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LSA Criminal law cans

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S. 9: Criminal offences to be under law in Canada- Notwithstanding anything in this Act or any other Act, no person shall be convicted or discharged under section 730 a) Of an offence at common law  b) Of an offence o ffence under u nder act of o f the parliament par liament of England c) Of an offence under an act of a province

VAGUENESS AND OVERBREADTH • •



Vagueness- meaning not clearly defined Overbreadth- means are too sweeping in relation to the objective. Ask the question: are these means necessary to achieve the stated objective? Consideration of grounds the courts have developed under the s. 7 of the Charter upon which criminal charges can be challenged and declared unconstitutional; vagueness, Overbreadth and arbitrariness.

R v Heywood 1994 SCC F: Accused was under conditions based on previous sex assault convictions. Charged with committing vagrancy years later because he was in violation of CC sections that restrict his movement. I: Do these restrictions infringe on s.7 or 11(d) of the Charter in a way which is against the fundamental principles of justice? R: Where a law infringes on an individual’s charter rights then this infringement must be as minimal as possible to obtain the law’s objective and must not violate the principles of fundamental justice. A: The CC sections restricting his mobility suffer from over breadth and not capable of being saved under s.1Charter. -geographical limits too large -it applies for too long (life) without review (person may no longer be a danger) -too many individuals caught in it -provisions are farther reaching than is necessary to attain its goals. C: harm principle is view of the court. Criminal law cannot be resorted to where there is no reasonable risk of harm. Canadian Foundation for Children, Youth & the Law v Canada F: CFCYL applies for a declaration to strike-down section 43. S.43 “spanking law” ! may use force by way of correction toward a pupil or child as long as it is reasonable. I: Is the violation of the children’s freedom a violation of a fundamental principle of justice? R: (1) A law does not suffer from overbreadth or vagueness where one can read from the wording of the law certain limits which are reasonable. (2) Any limitation imposed on a s.7 right must be in accordance with the principles of fundamental justice. A:-Ppl who are subject to the law are delineated -force must be for correctional purposes and must be reasonable. -if child is too young or too old so that it cannot be of correctional value then it is unreasonable. DISSENT: Majority is going through contortions to try to make this law seem not vague. Reasonable clause is too vague because cannot measure proportionality. This is a job for parliament. *this is a case challenging overbreadth/vagueness overbreadth/vagueness of a defence. We are much more comfortable allowing this blurriness when it comes to defences rather than offences. PHS Community Services Society v Canada F: Insite allows drug injections on their property. S.56 ministers power to provide federal exemption for criminal conduct is withheld. I: does the minister’s power to provide a federal exemption to Insite accord with the principles of fundamental justice? R: Where a s.7 right is at stake, and limitations imposed must be in accordance with the principles of fundamental justice. A:-not using s.56 exemption is arbitrary -it is grossly disproportionate because the exemptions refusal is of no discernible benefit to CDA.

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COMMON LAW

# Woolmington v DPP 1935 HL F: D goes to home of ex-wife with intent to kill himself should she not answer the door. Gun ends up going off and killing her. Trial judge instructed jury that they must infer the intent of the D but this may have been in error. I: Is the requirement of a D to have ot prove they did not intend to commit a murder part of the common law? R: the crown must prove both facts of the murder and intent for it to prove the murder took place. No reverse onus exists here. A:-crown must prove that this was intentional murder. Cannot infer intention. -judge improperly instructed the jury towards this end and it cannot be said the result would have been the same otherwise.

REASONABLE DOUBT Golden Thread of the Common Law – crown must prove beyond a reasonable doubt R v Lifchus 1997 SCC F: Lifchus charged with fraud. Disputes the instructions to the jury by the judge. Specifically the judges instructions regarding the meaning of “proof beyond a reasonable doubt. She told the jury to consider the words used in the phrase in their everyday usage. I: did the judge’s instructions constitute a reasonable likelihood that the jury misunderstood the standard of proof? R: (1) when the judges instructions to the jury lead to a reasonable likelihood that the jury misapprehended the standard of proof a new trial must be directed. (2) if you are sure based on the evidence that the acussed committed the offence you should convict – Beyond Reasonable Doubt A: Judges instructions led to the special legal meaning of proof beyond a reasonable doubt being mistaken for its everyday meaning. -this is essential to the presumption of innocence and in her instructions to the jury the judge has led the jury to misunderstand the standard of proof in case. *Can be used in conjunction with Nette  for instructions to jury in homicide cases. R v Starr 2000 SCC R: BRD falls closer to absolute certainty than it does to a BoP R v S (JH) 2008 SCC F: Stepfather is found guilty of sexually assaulting stepdaughter. Judge instructed jury on the credibility of the witnesses telling them to consider all the evidence and that the trial was not a choice between the two competing versions of events. I: Did judge’s instructions lead the jury to properly understand the standard of proof in a criminal case? R: exact wording of the charge to the jury regarding the standard of proof in criminal cases is not fixed. It can vary and will be found valid so long as the jury is charged adequately to understand the standard of proof in a criminal trial and how to properly apply it in a given case A: -the jury was not under any misapprehension as to the correct burden and standard of proof to apply.

R v Mullins-Johnson 2007 Ont CA R: (1) There is only one kind of acquittal under CDN law: where the Crown fails to prove its case BRD. (2) Acquittals are not made on factual innocence to avoid two classes of ppl: those found to be factually innocent and those who benefited from a high standard of proof BRD.

REVERSE ONUSES •

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Strict Constructionalism - If you have two reasonable interpretations of a law, one of which favours the accused and one of which doesn’t, then the rule which favours the accused is to be preferred rule exists because we are worried about ppls liberty, restricts the common law method in the criminal process. o o Desire for certainty of the law, non-retroactivity, and restraint Legal Burden – law requires the accused to establish or prove a certain point. Reverse onus. Evidentiary Burden – obligation on a party to put forward some evidence pertaining to every element of an offence or defence. o Crown needs to get by the evidentiary burden by putting forward some evidence to every element of defence. Tactical Burden – nothing in the law commands you to take action in a certain case. But should you not take action, it would be a tactical error in a lot of instances.

R v Oakes 1986 SCC F: s.8 of Narcotic Control Act  states  states that if A is found in possession of a narcotic there is a reverse onus on them to prove they aren’t in  possession  possessi on for the purpose of trafficking. traffic king. Oakes Oak es found with vials of hash oil o il and roughly ro ughly $650 $65 0 in cash. cash . I: is this a constitutionally valid reverse onus? R: if there is a reverse onus placed on the accused then that onus must be justified under s.1 of theCharter . Otherwise, it is in

# Woolmington v DPP 1935 HL F: D goes to home of ex-wife with intent to kill himself should she not answer the door. Gun ends up going off and killing her. Trial judge instructed jury that they must infer the intent of the D but this may have been in error. I: Is the requirement of a D to have ot prove they did not intend to commit a murder part of the common law? R: the crown must prove both facts of the murder and intent for it to prove the murder took place. No reverse onus exists here. A:-crown must prove that this was intentional murder. Cannot infer intention. -judge improperly instructed the jury towards this end and it cannot be said the result would have been the same otherwise.

REASONABLE DOUBT Golden Thread of the Common Law – crown must prove beyond a reasonable doubt R v Lifchus 1997 SCC F: Lifchus charged with fraud. Disputes the instructions to the jury by the judge. Specifically the judges instructions regarding the meaning of “proof beyond a reasonable doubt. She told the jury to consider the words used in the phrase in their everyday usage. I: did the judge’s instructions constitute a reasonable likelihood that the jury misunderstood the standard of proof? R: (1) when the judges instructions to the jury lead to a reasonable likelihood that the jury misapprehended the standard of proof a new trial must be directed. (2) if you are sure based on the evidence that the acussed committed the offence you should convict – Beyond Reasonable Doubt A: Judges instructions led to the special legal meaning of proof beyond a reasonable doubt being mistaken for its everyday meaning. -this is essential to the presumption of innocence and in her instructions to the jury the judge has led the jury to misunderstand the standard of proof in case. *Can be used in conjunction with Nette  for instructions to jury in homicide cases. R v Starr 2000 SCC R: BRD falls closer to absolute certainty than it does to a BoP R v S (JH) 2008 SCC F: Stepfather is found guilty of sexually assaulting stepdaughter. Judge instructed jury on the credibility of the witnesses telling them to consider all the evidence and that the trial was not a choice between the two competing versions of events. I: Did judge’s instructions lead the jury to properly understand the standard of proof in a criminal case? R: exact wording of the charge to the jury regarding the standard of proof in criminal cases is not fixed. It can vary and will be found valid so long as the jury is charged adequately to understand the standard of proof in a criminal trial and how to properly apply it in a given case A: -the jury was not under any misapprehension as to the correct burden and standard of proof to apply.

R v Mullins-Johnson 2007 Ont CA R: (1) There is only one kind of acquittal under CDN law: where the Crown fails to prove its case BRD. (2) Acquittals are not made on factual innocence to avoid two classes of ppl: those found to be factually innocent and those who benefited from a high standard of proof BRD.

REVERSE ONUSES •

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Strict Constructionalism - If you have two reasonable interpretations of a law, one of which favours the accused and one of which doesn’t, then the rule which favours the accused is to be preferred rule exists because we are worried about ppls liberty, restricts the common law method in the criminal process. o o Desire for certainty of the law, non-retroactivity, and restraint Legal Burden – law requires the accused to establish or prove a certain point. Reverse onus. Evidentiary Burden – obligation on a party to put forward some evidence pertaining to every element of an offence or defence. o Crown needs to get by the evidentiary burden by putting forward some evidence to every element of defence. Tactical Burden – nothing in the law commands you to take action in a certain case. But should you not take action, it would be a tactical error in a lot of instances.

R v Oakes 1986 SCC F: s.8 of Narcotic Control Act  states  states that if A is found in possession of a narcotic there is a reverse onus on them to prove they aren’t in  possession  possessi on for the purpose of trafficking. traffic king. Oakes Oak es found with vials of hash oil o il and roughly ro ughly $650 $65 0 in cash. cash . I: is this a constitutionally valid reverse onus? R: if there is a reverse onus placed on the accused then that onus must be justified under s.1 of theCharter . Otherwise, it is in

$ contravention to s.11(d) of the Charter because it i t degrades degrade s the presumption pres umption of o f innocence. innocen ce. A: -cannot remove the need to prove BRD the guilt of an accused. It is central to the justice system. -reverse onus’ lead to ppl being found criminally guilty based on a lower standard than BRD. -Accused is being denied his rights to presumption of innocence and this is against fundamental justice and in contravention of s.11(d) Charter. R v Downey 1992 SCC F: Reverse onus in s.212 of CC that assumes if someone is living with, or is habitually in the presence of, a prostitute that they are living off the avails of prostitution. R: Presumption of innocence is infringed whenever there is a possibility to be convicted despite the existence of a reasonable doubt. A:-Court upholds this reverse onus because it is deemed necessary to combat this activity. -issues with witnesses coming forward. -all one has to do in order to rebut the presumption is to show they were not living off the avails. Easier to do than in Oakes.

 .-'%$ "#%$ AR constitutes the guilty act which, when proven beyond a reasonable doubt in combination with MR produces criminal liability. The “guilty act” or omission must be done through the accused’s own volition. -An act is required to find criminal liability because thoughts or intentions are not enough to warrant punishment and the criminal law must be confined within narrow limits. Criminal liability can be applicable only to acts or omissions that are capable of being proved. Thus, actus reus may be viewed as limiting the criminal law’s scope. -Modern trend moving away from this slightly. Recognizances (restraining ppl in advance) are becoming more and more common. -Interested in the voluntariness component of actus reus actions. -the intent and the act must both concur to constitute the crime -Actus reus is open to interpretation. Must read the CC carefully to determined if the accused actually committed the prohibited act. • •

To show actus reus, all essential elements of an offence must be present and proven by the Crown (Thorne) Crown must demonstrate beyond reasonable doubt that an accused will commit another violent crime when applying for a recognizance on such grounds. (Teale v Noble)

R v Thorne 2004 NB F: Accused is a prisoner taking part in a prison riot. Warden of prison reads a proclamation commanding prisoners to disperse. A fails to follow proclamation. I: Was there evidence before the jury that the proclamation read to the rioters was worded exactly or to the like effect of s.67? R: For there to be actus reus, all essential elements of an offence must be present and proven by the Crown. A: -the trial level judge’s instructions to witnesses to leave out any references to “imprisonment for life” as would have been read out in the proclamation was an error  -the proclamation must be made clear that non-compliance will be met with the harshest criminal sanctions. -if this message is not relayed to the A, they cannot be found guilty. -therefore, jury had no ground to find A guilty of non-compliance without this information. Teale v Noble 2005 Que F: Conditions placed on Homolka after release from prison R: Crown must demonstrate by preponderance of probability reasonable grounds to believe that an accused will commit another violent crime when applying for a recognizance on such grounds.

