.
Recog that there might be more extreme shocks.
Rule

R v Rabey [1980] (SCC), pg 774
Issues Whether automatism resulting from a “psychological blow” is available to an A in
answer to a charge of causing bodily harm w/ intent to wound?
Held Ordered new trial to see if he had the defence of insanity. (Appeal dismissed)
Ratio Majority (Ritchie): Automatism def from r v K (1971) 3 CCC (3d) 84: term used to
describe unconscious, invol behaviour, the state of a person who, though capable of
action, isn‟t conscious of what he is doing, it means an uncon, invol act, where the
mind doesn‟t go w/ what is being done. Here its said that the respondent was in a
state where capable of action, wasn‟t conscious of what he was doing, and that he
wasn‟t suffering from a disease of the mind. Central question in cases inv defence
of automatism: whether the accused was suffering from a disease of the mind.
Whether or not such a state amounts to a disease of the mind is a question of law for
the judge to decide (judge decides what constitutes a disease of the mind, triers of
fact det whether or not the facts in a given case disclose the existence of such a
disease)
DISSENT (Dickson): defence of automatism is somewhat akin to that of insanity, in
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both cases, the issue is whether an accused had sufficient ctrl over or knowledge of
his crim act to be held culpable, but the 2 defences are sep and distinct, diff being
that in insanity, the defect of the understanding must originate in a disease of the
mind, whereas in defence of automatism simpliciter the crim law is not concerned w/
any question of disease of the mind (this isn‟t just DISSENT position). Dickson can‟t
accept notion that an extraord external event (intense emotional shock), can cause
state of dissoc or automatism if and only if all other normal persons subjected to that
sort of shock would react in that way – in all other aspects of the crim law, the inq is
dir to the A‟s actual state of mind, it is his subjective mental condition w/ which the
law is conc – the fact that other ppl wouldn‟t have reacted as he did shouldn‟t
obscure the reality that the external psych blow did cause a loss of consciousness.
Rule Distinction to be drawn is b/w a malfning of the mind arising from some cause
that is primarily internal to the A, having its source in his psych or emotional
makeup, or in some organic pathology (which would be disease of the mind), as
opposed to a malfning of the mind, which is the transient effect produced by
some specific external factor such as, concussion.

COMPLETE TEST FOR INSANITY:
1) Whether the A‟s conduct could constitute a disease of the mind.
 Legal question, A must prove on BoP
 Disease of the mind defd in Cooper
 Internal factor reqmt, Rabey
2) The condition must be severe enough to render the person incapable of appreciating the nature and quality of
the act, OR incapable of knowing it was wrong (Factual question, onus on A to prove on BoP)
 TEST from Cooper
R v Parks [1992] (SCC), pg 783
Sleepwalking defence
Facts A was experiencing personal probs, fell asleep in living room, got up, drove 23km to
inlaws, strangled and beat father in law, killed mother in law.
Issues
Held Acquitted
Ratio Sleepwalking is in a sep categ. Unconc behaviour in a state of somnambulism is non-
insane automatism. (note on the Rabey approach, this is an internal factor, tf would
be insanity, tf are saying it‟s a special rule)
Note: this isn‟t to say that sleepwalking will never be a disease of the mind.
Automatism has unique place in crim law sys. Although spoken of as a “defence”, it
is a subset of the voluntariness reqmt, which is pt of the actus reus component of
crim liab (distinction b/w sane and non-insane settled in Rabey).
Three factors to take into accnt w/ this defence:
1) Internal/external
2) Is the A a continuing danger?
3) Policy reasons (floodgates agmt not persuasive, v diff to feign)
Rule Sleepwalking can qualify as sane automatism.

R v Stone [1999] (SCC) pg 801
LEADING CASE on automatism
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Facts Accused stabbed wife 47x, killing her, after visiting his sons w/ her, prior to
stabbing, she raised the issue of divorce and said she had falsely reported to police he
was abusing her, said they were going to arrest him, called him other names, felt
“whoosh” sensation go over him, then when refocused saw wife slumped over on the
seat.
Issues Should issue of sane automatism have been left to the jury? How an A‟s claim of
automatism should be assessed.
Held The court found that the trial judge was correct in not putting the automatism defence
to the jury, as the insults that led to the „black out‟ were not “extraordinary external
events”.
Ratio Automatism: used to desc unconc, invol, behaviour, the state of a person, who
though capable of action, isn‟t conscious of what he/she is doing
Key issue: b/c an A who acts in an automatic state will generally satisfy the defence
of insanity, the crucial issue in automatism cases is whether the cause of automatism
is a mental disorder or another factor.
3 step substantive approach:
1) A must show on BoP that his actions were invol
2) Once the actions are accepted as invol, they are presumed insane  D must
prove on BoP that he isn’t suffering from a disease of the mind.
 Start from the proposition that the condition the A claims to have suffered
from is a disease of the mind. They must then det whether the evid in the
partic case takes the condition out of the disease of the mind categ.
 There are 2 distinct approaches to the disease of the mind inq: internal cause
theory, and the continuing danger theory. Internal cause theory recog in
Parks as the dom approach in Cdn juris. Bastarache says that the internal
cause theory can‟t be recog as a univ classificatory scheme for “disease of
the mind”. There will be cases where the dichotomy b/w internal and
external causes becomes blurred. Tf must use a holistic approach to the
disease of the mind inq.
3) Other policy factors
 Can eval any such valid policy concern
 Policy concerns assist trial judges in answering the fund question of mixed
law and fact which is at the ctr of the disease of the mind inq: whether
society reqs protection from the A and, conseq, whether the A should be
subject to eval under the regime contained in pt XX.1 of cc.
DISSENT (Binnie): Doesn‟t like the reverse onus.
Rule The validity of an accused’s claim of automatism should be evaluated by a
holistic assessment of internal cause theory, continuing danger through, and
relevant policy concerns.
3 step approach to defence, see above

R v Fontaine [2004] (SCC), pg 809
Get uncertainty from this judgment
Facts A charged w/ first degree murder of D; R (former coworker) called and said was
going to get him, heard from co-worker that D had been offered a contract to kill
accused and R, D came to garage to pay a debt, accused shot him 2x, then further 5x
outside. D raised the defence of insane automatism, but the trial judge did not put the
defence to the jury on the belief that there was no evidence that would allow a
properly instructed jury to conclude on a balance of probabilities that he was acting
involuntarily. D appealed on the grounds that the defence should have been put to the
jury.
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Issues Should mental disorder automat have been left w/the jury?
Held Defence of mental disorder automatism should have been put to the jury. New trial
ordered.
Ratio Jury doesn‟t have to weigh evid, if there is evid upon which a prop instructed jury
could find the act was committed when the A was in a state of automatism, then evid
suffic
Note Since have Stone case, shouldn‟t have put non-insance automatism to the jury.
Mental disorder automatism means the defence of insanity.

R v Luedecke (2008) (Ont CA), pg 813

Facts A and C were guests at a house party, C fell asleep at 2am, woke up at 5am to a man
having sex w/ her, he looked dazed, accused had been drinking and consuming magic
mushrooms the day before, drank 8-12 beers, couple rum and cokes and couple
vodkas, A fell asleep on couch, next thing he remembers is getting pushed off couch
by C. Defence: non-insane automat. Sleep disorder expert diag A w/ parasomnia,
relied on A‟s history of sleep probs and past incidents of “sexomnia”. Parasomnia
not disease of the mind.
Issues
Held Ordered new trial limited to the det of whether the automatism constituted
automatism resulting in an acquittal or mental disorder resulting in an NCR-MD
verdict.
Ratio Constitutional reqmt that the act be voluntary.
After Stone, many argue that successful claims of non-mental disord automat will be
lim to those v rare “one off” cases in which an A suffers a single incident of automat
and where the A can pt to some specific external event that precipitated that event,
can demonstrate that the event is unlikely to reoccur, and finally, can show that the
event could have produced a dissoc state in an otherwise “normal” person. (TEST)
In this case, triggers were alcohol, stress and fatigue, tf likely to reoccur.
Rule

Premenstrual Syndrome
 Woman ended love affair by delib running down lover w/ car and killing him
o Trial: pled guilty to manslaughter b/c of diminished responsibility, was discharged from custody
 Barmaid placed on probation for carrying a knife and threatening to kill a policeman though she was
already on probation for having stabbed a fellow barmaid to death
 In both cases, English cts found that D‟s were suffering from PMS
 Should PMS be a defence in cdn cts?
 In 1994, more debil form of PMS, premenstrual dysphoric disorder (PMDD) added to DSM-IV
4. Intoxication
Society refuses to accept the plea of lack of responsibility for one who commits a crime in an intoxicated state.
The act of becoming acutely intoxicated is itself judged as irresponsible and the consequences must be paid for.
The result is a compromise between the requirement of the criminal law for a responsible or voluntary act, and
the judgement of society that a wrongdoer not be exonerated simply because he was drunk.

a) Common Law
R v Bernard [1988] (SCC), pg 828
65

Facts A got drunk and sexually assaulted a victim causing bodily harm. Charge: s.246.2(c)
[sexual assault causing bodily harm]. A raised the defence of intoxication, on the
argument that sexual assault causing bodily harm should be seen as a specific intent
offence (to which intoxication defence would apply, on the grounds that the
intoxication would prevent A from forming the required fault element of a specific
intent offence).
Issues 1) Whether SA causing bodily harm, s.246.2(c) of CC is an offence requiring proof
of specific or of general intent; 2) whether evid of self-induced drunkenness is relev
to issue of guilt or innocence in an offence of gen intent.
Held The ct held that s. 246.2(c) [sexual assault causing bodily harm] is a general intent
offence. Therefore, the defence of intoxication does not apply. The ct also held that
s. 246.2(c) is constitutionally valid. Appeal denied.
Ratio McIntyre: Intoxication is a defence in specific intent offences, as the accused would
not have the capacity to form the specific offence
GI offence: one in which the only intent involved relates to the performance of the
act in question, with no further ulterior intent or purpose
SI offence: is one which invs the performance of the actus reus, coupled with an
intent or purpose going beyond the mere performance of the questioned act (e.g.
striking a blow or administering poison with the intent to kill, or assault with the
intent to resist arrest)
Drunkenness in a general sense is not a true defence to a criminal act. Where,
however, in a case which involves a crime of specific intent, the accused is so
affected by intoxication that he lacks the capacity to form the specific intent
required to commit the crime charged, it may apply. The defence, however, has
no application in offences of general intent.
It would therefore be my view that the mental element of the offence in s. 246.2(c) is
only the intention to commit the assault. The surrounding circumstances must be
considered for evidence of its sexual nature and of the resulting bodily harm. The
Crown need not show any further mental element.
The requisite state of mind may be proved in two ways:
1) there is the general proposition that triers of fact may infer mens rea from the actus
reus itself: a person is presumed to have intended the natural and probable
consequences of his actions.
2) 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 mental state of the accused by proving the fact of voluntary
self-induced intoxication by drugs or alcohol (admittedly it is hard to imagine a case
actually occurring where the accused was so drunk they can't even form the intent to
act).
Only in cases of the most extreme self-intoxication does the trier of fact need to use
the second proposition, that is, that evidence of self-induced intoxication is evidence
of the guilty mind, the blameworthy mental state.
Wilson: (THIS BECAME POSN OF CT, however was reversed quickly)
The real concern over the substituted form of mens rea arises under s. 11(d) of the
Charter. While this court has recognized that in some cases proof of an essential
element of a criminal offence can be replaced by proof of a different element, it has
placed stringent limitations on when this can happen.
It is unlikely that in those cases in which it is necessary to resort to self-induced
intoxication as the substituted element for the minimal intent, proof of the substituted
element will "inexorably" lead to the conclusion that the essential element of the
minimal intent existed at the time the criminal act was committed. But I prefer to
leave this question open, as it is unnecessary to decide it in order to dispose of this
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appeal. (discussion as per s. 11(d))
Rule Voluntary drunkenness isn’t a defence for gen intent crimes.
Crimes of SA are GI crimes to which voluntary intox is no defence.