COMMISSION -Courts are hesitant to attribute liability to a person based on their status or relationship to the other. -Vicarious Liability is far more narrowly applied in the criminal context. Why? -The criminal law’s concern is to punish the wrongdoer -want to avoid attributing criminal offences to people through their relationships with others. -Absolute Liability – don’t need to prove mens rea. Just need to satisfy the act and you’ve committed the offence. There is no defence available. -Strict Liability – There are defences available.  R Absence of AR requirement for an offence that is punishable with a term of imprisonment is a violation of s.7 of theCharter. ( R v Burt ) Cle aring ) If there are defences of fact available, an offence is of strict liability.  Auto ( •



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If a regulation is to be of an absolutely liable nature, it needs to be proven as logically connected to the offence and its purpose. ( Auto Clearing )

R v Burt F: legislation makes it an offence to be an owner of a car that is involved in a motor vehicle violation. Rebuttable if owner can show vehicle wasn’t operated by him nor by someone who had his consent. R: (1) the absence of an actus reus for an offence punishable with a term of imprisonment is a violation of s.7 of theCharter. (2) A person cannot be held vicariously liable in the criminal context unless they have assisted encouraged or counseled the party that committed the offence. A: -No commission of an offence on behalf of the owner needed for a finding of guilt. Makes this an absolute liability offence -Targets one kind of criminal act, but confers liability on someone who had not engaged in it. R v Auto Clearing 2007 SKPC F: Accused sells cars. Two cases where ppl test driving cars go through red light cameras. A had specifically warned the drivers about these lights. S.273(2)(b) of the Traffic Safety Act  make owners liable unless they prove vehicle was parked or being operated by someone unauthorized to do so. I: (1) Strict or absolute liability offence? (2) Logical connection test for absolute liability: is there a logical connection between the extent of liability and the offence’s purpose? (3) is their a defence of due diligence available? R: (1) if there are defences of fact available, a regulation is a strict liability offence. (2) if a regulation is to be of an absolutely liable nature, it needs to be proven as logically connected to the offence and its purpose. (3) defence of due diligence is proved when an A does so on a balance of probabilities. A: -Wording of the act makes this a strict liability offence. -Fails logical connection test. Don’t need absolute liability of owners to promote driver safety in this context. Purpose is road safety, so why holding owners liable? Cannot assume that owners are always the drivers. -Accused exercised due diligence through warnings.

POSSESSION -Requires: (1) Knowledge (2) Consent (3) Control -3 possible types of possession: 1. personal possession 2. constructive possession – could be in custody of another person or held in another place for the persons enjoyment or another. 3. joint possession  Need knowledge, control, and consent to have possession and consent must be free of duress.  Marshall  ( ) Some degree of control over the subject matter must co-exist with the knowledge and consent requirement to show there was  possession. (Terrence) When it comes to electronic possession the underlying file that is transferrable is possesable, the evanescent image that is reflected on a screen is not. ( Morelli ) Control aspect of possession can be shown through an accused deciding what should be done with an item. C ( halk ) Innocent possession is not a defence to possession when there is any intention behind the act of control besides disposal of the item. (Chalk ) Able to prove knowledge, consent, and control through circumstantial evidence.  Pham ( ) • •



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R v Marshall 1969 Alta Ca F: Group drives from Calgary to Van and back. On way home, A realizes there is weed in the car: found 30 minutes into trip. Police search car and find weed. A did have several chances to leave the vehicle prior to police finding weed. A did pass a joint around but did not smoke it. I: Did the A have a sufficient level of knowledge and consent to satisfy having possession? R: (1) Consent in relation to possession must be free from elements of duress and must show an intent to consent to the possession. Mere acquiescence is not sufficient. (2) Need knowledge, control and consent to have possession. (3) Elements are separate and cannot be subsumed under one another  A: -A had knowledge of the drugs. Did not have consent to possession of the drugs because he never used them while in the car, and did vocalize objection to retrieving them after they had been tossed from vehicle. However, a lack of objection cannot be viewed as implied consent. -A did not have control of the vehicle, felt he had no other alternative -passing of joint is a reflexive action. (Like tossing of the squib after initial throw) *court is using consent in different ways. He consented to entering the vehicle so how can it be said he had no other alternative (ie he wasn’t forced into the car).

& R v Terrence 1983 SCC F: A gets into friend’s car who says it belongs to his brother in law. Unknown to A, car was recently stolen by the friend. Car chase ensues and this is when the A realized it was stolen I: is there an element of control to go along with the knowledge and consent requirement for possession? R: Some degree of control over the subject matter must co-exist with the knowledge and consent requirement to show there was  possession. A: -showed no control over the vehicle; did not direct him where to go or act as an accomplice in any fashion. -A has really done no act. No participation in the theft, no control over vehicle. -did not consent to getting into a stolen car C: Court attempts to determine control through consent. R v Morelli 2010 SCC F: A views child porn online. Search warrant on his home was filed under possession of, rather than accessing, child porn. I: Was there knowledge and control in this case to warrant a finding of possession? R: When it comes to electronic possession the underlying file that is transferrable is able to be possessed, the evanescent image that is reflected on a screen is not. (2) to possess something it must have some sort of permanence (3) cookies in an internet cache are not possible unless there is knowledge and consent to their existence. A: -two possible items to be possessed: the image that appears on the screen and the underlying file. Possession can only relate to the underlying file because of its transferrable nature. It has a somewhat permanent nature which the visual does not. -warrant was invalid because he had no possession of the files that were unintentionally stored in his internet cache R v Chalk 2007 Ont F: A is arrested for possession of child porn. Had several videos on hard drive of his cpu. Occasionally viewed them with his gf. After arrest, he instructed gf to delete them. He claims he did not intend to d/l them to his hard drive but admits to knowing it was there for several months. I: is innocent possession a valid defence in this case? R: (1) A person has possession over something when they fulfill the knowledge and consent requirement and the control is exercised by deciding what should be done with the item. (2) Innocent possession is not a defence when there is any intention behind the act control besides disposal of the item. A: -A admits to knowledge of videos on his hard drive -consented to them being there because no attempt to delete until after arrest. -instructing gf to delete them showed he exerted control over the items in question by determining what should be done with them. -innocent possession is not a defence when there is any intention behind the act control besides disposal of the item. He had knowledge and consent for several months. R v Pham 2005 Ont Ca F: A and Nguyen share apartment. Under police surveillance, known drug users frequenting, exchanges of money at the door, eyewitnesses come forward but none that say they saw the A with drugs at any time. Police raid and find money and crack. I: Can it be said that A had possession of the drugs? R: It is possible to prove knowledge, consent and control through circumstantial evidence and, therefore, a finding of possession. A:-drugs were in clear view in a common bathroom -documented comings and goings and neighbor testimony about drug deals -cohabiting in the same apartment DISSENT: accused had been out of the apartment for 32 hours before the raid. Lots of activity in that time frame and there is a reasonable  probability that the drugs and money found could have been planted during this time frame thu s negating the consent, knowledge and control.

CONSENT Consent matters because it changes the nature of an act. An otherwise wrongful act can become acceptable if there is consent. The difference between burglary and being an invited guest. Society allows people to do things that aren’t okay in respect for their autonomy. However, there are limits on the extent that consent can absolve a person from criminal liability. -context is very important as well. (sports vs fist fights) -s.265(1) Crown must establish that there was an intentional application of force and an absence of consent to prove assault. -s.8(3) of CC preserves common law defences so long as they are not in contravention of a statutory rule. Can not consent to non-trivial bodily harm  (Jobidon ) Graduated proof requirement for the three kinds of bodily harm.  Moquin ( )  ) Existence of fraud does not vitiate consent unless there is a significant risk of serious bodily harm. ( Cuerrier  Crown must prove person exposed to “significant risk of bodily harm” (Cuerrier ) • • • •

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Fraud does not vitiate consent with respect to non-disclosure of HIV when the accused: (1) has a low viral load and (2) wears a condom. ( Mabior )

R v Jobidon 1991 SCC F: Accused and victim in fight outside bar. A knocks victim unconscious on a car hood and delivers several blows to the victim while in their unconscious state. Victim dies. S.265 CC assault can only be found in a case where there is no consent. I: is the court limited to the consent requirement’s in the CC or may they be altered by the common law? R: (1) Consent is vitiated in situations between adults where any hurt or injury to a person that interferes with the health or comfort of the  person and is more than merely transient or trifling in nature. (2) cannot consent to non-trivial bodily harm A: -CC is a reflection of common law criminal offences. Must use the common law to taper its effects from time to time to avoid bizarre consequences. -policy considerations for narrowing consent in this case: social uselessness of fist fights, consensual fights lead to brawls, no consent may lead to deterrence, sanctity of the human body, ppl should treat each other humanely. -Gonthier J uses the young girl and scarf analogy here Concurring: disagrees with activist role of majority. Cannot get rid of need for the Crown to prove an absence of consent if you are to find guilt under s.265. Parliament included it for a reason. Finds unconsciousness allows for no consent. Same verdict. C: We always find reasons to restrict assault (girl having scarf placed on her with no consent) but in this case court narrows consent. The result is to expand liability. *Important to note that whenever the circumstances under which a court says there is no consent is to effectively expand the ambit of the offence. Thus, broadening criminal liability. R v Moquin Man CA 2010 R: -No necessary connection between an injury and its seriousness

-interference with comfort needs to be due to a non-trifling injury, that interferes with comfort -duration not an issue -a number of trifling injuries can constitute a more serious offence -medical evidence is not required to make a finding of bodily harm -Three kinds of harm (graduated proof requirement)! The more serious the offence the more proof required 1. Bodily harm -hurt or injury that interferes with the health of the complainant that is more than merely trifling in nature 2. Serious bodily harm -interferes in a grave or substantial way with the physical integrity or well being of complainant 3. The kind of harm needed for an aggravated assault charge -wounding, disfiguring or endangering the life of the complainant R v Cuerrier 1998 SCC F: HIV+ is told to abstain from having sex with ppl unless he discloses his health status and uses a condom. He disregards this advice and has unprotected sex with 2 women. I: What is the role fraud should play in vitiating consent in sexual assault? R: Existence of fraud does not vitiate consent unless there is a significant risk of serious bodily harm. A: -Imperative to have a broad view of fraud vitiating consent because there are deadly consequences. -If there are no dire consequences from the consent being attained fraudulently then not an issue. Don’t want to concern the courts with trivial matters. L’Heurex-Dube: did the deceit deprive the complainant of the ability to exercise their will in relation to physical integrity? Mclachlin: consent vitiated when there is deception regarding the presence of a sexually transmitted disease giving rise to serious risk of  possibility of infection. Wants to keep changes to the law incremental. C: Court interprets fraud broadly. Majority looks to fraud in the commercial context for insight. Fraud requires deception and risk of deprivation. In the sexual context, non-disclosure of something that could lead to serious bodily harm constitutes fraud. *test carves out an appropriate area for the criminal law. The test accepts the wisdom of the common law that not every deception that lead to sexual intercourse should be criminalized while still according consent a meaningful scope. R v Mabior 2010 Man CA F: HIV + man has sex with 6 women without disclosing health status. Sometimes wore condoms, other times did not. Charged with aggravated sex assault under s.273(1). I: Did the trial judge misapply the significant risk of bodily harm test of Currier ? R: Combination of both an undetectable viral load and the use of a condom is required to escape criminal liability. R v Mabior 2012 SCC

( F: Appeal to SCC from above. R: Requirement to not have fraud vitiating consent when it comes to HIV: (1) low viral load and (2) condom use. A: -significant does not mean any risk and is not solely in relation to high risk. -Currier  significant risk of serious bodily harm is satisfied when there is a reasonable probability of HIV transmission. In the presence of the 2 requirements, there is no reasonable probability. -disclosure only needs to occur if there is a realistic possibility of transmission of HIV. *By creating this rule, the SCC has made a distinction, as it did in Currier , between fraud of a trifling nature and fraud that may actually vitiate consent. Confines criminal liability to cases where there is a significant risk of serious bodily harm.

DE MINIMIS DOCTRINE Principle ! criminal law does not concern itself with trifles. The act is not justified but it goes unpunished because of its trivial nature. Accomplishes several things: 1. reserves the application of the criminal law to serious misconduct 2.  protects an accused from the stigma of a criminal conviction and from the imposition of serious penalties for relatively trivial conduct. -A common law defence preserved by s.8(3) of the CC. -elements of the offence have been made out but trier of law decides not to convict. -From Canadian Foundation McLachlin “equally or more vague and difficult in application than the reasonableness defence offered by s. 43” (in reference to the de minimis principle) •



De minimus principle is reserved for only genuinely trifling matters and it is questionable if it even exists in the criminal law ( Kubassek ) Trifling nature of an act considered to be within the de minimus doctrine needs to be determined by looking at the circumstances of the case ( Kubassek )

R v Kubassek  2004 F: Accused thinks she is god’s prophet against gay marriage. Goes to a church, that has performed gay marriages, and starts preaching to the crowd. Priest asks her to stop and is pushed, stumbles back into a pew. Trial court dismisses charges based on de minimis. I: Is the de minimis principle a valid defence in this case? R: (1) The trifling nature of an act considered to be under the de minimus doctrine needs to be determined by looking at the circumstances of the act. (2) De minimis principle is reserved for only genuinely trifling matters and it is questionably if it even exists in the criminal law. (3) must look at the act itself rather than the harm that flows from the act. A: - As conduct was not trivial. Knew she would be causing a disturbance and intentionally pushed priest. Only by luck was priest not injured. -actions weren’t trivial in nature but do not warrant any penalty besides recognition of the wrong. C: Court enforces minimal penalty: only allots guilt with no penalty. Court does not official recognize the existence of de minimis in this case. Cannot rely on the luck of someone not being injured. *there is a tension here because CC contains parliaments description of prohibited acts. The court, through de minimis then waives such  prohibitions. Separation of powers issue.

OMISSIONS General principle ! ppl responsible for acts, not the failure to act. -Court sees an omission as a wrong or something that needs to be addressed. Can do this through: 1. Characterize the conduct as an action or as part of a broader (continuous) action.  (Fagan case) This way you don’t need to utilize omissions doctrine. 2. failure to act can be criminal if there is more than a moral duty to act. It is then a legal duty. Omission itself becomes criminal and fulfills the AR requirement. Steps to analyze omission cases: 1. Recognize a failure to do something 2. Ask “is there a duty”? Statutory or common law? - need to address section 9(a) 3. If there is a duty, is there a breach of duty? 4. Is there causation of the consequence that the person is being charged for? Three ways to be liable for an Omission: 1. When there is a general relationship of care & protection (s.215)

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When there is a specific undertaking to act (79 [be careful with explosives], 129(b) [duty to assist peace officer], 216[surgical procedure duty to use reasonable knowledge], 217) Where the accused is responsible for having created a dangerous situation (Miller, fire)

v Amory Mortgage) Cannot be held criminally liable for omissions to act when there is only a moral duty to do so.  Butch ( Continuous Act Theory - An initially unintended act when combined with a subsequent intentional omission to rectify that act allows for both actus reus and mens rea to exist at the same time thus constituting an offence  Fagan ( ) There is a legal duty to act when one becomes aware that their actions present a risk of injury or damage to property Miller  ( ) An unintentional act, followed by an intentional omission to rectify that act or its consequences can be regarded as an intentional act ( Miller ) Legal duties can arise from common law ! s.180(common nuisance) - duty to refrain from conduct that would harm another  person. (Thornton CA) (“Neighbour Principle” is a civil law principle) S.216 - There is a legal duty for those undertaking lawful acts to not endanger the lives of others. (Thornton SCC) An undertaking occurs when it has been clearly made out with binding legal intent an d there is some form of reliance on behalf of the victim. ( Browne ) If one relies on another (even informally) for basic things required to live, then they are under the charge and care of that person. ( Peterson )

Buch v Amory Mortgage Co 1898 NHSC R: Individuals cannot be held criminally responsible for omission to act in cases where it is only of moral duty to do so.

Ryan, Criminal Responsibility for Omissions, 1967 “we should criminalize those omissions where it has caused and been intended to cause harm or was known to be likely to cause harm or was on other grounds illegal, that is, an offence in itself or a breach of some direction of law, or such a wrong as would be a good ground for a civil action.” Fagan v Commissioner of Metropolitan Police 1968 Er CA F: Accused is directed to pull over by cop. Accidently drives over cops foot. Officer complains to move the car off his foot. Accused initially says “you can wait” then eventually moves car. I: Is there criminal liability in an omission to act? R: Continuous Act Theory ! An initial unintended act can be combined with a subsequent intention to continue the act, or to deliberately fail to address the consequences of the act, so that the AR and MR exist at the same time. A: -The act was not complete when the car came to rest on cop’s foot. When A refused to move care off foot mens rea and actus reus existed and the criminal offence of assault occurred. -An omission to act constituted assault here. So no omission in the strict sense. They find guilty of assault. C: The failure to act is viewed as part of a broader continuous action.

-Legal duties to act can be imposed through the common law or by statute. 1. Statute can specifically state a duty, make a general reference to a duty and leave it to courts to decipher it, or a duty can be inferred by reading a law as implying there is a duty. 2. CDN courts find it difficult to find legal duties through the common law due to s. 9 CC, “no person shall be convicted or discharged of an offence at common law.” R v Miller 1983 All ER F: Accused falls asleep while smoking. Wakes up, sees flaming mattress and just goes in the other room and falls back asleep. Ends up  burning down the place. I: Is the actus reus component of the arson offence present? R: (1) If one sets in motion a series of events unintentionally and then at some point becomes aware of the possible danger or damage flowing from those events and does nothing to prevent the said danger or damage then they will be said to have not exercised their responsibility to attempt to prevent those damages. (2) an unintentional act, followed by an intentional omission to rectify that act or its consequences can be regarded as an intentional act A: -A knew mattress was on fire and should have known the series of events could lead to house burning down. -Nothing done to mitigate the possible damage his actions could have caused; therefore, did not discharge his responsibility. C: Court could have construed this as one single continuous event but decides to articulate a new legal duty! imposes a duty to act in situations where one becomes aware that his action presents a risk of property damage.

-at trial level Crown decides to go forward with s.180 CC by arguing A failed to discharge a legal duty. (felt couldn’t prove an unlawful act because not covered under the CC) R v Thornton 1991 Ont Ca

* F: Accused knowingly donates HIV infected blood. No one receives blood because it is detected. Crown asserts that under s. 180(2) everyone commits a common nuisance who fails to discharge a legal duty and endangers lives, safety, health, property etc. combined with s.216 “everyone who administers surgical or medical treatment” creates a legal duty to take precautions when participating in a type of medical procedure. I: can a legal duty within s.180(2) be one which arises at common law or must it be one found in a statute? R: Legal duties can arise from common law ! duty to refrain from conduct that would harm another person. (“Neighbour Principle” is a civil law principle) A: - hard to construe giving blood as medical procedure. So court doesn’t look at s.216 -court looks to common law to find legal duty -knowingly donating HIV contaminated blood knowing that there is a real possibility for it to be given to ppl breaches this common law duty. *Problematic is that the court is taking legal duties from the civil law context and using them in the criminal law. So it is creating legal duties. Contravening s.9 CC. R v Thornton 1993 SCC F: Appeal from above case. R: (1) There is a duty of care on those doing lawful acts that endanger others’ lives. (2) Establishes a wider measure of criminal responsibility for omissions ! a duty to not cause harm where harm is foreseeable. A: -s.216 imposes a duty of care of the donator when giving blood. The court considers this a medical procedure. Looks to part about “any other lawful act that may endanger the life of another person”. -duty of care was breached by non-disclosure of HIV status. -this common law nuisance endangered the life, safety and health of the community. *Court here has created a broad new measure for criminal responsibility of omissions.

s.217 – Everyone who undertakes to do an act is under a legal duty to do it if an omission to do the act is or may be dangerous to life. R v Browne 1997 F: A and deceased partners in drug dealing. Deceased swallowed bag of crack. Is unable to puke it back up and bag breaks inside her. A  promises to get her to hospital and calls a cab to do so. Doesn’t call an ambulance. I: Has the A taken on an undertaking as meant under s. 217 to confer on him a legal duty by promising to take her to the hospital? R: to find an undertaking has been commenced under s. 217, the undertaking must have been clearly made and with binding intent and this must include some reliance on the part of the victim. A: -promise to take to hospital was an act trying to help. Should not bind it as a legal undertaking -the two swallowed drugs to avoid detection often. No clearly made undertaking with binding legal intent to get one or the other immediate medical attention. -the words used by the A fall woefully short of establishing an undertaking. -criminal liability needs a higher threshold than civil liability so this definition of undertaking must be stringent and of a high threshold to warrant its application in the criminal context. C: must be some reliance otherwise how else can you show there was binding intent behind the act? Had the A taken the deceased into his care or control this would have proved reliance and therefore binding intent.

s.215 – places a legal duty on those who are in charge of others (for reasons of age, illness etc) to provide the necessities of life for them if they are unable to provide themselves with the necessaries of life. R v Peterson 2005 OCA F: Accused is son of Arnold. Arnold is 84 and is showing signs of dementia. Arnold lives with A. Arnold’s living area is neglected, unsanitary disgusting, and does not have access to necessities found elsewhere in the house. A has PoA over Arnold. I: Was Arnold in the care of the A beyond a reasonable doubt? R: If one relies on another (even informally) for basic things required to live, then they are under the charge of that person. (factors may include: relationship between the parties, who has PoA, what actions have been taken towards the dependent etc.) A:-Arnold is a dependent. He relied on the A to provide the necessities of life. A is aware of this dependency. Still kept him in unsanitary environment. -A had PoA over Arnold. -Arnold’s illness cannot be used as a defence for the A not providing him with the essentials of life. -there is a trust relationship between father and son. DISSENT: Population is getting older, if we are to impose legal duties on the children of these ppl it should be parliament not the courts who do it. Points to s.9 CC that court is not to increase the scope of the CC. It’s up to parliament to do so.

VOLUNTARINESS

"+ AR must be physically voluntary ! actions of a conscious and controlling mind -looking for conscious control over ones own body. If not in control of your body, you are not acting. -not identified in the CC as part of actus reus but the SCC has found that it would offend principles of fundamental justice to permit a  person to be convicted on the basis of an involuntary action. -involuntariness may be used as a defence. If one can prove involuntariness of their physical action (caused by factors not of their own volition), the AR requirement is not fulfilled. ( Lucki ) If an act is the result of a legitimate reflexive action then no offence has been committed because some intent is necessary. (Wolfe) To prove the AR of an offence, the accused must be shown to have physically caused all aspects necessary to show that offence. ( Kilbride v Lake) •





R v Lucki 1955 F: A makes a turn at an intersection and skids across the lanes and collides with a car on the other side of the road. I: Is this person guilty of driving on the wrong side of the road? R: (1) person who by an involuntary act, for which they are not to blame, gets onto the wrong side of the road is not guilty of that offence. (2) If D can prove involuntariness = not guilty. A: Crown considered this an absolute liability offence. However, there is no voluntariness on behalf of the A. So did the A even act at all?  No. R v Wolfe 1975 Ont CA F: A owns hotel. Had asked the complainant to leave several times previously for good reason. Complainant enters hotel, is asked to leave, A calls police. While on phone, A is attacked by complainant. In a reflexive action, A hits him over the head with the phone receiver. I: Can an actus reus component be attributed to a reflexive action? R: (1) If an act is a result of a legitimate reflexive action then no offence was committed because some intent is a necessary ingredient in an assault occasioning bodily harm. (2) if D can prove involuntariness = not guilty *problematic because ppl react differently in reflex situations based on physicality and temperament. To say these actions do not meet criminal sanction raises issues. Court is saying that they are concerned with what you do, not who you are. Kilbride v Lake 1962 NZ SC F: A parks car. Is ticketed for non-display of a current warrant of fitness. A claims it was on the vehicle when he parked it. I: Can something done lawfully become an offence on the As part by reason of an intervening cause beyond his influence or control, and  produced an effect entirely outside his means of knowledge? R: (1) To prove AR, it must be showed that the A physically caused all the aspects of the prohibited event required to show fault. (2) Nothing a reasonable person could have done to alter the outcome A: -The actus reus of this offence requires the physical act of not having a warrant displayed to be produced by the A. -A did start the sequence of events that led to the prohibited conduct, however he is not responsible for someone/thing removing the warrant from the vehicle. The entire series of events would need to be attributed to the A to show voluntary aspect of AR. -Need operation of vehicle + non-display. A guilty of only first part.

INNOCENT AGENT Innocent Agency Doctrine: Even if you aren’t the immediate cause of death, it is not relevant if you are acting through an innocent agent. R v Michael 1840 rd rd rd F: A gives 3  party poison, telling them it is medicine, to administer to the As child. 3  party doesn’t administer the medicine but the 3  party’s child does so unknowingly. I: If carried out by an innocent agent, can the AR requirement be fulfilled through that person? R: If a person intends to cause harm, and sets things in motion to achieve that goal, so long as the defendants original intention continues, the carrying out of that intention by an innocent agent will not negate the AR requirement. Can use tests for homicide etc. (but for test) and apply through the innocent agent. rd A: -A instructed 3  party to administer enough medicine to cause death. rd -3  party would also have been an innocent agent. -the As original intention was present throughout the sequence of events. -A started chain of events with intent to cause the actual consequence. *Mother is a ‘but for’ cause of death.

CAUSATION

"" Causation is an element of AR only when it is specified in the offence definition. Factual Causation v Legal Causation Factual: “But for” that persons conduct, the prohibited consequence would not have occurred. (‘But for test’Smithers) -all you need is one necessary link in the causal chain being attributed to the As conduct and this satisfies the “but for” test. -this is a low threshold Legal:  is this person enough of a cause to justify attributing to that person the legal status of a cause. Are they causally responsible? •



(A) CRIMINAL CODE •

In the case of some but not all offences the actus reus requires the causing of certain consequences. This includes: o All Homicides (s.222) o Wilful damage to property (s.430) o Arson (s. 433) o Causing bodily harm (s. 221) or death (s.220) by criminal negligence

BC Electric RY v Loach 1916 PC R: Court should be content with speaking of the cause of the injury simply and without qualification

(B) COMMON LAW Unforeseen circumstances will not negate a finding of homicide when another person has caused, directly or indirectly, their death. The “thin skull rule” applies R v Blaue. (Smithers) s226 –Acceleration of death under homicide. Accused’s actions must be a contributing factor to death outside the de minimus range (Smithers) (applies to all homicides, st including 1  degree murder, except those falling under s.231(5)) Ont CA in Cribbin says this does not offend s.7 Charter  rights. o The acts of the A have to have made a significant contribution to the victim’s death to trigger culpability for the homicide. ( Nette ) o Changes instruction to the jury concerning the Smithers test. Supposed to have the same meaning but change of wording can be seen to change meaning. st Accused’s actions must make them a substantial cause of death –  Harbottle (1   degree murder test in this case applicable to s.231(5) crimes of dominance ONLY)  Novus Actus Interveniens – may be no question that a defendant was a ‘but for’ cause, and yet some concern that the causal link is too ‘remote’ A contributing cause may be one that exacerbates an existing condition (Talbot ) *These cases deal with culpable homicide in either the manslaughter or murder context R v Smithers 1978 SCC F: Deceased is trying to leave. During scuffle, A is held back by deceased’s teammates and kicks deceased in the stomach. His epiglottis malfunctions and chokes on his own vomit. I: Did the kick cause death? R: (1) Expert medical testimony is only necessary for a jury to find guilt where the issues are beyond the comprehension of a reasonable  person. (2) to prove causation in homicide, the crown need only show the As actions were a contributing factor to death outside the de minimus range. ‘But For’ Test (3) unforeseen circumstances will not negate a finding of homicide when another person has caused, directly or indirectly, their death. The “thin skull rule” applies. A: -Crown was required to merely show the kick was a contributing factor to death. It did so through medical and eye witness evidence.  No need to prove intent to kill, just intent to deliver the kick. -s.205(1) CC a person commits homicide when directly or indirectly he causes the death of a human being. -A caused the kick. Therefore, a contributing factor in death. Malfunctioning epiglottis was quite unforeseeable but you take your victim as they come “thin skull rule”. C: A person can be a contributing cause whether or not they had any intention, foresight, or appreciation of the risk. -“Thin skull rule” – civil law concept. Adopted in the context of homicide. Problematic because using civil concept to allocate liability in criminal context. Accept your victim as they come. *Keep in mind s.9CC against expanding scope of criminal law through common law. There is a tension with applying civil law principles. *This is a manslaughter case. A higher threshold is needed for murder. *Smithers rule has been challenged in 2 ways: 1. unconstitutionally vague – has been rejected. No more vague than other rules in criminal law. How would you construct a test for causation that wasn’t a bit fuzzy? Can’t as of right now. (Cribbin) 2. as permitting the morally innocent to be convicted contrary to s.7 of the charter. Arbour’s answer: Heightened fault requirement, paired with the ‘but for’ test protect the innocent from being culpable. •