Specific Intent Offences: General Intent Offences:
Murder Manslaughter
Assault with Intent to resist arrest Assault
Break and Enter with Intent to Commit an
indictable offence
Break and Enter and committing an
indictable offence
Robbery Sexual Assault
Theft Assault Causing Bodily Harm
Attempts
Aiding and Abetting

b) Charter Standards
R v Daviault [1994] (SCC), pg 850

Facts A charged w/ SA. Was a chronic alcoholic, went to C‟s house, SA‟d her in middle of
night (was in wheelchair). A claims he can‟t remember SA. Estim that A‟s blood
alcohol level would have caused death or coma in reg person. Trial: acquitted b/c had
RD that A had min intent ness to commit SA. CA: allowed appeal, convicted.
Issues Can a state of drunkenness which is so extreme that an A is in a condn closely
resembling automatism or a disease of the mind as def in s.16 of CC constitute a
basis for defending a crime which reqs not a specific but only a gen intent?
Held Appeal allowed, ordered new trial. The court held that the Charter required the
acceptance of the defence of extreme intoxication to the point of automatism.
Ratio Charter can be complied w/ in crimes req a gen intent if:
 A were permitted to estab that at time of act, he was in state of extreme intox
akin to automatism or insanity
 A bears burden of estab on balance of probab that he was in that extreme
state of intox (done w/ expert testimony)
 Allowing this would mean that a defence would be open that due to extreme
deg of intox, the min mental element reqd by a gen intent offence hasn‟t
been estab
Onus on A to show he was probably in a state akin to automatism of insanity as a
result of his drinking on BoP.
Rule When a state of drunkenness 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
Code and commits a specific intent offence, a defence of extreme intoxication
may be entertained in order to satisfy s. 7 Charter requirements. Must prove on
BoP and need to have expert evid.

R v Daley [2007] (SCC), pg 865
3 categories of distinction
Ratio The legally relev degrees of intox, 3 degrees:
1) mild intox – where there is alcohol induced relaxation of both inhibitions and
socially acceptable behaviour – has never been accepted as a factor or excuse in det
whether the accused possessed the requisite mens rea
2) advanced intox – where there is intox to the pt where the A lacks specific intent,
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to the extent of an impairment of the A‟s foresight of the conseq of his act suffic to
raise a reasonable doubt abt the requisite mens rea – defence for this level only
applies to specific intent offences
3) exteme intox akin to automatism, which negates voluntariness and thus is a
complete defence to crim responsibility, v rare defence
Rule Where drunkenness raised as a defence to a specific intent crime, the issue is
one of intent in fact rather than incapacity.
Must be in an advanced state of intoxication in a murder case, can get it down to
manslaughter.

Justifications and Excuses
1. Why allow common law defences?
 Not possible to anticipate every future defence
Note: can‟t charge someone w/ a CL offence, have to be a stat offence.
2. Air of Reality for Defences
R v Cinous [2002] (SCC), pg 869
Air of reality test
Facts
Issues Is there an AOR to the defence of self defence (SD) in this case?
Held No AOR to the defence.
Ratio Features of air of reality test:
Inquiry into whether there is an evidential foundation for a defence is referred to as
the air of reality test (pappajohn)
1) trial judge must put to jury all defences that arise on the facts, whether or not they
have been specifically raised by an accused – where there is an air of reality to a
defence, it should go to the jury
2) trial judge has pos duty to keep from the jury defences lacking an evidential
foundation - defence lacking air of reality should be kept from the jury (pappajohn)
In consid aor test, judge considers the totality of the evidence and assumes the evid
relied upon by the accused to be true (park) – aor test doesn‟t consid whether the
defence is likely or not to succeed
Single AOR test applies to all defences (Park)
Rule Approach to air of reality test: whether there is evidence on the record upon
which a properly instructed jury acting reasonably could acquit

R v Fontaine [2004] (SCC), pg 873
 To avoid unfairness and confusion, no issues will be put to the jury in the abs of suffic
evidential foundation (Det by consid the issue and the nature of the burden of proof on
the issue concerned)
 Crown bears both burdens on the issue of guilt (persuasive and evidentiary), persuasive
burden can only be discharged by proof BARD, case against accused can‟t go to jury
unless there is evidence upon which a properly instructed jury could rationally conclude
that the accused is guilty beyond a reasonable doubt
 Rev onus offences: A bears persuasive and evidential burdens, persuasive burden
discharged by evidence on the BoP – tf rev onus defs go to jury where there is evid upon
which a jury could conclude that the defence has been est on the BoP
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 w/ ordinary defs, A has no persuasive burden – once the issue “put in play”, the defence
will succeed unless it is disprov by the crown BARD
 for ord and rev onus defs, in det whether the evidential burden has been discharged on
any def, judge asks: “is there in the record any evid upon which a reasonable trier of fact,
properly instructed in law and acting judicially, could conclude that the defence
succeeds?”
o discharged if there is some evid upon which a properly instructed jury acting
reasonably could acquit on the basis of that defence
 accused is entitled to be acquitted on the basis of exculpatory evidence that the dury
doesn‟t reject but either accepts or about which it is undecided
 evid burden discharged where there is some evidence that puts the defence “in play”
(Cinous), def in play when a properly instructed jury could reasonably, on account of that
evid, conclude in favour of the accused

3. Necessity
R v Dudley and Stephens (1884) (English case), pg 876

Facts Stranded at sea, sacrificed man, ate him
Issues Whether killing in the circumstances like this is murder?
Held The prisoners act in this case was willful murder, the facts are no legal justification
of the homicide, prisoners guilty of murder
Note Dangers to admitting the principle that one can kill out of ness, where to draw line,
how are lives measured?
In 1970 in Canada, no defence of ness, kept relying on Dudley
First time Dudley cited w/ some success was Morgentaler – but SCC said that even if
there was such a defence of nesses, it didn‟t apply in that case
Rule Can’t kill in necessity

Perka v R [1984] (SCC), pg 879
TEST for necessity
Facts A was smuggling drugs into alaska by boat, enroute the boats engine failed and they
become caught in a storm, eventually the crew abandoned the ship and took the drugs
w/ them to shore in BC where they were arrested and charged w/ possession for the
purpose of trafficking. Trial: acquitted; CA: new trial ordered.
Issues
Held Appeal dismissed
Ratio Dickson for majority held that the crew couldn‟t successfully rely on a defence of
ness, the defence was a rare exception that would only be allowed where there was
clear “involuntariness” where the A was “strictly ctrlled and scrupulously lim”
3 elements that must be present for the defence of necessity to succeed:
1) imminent peril or danger (modified objective)
2) no reasonable legal alternative to the course of action he undertook (modified
objective); and,
3) proportionality b/w the harm inflicted and the harm avoided (objective)
If the circumstances that led to the impugned crim conduct were reasonably
foreseeable, it is doubtful that the defence of necessity will succeed
Onus is on the crown to prove that the impugned crim conduct wasn‟t excusable by
the defence of necessity.
Rule Defence of ness would only be allowed where there was clear “involuntariness”
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where the A was “strictly ctrlled and scrupulously lim”

R v Latimer [2001] (SCC), pg 889

Facts A mercy killed his severly disabled daughter who was in constant pain, etc, he was
charged w/ first deg murder, but the jury convicted him of 2
nd
deg murder, A argued
that the killing was necessary Trial: convicted of 2
nd
deg murder. CA: inc sentence to
10yrs.
Issues
Held Appeal dismissed, 10 yr sentence upheld. No AOR that the defence of nesses should
be put to the jury, none of the 3 criteria would have been met.
Ratio The ct held that on the fact, the A hadn‟t estab the 3 reqd elements for the defence of
nesses (Perka v R).
This case affirmed the 3 reqd elements for defence of nesses.
Emphasized issue of clear and immin peril. There must be no reasonable legal alt (v
impt in Perka, this is why defences of nesses often don‟t succed).
Third reqmt from Perka softened in this case (proportionality b/w the harm inflicted
and the harm avoided) – the 2 harms must be of comparable gravity, the harm
avoided must be comparable to or clearly greater than the harm avoided.
Note: also issue here of if they let Latimer off, then disabled ppl would have been at
risk.
Rule Softened proportionality step (3) of Perka test for nesses – the harm avoided
must be comparable to or clearly greater than the harm avoided.

Morgentaler: It isn‟t the law which can create an emergency giving rise to a defence of nesses, but it is the facts
of a given sitn which may do so. For necessity to have succeeded here, Dickson, in obiter held that there would
have to be evidence that the A considered that the sitn was one of emergency such that failure to term the preg
immed could endanger the life of health of the woman, and that upon any reasonable view of the facts,
compliance w/ the law was impossible. (Dickson found no evid fit to be left w/ the jury here)
4. Duress
VERY LIKELY THAT EXAM WILL HAVE SOMETHING FROM DURESS
Duress cases all over the map, have to put them together to come up w/ 4 reqmts:
1) the nature of the threats
 start by looking at cc, which says that “compulsion by threats of immed death or bodily harm”
 word grievous has been deleted from the above sentence in cc, this makes it more generous than was
originally intended
 threat to property can NEVER ground a duress defence
 first case relev to this is carker, below, threat has to be immed and person has to be in presence
 other relev case, ruzic, argued that pts of s.17 were unconstitutional, now didn‟t have to have immed
threats or the person didn‟t have to be present
 threats of death or bodily harm, don‟t have to be immed or present, can be to a third party, (not a threat
to property) (if have threat to property and person saying they will bomb it unless, not duress, perhaps
necessity)
2) excluded offences:
 s.17 still exists, some of it knocked out, but nobody from scc has said anything abt excluded offense
70
 eg charged w/ robbery, can you have the defence of duress? – look at s.17, says can‟t have defence
 paquette, says parties can have defence of duress as well
3) belief of the accused:
 surprisingly generous
 s.17: if the person believes that the threats will be carried out – is completely subjective, tf someone can
completely overreact, according to that s., as long as the person believes it, its ok
4) comes from hibbert, reqmt of no reasonable safe avenue of escape (pg 910)
Compulsion by threats
17. A person who commits an offence under compulsion by threats of immediate death or
bodily harm from a person who is present when the offence is committed is excused for
committing the offence if the person believes that the threats will be carried out and if the person
is not a party to a conspiracy or association whereby the person is subject to compulsion, but this
section does not apply where the offence that is committed is high treason or treason, murder,
piracy, attempted murder, sexual assault, sexual assault with a weapon, threats to a third party or
causing bodily harm, aggravated sexual assault, forcible abduction, hostage taking, robbery,
assault with a weapon or causing bodily harm, aggravated assault, unlawfully causing bodily
harm, arson or an offence under sections 280 to 283 (abduction and detention of young persons).

Compulsion of spouse
18. No presumption arises that a married person who commits an offence does so under
compulsion by reason only that the offence is committed in the presence of the spouse of that
married person.

R v Carker (No 2) [1967] (SCC), pg 901

Facts Trial: Admitting damaging plumbing fixtures in prison cell, but claims did so under
the compulsion of threats and was tf entitled to be excused and was also entitled to
avail himself of the CL defence of “duress” (convicted). CA: ordered that
respondents conviction for unlawfully and willfully damaging public property and
thereby committing mischief should be set aside and a new trial ordered

Issues
Held Allowed appeal, set aside judgement of CA and restore conviction.
Ratio Threats were immediate (continuos until time offence was committed) but weren‟t
threats of immediate death or immed grevious bodily harm and none of the persons
threatening him were in the cell w/ him. Also, virtually inconceivable that “immed
death” or “grevious bodily harm” could occur. For s.17, the person who utters the
threats must be present when the offence is committed in order to afford an excuse
for committing it (people uttering the threats weren‟t in the cell at the time.
Rule s.17 has exhaustively codified the CL defence of duress (this view has been
modified in light of later cases – see below)

R v Paquette [1977] (SCC), pg 903

Facts Paquette drove 2 persons to pop shoppe where the 2 persons committed a robbery
and homocide. Paquette only did so because he was threatened w/ death if he didn‟t,
was threatened in that they pulled a gun on him and he was told that if he didn‟t do it,
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they would shoot him. Charge: s.21(2) of CC. Trial: convicted; CA: appeal allowed.
Issues
Held s.17 inapplicable here.
Ratio Ct says that there is a law abt parties, s.21(1) – anyone is a party to an offence who
actually commits it – but Paquette did something for the purpose of aiding or
abetting, in that sense is a party to the offence, so ct says cant have the defence of
duress b/c the defence only applies to perpetrators, not parties, but says can have CL
defence of duress
Rule s.17 lim to cases in which a person seeking to rely upon it has himself committed
an offence. Defence doesn’t apply to parties.

R v Hibbert [1995] (SCC), pg 907

Facts Accused charged w/ attempted murder based on allegation that he was a party to the
shooting of C by B. Accused went w/ B to C‟s apt and arranged for C to come to
lobby where C was shot 4x by B, accused testified that C had threatened to shoot him
if he didn‟t cooperate. Trial: acquitted A of attempted murder but convicted of agg
assault. CA: dismissed appeal.
Issues
Held Appeal allowed, new trial ordered. Here there was a safe avenue of escape.
Ratio Can‟t rely on CL defence of duress if had a safe avenue to leave, det on an objective std,
but the personal circumstances of the accused are relev and should be taken into account
Rule Duress doesn’t negate mens rea, ths issue is NOT one of intent – an act of duress
is an act of conscious choice, “done most unwillingly, but yet intentionally”
No defence if no safe avenue of escape. (This is just a specific eg of the more gen
reqmt to the defence of nesses that compliance w/ the law must be
“demonstrably impossible” – this was reqd by the reqmts that the sitn be one of
“normative involuntariness”) – judged on modif objective std taking into accnt
the partic circumstances & human frailties.

b) Charter Std and Moral Involuntariness
R v Ruzic [2001] (SCC), pg 914

Facts Accused charged w/ importing 2kg of heroin into Canada, admitted having the
narcotics but claimed that she was acting under duress – conceded her claim didn‟t
meet the immediacy and presence reqmts under s.17 of cc, but challenged the
constitutionality of s.17 under s.7 of the charter and raised cl defence of duress. Trial:
acquitted; CA: appeal dismissed.
Issues
Held Appeal dismissed, s.17 was in pt unconstitutional
Ratio S.17 breaches the charter b/c it allows ppl who didn‟t have a moral choice to be crim
liab, s limits defence to those under threat of immed death or immed bodily harm – v
narrow, “presence when the offence committed” along w/ immed reqmt, also
precludes threats of future harm, underinclusiveness infringes s.7 of charter
Cl defence of duress not completely superceded by s.17 of cc and remains available,
no longer have reqmt of presence and immediacy
The CL defence recognizes that an accused in a situation of duress not only enjoys
rights, but also has obligations towards others and society. As a fellow human being,
the accused remains subject to a basic duty to adjust his or her conduct to the
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importance and nature of the threat. The law includes a requirement of
proportionality between the threat and the criminal act to be executed, measured
on the objective-subjective standard of the reasonable person similarly
situated. The accused should be expected to demonstrate some fortitude and to put
up a normal resistance to the threat. The threat must be to the personal integrity
of the person. In addition, it must deprive the accused of any safe avenue of
escape in the eyes of a reasonable person, similarly situated.
Concludes that there are 2 sitns that would compel him to be sympathetic to ruzic: 1)
the battered woman in sitn of abuse, and her husband coerces her to break the law in
some way or another, eg husband says your kid from first marriage is messing this
up, whip him, and does, duress could be used here; 2) sitn like this one where going
to the police isn‟t an option, in Belgrade police are literally lawless, or could have
sitn where its happening in rural area, nearest rcmp detachement is v far away, no
cell phone service
Rule Don’t have to worry abt immediacy and presence reqmt anymore – they were
contrary to the principle of moral involuntariness. The principle of moral
involuntariness recognizes that there are some sitns of agonizing involuntary
choice, and we shouldn’t criminalize the conduct of ppl in these sitns.
Note In Ruzic they agreed that immediacy wasn‟t a constitutional reqmt, but in Latimer w/
nesses, 1
st
reqmt had to be immed peril.
Note: the constitutionality of the exclusion by s17 of specific offences (SA, murder,
attempted murder, etc), left open in Ruzic:
Is this justifiable in light of Charter?
 May viol s.7 by requiring the conviction of a person who acted in a morally invol
manner and had no realistic choice but to commit the crime
 Blunt and overbread means of ensuring social protection
 IF s.17 found unconst in its entirety  CL defence could apply to all

**summary of duress in March 25 notes, homicide problem**
5. Defence of Person
DEFENCE OF PERSON
Self-defence against unprovoked assault
34. (1) Every one who is unlawfully assaulted without having provoked the assault is justified
in repelling force by force if the force he uses is not intended to cause death or grievous bodily
harm and is no more than is necessary to enable him to defend himself.
Extent of justification
(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in
repelling the assault is justified if
(a) he causes it under reasonable apprehension of death or grievous bodily harm from the
violence with which the assault was originally made or with which the assailant pursues his
purposes; and
(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death
or grievous bodily harm.

Self-defence in case of aggression
35. Every one who has without justification assaulted another but did not commence the
assault with intent to cause death or grievous bodily harm, or has without justification provoked
an assault on himself by another, may justify the use of force subsequent to the assault if
(a) he uses the force
(i) under reasonable apprehension of death or grievous bodily harm from the violence of the
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person whom he has assaulted or provoked, and
(ii) in the belief, on reasonable grounds, that it is necessary in order to preserve himself
from death or grievous bodily harm;
(b) he did not, at any time before the necessity of preserving himself from death or grievous
bodily harm arose, endeavour to cause death or grievous bodily harm; and
(c) he declined further conflict and quitted or retreated from it as far as it was feasible to do so
before the necessity of preserving himself from death or grievous bodily harm arose.

Provocation
36. Provocation includes, for the purposes of sections 34 and 35, provocation by blows, words
or gestures.

Preventing assault
37. (1) Every one is justified in using force to defend himself or any one under his protection
from assault, if he uses no more force than is necessary to prevent the assault or the repetition of
it.
Extent of justification
(2) Nothing in this section shall be deemed to justify the wilful infliction of any hurt or
mischief that is excessive, having regard to the nature of the assault that the force used was
intended to prevent.

Notes on SD:
S.34(1) reqs 4 elements: (from treatise) – see March 25 notes as well
1) there must be an assault (Def of assault incl the application of force which may be mere touching, does words
count?)
2) the assault need not be provoked (s.36 declares that “provocation” here includes that by “blows, words or
gestures”
3) lack of intent to kill or cause grevious bodily harm (but this doesn‟t preclude the operation of this ss where
death or grev bodily harm has occurred w/out that intent)
 ref to intent confusing, b/c we are dealing w/ a justification where mens rea is assumed
4) the force use be “no more than is ness” for sd
 don‟t have to measure to a nicety the exact measure of ness defensive action (Baxter)
**see march 25 notes for summary on 34(2) as well**
Note: of Self defence, nesses, duress, SD is most likely to succeed.
R v Pintar (1996) (Ont CA), pg 926

Facts A charged w/ 2 cts of 2
nd
deg murder. A awoken by R, A asked him to leave, R said
was there to “finish this off”, took swing at A, knocked R onto front porch, R said he
had killed the As dog and A was next, R yelled more threats, G got out of truck
outside, A got rifle, R grabbed gun, struggle ensued and the two deceased were shot
by A. Trial: guilty.
Issues
Held If no killing, use s.34(1), R v Pintar
If charge is murder/killing, use s.34(2), R v Pintar
 Wider test, question is whether the accused believed on reasonable
grounds that he could not otherwise preserve himself from death or
grievous bodily harm; don’t have to ask whether D could have avoided
the killing via a different course of action
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 34(2) also avail to an initial aggressor – had read out s.35
Ratio
Rule Functional approach: when more than one provision is available, put the wider
one to the jury (this means that s.34(2) and not s.34(1) should be put in all
murder cases whether or not the A intended to cause D/GBH).
Note: presumably the same would be true where the charge is manslaughter which
charge would, however, appear unlikely given evid of intent).
Note s.34(2) is wider than s.34(1) – it applies on present interpretations even if the A
provoked the assault, even if the A intended to kill or cause GBH, and the question
isn‟t whether more force was used than was ness but whether the A believed on
reasonable grounds that he couldn‟t otherwise preserve himself from death or GBH.
**Treatise says its debatable that 34(2) is wider as the propor test for 34(1) has
always been interp not as a strict mechanical test, but one under which a person
defending against an attack need not weigh to a nicety the exact measure of
necessary defence.

R v Deegan (1979) (Alta CA), pg 929
Self defence: no duty to retreat
Facts Trial: A convicted of murder. Victim attacked A in A‟s apt after altercation b/w
them, during fight in A‟s apt, A stabbed victim w/ knife, killing.
Issues
Held Appeal allowed, conviction set aside.
Ratio Mans home is his castle – dangerous idea, could go too far.
This approach (that have no duty to retreat) is a flexible approach.
Rule No automatic rule that A can’t succeed in the defence if he could have retreated
(note: duty to retreat would go against “mans home is castle”).