"# R v Harbottle 1993 SCC F: A watches his companion sexually assault a woman. Then they discuss how to kill her. A holds woman’s legs while his companion strangles her to death. Companion and the woman were of similar stature physically. st I: Can the As participation be such the he could be found guilty of 1  degree murder pursuant to s.231(5) CC? st R: Substantial Cause Test for s.231(5) 1  degree murder: 1. A was guilty of the underlying crime of domination or of attempting to commit that crime. 2. A was guilty of the murder of the victim 3. 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 anther that resulted in the A no longer being substantially connected to the victim’s death. 5. The crimes of domination and murder were part of the same transaction. st A: -due to the additional stigma and punishment associated with 1  degree murder a higher threshold is needed than just “but for” causation -A must have been a substantial cause of death, not just outside the de minimus range. -As holding the victim down was a substantial cause. Companion and victim had similar stature, she may have fought him off if not for the A. C: 5 requirements are designed to ensure that the degree of participation of the A in the killing rises to a certain level such that they are involved both in the act of domination and the act of the murder in a more demanding way then in theSmithers test. R v Nette 2001 SCC F: A is charged with breaking into house, tieing up woman, covering her head, robbing her. She dies from asphyxiation sometime after. A admits this in sting operation then retracts story saying he found her dead. I: How to instruct the jury on use of Smithers test? R: Change wording of the Smithers test when instructing the jury: the acts of the A have to have made a significant contribution to the victim’s death to trigger culpability for the homicide. A:-claims the double negative and use of latin is not beneficial to the jury. -doesn’t want to change the intent of the Smithers test. Just want to make it easier for jury to understand. DISSENT: this change in wording changes the substance. There is a big difference between a non-trivial cause and a significant cause. R v Talbot 2007 Ont CA F: Altercation outside a restaurant, an issue arose as to whether the initial blow or subsequent kick cause the death? I: Did a kick contribute to the victim’s death? R: (1) A contributing cause can be a cause that exacerbates an existing fatal condition (2) Crown must prove BRD that the kick was a contributing cause. A: Crown fails to prove BRD. Only proved there was some unquantifiable possibility that was less than a likelihood that the kick exacerbated the internal head injury.

(C) CHARTER There must be a factual connection between the actions of the Accused and the resulting prohibited conduct to satisfy the AR of an offence. ( R v F (DL)) R v F (D.L.) 1989 Alta CA F: Minor is charged with offence of dangerous driving causing injury. Was intoxicated at the time. He hits someone who is jaywalking. Trial judge finds he is guilty of dangerous driving but is unable to link this to bodily harm suffered by the victim when they were hit. I: When is bodily harm or death “thereby caused’ in s.249(3) or s. 249(4) prosecutions? R: Operation of vehicle must be proven to truly contribute to any ensuing injury or death. A: -this is a higher threshold than the “outside de minimus” version. C: until the SCC chooses to reconsider the matter, the broader “outside de minimus” rule will govern. Even though it may be in conflict with s.7 rights under the Charter. •

(D) INTERVENING CAUSE If at the time of death, the original wound is still an operating and substantial cause then the death can be said to be a result of that wound even if other causes of death are operating. (Smith) Participation in an event that undertakes a dangerous course of action and creates a high probability of death and/or risk to another will be seen as making a participant a causative factor in death.  Menezes ( ) If a participant’s individual will intervenes and severs the connection between participants and the damage caused then  participation in that event will not be viewed as a causative factor in death.  Menezes ( ) Reasonable foreseeability of intervention is something to consider when determining liability. However, the standard is still that of Smithers and Nette. ( Maybin ) R v Smith 1959 England •







"$ F: Fight at military barracks results in A stabbing victim with bayonet through the lungs. Victim is dropped twice on the way to hospital and does not receive appropriate treatment once there. Medical expert says victim would have had a 75% chance of survival had they gotten proper treatment. I: Can the stabbing still be considered the cause of death when there is evidence to show subsequent events were inappropriate or even harmful to the victim? R: If at the time of death the original wound is still an operating and substantial cause then the death can be said to be a result of that wound even if other causes of death are operating. ONLY if the second cause is so overwhelming as to make the original wound merely  part of the history can it be said that the death doesn’t flow from the wound. A: -stab to the lung is cause of death. The sequence of events that followed are factors that also may have contributed to death but they didn’t supplant the stab wound as a substantial cause. R v Menezes 2002 OSCJ F: A and friend are street racing. At one point, A pulls back and drops out of the race. Friend continues to speed and dies when he crashes. I: Was the A a cause of death? R: Participation in an event that undertakes a dangerous course of action that creates a high probability of death and/or risk to another will  be seen as making an individual a causative factor in death UNLESS a party’s independent will intervenes and severs the connection. A: -the nature of a race induces parties to encourage dangerous activity. Therefore, damage that results can be attributed to all involved. -A participates in this event willingly and endangers friend and the public. However, this was no longer in progress when the accident occurred. -Once the causative framework of the race had been interrupted, the individual will of the friend took over. Because it was race, the friend would have seen the A drop out of race. Individual will severed the causal chain. R v Maybin 2012 SCC F: Maybin brothers in fight at bar with victim. One of the brothers give him blows to the face; one of which renders him unconscious. Bouncer arrives on scene and hits victim in face. Victim dies. I: When does an intervening act by another person sever the causal connection between the A’s act and the victim’s death? If the brothers are a factual cause, can the bouncers intervening action be sufficient intervening force to not make them a legal cause? R: Significant cause of death test is used (but for test). Reasonable foreseeability test not sufficient to show causation. A:-Foreseeable intervention and independent action are not necessarily sufficient to show not a legal cause of death. -court claims it was reasonably foreseeable that a fight in a crowded bar would warrant some intervention. Thus the result was reasonably foreseeable so can say they are guilty. -Court is very wary of applying the reasonably foreseeability as a test for causation. -it sticks to Smithers test. C: court doesn’t endorse reasonably foreseeable test because it conflicts with the thin skull rule. Cannot foresee these types of issues. Would result in a lot of homicide convictions being overturned (Smithers etc) *Court says reasonably foreseeable is a useful analytical tool but that it should not overturn rules ofSmithers and Nette . -too much ambiguity in determining whether something was reasonably foreseeable or not. -first time court has ever split factual and legal causation up and looked at separately.

&#*$ "#. The act does not make the person guilty unless he or she had a guilty mind! Fault requirement. Subjective/Objective Subjective refers to states of mind such as intent, recklessness or willful blindness. -concerned with what the A actually knew, intended, foresaw. What was in their mind at the time of the alleged offence. CL presumption that “true crimes” will have a fault requirement (subjective). Presumption chiefly applies to the CC, but can also apply to offences contained in other statutes. The question is not whether one subjectively appreciated that the conduct in question was wrongful, but “whether the accused subjectively appreciated that certain consequences would follow from his or her acts” (Theroux) o Subjective awareness of the consequences may be inferred from the act itself (Theroux) Intention may be determined by a consideration of all the evidence including his acts, his utterances and any other circumstances which might shed light on his state of mind.  (Mulligan ) Cannot presume an intention. HOWEVER, you may infer an intention through the accused’s actions. It is a reasonable inference that a person intends the natural consequences of their act.This may be rebutted on the facts (Ortt ) Objectively can be proved by negligence whereby the conduct of the A is measured on the basis of an objective standard without establishing the subjective mental state of the particular accused. •











"% •

The test for negligence is objective; marked departure from reasonable standard, (Tutton) what the accused should have known, and intent is irrelevant. o

R v Hundal 1993 SCC F: Court determining the fault requirement for the crime of dangerous driving R: (1) There should be a clear distinction between the subjective standard of whether the accused was actually aware of a risk and the objective standard of whether the accused failed to measure up to the external standard of the reasonable person, irrespective of awareness. (2) The test for negligence is objective; marked departure from reasonable standard, (Tutton) what the accused should have known, and intent is irrelevant. A subjective test on the other hand, looks at what was in the mind of the accused at the time of the offence. R v Theroux 1993 SCC F: Court discusses the fault requirement for the crime of fraud. R: (1) The question is not whether one subjectively appreciated that the conduct in question was wrongful, but “whether the accused subjectively appreciated that certain consequences would follow from his or her acts”An accused’s belief in his acts being morally  justified is not a part of mens rea. (2) Subjective awareness of consequence can be inferred from act itself  . This does not make the test less subjective. It doesn’t matter if you believe you are right or wrong, you can still be convicted. In fraud an “honest” belief is irrelevant for mens rea. R v Mulligan 1974 Ont CA F: Repeatedly stabbed wife either meant to cause death or bodily harm that was likely to cause death. R: The accused’s intention was a fact in use and like any other fact in issue it fell to be determined by a consideration of all the evidence including his acts, his utterances and any other circumstance which might shed light on his state of mind. R v Ortt 1968 Ont CA R: Cannot presume an intention. A jury may infer an accused’s intention through their actions. However, this is only an inference and may  be rebutted if the facts of the case show it to be false. It is a reasonable inference that a person intends the natural consequences of their act. Fault for Public Welfare Offences Strict Liability Public welfare offences seek to protect social interests. Not criminal in the traditional sense. Involve a shift of emphasis from the protection of individual interests to the protection of public and social interests. Mala prohibita • • • •

R v Beaver 1957 SCC F: Accused was appealing convictions on counts of selling and possessing diacetylmorphine. Accused had physical possession of the drugs and sold them. No evidence provided to show he KNEW that the package contained drugs. He insists it contained sugar/milk. S: 4(3) (Possession) R: (1) Parliament may enact an offence where MR is not an essential ingredient. However, such an offence isnot to be so construed unless made by express language or necessary implication and is available to no other interpretation. (2) Possession is subjective; in law there is no possession without knowledge of the forbidden substance. All drug offences require subjective MR. Need to know what the substance is. No Parliamentary intent that indicates otherwise. In 4(3) there is an express knowledge requirement. If you can raise a reasonable doubt about what you knew then you won’t be convicted and the crown won’t succeed. A –mens rea of possession offence requires knowledge of the substance. No proof A knew what substance was. -Offence does not explicitly state that there is no mens rea requirement. -However, court says that the mens rea requirements are satisfied through satisfaction of actus reus requirements. Guy had held it out as heroin that he was selling. R v City of Sault Ste. Marie 1978 SCC (True crimes v Regulatory (public welfare) offences) F: City is accused of dumping substances into river that affect the quality of water. It had allocated the responsibility for disposal of its rd waste to a 3  party that set up landfill in a bad spot and thus caused pollution. R: 3 Categories of Regulatory Offences 1. True crimes – full mens rea (intention/recklessness, knowledge/wilful blindness; subjective awareness) [Look for subjective words] 2. Strict liability – Crown needs to prove act (probably breach of conduct); have defence of due diligence on balance of

 probabilities (due diligence is showing you took reasonable care) [Presumption that all public welfare offences are here, acts are  prohibited under a penalty because it is in the public interest to do so.]

"& 3.