R v Lavallee [1990] (SCC), pg 930

Facts Appellant killed husband by shooting him, shooting occurred after an agmt where the
appellent had been physically abused and threatened that she either kill him or he
would get her, he had freq phys abused her. Trial: acquitted; CA: overturned.
Issues
Held Appeal allowed.
Ratio Expert evidence is admissible, it helps that jury get a better picture of the sitn, expert
testimony rel to the abil of an A to perceive danger from her partner may go to the
issue of whether she “reasonably apprehended” death of grievous bodily harm on a
partic occasion. Expert evid doesn‟t and can‟t usurp the jury‟s fn of deciding whether
in fact the A‟s perceptions and actions were reasonable. The expert testimony was
properly admitted in order to assist the jury in determining whether the appellant had
a reasonable apprehension of death or grievous bodily harm and believed on
reasonable grounds that she had no alternative but to shoot. Each of the specific facts
underlying the expert's opinion need not be proven in evidence before any weight
could be given to it; as long as there is some admissible evidence to establish the
foundation for the expert's opinion, the trial judge cannot subsequently instruct the
jury to completely ignore the testimony; the judge must, of course, warn the jury that
the more the expert relies on facts not proved in evidence the less weight the jury
may attribute to the opinion.
Killing involved – tf s.34(2) relev
Have an individualized approach to defences – the issue isn‟t what an outsider would
75
have reasonably perceived but what the A reasonably perceived, given her sitn and
her experience. (don‟t take into accnt drunkenness)
TF: can use the BWS to say that the person has a reasonable apprehension of harm
(putting the reasonable person who happens to have been battered) (notion of an
individualized objective approach)
Note Battered Woman Syndrome, 3 stage process:
1) Tension building, 2) the acute battering incident, 3) loving contrition
Rule Reasonable belief pt of test: When SD is relied upon by a woman who has been
abused, both her gender and her experience of abuse are central to the
consideration of whether there was a reasonable belief (modified objective std)
Where evid exists that the A is in a battering relnshp, expert evid can assist jury
in det whether the A had a reasonable apprehension of death.

R v Petel [1994] (SCC), pg 939

Facts Accused charged w/ 2
nd
deg murder of R, R and E were inv in drug trafficking, E‟s gf
was accused daughter, after daughter moved into E‟s house, A said he (E) was
always angry, threatened her freq and beat her daughter, A tried to put an end to E‟s
presense in her house but couldn‟t. E went to accused home w/ revolver, cocaine and
scales, forced her to weigh some cocaine, and suggested he would kill her along w/
her daughter and granddaughter, shortly after, daughter arrived w/ R, accused
consumed small amt of drugs, got the weapon, and fired at E, R was lunging at A, so
A fired at him too, E survived but R died. A said she fired at both E and R and that
she wished both of them dead. Trial: convicted of 2
nd
deg murder. CA: appeal
allowed, new trial ordered.
Issues Does she have a defence of SD?
Held Appeal dismissed.
Ratio 1
st
ness element for self defence – an unlawful assault is satisfied by the reasonable
perception of an unlawful assault
No formal reqmt that danger be imminent, the immanency reqmt is a CL
presumption that may be rebutted (partic by expert evidence), imminence is only one
of the factors which the jury should weigh in det whether the accused had a
reasonable apprehension of danger and a reasonable belief that she could not
extricate herself otherwise than by killing her attacker
Magnitude of force: no specific reqmt that the repelling force used by the accused
shall be proportionate to the unlawful act
Judge charges on 34(2) b/c of killing.
Rule No formal reqmt that danger be imminent, had to take into accnt that this
woman had been threatened before.

R v Malott [1998] (SCC), pg 943

Facts A charged w/ murder, A and deceased had lived as CL spouses for over 20 yrs, he
freq abused her, A shot deceased, then went and shot and stabbed deceased‟s gf.
Trial: guilty of 2
nd
deg murder of deceased and of attempted murder of gf.
Issues
Held Dismissed appeal on basis that trial judges charge on SD and the evid of abuse, while
not perfect, was adeq.
Ratio Battered woman syndrome isn‟t a defence in itself (BWS used w/ caution)
 Expert evidence on abusive relnships only relev to understand the
76
reasonableness of her actions in the context of her personal experiences and
her experiences as a woman, not to her status as a battered woman or her
entitlement to the claim that she is suffering from BWS
 Possible that women don‟t fit into the stereotype of a passive, helpless
battered woman but will still be able to use the “Syndrome” defence
No AOR of defence of SD in this case, BUT reconsidered Lavalle and decided they
were too narrow in Lavallee. Rely on Isabel Grant material: says you don‟t have to fit
a syndrome in order to be able to use BWS defence. Sitn of learned helplessness is
too narrow a concept – possible that ppl won‟t have their claims fairly demonstrated,
eg those that have fought back, etc.
Rule Don’t have to “fit” BWS to be able to use it. Cts should avoid too rigid &
restrictive approach to the admissibility & legal value of evid of a BW’s
experiences.
Note In cases inv BWS, comment is needed on:
1) Why an abused woman might remain in an abusive relnshp
2) The nature and extent of the violence that may exist in a battering relnshp
3) The A‟s ability to perceive danger from her abuser
4) Whether the A believed on reasonable grnds that she couldn‟t otherwise preserve
herself from death or GBH.


R v Kong [2006] (SCC), pg 948
LEADING CASE on s.34(1)
Facts Kong charged w/ 2
nd
deg murder following stabbing death during fight, mui was
stabbed to death, mui‟s bro hit member of the accused grp over the head w/ a bottle,
A and other drew knives, mui went to help bro, was stabbed. Trial: defence of SD
had no AOR, wasn‟t left to jury, guilty of manslaughter. CA: dismissed appeal.
Issues s.34(1) or 34(2)?
Held Appeal allowed, conviction set aside, new trial ordered.
Ratio Dissent by Wittman JA was accepted by SCC – considering all the circumstances of
this case the defence of sd under s.34(1), although not that under 34(2), had an air of
reality and should have been put to the jury for its consideration, it shouldn‟t have
been left to the jury to det whether the force used by the A in using the knife was
done in sd and whether it was proportional or no more than was ness in the
circumstances to protect himself
Wittman held that evidence had passed air of reality test for each of the
elements under 34(1)
1
st
element, unlawful assault satisfied by the reasonable perception of an unlawful
assault
Conseq of the accuseds act aren‟t to be determinative of his intention or as to the 4
th

element of whether the force used by the accused was no more than he reasonably
believed was ness to defend himself in the circumstances
Det whether the force used was no more than was ness to enable the accused to
defend himself req both an subjective and objective test:
 1
st
whether the A believed the force used was ness is a subjective inq
 2
nd
whether the A‟s belief was a reasonable belief is an objective inq
 alternatively, a modif objective test applies to the threat assessment by the A,
while an objective test applies to the responsive force used – but none of the
tests reqd a precisely calc response
 under s.34(1) a person isn‟t reqd to weigh to a nicety the exact measure of a
77
defensive action or to stop and reflect upon the risk of deadly conseq fom
such action, the accused may be mistaken abt the nature and extent of force
ness for sd provided the mistake was reasonable in the circumstances
 in deciding whether the accuseds use of force was reasonable, the jury is to
look to the circumstances to consider what a reasonable person in the A‟s
sitn might do given the threatening attack and what force would be ness to
defend himself against that apprehended attack
 under wittmans approach, the proportionality test for s.34(1) is to be judged
on a subjective/objective test, the test must be tolerant, and inv flexibility and
no strict proportionality test
Kong is in contrast w/ cinous where the majority held there was no air of reality to
leave sd w/ the jury where the A testified that he shot a fellow gang member b/c he
thought that person was preparing to assassinate him.
Cdn judicial attitude to sd is one of flexibility, strict proportionality not reqd, and
there are no automatic rules that the defender can‟t strike the first blow (lavallee), or
can‟t succeed in the def of sd if he could have retreated (deegan)
Rule There is a role for 34(1) even though death occurred where there was no intent
to cause D or GBH.

6. Defence of Property
DEFENCE OF PROPERTY
Defence of personal property
38. (1) Every one who is in peaceable possession of personal property, and every one lawfully
assisting him, is justified
(a) in preventing a trespasser from taking it, or
(b) in taking it from a trespasser who has taken it,
if he does not strike or cause bodily harm to the trespasser.
Assault by trespasser
(2) Where a person who is in peaceable possession of personal property lays hands on it, a
trespasser who persists in attempting to keep it or take it from him or from any one lawfully
assisting him shall be deemed to commit an assault without justification or provocation.

Defence of dwelling
40. Every one who is in peaceable possession of a dwelling-house, and every one lawfully
assisting him or acting under his authority, is justified in using as much force as is necessary to
prevent any person from forcibly breaking into or forcibly entering the dwelling-house without
lawful authority.

Defence of house or real property
41. (1) Every one who is in peaceable possession of a dwelling-house or real property, and
every one lawfully assisting him or acting under his authority, is justified in using force to
prevent any person from trespassing on the dwelling-house or real property, or to remove a
trespasser therefrom, if he uses no more force than is necessary.
Assault by trespasser
(2) A trespasser who resists an attempt by a person who is in peaceable possession of a
dwelling-house or real property, or a person lawfully assisting him or acting under his authority to
prevent his entry or to remove him, shall be deemed to commit an assault without justification or
provocation.

R v Baxter (1975) (Ont CA), pg 956
78

Facts This was a sitn of using force to remove a trespasser.
Issues If not scared of him, and there is no unlawful attack, he did nothing but trespass, so
what s. applies?
Held In this case, said there was CL, discuss how it overlaps (see pg 957)
Ratio  the s. of the cc auth the use of force in defence of a person or property to
prevent crime, and to apprehend offenders, express the principle of the CL
that the force used is ness (that the harm sought to be prevented could not be
prevented by less violent means and that the injury or harm done by, or
which might reasonably be anticipated from the force used, is not
disproportioned to the injury or harm it is intended to prevent
 in this case there was no evidence of a reasonable apprehension on the pt of
the appellant of serious injury to the property of anyone, and his right to use
force to prevent reasonably apprehended serious injury to himself was dealt
w/ under sd
 firing at a mere trespasser isn‟t justifiable – killing or causing grev bod harm
to a trespasser could only be justified in sd
o note: this is a policy imposed limit on the defence of property
 under s.41(2), a trespasser who resists an attempt by a person in peaceable
possession of a dwelling house or real property to prevent his entry or to
remove him is deemed to commit an assault w/out justification or
provocation
 the amt of force that may be used to prevent or defend against any assault
actually committed by the wrongdoer deps upon the ordinary principles of sd
in s.34
Rule Test of proportionality in 34(1) isn’t purely objective – doctrine of mistake of
fact is available, A’s belief that he was in imminent danger may be reasonable,
although he may be mistaken in his belief. In deciding whether the force used by
the A was more than was ness in SD, A can’t be expected to weigh to a nicety the
exact measure of defensive action.
1) Do indep inq into the belief in the nature of the attck
2) Then inq into whether the defence was, in all the circumstances ness
Both 1) and 2) are objective: TEST is on what the A’s honest and reasonable
belief was, & if, on this belief, the defence was reasonably ness
Note: Passive resis by a trespasser upon being told to leave will not equal
assault. The amt of force that may be used deps upon the ord principles of SD as
set out in s.34 of CC.
Note Martin in Baxter holds that: s.34(1) and 34(2) aren‟t mutually exclusive, the words in
s.34(2) “who causes D or GBH” had to mean “even though he intentionally causes D
or GBH” – if not, this would leave unprotected one who, used no more force than
was ness to defend himself against an unprovoked assault, accidentally killed or
caused GBH to his attacker but didn‟t meet the reqmts of s34(2) (note: this interp is
consis w/ Kong)

R v Gunning [2005] (SCC), pg 958

Facts A hosted party, uninvited guest, mr Charlie showed up, A asked him to leave, C
refused, responding in insulting and intimidating fashion, A, drunk, loaded shotgun,
returned to tell C to leave, gun went off, killing C. A charged w/ murder, based on
having killed C while commiting the unlawful act of careless use of a firearm, A
pleaded not guilty b/c gun went off by accident, also claimed he wasn‟t guilty of
79
careless use of a firearm b/c his use of it was justified on the basis of defence of
property

Issues
Held Appeal allowed, set aside conviction, order new trial.
Ratio 4 elements to the defence of house or property:
1) he must have been in possn of the dwelling-house
2) his possn must have been peaceable
3) mr Charlie must have been a trespasser
4) the force used to eject the trespasser must have been reasonable in all the
circumstances
 only 4
th
element contentious in this case
Intentional killing of a trespasser could only be justif where the person in possn of
the prop is able to make out a case of SD (Baxter).
The respective fns of the judge and jury
 its never the fn of the judge in a jury trial to assess the evidence and make a
det that the crown has proven one or more of the essential elements of the
offence and to direct the jury accordingly, doesn‟t matter how obvious the
judge may believe the answer to be
Application to this case:
 reasonableness of the force used: trial judge took too narrow a view
 all of the events preceding the shooting had to be taken into account in det
whether A had used reasonable force in his attempt to eject Charlie
 in det whether there was any air of reality to this 4
th
element of the def of
property, it is clear that the trial judge overstepped his role and decided the
merits of the defence – this was for the jury to resolve
Most of the defences turn on “no more force than is ness”, except that they rely on
this CL limit, that if you are only acting to defend property, you can‟t kill someone
 threshold: value life more than property
Rule Where there is an intentional killing of a trespasser, such a defence could only
avail where reqmts for SD were met.

Bill C-60: On Feb 17, 2011, Parl tabled Bill C-60 in the house of Commons to expand the power of citizen arrest
in response to the charging of a merchant in Toronto who had arrested and held down a fleeing thief. The Bill
would replace s.34-42 in CC (only 34-35 shown here)
Current CC Bill C-60
Defence of Person
Self-defence against unprovoked assault
34. (1) Every one who is unlawfully assaulted
without having provoked the assault is justified in
repelling force by force if the force he uses is not
intended to cause death or grievous bodily harm and is
no more than is necessary to enable him to defend
himself.

Extent of justification
(2) Every one who is unlawfully assaulted and who
causes death or grievous bodily harm in repelling the
assault is justified if
(a) he causes it under reasonable apprehension of
death or grievous bodily harm from the violence with
Defence-use of threat of force
34. (1) A person is not guilty of
an offence if
(a) they believe on reasonable
grounds that force is being used
against them or another person
or that a threat of force is being
made against them or another
person;
(b) the act that constitutes the
offence is committed for the
purpose of defending or
protecting themselves or the
other person from that use or
80
which the assault was originally made or with which
the assailant pursues his purposes; and
(b) he believes, on reasonable grounds, that he cannot
otherwise preserve himself from death or grievous
bodily harm.

Self-defence in case of aggression
35. Every one who has without justification assaulted
another but did not commence the assault with intent to
cause death or grievous bodily harm, or has without
justification provoked an assault on himself by another,
may justify the use of force subsequent to the assault if
(a) he uses the force
(i) under reasonable apprehension of death or
grievous bodily harm from the violence of the
person whom he has assaulted or provoked, and
(ii) in the belief, on reasonable grounds, that it is
necessary in order to preserve himself from death
or grievous bodily harm;
(b) he did not, at any time before the necessity of
preserving himself from death or grievous bodily
harm arose, endeavour to cause death or grievous
bodily harm; and
(c) he declined further conflict and quitted or
retreated from it as far as it was feasible to do so
before the necessity of preserving himself from death
or grievous bodily harm arose.

Provocation
36. Provocation includes, for the purposes of sections
34 and 35, provocation by blows, words or gestures.

Preventing assault
37. (1) Every one is justified in using force to defend
himself or any one under his protection from assault, if
he uses no more force than is necessary to prevent the
assault or the repetition of it.

Extent of justification
(2) Nothing in this section shall be deemed to justify
the wilful infliction of any hurt or mischief that is
excessive, having regard to the nature of the assault that
the force used was intended to prevent.

threat of force; and
(c) the act committed is
reasonable in the
circumstances

Factors
(2) In determining whether the
act committed is reasonable in
the circumstances, the ct may
consider, among other factors,
(a) the nature of the force or
threat;
(b) the extent to which the use
of force was imminent and
whether there were other means
available to respond to the potl
use of force;
(c) the person’s role in the
incident;
(d) whether any party to the
incident used or threatened to
use a weapon;
(e) the size, age and gender of
the parties to the incident;
(f) the nature, duration and
history of any relnshp b/w the
parties to the incident, incl any
prior use or threat of force and
the nature of that force or threat;
(g) the nature and
proportionality of the person’s
response to the use or threat of
force; and
(h) whether the act committed
was in response to a use or
threat of force that the person
knew was lawful.

No defence
(3) Ss (1) doesn’t apply if the
force is used or threatened by
another person for the purpose
of doing something that they are
reqd or authorized by law to do
in the administration or
enforcement of the law, unless
the person who commits the act
that constitutes the offence
believes on reasonable grounds
that the other person is acting
lawfully
Defence of Property
Defence of personal property Defence - property
81
38. (1) Every one who is in peaceable possession of
personal property, and every one lawfully assisting him,
is justified
(a) in preventing a trespasser from taking it, or
(b) in taking it from a trespasser who has taken it,
if he does not strike or cause bodily harm to the
trespasser.

Assault by trespasser
(2) Where a person who is in peaceable possession of
personal property lays hands on it, a trespasser who
persists in attempting to keep it or take it from him or
from any one lawfully assisting him shall be deemed to
commit an assault without justification or provocation.

Defence with claim of right
39. (1) Every one who is in peaceable possession of
personal property under a claim of right, and every one
acting under his authority, is protected from criminal
responsibility for defending that possession, even
against a person entitled by law to possession of it, if he
uses no more force than is necessary.

Defence without claim of right
(2) Every one who is in peaceable possession of
personal property, but does not claim it as of right or
does not act under the authority of a person who claims
it as of right, is not justified or protected from criminal
responsibility for defending his possession against a
person who is entitled by law to possession of it.

Defence of dwelling
40. Every one who is in peaceable possession of a
dwelling-house, and every one lawfully assisting him or
acting under his authority, is justified in using as much
force as is necessary to prevent any person from forcibly
breaking into or forcibly entering the dwelling-house
without lawful authority.

Defence of house or real property
41. (1) Every one who is in peaceable possession of a
dwelling-house or real property, and every one lawfully
assisting him or acting under his authority, is justified in
using force to prevent any person from trespassing on
the dwelling-house or real property, or to remove a
trespasser therefrom, if he uses no more force than is
necessary.

Assault by trespasser
(2) A trespasser who resists an attempt by a person
who is in peaceable possession of a dwelling-house or
real property, or a person lawfully assisting him or
acting under his authority to prevent his entry or to
35. (1) A person is not guilty of
an offence if
(a) they either believe on
reasonable grounds that they are
in peaceable possession of
property or are acting under the
authority of, or lawfully
assisting, a person whom they
believe on reasonable grounds is
in peaceable possn of property;
(b) they believe on reasonable
grounds that another person
(i) is abt to enter, is entering or
had entered the property w/out
being entitled by law to do so,
(ii) is abt to take the property, is
doing so or has just done so, or
(iii) is abt to damage or destroy
the property, or make it
inoperative, or is doing so;
(c) the act that constitutes the
offence is committed for the
purpose of
(i) prevening the other person
from entering the property, or
removing that person from the
property, or
(ii) preventing the other person
from taking, damaging or
destroying the property or from
making it inoperative, or
retaking the property from that
person; and
(d) the act committed is
reasonable in the circumstances

No defence
(2) ss (1) doesn’t apply if the
person who commits the act that
constitutes the offence doesn’t
have a claim or right to the
property and the other person is
entitled to its possn by law

No defence
(3) ss (1) doesn’t apply if the
other person is doing something
that they are reqd or auth by law
to do in the administration or
enforcement of the law, unless
the person who commits the act
that constitutes the offence
believes on reasonable grounds
82
remove him, shall be deemed to commit an assault
without justification or provocation.

Assertion of right to house or real property
42. (1) Every one is justified in peaceably entering a
dwelling-house or real property by day to take
possession of it if he, or a person under whose authority
he acts, is lawfully entitled to possession of it.

Assault in case of lawful entry
(2) Where a person
(a) not having peaceable possession of a dwelling-
house or real property under a claim of right, or
(b) not acting under the authority of a person who has
peaceable possession of a dwelling-house or real
property under a claim of right,
assaults a person who is lawfully entitled to possession
of it and who is entering it peaceably by day to take
possession of it, for the purpose of preventing him from
entering, the assault shall be deemed to be without
justification or provocation.

Trespasser provoking assault
(3) Where a person
(a) having peaceable possession of a dwelling-house
or real property under a claim of right, or
(b) acting under the authority of a person who has
peaceable possession of a dwelling-house or real
property under a claim of right,
assaults any person who is lawfully entitled to
possession of it and who is entering it peaceably by day
to take possession of it, for the purpose of preventing
him from entering, the assault shall be deemed to be
provoked by the person who is entering.
that the other person is acting
lawfully

Class notes:
34(1): doesn‟t say person under your protection (??) (Good), also is more broad. The current law of SD turns a
lot on what is no more force than is ness – in bill c-60
34(2): “imminent” used in c-60 – thought that Lavallee got rid of “imminent”. In c-60, What does reasonable
mean? (c) – role in the incident – vain; (e) – which way will this cut if it‟s a man on man?; (g) – proportionality,
thought that the person didn‟t have to “measure force w/ a nicety”. Appears c-60 is addressing the issue of an
individualized approach to what is reasonable
35(1): c-60 doesn‟t say which property in (a) – should be more specific; d) “Reasonable in the circumstances” –
this doesn‟t solve the problem created in the cc, now both this and the last defence are going to be det on
whether the trier of fact believes it was reasonable in the circumstances, this also gives a bit of a proportionality
reqmt, but still won‟t have defence if you kill someone.

7. Partial Defences to Murder
83
(a) Provocation
 partial defence to murder in that it reduces it to a conviction of manslaughter
 has always been a statutory partial defence of provocation
 rationale for this defence: recog that ppl lose temper at times
 is an excuse: recog that the act was wrong, it‟s a concession to human infirmity
 if abol the mandatory min for murder, then can prob do w/out this (unlikely)
 provocation isn‟t a substantive defence anywhere else – no defence of provocation in any other context
(Eg not in assault)
Murder reduced to manslaughter
232. (1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if
the person who committed it did so in the heat of passion caused by sudden provocation.
What is provocation
(2) A wrongful act or an insult that is of such a nature as to be sufficient to deprive an ordinary
person of the power of self-control is provocation for the purposes of this section if the accused
acted on it on the sudden and before there was time for his passion to cool.
Questions of fact
(3) For the purposes of this section, the questions
(a) whether a particular wrongful act or insult amounted to provocation, and
(b) whether the accused was deprived of the power of self-control by the provocation that he
alleges he received,
are questions of fact, but no one shall be deemed to have given provocation to another by doing
anything that he had a legal right to do, or by doing anything that the accused incited him to do in
order to provide the accused with an excuse for causing death or bodily harm to any human being.
Death during illegal arrest
(4) Culpable homicide that otherwise would be murder is not necessarily manslaughter by
reason only that it was committed by a person who was being arrested illegally, but the fact that
the illegality of the arrest was known to the accused may be evidence of provocation for the
purpose of this section.