Absolute liability – need to prove the act BRD and no defence available; no MR required, liability based on commission of act (regulatory such as parking ticket) (but incapacity and involuntariness negate AR)

When considering classifying offences look at: over-all regulatory pattern, subject-matter of legislation, penalty, and precision of language. In regulatory and provincial offences usually focus on conduct not state of mind. A: -outline reasons for absolute liability offences to exist: 1) serve as a deterrent so ppl have to take high standard approach because ignorance or mistake will not be an excuse 2) administrative efficiency. Proving MR for every small offence would cripple justice system etc. -these offences are also justified in that they usually only incur slight penalties and no jail time. *Court creates halfway point between full MR (subjective) and no MR (absolute). Defence under strict liability allows the defendant to  prove on a BoP that they exercised reasonable care in discharging the regulatory requirements. Onus on D R v Wholesale Travel Group Inc 1991 SCC F: Travel agency being charged for false advertising (regulatory offence) R: 2 Justifications for Different Mental Element for Regulatory Offences from Criminal Offences: o Licensing (By choosing to enter into a regulated field you are subject to the responsibilities; need to maintain minimum standard

of care, regulated persons are best able to control harm they may produce) o Vulnerability (Protect people who would otherwise be vulnerable to harm) These reasons justify the reverse onus for due diligence on the accused on BOP under section 1of Charter, although they violate section 11(d). Justified in this case b/c of need for effective enforcement. There is a lower fault required for regulatory (reasonable care – objective) than criminal (moral blameworthiness) offences. *Due to odd splitting of the court, a majority actually held that the reverse onus in all strict liability offences must be justified under s.1 Charter Standards General Rule: Absolute liability threatens liberty under the Charter and therefore rarely applied. If possibility of imprisonment it can’t be absolute liability. Reference RE Section 94(2) of the Motor Vehicle Act (BC) 1985 SCC F: Driving legislation in BC creates an absolute liability offence with the possibility of jail time. I: Do absolute liability offences that include jail time offend s.7? and if so, are they valid under s.1? R: (1) A law enacting an absolute liability offence will violate s.7 of the charter only if and to the extent that it has the potential of depriving of life, liberty, or security of the person. Combination of mandatory imprisonment and absolute liability is offensive to s.7 and only saved under s.1. (2) to show a violation of s7 one must do two things: -show a deprivation of life, liberty, or security of the person -show that the deprivation was not in accordance with principle of fundamental justice. (3) We must simply determine how to give people “the full benefit of theCharter’s protection” and not worry about substantive/procedural divide. A: -PFJs are not restricted to ensuring procedural fairness. They extend to substantive issues. -deprivation in this case is the mandatory prison sentence attached to an absolute liability offence. -administrative efficiency does not justify violation of s.7 BUT wars, natural disasters do. -imprisonment of a few innocent drivers is not justified by keeping all bad drivers off roads. R v Beauchamp 1953 Ont CA F: Bus driver checks blind spots and backs into parking spot. His outside mirror was loose and, because of the vibration, of no use. Did not see a car that had recently parked in the spot he was backing into. He causes dmg to that parked car. R: (1) There is an objective standard for strict liability regulatory offences. Due care is owing in the circumstances (subjective); legal care is objective it is universally fixed. (2) Imposes an additional element: even if the accused did not exercise due care and attention, he or she should be acquitted if the conduct is not “of such a nature that it can be considered a breach of duty to the public and deserving of punishment” *This case has been subsequently rejected by the BCCA but it remains good law in Ontario. Fault for Crimes Mala in se Murder and the Charter   s.229 229(a) AR: causing death MR: intention to kill or intention to commit bodily harm with subjective foresight of likelihood of death. ( Martineau) Concerns over watering down subjective foresight element because this could allow convictions on an insufficient MR. Important due to severity and stigma of this offence. 229(a)(ii) the act and the intention must exist contemporaneously •



"' 229(b) transferred intent – contemporaneity exists if A still intends to kill B when he actually kills C 229(c) & 230 Unlawful object murder. Part which allows for a murder conviction on the basis of what they ought to have known has been effectively read out of the  provision. •

Murder under ss. 229(a)(i) and (ii) R v Simpson 1981 SCC F: Judge when instructing jury about the culpable homicide CC provisions substitutes for the requisite intent an intention to cause bodily harm that the offender knows or ought to know is likely to cause death. Problem is that this “ought to know” addition does not constitute the requisite state of mind for attempted murder. S: 229(a)(i) and (ii) R: Attempted murder is subjective, the Crown must show the accused subjectively knew his actions would cause death. The accused has to inflict bodily harm that he knows is likely to cause death. -Not enough that bodily harm intended was likely to cause death. -The point is to determine whether the accused had a state of mind morally equivalent to that of someone who intends to kill. R v Edelenbos 2004 Ont CA F: A sexually assaults and strangles woman to death. He claims it was unintentional so not murder. A appeals conviction on the basis that the trial judge erred in defining the word “likely” in his jury charge regarding the intent requirement for murder. I: Did the definition given by the judge to the jury prejudice against the accused (definition of likely)? R: (1) For murder the accused must have either intended to kill or intended to cause harm that the accused subjectively knew waslikely to kill. (2) Likely is defined in the ordinary everyday context. Likely means more than a possibility, involves a substantial degree of probability. (Possibility would be manslaughter, likely is murder). Constructive Murder s. 229(c) and s.230 (was 213) R v Vaillancourt 1987 SCC F: A and accomplice rob pool hall. Beforehand, A protests to accomplice bringing a gun. He tells him to unload the gun and accomplice hands him the bullets. During robbery, accomplice’s gun goes off and kills a client in the pool hall. R: (1) In building on BC MV Reference, true crimes require a minimum degree of fault when your liberty is in play (no more absolute liability where there is deprivation of liberty). Vaillaincourt  pushes this further in that some offences you need to go above the minimum. Some offences may have their own minimum threshold for their level of fault. (2) It is a principle of fundamental justice that, absent proof beyond a reasonable doubt of at least objective foreseeability, there surely cannot be a murder conviction. (3) 230(d) is unconstitutional. Murder stigma so high, need subjective intent, weapons provision removes subjective and brings in objective element. More akin to manslaughter A: -Murder is distinguished from manslaughter via the mental element. Therefore, there must be some subjective basis to determine intent. -not saved under s.1, use of a firearm in the commission of an offence that leads to a death automatically being murder does nothing to  prevent crimes where people use weapons. *Sets the standard at at least an objective fault requirement for offences with stigma attached, court didn’t need to go further and say specifically what a murder conviction requires in the way of fault. This is done in Martineau. R v Martineau 1990 SCC F: Accused had pellet pistol, accomplice had rifle. They rob a couple in their home and the accomplice kills them both while tied up. I: Can A be charged with murder under s.213 (old)? S: 230(a) (Murder in commission of other offence) R: (1) Objective foresight is not enough to establish murder as a constitutional matter.There must be subjective foresight of the likelihood of death ! a conviction for murder cannot rest on anything less than proof beyond a reasonable doubt of subjective foresight of death. This can be recklessness. (2) Constructive (felony) murder is unconstitutional! 230(a) unconstitutional A: -stigma and punishment attached to murder requires that it be reserved for those who choose to intentionally cause death or who choose to inflict bodily harm that they know is likely to cause death. -PFJ require subjective intent be proved for murder conviction. DISSENT: -objective foreseeability is sufficient to conform with s.7 & 11(d) of Charter. Connection to social stigma is over emphasized and constitutionality of laws should not turn on this basis. Parliament is trying to deter such offences and it is within their power to do so. * Martineau applies only to murder. *”or ought to have known” in s.229(c) is effectively read out because now need subjective foresight of likelihood of death. R v Meiler 1999 Ont CA

"( F: There is a plan. An unlawful act committed in furtherance of the unlawful act which caused death and which was accompanied by subjective foresight. S: 229(c) R: Suggests that there is no need for the accused to have foreseen the particular victim or the particular course of events by which the death occurred. A: -Crown makes the unlawful act the act of walking into the backyard with the loaded shotgun. Everything turns on what is defined as the unlawful act. R v Shand Ont CA 2012 F: A arrives at drug dealers house with 2 accomplices intending to steal weed. Goes into the house, gun “accidentally” discharges killing someone. Charged with 2nd degree murder s.229(a)(i), 229(a)(ii) and s.229(c). D argues liability under s.229(c) cannot cover an accidental discharge. R: (1) s.229(c) will be satisfied where the following elements are present and the objective foresight clause is read out of it: 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 requiring MR and cannot be caught by s..229(a) because courts don’t want 229(c) to swallow up entire offence of murder. 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 as stated above, 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 consequence of the dangerous act. -dangerous act must be a specific act, or a series of closely related acts, that results in death, dangerous act need not be an offence. 5. When the dangerous act is committed, the A must have subjective knowledge that death is likely to result (2) The dangerous act must be intentional, that the act cause the death and that there be subjective foresight of the likelihood of death. Dangerous act need not be distinct in the sense of being unrelated to the acts carrying out the unlawful object. (3) In determining the MR of the A at the time of committing the dangerous act we must learn what he actually knew and foresaw. What his state of mind was before or after the incident is not determinative. A: -New context requires a narrower reading, clearly focused on the requirement that, when the act causing the death is carried out, the A subjectively foresaw that some person’s death is likely. -this act, chasing accused into the basement, was done in furtherance of the unlawful object, being robbery. -all that being said, still need to establish the A possessed the necessary mens rea at the time of committing the dangerous act. Can do this through relevant facts surrounding the commission: was safety on or off? Was gun loaded? Did he point gun at victim? Threats? Etc… *Affirms Martineau constitutionality ruling on s.229(c) in that it establishes subjective foresight of death as a sufficient constitutional standard of MR for murder. R v Roks 2011 OCA F: Unlawful object was insurance fraud. Dangerous act, committed intentionally, was burning down the commercial building. S: 229(c) R: (1) Subjective foresight of possibility of death is not enough.Need subjective foresight of the likelihood of death. (2) we can say that “likelihood” and “possibility” are not synonymous even if we do not say precisely when possibility metastasizes into likelihood. A: -court says requisite mens rea not met. WHY? Arson planned for xmas day when the expectation was that nobody would be in the  building. So it is atleast open for a trier of fact that the A did not have the subjective foresight of the likelihood of death. First Degree Murder s.231 Planning: there must be some advance arrangement of the event. (Smith) Deliberation: the act must be considered, not impulsive. (Smith)  Need not relate to death; if you intended to cause bodily harm that you knew was likely to cause death.  Nygaard) ( • • •

R v Smith 1979 Sask CA F: Smith shoots victim in arm, victim runs away, 1-3 minutes pass Smith then fires a few more shots halting the victim. Walks up to rd victim and shoots him in back of the head. Smith then shoots him with a different gun belonging to the 3  friend Massier in order to be able to blame it on him. I: Was there evidence of planning and deliberation upon which the jury could properly find the appellant guilty of first-degree murder? R: First degree murder must be planned and deliberate Planned: read in its normal usage and entails arrangement or planning beforehand. Must be carefully thought out but need not be complicated. Must be some evidence of scheme or design previously formulated or designed by the A and the killing was the implementation of that scheme or design Deliberate: refers to something considered and not impulsive. This cannot simply refer to intention though. A: -No planning of murder prior to arrival at the farm.

") R v Nygaard and Schimmens 1989 SCC F: N and S go to M who had paid N with cheque that had bounced. They beat him with a bat striking him in the head several times. N and S ask who signed the cheque. M says H had. N and S goto H, hit him three times between the eyes with full force two handed swings, causing skull fracture and death. I: Can you attribute first degree murder under s. 212(a)(ii)? S: 231(2); 229(a)(ii) R: If you plan and deliberate, if you mean to cause bodily harm that is likely to cause death or if you intended to cause death doesn’t matter; the sentence can be aggravated from second to first degree murder by using planning and deliberation. Combined the 2 sections. R v Collins 1989 Ont CA F: A kills police office not knowing of his identity. I: Constitutionality of s.231(4)(a)? R: (1) Crown needs to prove knowledge or recklessness as to the identity of the victim for MR; this justifies moral culpability and is a deterrent, and complies with s.7 of Charter. W/o that knowledge, no justification to impose heavier sentence. Crown must prove that the murderer had knowledge of the identity of the victim as one of the persons designated in the subsection and that such person was acting in the course of his duties or was reckless as to such identity and acts of the victim. (2) If open to 2 interpretations, interpret the CC provision as to not contravene the Charter. A: -without the knowledge of the A that the victim was a cop in the line of duty, there would be no rational or logical reason for imposing a heavier penalty -if 231(4)(a) is read as requiring proof of knowledge then a heavier sentence can be justified on the basis of added moral culpability or as an additional deterrent on public policy grounds. -in this case, it would not offend s.7 of the Charter. R v Arkell 1990 SCC st F: A kills victim after committing sexual assault. Charged with 1  degree murder. I: Does s.231(5) contravene s.7 of the Charter. Is it arbitrary and irrational? R: (1) s.231(5) represents a decision by parliament to impose a more serious punishment on those found guilty of murder while committing certain listed offences. Rationale for this is laid out in Pare decision “this principle is that where a murder is committed by someone already abusing his power by illegally dominating another, the murder should be treated as an exceptionally serious crime.” A: 231(5) is neither arbitrary nor irrational in that it accords with the principle that there must be a proportionality between a sentence and the moral blameworthiness of the offender and other considerations such as deterrence and societal condemnation of the acts of the offender must be carried out. Three Types of Fault Crimes since Creighton

Three categories for the determination of fault: Subjective Mens Rea – Aware of risk, all individual factors (Murder, assault, break and enter, theft, possession offences) Objective Negligence – Marked departure from objective norm, no individual factors short of incapacity (dangerous driving, careless firearms, failure to provide necessaries) Offences Based on Predicate Offences – objective foresight of harm, no individual factors, no marked limit, except for  predicate offences of negligence. (unlawful act manslaughter, unlawfully causing bodily harm, aggravated assault. • •



Crimes Requiring Subjective Mens Rea Common Law Presumption Where the definition of the crime contains no MR words (willfully, intentionally, knowingly), and there is no language indicating that the crime is to be interpreted as one of objective negligence, it should be interpreted as an offence requiring proof of subjective MR.  Lucas  1998 SCC – “in the absence of an express legislative provision, it should be presumed that proof of subjective MR is a requirement of criminal offences” Motive Requirement of intent doesn’t require proof of motive Typically, no need for Crown to prove motive. •



• •

R v Lewis 1979 SCC F: A and Tatlay jointly charged with murder of Tatlay’s daughter and son in law. A admitted to mailing the victim’s a package but had no idea it contained a bomb. I: Was the trial judge correct in not instructing the jury to consider motive? R: (1) Motive is of interest with regard to the relationship with the evidence; but not to MR.Motive is legally irrelevant, but can be relevant to the arguments made by Crown and defence.