R v Tran [2010] (SCC)
LEADING CASE on provocation
Facts A broke into apt of his wifes bf, found them together, stabbed both and killed them,
appeal conc w/ charge of 2
nd
deg murder of the bf. Trial: pleaded provoc, was
acquitted of murder, convicted of manslaughter. CA: defence of provo has no AOR,
convicted of 2
nd
deg murder
Issues
Held Appeal dismiseed, no AOR to defence of provoc b/c:
1) wasn‟t a wrongful act or insult, b/c the discovery of his estranged wife‟s
involvement w/ another man doesn‟t amt to an insult
2) mind wasn‟t unprepared b/c he was suspicious, he was missing the element of
provocation
3) suddenness aspect: says that there is no suddenness where there is a preexising
suspicion
Ratio “Ord person” std informed by contemp norms of behaviour incl fund values such as
commitment to equality (Humaid, ord person cannot be fixed w/ beliefs that are
irreconcilable w/ fund cdn values)
Central conc w/ objective std is the extent to which the A‟s own personal
characteristics and circumstances should be consid
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 restrictive approach ignores relev contextual circumstances
 individualized approach would lead to anomalous results if all the A‟s
characteristics were taken into accnt, and it would ignore the cardinal
principle that the crim law is conc w/ setting stds of human behaviour
 proper approach takes into acct some but not all, of the individual
characteristics of the A. personal circumstances may be relev to det
whether the A was in fact provoked (Subjective element), but they do
not shift the ord person std to suit the individual A
Subjective element focuses on the A‟s subjective perceptions of the circumstances,
incl what the A believed, intended or knew. The A must have killed because he was
provoked and not merely b/c the provocation existed. Reqmt of suddenness
distinguishes a response taken in vengeance from one that was provoked.
Suddenness applies to both the act of provocation and the A‟s response to it.
Rule Provocation has both objective and subjective component:
Objective: whether there was a wrongful act or insult suffic to deprive an ord person
of the power of self ctrl – div into 2 pts:
 1) was there an wrongful act or insult?
 2) was it suffic to deprive an ord person of the power of selt ctrl?
Subjective: whether the A acted in response to the provocation and on the sudden
before there was time for his or her passion to cool – div into 2 pts:
 1) Did the A act in response to the provoc and on the sudden?
 2) Did the A act on the sudden b4 there was time for passion to cool?
**suddenness applies to both act of provocation and A‟s rxn to it**

R v Hill [1986] (SCC), pg 962 (Provocation case)
LEADING CASE on how many indiv factors can be taken into accnt on obj apprch
Facts Trial: charged w/ 2
nd
deg murder. A:16 yrs old. 2 diff versions of the events:
Pegg version: H and P were homosex lovers, hill a tried to murder pegg after falling
out, struck P in head, not successful, got knives and stabbed P to death
Hill version: P came on to H, unwanted by H, P followed H to bathroom, grabbed
him, H swung at P w/ hatchet to scare him, in doing so, hit P in the head, P
threatened to kill H, H got knives and stabbed him to death
Issues For provocation, is “ord person” of the same age and sex of the A?
Held Appeal allowed, restore conviction.
Ratio First “ord person” test is det on objective stds.
Second test as to the loss of self ctrl by the A is det like any other question of fact, as
revealed by the evidence, from the surrounding facts.
Third test as to whether the response was sudden and before passions cooled is
question of fact.
What are the characteristics of the “ordinary person”? (Trying to justify why have
objective test)
english law:
 R v Lesbini: reasonable person wasn‟t one w/ mental disab
 Mancini pub: reasonable person was one of normal temperament and avg
mental capacity
 The peculiar phys charac of the accused were not to be ascribed to the ord
person (bedder) (ordinary person isn‟t impotent)
 Camplin: have change in this case - ord person was person of the same age
and sex of the accused, tf sometimes do take into account characteristics of
the A (This is what the judge adopts in this case)
 Homocide act, “the jury shall take into account everything”, allows consid of
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relev characteristics in connection w/ the objective test
Cdn case law:
 Taylor v r: criterion is the effect on the ord person, … jury not entitle to take
into account any drunkenness – this is still true, everytime we have the
objective approach, can never take into account drunkenness, the reasonable
person is always sober
 Salamon v r: no account should be taken of the idiosyncrasies of the person,
and no account taken for personal background of A, std if ord person
 R v parnekar – can‟t take into account race, avg cdn is white, so racial slur is
discounted – Dickson is pting out how our approach is extremely tough and
decontextualized
Widespread agreement that the ord person has a normal temperament (this is a
special policy induced limit) and level of self ctrl, and it not exceptionally
excitable, pugnacious or in a state of drunkenness, features such as sex, age, or
race do not detract for a person‟s characterization as ord. Don‟t have to do whole
Camplin approach – the jury will see that the person is male and 16yrs old – rely on
the ord sense of the jury.
Rule Don’t have to specify that the ord person is of the same age and sex – rely on the
ord sense of the jury.

R v Humaid (2006) (Ont CA, leave to appeal, SCC, refused), pg 979

Facts A stabbed wife to death when he learned of her infidelity. It was argued that
provocation should be taken into account that as a muslin, the A would perceive his
wife‟s infid as a partic serious blow to the honour of the family. Trial: left defence of
provocation to jury, but held that A‟s racial and cultural background was irrel to the
ord person test. A convicted of 1
st
deg murder.
Issues
Held Appeal dismissed
Ratio Not enough to lead evid that a grp has certain beliefs that could affect the gravity of
the provocative conduct in issue and that the A is a pt of that grp (even if the
comment was understood as an admission of infidel, that couldn‟t amt to an insult
capable of causing an ord person to lose self ctrl).
Provocation doesn‟t shield an A who hasn‟t lost self ctrl, but instead acted out of a
sense of revenge or culturally driven sense of the approp response to someone elses
misconduct (distinction b/w homocide committed by one who has lost ctrl and
homicide committed by one whose cultural and religious beliefs lead him to believe
that homicide is an approp response – only former engages def of provoc, latter
provides motive for murder).
The “ordinary person” and religious and cultural characteristics: “it is arguable that
as a matter of crim law policy, the “ord person” cannot be fixed w/ beliefs that are
irreconcilable w/ fund cdn values. Crim law may simply not accept that a belief sys
which is contrary to those fund values should someone provide the basis for a partial
def to murder”
Rule “Ord person” can’t have beliefs that are irreconcil w/ fund cdn values.

R v Parent [2001] (SCC), pg 985

Facts A and wife inv in div settlements, had a sale for shares, A present, had loaded gun,
wife told him that she was going to wipe him out completely, A felt hot flush, and
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shot, claims he didn‟t know what he was doing any more and didn‟t intend to kill
her. Trial: charged w/ 1
st
deg murder, argued should be red to manslaughter b/c
provoc, found guilty of manslaughter. CA: upheld verdict.
Issues
Held Allowed appeal, ordered new trial on second deg murder.
Ratio Anger can play a role in reducing murder to manslaughter in connection w/ the
defence of provocation, but anger isn‟t a stand alone defence, it may form pt of the
defence of provocation when all the reqmts of that defence are met.
Rule Intense anger alone is insuffic to reduce murder to manslaughter.

R v Cameron (1992) (Ont CA), pg 989
Charter challenge to statutory defence of provocation – not unconstitutional
Facts A convicted of 2
nd
deg murder, he appealed, arguing that the stat def of provoc
contravened s.7 and 11d of the Charter in that is it premised in pt on an objective std,
Ont CA dismissed constitutional challenge. Argues that def of provoc negatives an
essential element of the mens rea reqmt for murder, since provoc premised in pt on
an objective std, it can‟t stand in light of the authorities which hold that liab for
murder can‟t be det by ref to an objective fault std (Martineau).
Issues
Held Consti challenge dismissed. Found to be constitutional.
Ratio The defence doesn‟t detract from or negative the fault reqmt for murder, but it is only
available once proven BARD that A committed murder. S.232 doesn‟t modif the stat
defn of murder so as to elim an element of the offence reqd by s.7.
S.11d: s.232 doesn‟t put any burden of proof on an A to disprove anything essential
to the establishing of his culpability, onus is on the crown to negate provoc beyond a
reasonable dbt
Rule Statutory defence of provocation not unconstitutional.

b) Voluntary intoxication
 Partial defence to murder, may reduce murder to manslaughter b/c murder is specific intent crime (Daley
– need an advanced degree of intoxication)
c) Cumulative Effect on Intent
 “rolled” up charge – asks the jury to consider the cumul effect of all the factors on whether the Crown
has proved the intent reqd for murder
o is arguing that there wasn‟t the mens rea reqd for murder
**see March 25 notes for homicide review problem**
R v Nealy (1986) (Ont CA), pg 991 (Cumulative effect on intent)

Facts Nealy stabbed and killed Casimiri outside a bar, had been drinking with him and his
gf earlier in the evening, after Casimiri repeatedly made comments about Nealys gf,
Nealy told him to be quiet, pushing and punching started inside, moved outside,
Nealy got knife from gfs purse, outside fighting continued, Nealy stabbed casimiri
3x, killed him.
Issues Should trial judge have instructed juryon cumul effect that the consumption of
alcohol and the fear and anger that were experienced by Nealy as a result of his
dispute w/ the deceased might have had on N‟s ability to form the requisite intent for
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murder?
Held Appeal allowed, direct a new trial.
Ratio Not necessary to compartmentalize the offences. Just have to make sure A has the
intent – w/ cumul effect, want to give jury the opportunity to take it down if they feel
that there is some reason to (worried abt fixed penalty).
Issue of whether excessive force in SD could reduce a charge of murder to
manslaughter: accepted that it could in R v Clow (Clow, Ont CA held the trial judge
erred in not instructing jury on the cumul effect as it might rel to the requisite
specific intent to cause death of bod harm likely to cause death); rejected in R v
Brisson (SCC) (more binding??). HOWEVER: all above authorities emph imptce of
issue of intent and indic that all the circumstances surrounding the act of killing must
be taken into accnt in det whether or not the A had the intent reqd for the commission
of murder. ALONE, the evid may not give rise to RD as to whether there was
provocation, or whether A lacked abil to form that intent, but VIEWED CUMUL, the
evid might be impt in det issue of intent.
Rule Not every case reqs direction on cumul effect – case by case basis.

**see notes on partial defences to murder in March 25 notes**
Parties to a Crime
Parties to 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.
1. Aiding and Abetting
Dunlop and Sylvester v R [1979] (SCC), pg 1017

Facts Appellants were tried and convicted on charge of rape (by jury), C had been raped by
a grp of ~18 people, C id‟d Dunlop and Sylvester as two of the people who had raped
her.

Issues
Held
Ratio Mere presence at the scene of a crime isn‟t suffic to ground culpability (passive
acquiescence isn‟t enough) – tf this turns on the actus reus reqmt.
R v Coney (LEADING CASE) decided that non-accidental presence at the scene of
the crime wasn‟t conclusive of aiding and abetting (“where presence may be entirely
accidental, it isn‟t even evidence of aiding and abetting”). To constitute an aider and
abettor, some active steps must be taken by word, or action, w/ the intent to instigate
the principal(s).
Rule Mere presence at the scene of a crime isn’t suffic to ground culpability (passive
acquiescence isn’t enough)
TEST: Distinctn b/w prior knowledge and accidental presence: 2 reqmts must be
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proven before A can be convicted of being a party by aiding & abetting:
1) that he had knowledge that the principal intended to commit the offence;
2) and that the A aided and abetted him.
(where there is no knowledge that an offence is to be commited, the presence of an A
at the scene of the crime can‟t be a circumstance which would be evidence of aiding
and abetting)
If the spectators furnished encouragement and their mere presence ensured against
the escape of the victume – this is more than “mere presence” (there must be an
intention to encourage and encouragement in fact).