"* (2) There is no clear obligation in law for a judge to charge the jury on motive when the crown has not proven motive and the absence of motive was not proven by the defence. Desire/Purpose “purpose” when used in CC is usually code for pointing to subjective MR •

R v Hibbert 1995 SCC R: The term purpose may be interpreted as equating to intent or desire. It is the court’s task to determine which of the two possible meanings best accords with parliament’s intention in drafting the particular statutory provision at issue. A: -s.21(1)(b) purpose = intent. But sometimes the court will read desire or motive into a reading of purpose -If the broader reading is adopted, then one can act for an unlawful purpose (or for the purpose of aiding or abetting) even though one only does so as a result of duress or some other excusing motive. -If the narrower reading is adopted, then duress may negative the fault requirement Subjective Mens Rea Subjective MR through either: 1) Intent or knowledge OR 2) Recklessness or willful blindness In determining MR, first ask: 1. Is it in the criminal code? ! presumption of subjective mens rea. Concerned with true crimes here. Beaver  wasn’t in CC  but decided a true crime. Factors in deciding if something is a true crime: o severity of the penalty o wrong in and of itself OR wrong merely because legislature has prohibited it (very relative, going to run into arguments about this) (Mala in se vs. Mala prohibita) 2. If presumption doesn’t apply, then look to language of the offence. Does the language used by parliament lend itself to their intention to include a subjective fault requirement. charter requires proof of subjective MR for only a few offences (murder, attempted murder, war crimes.) If you have subjective MR requirement it does not necessarily follow that you must prove intention: Recklessness or willful  blindness will often suffice. Provision will not always state what is required. When not explicitly stated, it is often the case that the lesser standards, recklessness or willful blindness, are satisfactory. Indicators that intent is the requisite MR: “with intent,” “intentionally,” “means to cause death,” “for the purpose of…,” “willfully (usually sufficient but be careful with this one)” Deeming provisions will sometimes define words for you • •

• •





Intention or Knowledge Oblique Intention: entails foresight that there is a certainty that a consequence will occur  Buzzanga ( ) •

R v Buzzanga and Durocher 1979 Ont CA F: Buzz and Dur want to build French language high school in Essex. Their school is turned down. Dur writes and Buzz contributes to a letter that is apparently satire. Looks like it could be inspiring hate against French to get the govt to build them a school. I: s.281.2(2) (now s.319(2)) – what does the term “wiflfully” mean in “willfully promotes hatred”. R: (1) A person who foresees that a consequence is certain or substantially certain to result from an act which he does in order to achieve some other purpose intends that consequence. The actors foresight of the certainty of the consequence resulting from his conduct compels a conclusion that if he acted so as to produce it, then he decided to bring it about in order to achieve his ultimate purpose. (Oblique Intention) (2) Wilfully may be interpreted as intentionally or recklessly dependent on the statute and provision in question A: s.319(2) “willfully” shall be read to mean with the intention of promoting hatred and does not include recklessness. -foreseeability that a consequence is probable is not the same thing as intention to bring it about *Wilfully will more often than not be equated with intention. Recklessness or Willful Blindness Proceeding in spite of an awareness of the risk that a consequence will materialize These are both subjective inquiries. They depend on the individual. Recklessness: involves knowledge of danger, or risk, and persistence in a course of conduct which creates risk that the  prohibited result will occur (Sansregret ) Willful Blindness: awareness of the possibility that a fact exists and the proper inquiries are not made because they do not wish to know the truth (Sansregret ) " Willful blindness is not simply a failure to inquire but is deliberate ignorance  Briscoe ( ) " If found willfully blind, trier of fact may infer knowledge on the accused  Blondin ( )( Briscoe ) R v Theroux 1993 SCC F: D was director of residential construction company. He and company represented to home buyers that deposits were insured in order to get them. He and company knew deposits were not insured. D claims that he honestly believed that the project would be completed • • •



#+ therefore no need to insure deposits. However, company goes insolvent before then. I: Whether the fact that the A honestly believed that the project would be completed negated the mens rea of the offence of fraud? S: 380(1)(a) R: (1) MR of fraud is established by: Subjective knowledge of the prohibited act; and Subjective knowledge that the prohibited act could have as a consequence the deprivation of another (deprivation may consist in knowledge that the victim’s pecuniary interests are put at risk. Belief risk will not materialize is not relevant anymore than the As belief that there was no crime. (2) Where one has subjective foresight of possible consequences, and proceeds recklessly as to whether they occur or not. That person will be tried as if their recklessness = knowledge of consequences. (3) Willful blindness is awareness of the possibility that a fact exists and the proper inquiries are not made. A: -Claims of white lies does not make this legal. All that was needed here is subjective awareness of the risk of deprivation *The court actually points to what would the common man consider as fulfilling the crime of fraud. This is how they come to the recklessness = knowledge finding. *Mischief principle applied here comes to different outcome than in Boulanger. Purpose of fraud provision here makes it acceptable that recklessness suffices. • •



R v Boulanger 2006 SCC F: City official’s daughter is in a car accident. He asks for a supplementary report to be done. The report is favorable to the daughter and he doesn’t have to pay the insurance company any money. He knew it may be favorable to have the report done, but did not interfere with its commission or imply the addition of anything in the report. I: Is the MR of s.122 CC made out? R: (1) MR under s.122 may be proved when the A intentionally acted for a dishonest, partial, corrupt or oppressive purpose. The intention to use ones public office for purposes other than the benefit of the public. (2) Knowledge of the certainty of a particular consequence does not necessarily equate to bringing about that certainty unlawfully and intentionally. Must judge by individual provision being considered as to whether intent or recklessness is sufficient with relation to the provisions goal. Mischief Principle A: -Boulanger knew he would benefit from this report. Private purpose did not seek to subvert the public good. Report was legit, no lies. -court here finds recklessness not enough, need intention to subvert the public good through their office. *Court doesn’t follow Theroux because history of provision is to prevent corruption and the offence has been narrowly interpreted to fit that purpose. Otherwise, unprofessional behaviours such as this would now become criminal because ofTheroux. *This is the mischief rule in practice. Different outcome that Theroux. R v Sansregret 1985 SCC F: Rape case. Coerces ex-gf into sexual acts through acts of aggression. She consents to sex under threats including him tying her up and  brandishing butcher knife. R: (1) Willful blindness is distinct from recklessness because, while recklessness involves knowledge of danger or risk and persistence in a course of conduct which creates risk that the prohibited result will occur, willful blindness arises where a person becomes aware of the need for inquiry and declines to make the inquiry because they do not wish to know the truth. (2) Recklessness could not override the defence of mistake of fact. Willful blindness, however, leaves no room for the application of the defence of mistake of fact. *Confusing because court says A had no subjective awareness of the risk of consenting only out of fear, so not reckless. BUT then find that the A was willfully blind about the absence of consent. So they attribute to him subjective awareness that he ought to make further inquiries. R v Currie 1975 Ont CA F: Currie is approached by stranger to cash a cheque in return for $5. Currie endorses check in his own name and goes in to cash it and gives proceeds to the unknown man. TJ found Currie was willfully blind to the forged nature of the endorsement because he ought to have known it was sketchy and done more. I: Is this a correct application of willful blindness? R: Test for wilful blindness is subjective; ought to have known is not t he basis of knowledge for criminal liability and is not the basis for wilful blindness. Don’t use constructive liability in criminal law. R v Briscoe 2010 SCC F: A drives woman to location where he knows she will be raped R: (1) Wilful blindness can substitute for actual knowledge, imputed knowledge, whenever knowledge is a component of the MR (2) Willful blindness is not simply a failure to inquire but is deliberate ignorance. It entails an actual process of suppressing a suspicion. Looking for a subjective moment when someone thinks to themselves that they are suspicious of a state of affairs and then doesn’t do anything about it because they do not wish to acquire knowledge from which they cannot escape.

#" R v Lagace 2003 Ont CA R: (1) an A who makes an inquiry based on suspicion is not then automatically free of willful blindness. The question remains whether the A harboured real suspicions after that inquiry and refrained from further inquiries because they preferred to remain ignorant of the truth. (2) where some inquiry is made, the nature of the inquiry will be an important consideration in determining whether the A remained suspicious and chose to refrain from further inquiry because they preferred to remain ignorant of the truth. (3) Crown must prove BRD that despite the inquiry the A remained suspicious and refrained from making further inquiries because they preferred to remain ignorant of the truth. R v Blondin 1971 BCCA F: A imports hashish in scuba tank to CDA from JAP. Says he knew something illegal was in the tank and that he was paid to import it,  but didn’t know there were drugs in it. R: A jury may be instructed that the existence of knowledge may be inferred as a fact, with due regard to all the circumstances, if the jury finds that the A has recklessly or willfully shut his eyes or refrained from inquiry as to the nature of the substance he imports. A: -to convict for important of narcotics crown must show that there was, in some way, knowledge that a narcotic was being imported. SO  jury should have been instructed that recklessness and/or wilfull blindness could equate to satisfying the knowledge requirement of this offence. Crimes of Objective Fault A. Key words for objective standard: “ought to,” “reasonable care,” “negligence,” “carelessness,” “disregard,” “wantonness,” “reasonably…” Criminal Negligence s.219 s.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. (2) For the purposes of this section, “duty” means a duty imposed by law… O’Grady v Sparling 1960 SCC F: Charged with dangerous driving S: 219 R: (1) Objective requirement for this section; but judges prefer a gross departure from the objective norm. Code offences require advertent recklessness, provincial offence is objective and no advertence required. (2) criminal negligence can be distinguished from negligence because recklessness entails awareness of some risk whereas criminal negligence A is unaware of the risk but ought to have been. R v Tutton and Tutton 1989 SCC F: Parents fail to provide insulin to child. They have been counseled in the past on how to do this etc. For religious reasons she stops, she thinks kid is cured. Child is hospitalized and dies from diabetes. I: Is there a subjective element to the mens rea of the offense of criminal negligence under s.219 CC? R: McIntyre/L’Heureux-Dube: (1) the test for criminal negligence is that of reasonableness, and proof of conduct whichreveals a marked and significant departure from the standard which could be expected of a reasonably prudent person in the circumstances will  justify a conviction of criminal negligence. -this decision must be made on a consideration of the facts existing at the time and in relation to the As perception of those facts. But only to determine whether, in view of those perceived facts, the As conduct was reasonable. A:-s.219 is to penalize conduct and its results; not the state of mind. Intentional conduct is already covered under other CC sections so 219 would be redundant. Lamer, concurring: Agrees with McIntyre except adds that when applying the objective norm in s.219 there must be made a generous allowance for factors which are particular to the A. (youth, mental development, and education) Should build into our conception of the reasonable person all the essential characteristics of the accused ! Subjective/objective test (resolved in Creighton in the opposite) Wilson/ Dickson / LaForest, concurring: Wilson (2 others concurred): “wanton or reckless disregard” is more than gross negligence, need advertence to risk to lives or safety of others to be central to element of offence or alternatively be wilfully blind to the threat. R v Waite 1989 SCC F: Accused was drinking and driving and killed 4 people. Drives head on at participants in hay ride saying, “lets see how close we can get.” R: R: Affirmed Tutton; objective test of a marked and substantial departure from the standard of behaviour expected of a reasonably  prudent person in the circumstances is required for criminal negligence. Wilson: There is a subjective element to criminal negligence but not more than minimal awareness or wilful blindness. R v Anderson 1990 SCC

## F: While thinking of something else, the A runs red light and kills other driver. While legally impaired at the time, he did not seem impaired and it was assumed this did not affect his driving skill. Trial judge makes the comment : “neither the MR nor the consequences of the manner of driving were material in making a decision as to guilt or innocence.” R: (1) the greater the risk created by the actions of an A, the easier it is to conclude that a reasonably prudent person would have foreseen the consequences and that the A would have foreseen those consequences ! as harm increases, the significance of the distinction between the objective and subjective approaches decreases. (2) Must be a marked departure from the norm. A killing someone does not change the fact that his driving was NOT a marked departure from the standard. A: Need a very marked and substantial departure from the norm. Other provisions already cover drunk driving. R v F(J) 2008 SCC Most recent, and authoritative, SCC decision to state fault requirement from criminal negligence is objective. McIntyre test fromTutton. Marked Departure Test Marked and significant departure from the standard is the test for criminal negligence (Tutton) (Waite) ( R v F(J) ) The decision must be made on a consideration of the facts existing at the time and in relation to the As perception of those facts. BUT only to form a basis for a conclusion as to whether or not the As conduct, in view of his perception of those facts, was reasonable. (Tutton) o Only an honest and reasonably held belief can exonerate the accused. In determining whether there has been a marked departure, the consequences are not important to the reasoning for determining whether there has been a marked departure. We are concerned with the manner of behavior  R ( v Waite) • •



R v Creighton 1993 SCC F: Accused charged with manslaughter when he injected the deceased with cocaine. I: Do personal characteristics come into play with the objective test? S: 222(5)(a) Unlawful Act Manslaughter R: MAJORITY: McLachlin +4 concurring: (1) Considerations of principle and policy dictate the maintenance of a single, uniform legal standard of care for such offences, subject to one exception: incapacity to appreciate the nature of the risk which the activity in question entails. (2) What a reasonable person would have done in all the circumstances.There is no elevated foreseeability requirement for those with special knowledge. The criminal law is interested in setting minimums for personal conduct. (3) Unlawful act manslaughter = commission of unlawful act with objective foreseeability of risk of bodily harm that is neither trivial nor transitory (don’t need subj foreseeability of death). (4) Three factors to consider when determining the minimum constitutional fault requirement of a given offence: 1. The stigma and punishment attached to the offence. # Builds on the reasoning in Vaillancourt  and Martineau. 2. The extent to which the punishment would be proportionate to the moral blameworthiness of the offender if something less than subjective fault were required. Builds on case law holding that grossly disproportionate legislation is contrary to the principles of fundamental justice. # 3.Those causing harm intentionally must be punished more severely than those causing harm unintentionally Lamer + 3: (1) Membership in a group by an accused where they would have access to special knowledge will result in the reasonable  person being imbued with those some foresight abilities. We should consider all individual characteristics relevant under the circumstances – e.g., age, inexperience, education. (2) Checklist for the trier of fact for an objective test as it pertains to s.222(5)(a): 1. Would a reasonable person in the same circumstances have been aware that the likely consequences of their unlawful conduct would create the risk of death. If yes, onto next step 2. Was the A unaware Because they did not turn their mind to the consequences of the conduct and thus to the risk of death likely to result OR (if yes convicted) Because they lacked the capacity to turn their mind to the risk of death due to human frailties? 3. If yes to (B) then in the context of the offence, would the reasonable person with the capacities of the A have mad themselves aware of the likely consequences of the unlawful conduct and resulting death If a reasonable person with the frailties of the A would nevertheless have appreciated the risk, and the A did not in fact appreciate the risk, the A must be convicted. (3) Frailties that may be considered are those which relate to an As capacity to appreciate the risk in question that may be considered in this inquiry. (intox/impairment thru voluntary drug/alcohol abuse not valid) A: Lamer: The reasonable person should be seen as possessing Mr. Creighton’s considerable experience of drug use. McLachlin: Argues that Lamer’s test is basically a subjective one with these personal characteristics. Objective MR is not concerned with what the A intended or knew. Rather, the mental fault lies in failure to direct the mind to a risk which the reasonable person would have appreciated. •





#$ *Both factions of the court do allow for some personal frailties to be considered. So not a purely objective test. R v Beatty 2008 SCC F: Accused vehicle strayed into oncoming traffic causing death. Was only in opposite lane for the blink of an eye almost. It was an instantaneous thing. No indication of dangerous conduct b4 this. I: What factors may be considered when deciding whether the As conduct amounts to a marked departure from the norm? S: 249(4) Dangerous Operation of a MV causing Death R: (1) Proof of the subjective state of mind of the A can be relevant to the inquiry but it is not essential. It is enough to show that the A lacked the appropriate mental state of care. -Intentionally creating dangers for others will typically amount to a marked departure from the norm. (2) Because of the stigma attached to criminal convictions, the principles of fundamental justice under s.7 of the Charter require proof of a marked departure from the objective norm. (3) Approach taken by majority in Creighton is endorsed her individual characteristics of the A will not be imputed to the reasonable person. A: Any driver can be subject to a momentary lapse in intention. Just because it ends in death, doesn’t factor into MR analysis. Not sufficient evidence to show a marked departure from the standard of care of a prudent driver. R v F (j) 2008 SCC R: (1) Criminal negligence s.219 requires “a marked and substantial departure from the norm” (worse than gross negligence) (2) Other objective fault crimes require only “a marked departure from the norm.” ( Beatty ) (gross negligence) R v Roy 2012 SCC R: (1) Confirms approach in Beatty (2) Simple carelessness is not enough (3) With dangerous driving, look to manner of conduct rather than consequences to see if marked departure has occurred. Crimes Based on Predicate Offences Creighton articulates 3 factors to consider when determining the minimum constitutional fault requirement for a given offence. 1. stigma and punishment attached to the offence. -builds on reasoning in Martineau and Villancourt  2. extent to which the punishment would be proportionate to the moral blameworthiness of the offender if something less than subjective fault were required. -grossly disproportionate legislation is contrary to the principles of fundamental justice. 3.Those causing harm intentionally must be punished more severely than those causing harm unintentionally. Predicate Offence = underlying offence + specified consequence (bodily harm, death etc) •



R v Desouza 1992 SCC F: Fight breaks. Bottle thrown by the A strikes innocent bystander causing injury. I: Is s.269 constitutional? What is its mental element? S: 269 Unlawfully causing bodily harm R: (1) 2 principles for predicate offences: 1. Act must be unlawful (either contrary to federal or provincial law and NOT absolute liability), AND act must be likely to subject another person to danger of harm or injury which is more than trivial or transitory (in other words an objectively dangerous act)

the predicate must have been objectively “dangerous” such that the reasonable person would `have foreseen that the act could result in bodily harm. 2. This is constitutional because if the accused is already engaged in culpable acts, they do not have to necessarily foresee the consequences of their unlawful actions. S. 7 does not require subjective foresight of ALL harmful consequences of unlawful acts. W/o legislative direction specifying otherwise mental element only attaches to underlying offence not consequences. Not  punishing morally innocent because the person was already engaged in unlawful behaviour that could have been avoided. (2) Mental element requirement = mental element of the underlying unlawful act + objective foresight of harm A: No constitutional requirement that intention, either on an objective or a subjective basis, extend to the consequences of the unlawful act in general. o

R v Creighton 1993 SCC S: 222(5)(a) I: Does the objective test for unlawful act manslaughter require reasonable foresight of death or merely reasonable foresight of bodily harm?

#% R: McLachlin majority: (1) test for MR of unlawful act manslaughter is objective foreseeability of the risk of bodily harm which is neither trivial nor transitory, in the context of a dangerous act. (2) Provided an element of mental fault or moral culpability is present, and provided that it is proportionate to the seriousness and consequences of the offence charged, the principles of fundamental justice are satisfied. (3) No need for symmetry between AR and MR of an offence for it to still be constitutional A: -Manslaughter is not murder. No minimum sentence for manslaughter. An unintentional killing with lesser foresight and it is punished accordingly. Objective foreseeability of harm is in line with PFJs -If we go to requiring foreseeable risk of death, then we get rid of the thin skull rule. Lamer minority: Stigma attached to a conviction for culpable homicide at a minimum, is objective foresight of the risk of death in order for the offence to comply with s.7 of Charter. R v Krushel 2000 Ont CA F: Criminal harassment charge, accused argues that he did not foresee the consequence of fear. S: 264(c) R: Applies rules from DeSousa ; you don’t need subj foresight of fear when causing actual fear. Conduct plus knowledge (recklessness, wilful blindness) that the person is harassed is sufficient for the mental element. Objective standard. A: It is enough that the accused intended to engage in the conduct described in ss (2) while being aware of or willfully blind to the risk that the complainant would be harassed as a result. No need for the Crown to prove an intention to cause the prohibited consequence

".!# .*1 $#2%./ .$$.%/' Definition of the Crime of Rape Replaced in 1982 by the sexual assault provisions. Was s.143 CC •

R v Pappajohn 1980 SCC F: A says consensual sex with only minor playful objections on her part. She claims no consent and rape. I: Did the trial judge fail to put before the jury a possibility for a defence of mistake of fact? R: (1) Mistake of fact applies to rape, just like other true crimes. If there is a doubt of awareness on the part of the accused about a critical fact, like consent, then the accused can’t be convicted but need evidence of the mistaken fact beyond a bare assertion. -s.265(4) HBMB is a defence that prevents A from having the MR which the law requires for the very crime they are charged. It acts to negate an otherwise guilty intention. Evidence must be capable of logically supporting the mistake. -there is an evidentiary burden on the A to show they had an honest belief. Need not satisfy a persuasive burden to have this defence go to the jury. (2) A mistake doesn’t have to be reasonable as long as it is an honest mistake. But it rare where the defence will succeed where belief is unreasonable b/c juries are unlikely to believe a claim of mistaken belief that is unreasonable. A: No injuries suffered by the victim, clothes hung up nicely, duration of time spent in house together was a number of hours. R v Sansregret 1985 SCC F: Appellant broke into complainant’s home and threatened her (they had a previous abusive relationship), complainant said they could reconcile to calm him down, they had intercourse. After complainant phoned police and appellant’s parole officer convinced her not to follow through which charge. Appellant knew complainant had reported him. Later appellant broke in again, he made attempts to conceal his break-in and made more threats with a weapon, complainant did the same thing making him thing they could reconcile and they had intercourse. She believed she had persuaded him, then she phoned police to report rape. R: (1) Pappajohn still applies but where the accused is wilfully blind to the facts before him or reckless, the defence of honest belief of mistaken fact cannot be used as it is fixed by law with actual knowledge and his belief in something else is irrelevant or he is reckless. (2) Where willful blindness is shown, the law presumes knowledge on the part of the A A: Evidence showing A knew that the victim considered the first encounter unacceptable and equating to rape. Under s.143(b)(i) where the accused asserts an honest belief in consent, the belief must encompass more than the fact of consent. It must include a belief that it has  been freely given and not procured by threats. *Important to note that willful blindness and mistake of fact cannot co-exist. But recklessness and mistake of fact can. So if court had gone with recklessness here, A may have won. Crimes of Sexual Assault •

1983 Rape replaced by three-tier structure of sexual assault offences Got rid of spousal immunity, restrictions on the cross-examination of the primary witness as to their previous sexual history, abrogation of doctrine of recent complaint, and repeal of corroboration requirements and warnings. Crown must show: •



#& AR: requires proof of sexual touching (Chase) + proof of non-consent (Crown need only show lack of consent in the victim’s mind Ewanchuck ) MR : proof of intention to touch (only general not specific intent Chase) + knowledge, recklessness, or willful blindness as to non-consent ( Ewanchuck ) Typically, A will argue that there was consent (no AR) or an honest belief in consent (no MR) •

R v Chase 1987 SCC F: A enters home without invitation and grabs 15 year old girls breasts and tells her she wants it. Then tells her he is going to tell everyone she raped him. Girl calls neighbours and guy flees. I: What is the meaning of the term “sexual assault” in ss 244 and 246.1 in CC? S: 244 an 246.1 (old sections) new is s.224(1) R: (1) Sexual assault is an assault within s 224(1) which is committed in circumstances of sexual nature, such that the sexual integrity of the victim is violated. The test is an objective one to determine if the impugned conduct has the requisite sexual nature. Test to be applied in determining whether the impugned conduct is sexual in nature is an objective one: Viewed in the light of all the circumstances, is the sexual or carnal context of the assaultvisible to a reasonable observer? -part of the body touched, nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct. It is enough that the A intended to engage in the sexual touching, and was reckless or willfully blind as to whether there was non-consent. (2) Intent of the person committing the conduct, to the extent it may appear from the evidence MAY also be a factor in considering whether the conduct is sexual. This is just one factor to consider though. (3) Sexual assault requires a general intent only. Not a specific intent. A: Intent required for sexual assault is general. No need for the crown to prove that the A intended to violate the complainant’s sexual integrity R v Bulmer 1987 SCC F:I procures services from prostitute. Takes her to hotel room where B and I are waiting. I tells her that she has to have sex with them for free. Out of fear, she consents. I: Is there a mistake of fact defence here? R: McIntyre + 4: Reinforces the PappaJohn test. A bare assertion by the accused that they believed there was consent is evidence but unless the accused specifies particular points in the facts or circumstances that they used as a basis for inferring consent, it won’t provide a  proper grounding for the defence. Need evidence to back up assertion for it to go to the jury. -mistaken belief may still be unreasonably held, but it needs some corroborating evidence. Without corroboration, would open the floodgates in every rape case. This defence would have to be put to a jury when the A said he mistakenly believed in consent. Lamer: Mere assertion by the A under oath is enough to submit the mistaken belief in consent to the jury * but this has not been totally followed in subsequent cases (expressly rejected by Cory that you need evidence more than just that of the accused). R v Davis 1999 SCC R: (1) In determining whether there is an “air of reality” to the defence, the trial judge should consider the totality of evidence. An A’s mere assertion doesn’t give rise to the offence. It is not sufficient evidence of an honest but mistaken belief in consent. HOWEVER, the requisite evidence may nevertheless come from the A. (2) Must be possible for reasonable trier of fact to conclude AR is made out but not MR for co nsent, but in addition, the evidence must be capable of explaining how the A could honestly have mistaken the lack of consent as consent. OTHERWISE, the defence cannot reasonably arise. (3) There will be no air of reality where the evidence shows that the A was reckless or willfully blind as to whether the complainant consented. **McLachlin DISSENT: do analysis after AR of assault is complete and there was no consent, then ask whether or not there was the requisite awareness to have a conviction. At the second stage there needs to be evidence above and beyond a mere assertion by the accused of belief in consent, need to be able to point to something further to provide basis for inference of mistaken belief. Consent and Mistaken Belief s.273.1 defines consent for the purposes of 271, 272, 273 as the voluntary agreement of the complainant to engage in the sexual activity in question. S.273.2(b) There is an obligation on the A to take reasonable steps as a precondition to leaving HBMB with the jury •



R v Ewanchuk  1999 SCC F: A would sexually touch the complainant until she said to stop. He would always stop but resume again shortly afterward. TJ found woman purposely did not show resistance, she showed no fear, and hid any pain in her emotions so as to seem relaxed. This occurred in a confined space in the back of the As work trailer. TJ acquitted based on defence of implied consent.