R v Laurencelle (1999) (BCCA), pg 1026

Facts A is appealing conviction on a charge of unlawful confinement. McCarron was
kidnapped by 4 men, they used knives to force him to go w/ them to a nearby house
where he was kept from Sat evening until the following Tuesday. The A first had
knowledge of him around 11:30pm on Sat evening. Appellant had contact w/ the C.
Issues Can Laurencelle be convicted of aiding and abetting?
Held Appeal allowed, set aside conviction, enter acquittal.
Ratio In this case: no basis for asserting that the appellant had sole ctrl and no basis as a
matter of common sense for suggesting that she had any effective way of requiring
McCandless and Biron to leave (also had no knowledge that the kidnapping was
going to occur). Thus this case is distinguished from cases where it was found that
ctrl can lead to a person being found a party by allowing premises of automobiles to
be used in an unlawful manner. Acts of kindness don‟t amt to aiding and abetting.
Rule Can’t be convicted for mere passive acquiescence and she had no duty to leave
her home.

R v Briscoe[2010] (SCC) (pdf doc)
LEADING CASE on mens rea
Facts A went w/ grp to golf course, watched and helped (held onto deceased for a short
time), as she was raped and murdered. Trial: A acquitted, found that the actus reus
for being a party was proven, but not mens rea b/c B didn‟t have the requisite
knowledge that L intended to commit the crimes. CA: overturned acquittals &
ordered new trial – trial judge failed to consider willful blindness.
Issues Does the mens rea component include willful blindness?
Held Appeal dismissed
Ratio The mens rea for aiding and abetting means you must have the intention of aiding
someone to commit the crime and you must know abt the type of crime, or you can
be willfully blind (this counts as knowledge). This doesn‟t extend to recklessness.
The crown must prove that the A intended to assist the principle in the commission
of the offence. It isn‟t reqd that the A desired that the offence be successfully
commited. For knowledge, in order to have the intention to assist in the commission
of the offence, the aider mustknow that the principal intends to commit the crime,
although he or she need not know precisely how it will be committed.
The doctrine of willful blindness is disctinct from recklessness and invs no departure
from the SUBJECTIVE inq into the A‟s state of mind which must be undertaken to
estab an aider or abettor‟s knowledge. Wilful blindness doesn‟t define the mens rea
reqd for partic offences. Rather it can substitute for actual knowledge whenever
knowledge is a component of the mens rea. Willful blindness occurs when the A sees
the need for further inquiries but chooses not to make them.
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Rule The accused must INTEND to aid the perpetrator and you must know abt the
type of crime, or you can be willfully blind.

R v Simpson (1988) SCC, pg 1029 (note)
s.21(2) case
Ratio This case limits the application of s.21(2). Unlawful purpose must be diff from the
crime you are trying to commit. Tf is the common purpose is robbery, and the
offence actually commited is murder, can use this s. If the common purpose is
robbery, and the robbery is commited, can‟t use this s. This s. extends crim
responsibility when the offence committed is outside what was intended and only
applies when the offence was actually commited.
Rule The unlawful purpose in s.21(2) must be diff from the offence charged.

R v Logan [1990] (SCC), pg 1030
s.21(2) case
Facts The accused were convicted of attempted murder. During a robbery a person was
shot and severly injured. Neither A did the shooting. Logan boasted of being
involved in planning the robberies. A is challenging const of s.21(2) in gen, and in
partic, of the objective component of the s (ought to have known)
Issues Is there a min deg of mens rea reqd as a POFJ before one can be convicted of offence
under s.21(2)?
Held Unconst – declare inoperative the words “or ought to have known” when considering
under s.21(1) whether a party to an offence where it is a const reqmt for a conviction
that foresight of the conseq be subjective.
Ratio For a few offences (murder incl), the POFJ req that a conviction can‟t stand unless
there is proof BARD of a min deg of mens rea and that legislation provding for any
lesser deg viols the Charter and is inoperative (Vaillancourt)
Martineau: it‟s a const reqmt that noone can be convicted of murder unless crown
proves BARD that the person had subjective foresight of the fact that the death of
the victim was likely to ensure (b/c of stigma and severe penalty). Elements of
attempted murder are same as murder. Stigma and pen same. Tf the mens rea for
attempted murder can‟t, w/out restricting s.7 of the Charter req of the A less of a
mental element than that reqd of a murderer under s.212(a)(i) – subjective foresight
of the conseq. S.1 analysis fails b/c doesn‟t satisfy proportionality test b/c it unduly
impairs A‟s rights.
Note For most crimes still have objective s. to 21(2). The only instance where it doesn‟t
apply is if you are trying to link the offence to an offence that has const reqd
subjective mens rea (murder, attempted murder, war crimes). Tf in every other sitn,
even robbery, which is subjective mens rea, but not CONST reqd, then “ought to
have known” is ok. Also: Stuart thinks its arb to have the perpetrator judged on a
subjective test, but accessory judged on objective test.
Rule

R v Portillo (2003) (Ont CA)
Ratio Even if the jury were satisfied that both appellants were inv in the killing, they may
be unable to det whether one, the other, or both participated in the strangling of the
deceased
Here, potl liab under s.21(1) might be explained along the following lines:
 The liab of each A under s.21(1) must be det separately
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 To convict an A of murder or manslaughter, the jury must be satif that the A
participated in the killing
 Participation means doing something that caused the death of the deceased or
doing something for the purpose of helping another person to do something
that caused the death of the deceased
 If the jury is satif that an A participated in the killing as desc above, it is
unness for the jury to det the exact nature of that participation
 If the jury is satisfied that an A participated in the killing of the deceased, he
is guilty of either murder or manslaughter. He is guilty of murder if he did so
w/ the ness blameworthy state of mind and manslaughter if the Crown hasn‟t
proved the blameworthy state of mind.
 The blameworthy state of mind consists of intending that the deceased
should be killed; or intending that he should suffer bodily harm of a kind
likely to result in death and yet proceeding despite knowledge of that risk (R
v Kirkness, 1990 SCC).
Liab for murder under s.21(2) reqs the Crown prove BARD:
 The A was a party to a common design to steal from the deceased;
 Another person who was a party to that same common design commited
murder as defd in s.229(A) in the course of carrying out the theft; and
 The A knew that murder was a probable conseq of carrying out the common
design to steal form the deceased
Rule

2. Counselling – this is a completely separate section
Person counselling offence
22. (1) Where a person counsels another person to be a party to an offence and that other
person is afterwards a party to that offence, the person who counselled is a party to that offence,
notwithstanding that the offence was committed in a way different from that which was
counselled.
Idem
(2) Every one who counsels another person to be a party to an offence is a party to every
offence that the other commits in consequence of the counselling that the person who counselled
knew or ought to have known was likely to be committed in consequence of the counselling.
Definition of “counsel”
(3) For the purposes of this Act, “counsel” includes procure, solicit or incite.
 Although “counsel” could have the ord meaning simply of advising, for crim law purposes it must be lim
to cases of actively inducing (R v Sharpe)
 The external and fault elements of the offence are:
o Actus reus for counseling is the delib encouragement or active inducement of the commission of
a crim offence
o Mens rea consists in nothing less than an accompanying intent or conscious disregard of the
substantial and unjustified risk inherent in the counseling: that is, it must be shown that the A
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 A‟s conduct (R v Hamilton)
 W/ this section, the offence has to actually be committed
Note: s.22 doesn‟t really apply to cdn law b/c we are into guilt by assn, grp responsibility
3. Accessory After Fact
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 R v Duong: knowledge could be extended to willful blindness
 R v Shalaan: it isn‟t ness to convict a principal in order to convict an accessory (this was affirmed by the
SCC)
Group Responsibility, Corporations, Gangs and Terrorists (no direct questions on this)
1. Corporations
a) Common Law
Canadian Dredge and Dock Co v R [1985] 1 SCR 662
 Leading case on identification doctrine under which cdn cts for many yrs imputed fault, incl mens rea to
corporations
 This case conc appeals of several A‟s against CC convictions for conspiracy to defraud
 SCC rejected the agmts that the companies weren‟t guilty as the bids had been conducted by managers
acting in fraud of the companies or contrary to corporate instructions
 SCC confirmed the convictions and asserted and justified the identification doctrine for holding
corporations responsible for mens rea offences
 A) abs liab offences:
o Corporations and indiv persons std on the same footing here, it is a case of automatic primary
responsibility
 B) offences of strict liab:
o For these offences guilt shall not be predicated upon the automatic breach of the statute, but
rather upon the establishment of the actus reus, subject to the defence of due diligence
o It matters not whether the A is corporate or unincorporate
 C) offences requiring mens rea
o At CL a corporate entity couldn‟t generally be convicted of a crim offence
o As a corporation could only act through agents, there are only three approaches whereby crim
intent could be said to reside or not reside in the corporate entity
 1) total vicar liab for the conduct of any of its agents whatever their level of employmt
or responsibility so long as they are acting w/in the scope of their employmt
 2) no crim liab unless the crim acts in question have been commited on the direction or
at the request, express or implied of the corporation as expressed through BOD
 3) median rule, whereby the crim conduct, incl the state of mind, of employees and
agents of the corporation is attrib to the corp so as to render the corp crim liab so long as
the employee or agent in question is of such a posn in the organization and activity of
the corp that he or she reps its de facto directing mind
 test: the identity of the directing mind and the company coincide so long as the
actions of the former are performed by the manager w/in the sector of
corporation operation assnd to him by the corporation
 gen the directing mind is also guilty of the crim offence in question
 the ct in this case, decided that there could be crim responsibility on the identification doctrine whether
or not there had been formal delegation, awareness of the activity in the BOD or offices of the company,
or express authorization or prohibition. However, the ct also noted that the identification doctrine
couldn‟t be used where the crim act of the directing mind had been totally in fraud of the corp or where
the act was intended to or did result in, benefit exclusively to the directing mind
b) New CC provisions for organizations (2003):
 2 avenues to crim responsibility, s.22.1 and 22.2
 the responsibility of the organization is no longer dep on estab fault in the “directing mind” but extends
to a much lower level
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2. Criminal Organizations:
a) biker violence:
 bill c-95, new offence, “participation in a criminal organization” (didn‟t criminalize mere membership in
a crim org)
b) participation in criminal organizations (gangsterism) (1997)
 s.467.1(1) of participation in a crim org, extended crim responsibility beyond the already wide net for
accessories or conspirators
 s.467.1(2) there must be a mand conseq sentence an dbl criminality for a participant in a crim org who is
a party to an offence committed in assn w/ the org
 it could be applied to low level members of a highly org gang, to those only loosely assoc in crime and
to those who have never been violent. Only one of the grp has to have committed a series of offences
w/in 5 yrs. There is no reqmt of gang continuity
 participation in org crime was committed by proof of:
o 1) an assn w/ an informal grp of 5 or more
o 2) knowledge that at least one of the grp had been committing serious crimes w/in the last 5 yrs,
and
o 3) being a party to an indictable offence in assn w/ the grp
 the reqmt of being a party to an offence does req proof of some indiv act and personal fault. However
this could merely be that reqd for liab as an accessory rather than perpetrator
c) fiasco of Manitoba warriors trial:
 in this trial, the fact that the new anti-gang measures weren‟t narrow became clear
d) widening gangsterism laws (2001):
 bill c-24 widened the crim org defn and the anti-gang offences in 3 ways:
o 1) reducing the # of ppl reqd to constitute a crim org from 5  3
o 2) removing the reqmt that at least one of the members be inv in committing crimes for the org
w/in the past 5 yrs, and
o 3) extending the scope of offences which define crim orgs, prev lim to indictable offences
punishable by 5 yrs or more, to all serious crimes
 the bill creates 3 new offences: s.467.11(1), (2), (3), 467.12(1), (2), and 467.13(1), (2)
o from these, can see that knowledge is expressly not reqd to be proved of the crime to be
facilitated or committed or of the id of the members of the crim organization
o charter challenges to the new scheme based on vagueness, overbreadth and lack of fault were
rejected in R v Lindsay (2004) (Ont SC). The ct however read into the knowledge reqmt a reqmt
of proof of knowledge of the composition of the crim org although not of the identity of those in
the grp
o in R v Accused No 1 (2005) (BCCA), new defn of crim organization wasn‟t found to be too
vague or broad
3. Terrorist Grps
a) 9/11 attacks
b) defn of terrorism
 the gov-in-council is now empowered to name by regulation a list of terrorist entities, based on a
determination by the govt, in priv and w/out public debate and based merely on reasonable grnds rather
93
than proof in a ct of law. There is strong agmt that this power viols the presumption of innocence in
s.11(d) which reqs proof beyond reasonable doubt of essential elements before a fair and indep tribunal
c) Broad new offences:
 being branded as a terrorist in one of these ways is not an offence
 defn in s.83.18(1) Every one who knowingly participates in or contributes to, directly or indirectly, any
activity of a terrorist group for the purpose of enhancing the ability of any terrorist group to facilitate or
carry out a terrorist activity is guilty of an indictable offence and liable to imprisonment for a term not
exceeding ten years.
o have a fault reqmt of actual knowledge plus a purpose of enhancing the terrorist grp‟s ability to
facilitate or carry out a terrorist activity
 s.83.18(2) (2) An offence may be committed under subsection (1) whether or not
o (a) a terrorist group actually facilitates or carries out a terrorist activity;
o (b) the participation or contribution of the accused actually enhances the ability of a terrorist
group to facilitate or carry out a terrorist activity; or
o (c) the accused knows the specific nature of any terrorist activity that may be facilitated or
carried out by a terrorist group.
 S.83.18(3) Participating in or contributing to an activity of a terrorist group includes
o (a) providing, receiving or recruiting a person to receive training;
o (b) providing or offering to provide a skill or an expertise for the benefit of, at the direction of or
in association with a terrorist group;
o (c) recruiting a person in order to facilitate or commit
 (i) a terrorism offence, or
 (ii) an act or omission outside Canada that, if committed in Canada, would be a
terrorism offence;
o (d) entering or remaining in any country for the benefit of, at the direction of or in association
with a terrorist group; and
 note: clause (d) estabs guilt by assn wherever you are in the world and whatever you are doing
 w/ the wide ways you can be branded as a terrorist, there are good agmts that such provisions viol s.7
charter provisions reqing meaningful act and fault remts
d) three year review
 major prob w/ a broad defn of terrorism and broad offences is that this can be used for racial profiling
Sentencing
R v Priest (1996) (Ont CA)
 A was youthful first offender, convicted for breaking and entering
 Martin JA: even where break and enter is prevalent in a community, it is a circumstance to be taken into
consideration, but not the exclusive consid
 Youthful first offender:
o Primary objectives: indivi deterrence and rehab
o Best achieved by a suspended sentence or probation or a v short term of imprisonment followed
by a term of probation
o The sentence should constitute the min ness intervention that is adeq in the partic circumstances
o S.718 and 718.2 of CC, (c) says that separation of offenders from soc is an approp objective of
sentencing “Where ness”, (d) directs that an offender shouldn‟t be depriv of lib “if less
restrictive sanctions amy be approp in the circumstances, (e) all available sanctions other than
imprisonmt that are reasonable in the circumstances should be consid for all offenders, w/ partic
attn to the circumstances of abor offenders
 Proportionality:
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o Fundamental principle: s.718.1: a sentence must be propor to the gravity of the offence and the
deg of responsibility of the offender
 Has a constitutional dimension, is a sentence is so dispropor that is it excessive as to
outrage stds of decency, it will viol the consti prohib against cruel and unusual
punishment of s.12 of Charter
 Sentences should be imposed in a manner that positively instills the basic set of communal values shared
by all cdns as expressed in the CC
R v Gladue [1999] (SCC) (discusses the correct approach to applying s.718.2)
 Specific reference to the circumstances of abor offenders was meant to respond to the overrep of abor
ppls in prisons
 Gen the more serious and violent the crime, the more likely it will be as a practical matter tha the terms
of imprisonmt will be the same for similar offences and offenders, whether the offender is abor or not
3. Tools of Sentencing
Discharges:
 R v Derkson (1972) (BC PC): it couldn‟t be in the best interests of an A and not contrary to the public
interst to approach all unremarkable cases of this sort w/ a uniform policy of a discharge; to do so would
be seen as condoning the offence and inviting a further breach. The discharge should be applied frugally.
 R v Fallofield (1973) (BCCA): concl respecting s.730:
o 1) s. can be used for any offence except those w/ min punishmt
o 2) s is for the commission of an offence, nothing in the language lims it to a technical or trivial
violation
o 3) two conditions precedent to the exercise of the juris: i) it must be in the best interests of the A
that he should be discharged either entirely or conditionally
o 4) ii) the grant of discharge must not be contrary to the public interest
o 5) i) presupposes that the A is a person of good character w/out previous conviction, that it isn‟t
ness to enter a conviction to deter him from future offences or to rehab him, and that the entry of
a conviction may have signif adverse repercussions
o 6) ii) public interest condition has weight in determining, but it doesn‟t preclude the use of
discharge provisions
o 7) s.730 shouldn‟t be used as an alt to probation or suspended sentence
o 8) s.730 shouldn‟t be applied routinely to any partic offence, will result in lack of uniformity
 granting of a discharge doesn‟t mean that the A has no crim record, they are merely deemed not to have
been convicted of the offence
 a pardon vacates a record
 legal effect of a discharge:
o Q: have you been convicted?; A: No
o Q: do you have a crim record?; A: yes (unless time period for non-disclosure has arrived)
 Legal effect of a pardon:
o Can answer no to both Q‟s
Fines
 S.734 of CC
Probation
 S.731 of CC
 R v Sangster (1973) (Que CA): shouldn‟t indicate to an A the precise sentence which might be imposed
on him should he fail to observe the conditions set out by the ct
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 S.732.1: the ct may prescribe, besides the stat conditions listed, “such other reasonable conditions as the
ct considers desirable for securing the good conduct of the A and for preventing a repetition by him of
the same offence of the commission of other offences”
 R v Ziatas (1973) (Ont CA): probation order can‟t be imposed as an addnl punishment
 R v Gladstone (1973) (BC Co Ct): a condition of probation should be reasonable and should be designed
to secure the good conduct of the A and to prevent a repetition by the A of the same offence or the
commission of other offences. Primary purpose of a condition of probation should be rehab not the
imposition of punishment.
 R v Palowski (1971) (Man CA): s.737(2)(h) didn‟t authorize the imposition of punishment by means of
a fine nor a reqmt to pay costs
 R v DeKleric [1969] (BCCA): If the circumstances require a fine, it should have been imposed as a fine.
If the circumstances reqd a condition of suspended sentence, restitution or reparation to the injured
parties w/in the meaning of the provisions of the CC which allow such a condition to be imposed as a
term of the suspended sentence, then it should have been done that way
Restitution
 S.738-741.2 authorize order of restitution
 R v Dashner (1974) (BCCA): restitution or reparation shouldn‟t be made a condition of a probation
order unless the ct is satisfied that the convicted person is able to pay and that the ordered amt reps
“actual loss or damage sustained”
 R v Groves (1977) (Ont HC): if parl intended to confer upon the crim cts a remedial power to order an
offender to compensate a victim for pain and suffering, it would have done so
 Ss.725-727 of CC provide for compensation
Community Service
 S.732.1(3)(f) provides for condns of commun service not exceeding 240 hrs over 18 mos
Intermittent Sentence
 S.732, available for sentences not exceeding 90 days. If an intermittent sentence is imposed, then the ct
must order probation
Imprisonment
 Where the A is convicted of more than one offence and receives more than one prison sentence the judge
has a discretion to declare that the sentences be served concurrently or consecutively (s.718.3(4))
Conditional Sentences
 S.742-742.7
 If a ct has imposed a sentence of imprisonmt of <2yrs, these sections permit a ct to order that the
offender serve the sentence in the community where the ct is satisfied that such an order wouldn‟t
endanger the safety of the community

R v Proulx 2000 SCC 5
 1) bill c-41 (cond sentence pt) enacted to reduce reliance on incarceration and inc use of principles of
restorative justice in sentencing
 2) conditional sentence diff from probationary measures.
o Probation is prim a rehabilitative sentencing tool
o Conditional sentences incl both punitive and rehabilitative aspects. Gen incl punitive conditions
that are restrictive of the offenders lib
 3) only those offences w/ min term of imprisonmt are excluded from cond sentencing regime
 4) purposive interpretation of s.742.1(a) should be adopted
 5) Sole reqmt is that the duration and conditions of a conditional sentence make for a just and approp
sentence
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 6) judge must be satif that the safety of the community wouldn‟t be endangered by the offender serving
his sentence in the community. Consider 2 factors: i) the risk of the offender reoffending; ii) the gravity
of the damage that could ensure in the event of re-offence
o a consideration of the risk posed by the offender should incl the risk of any crim activity and not
be lim to the risk of phys or psych harm to indivs
 7) must examine whether a conditional sentence is consis w/ the fund purpose and principles of
sentencing
 10) where a combo of both punitive and restorative objectives may be achieved, a conditional sentence
will likely be more approp than incarceration. Where objectives such as denunciation and deterrence are
partic pressing, incarceration will gen be the pref sanction
 12) no party is under a burden of proof to estab that a conditional sentence is either approp or inapprop
in the circumstances
 13) sentencing judges had wide discretion, should be given deference. Absent an error in principle,
failure to consider a relev factor, or an overemp of the approp factors, a CA should only intervene to
vary a sentence imposed at trial if the sentence is demonstrably unfit.
R v Arcand (AB CA)
 fraser CJ, Cote and Watson JJA:
 starting pt of sentencing principles: mere departure from starting pt not ground for appellate intervention
but severe departure may be
 mandatory to consider proportionality in det of sentence
 A (abor), convicted at trial of sexually assaulting a relative while unconc. Defence argued for sentence
of 90d imprisonmt followed by 3 yrs probation (Crown wanted 3-4yrs imprionmt). Defence succeeded,
crown appealed. CA allowed appeal, approp sentence 2 yrs less 1 day imprisonment.
 A slightly revised starting pt sentence may be set for major sexual assault. The likelihood of serious
psych or emotional harm was to be taken into accnt.
 Trial cts must follow binding appellate precedent
o Reconsideration cases overruled b/c inconsis w/ precedent
 Hunt and O‟brien JJA (dissent) – concurring in the result of the A‟s sentence appeal
o Only time reconsideration cases shouldn‟t be followed is when the precedent can‟t stand in the
face of a SCC decision