#' R: (1) AR  of sexual assault is established by the proof of 3 elements: (i) touching, (ii) the sexual nature of the contact, (iii) the absence of subjective consent. -I & ii are objective. Crown need only prove that actions were voluntary. -iii is subjective, looks at complainants subjective internal state of mind towards the touching at the time it occurred. Crown must prove that the complainant did not consent MR has 2 elements: (i) intention to touch and (ii) knowing of, or being reckless of or willfully blind to, a lack of consent on the  part of the person being touched. Consent must be communicated. (2) Mistake of fact defence goes to negating the MR. Evidence must show that A believed the complainant communicated consent to engage in the sexual activity in question either through words or actions ! Mistaken belief in consent cannot rest on a mistake of law about the nature of the consent (if A thinks silence = consent this is a mistake of law.) (3) Once a complainant has stated “no” to sexual touching, there explicit consent must be attained before touching is to continue. A is put on notice as to possibility of no consent and there is now a greater burden on A to show reasonable steps taken to ascertain consent. (4) Any consent is vitiated if given out of fear. A: No consent from complainant. There is no “air of reality” to the defence of mistake of fact because A did not testify. No evidence to support it. So shouldn’t go to the jury. - s.265(3)(b) there is no consent as a matter of law where the complainant believed that they were choosing between permitting themselves to be touched sexually or risked being subject to the application of force. *Implied consent is not a defence to sexual assault in CDA R v JA 2011 I: Does consent require a conscious, operating mind throughout the sexual activity? R: (1) There is no consent to sexual touching once complainant loses consciousness. Advanced consent does not exist. You must consent at the time. Only relevant time for the complainant’s consent is while the touching is occurring. (2) Any sexual activity with an individual who is incapable of consciously evaluating whether she is consenting is therefore not consensual within the meaning of the CC A: -s.273.1 defines consent in sexual assault as the voluntary agreement of the complainant to engage in the sexual activity in question. -s.273.1(b) provides that no consent is obtained if the complainant is incapable of consenting to the activity. -parliament intended consent to mean the conscious consent of an operating mind. -s.273.1(2)(d) – on going conception of consent, rather than advance consent to a suite of activities. -Judgment is focused on statutory interpretation. FISH DISSENT: -we are depriving women of the freedom to engage by choice in sexual adventures where they agree in advance to activity and are consensually rendered unconscious. Nothing in the CC pointing to the need for an exception like the one crafted by the majority. R v Cornejo 2003 Ont CA F: Accused and complainant were co-workers, they joked around sexually, she said no to his advances, after leaving company golf tournament accused called complainant at home, she said her boyfriend wasn’t coming over so he thought that was an invitation to him, he started sexually assaulting her and she lied still. Lifting of pelvis as sign of consent?? R: (1) Defence of honest but mistaken belief in consent involves 2 elements: (i) that the A have honestly believed the complainant consented; and (ii) that the A have been mistaken in this belief. (2) !" $%& '() *+ )&',(-. /&+&01& (2 0*- *3&0 (0 (02-'01&2 4%&)& -%& '1152&/ (2 (0-*6(1'-&/ 7. 2&,+8(0/51-(*09 )&1:,&220&229 *) 4(,+5,, 7,(0/0&229 *) 4%&)& %& /(/ 0*- -':& )&'2*0'7,& 2-&32 -* '21&)-'(0 -%'- -%& 1*;3,'(0'0- 4'2 1*02&0-(0<= A: No reasonable steps taken to ascertain consent. Malcolm v R  Man CA R: (1) Suggested that the section set out a quasi-objective test. 1. First, we must ascertain the circumstances known to the accused at the time. 2. Second, determine whether a reasonable person, aware of those circumstances, would have taken further steps to ascertain consent. If the answer is yes, and the accused took no further steps, then HBMB is taken off the table. If the answer is no (or maybe), then the accused would not be required to take further steps, and the defence can be left with the trier of fact. • •

*Constitutional issues with s.273.2(b): Sexual assault carries significant stigma. Enough to require a purely subjective MR. This is a quasi-objective test. Further to #1, the duty to take reasonable steps does not conform to the subjective MR Limiting the availability of HBMB to cases where reasonable steps have been taken creates a risk of convicting the morally innocent. R v Darrach OCA H: 273.2(b) is constitutional • • •

#( R: (1) Assuming, without deciding, that sexual assault is a “stigma” offence, they say 273.2(b) is consistent with subjective MR. Requirement is to take SOME not ALL reasonable steps to ascertain consent. Therefore, doesn’t violate PFJs. Person who takes NO reasonable steps, and subsequently makes a mistake, is not morally innocent. (2) To reach this conclusion, OCA accepts that one can take reasonable steps and still make an unreasonable yet honest mistake requiring acquittal.

&($'.3# Mistake of Fact The A mistakenly believes in a set of facts which, if true, would render his behavior innocent. This is to argue that one lacks the requisite MR for the offence. It is a negative defence because negating an essential element of the offence. o If parliament were to take away the mistake of fact defence, it would be creating an absolute liability offence. Where offence in question has a subjective fault requirement, the mistake of fact must be honest, but need not be reasonable. ( Pappajohn) Must have a mistake of fact defence available for these offenses or they become absolute liability and will therefore o  be found unconstitutional as per Re s.94(2) of the Motor Vehicle Act  Where the offence in question has an objective fault requirement, the mistake of fact must be both honest and reasonable. •





R v Pappajohn Leading case in this area R v Ladue 1965 Yukon CA F: Charged with indecently interfering with a dead body (he thought she was unconscious) R: The traditional rule is that MR and AR need to match up. The accused would have been committing a sexual assault if the facts as he stated were true. So no problem convicting him of another offence, he had a guilty mind. -A was not allowed to claim mistake of fact because, if the facts were as be helieved them to be, he would nonetheless be committing a criminal offence: rape. So no mistake of fact even though he was intending to commit a different offence. R v Kundeus 1976 SCC F: Sold pills to an undercover cop which he thought were one kind of drug but were another. So mismatch b/w what the person was charged with and what they were doing, the drug he sold was more serious than what he thought it was. R: Majority overlooked the fine detail of the drug not being what he believed. They argue the mistake does not exonerate the A. But this case is strong on the dissent. Laskin (Dissent): (1) Thinks the mistake of fact defence needs to be respected here. He lays out 3 issues and they all turn on the availability of a mistake of fact defence and whether it has to be objectively reasonable and what the accused must be able to show based on that evidence. He said it certainly cannot be said where MR is an ingredient of the offence and AR is proven, it is enough that the intent is shown to support another crime. He focuses on the notion that you need a consistency b/w what was done and the accompanying mental state to convict (2) It is inappropriate to use the As intention to commit a lesser offence as a basis for convicting him of a more serious offence. (3) A in Ladue  should have been charged with attempted rape. R v Hess; R v Nguyen 1990 SCC F: Both As had sex with female persons under the age of 14. In 1987 parliament repealed s.146(1) and enacted series of new measures that offer a due diligence defence. S.150(1)(4) “…”unless the accused took all reasonable steps to ascertain the age of the complainant.” I: Does s.146 (repealed 1987) infringe s.7 or 15 of the charter because it lacks a MR requirement and discriminates against sexes? S: 150 (new) 146 (old) R : This section permits mistake of fact as to age of complainant on the condition that the deference is only available if the accusedtakes all reasonable steps to ascertain complainant’s age (this may include looking at circumstances). Here the focus is on protecting minors from sexual exploitation. This is a due diligence defence Mistake of Law R v Esop 1836 Eng F: Someone was coming into country by ship and committed an offence which was not an offence in the country he left. He tries to raise a cultural defence. R: Cultural defence is not a defence as similar to insanity or a child. What is key is knowledge of facts of a situation, empirical elements, not whether or not you appreciate the norms. R v Campbell and Mlynarchuk  1972 Alta Dist Ct

#) F: Woman is told that a judge has decided that bottomless dancing in a public venue is now legal. She goes ahead with the act. This trial level decision was overturned on appeal without the knowledge of this woman I: is mistake of law a defence? S: 167(2) Indecent representation or performance in a theatre R: (1) Mistake of law is not a defence to a criminal charge. HOWEVER, in some situations it can negative a malicious intent required for that crime where it is one which requires special intention (malicious, willfully etc.) -mistake of fact, or a mix of mistake of fact and law are valid defences. (2) Where the statement was correct at the time it was made, but was no longer correct at the time the accused relied upon it, there is no defence. A: -Policy considerations preclude recognition of mistake of law as a defence. It is necessary to disregard it. -the appropriate remedy is at the sentencing stage. This is a factor that greatly mitigates the sentence. Here, she gets absolute discharge. Officially Induced Error of Law Exception to the general rule that ignorance of the law is not a defence: When one acts in reliance upon a statement by a legal official as to what the law is. •

R v Jorgenson F: A accused of knowingly selling obscene materials. Makes the argument that the film censor review board had looked at these videos and okayed them. R: Court doesn’t reject idea of officially induced error as a defence. They say that the board had no legal jurisdiction to define obscenity as used in criminal code. Not an official who could be relied upon of the OIE defence. *This is a true crime situation. Perhaps arguable why the court decided it didn’t apply here but that it existed in Levis. Levis (city) v Tetrault; Levis (city) v 2629-4470 Quebec Inc 2006 SCC F: Tetrault driving vehicle with expired licence. Said he thought it was in relation to a payment due date not expiration. So used a due diligence defence. 2629-4470 was billed for 15 month operation period and was told would be contacted for renewal notice before period expired. Renewal notice never reached them. I: Is OIE defence applicable? R: Where the error in law of the A arises out of an error of an authorized representative of the state an officially induced error of law occurs. Constituent elements of the defence of officially induced error of law: 1. That an error of law or of mixed law and fact was made 2. The person who committed the act considered the legal consequences of his or her actions 3. The advice obtained came from an appropriate official 4. The advice was reasonable – must establish the objective reasonableness not only of the advice, but also of the reliance on the advice. Factors to be considered: efforts made by the A to obtain the information, the clarity or obscurity of the law, the position and role of the official, and the clarity, definitiveness and reasonableness of the information or opinion. 5. The advice was erroneous 6. The person relied on the advice in committing the act. A: This defence should be established with a remedy of a judicial stay rather than an acquittal. Most defences get acquittals *Court officially recognizes OIE defence but says it does not apply to this case. Note differences between OIE and the defence of due diligence. ! Due diligence leads to outright acquittal. OIE results in a stay of proceedings. ! Due diligence that leads to a mistake of law  generally will not  excuse. ! Due diligence is a factor in determining whether OIE should apply, but only one of many. -Due diligence is unavailable for absolute liability offences, but OIE is available

(*-.!.-('4 The AR and MR for an offence are supposed to point out the circumstances that lead to finding someone has engaged in morally  blameworthy behavior. To be morally blameworthy, one must have the capacity to make moral judgments. Incapacity presumes that the individual did not have the capacity to make those moral judgments. Age •

In 1982, age of criminal responsibility raised from 7 to 12. Current legislation is theYouth Criminal Justice Act  2002

R v B (D) 2008 SCC

#* (1) Recognized a new principles of fundamental justice that young people who engage in criminal conduct should be presumed to have less moral blameworthiness and culpability than adults. (2) Constitutionalized a presumption of lower sentences for young offenders. Insanity (Mental Disorder) US v Freeman (M’Naughten case) 1966 F: M’Naughten was acquitted based on a modern interpretation of mental disorder, then the HL was put to the task of establishing rules to govern it, the rule is still applicable today. To some extent the SC may try to liberate those rules. R v Cooper 1970 SCC (Appreciating nature of consequences) F: Accused was charged with murdering a psychiatric hospital patient. He strangled her outside a dance hall. He told the police he witnessed a murder and later said he did it. S: 16 R: (1) Test for s 16: Need to determine if the accused appreciated the nature and quality of the act (the word appreciate imports an estimation and understanding of the consequences of that act or omission). So need appreciation of not just the bare bones physical act but how it is interconnected in terms of consequences and other people. (2) The term “disease of the mind” is a legal concept, although it includes a medical component. It includes “any illness, disorder, or abnormal conditioning which impairs the human mind or its functioning (3) Disease of the mind must exist at the time of the criminal act. Must prove that it rendered the Aincapable of appreciating the nature and quality of the act or of knowing that it was wrong. (4) What counts in the realm of law is not necessarily what counts in medicine. BothSimpson and Rabey  point to a clear distinction  between the weight to be given medical opinions expressed in evidence, and the task of the trial judge to form an independent conclusion as to whether the mental condition falls within the legal concept. R v Kjeldsen 1981 SCC (Appreciating nature of consequences) R: The rule from Cooper  about understanding the nature, character, and consequences as an exemption does not apply to people who just lack feelings of remorse or guilt for what they did even though such lack of feeling stems from disease of the mind (like psychopathy). R v Abbey 1982 SCC F: A charged with importing and unlawfully possessing cocaine for the purpose of trafficking. Admitted cocaine was in the bags. Psychiatric evidence suggested that he suffered a disease of the mind which, although not rendering him incapable of appreciating the nature and quality of his act, involved a delusional belief that he was committed to a course of action, no harm would come to him and he would not be punished. I: s.16(2) application with regards to thinking penal consequences will not apply. R: (1) The delusion must go to an element of the offence. Mere fact of having an illusion is neither here nor there. (2) Failure to appreciate the penal consequences of an act due to a disease of the mind does not allow the accused the protection of s.16. A: A appreciated the all the elements of the offence he is now charged with. Delusions did not go to any of these elements. Appreciation of penal consequences is irrelevant to the question of legal insanity. R v Chaulk 1990 SCC (Not capable of knowing the act was wrong) I: “wrong” as used in s.16(2) R: Lamer: The court overruled Schwartz  where the rule in that case was that wrong must mean contrary to law. The SCC held in this case that wrong must mean more than legally wrong, the person must be capable of knowing that the act is morally wrong in the circumstances according to moral standards of society. (2) Presumption of sanity infringes 11(d) of the charter, but the reverse onus can be saved under s.1. Burden on the Crown to prove sanity is far too onerous. A: Person can be well aware that act is legally wrong but, due to disease of the mind, their act is seen as morally right in the moment  because of delusion, or not knowing morals of society or any other circumstance McLachlin: All that is required is that the A be capable of knowing that the act was in some sense “wrong”. We do not differentiate based on morals for the sane so how is it more justifiable to do this with insane? (Parallelism argument)Problem with making capacity to appreciate based on a moral wrong is determining what society’s moral judgment will be in every situation. Automatism R v Rabey 1977 Ont CA F: Rabey and Miss X goto college together. Rabey became emotionally attached, Miss X not into it, and lessened the association after a ski trip to Quebec with friends. X writes a letter, Rabey finds it and reads it, makes him confused, upset, angry. While walking in gymnasium complex, Rabey strikes X twice in head yelling “you bitch”. Witnesses come on seen say he is pale, bewildered, sweating. He had hit her in the head with a rock from geology class. Remembers bits and pieces of it but doesn’t know why he did it.

$+ R: (1) “the ordinary stresses and disappointments of life which are the common lot of mankinddo not constitute an external cause constituting an explanation for a malfunctioning of the mind…” -psychological blow must be something profound. Ordinary stresses and disappointments are not enough to remove act from the category of disease of the mind. (2) Internal v External causation anaylsis stated. Cited with approval by the SCC. Altered inStone. *OBITER: Martin JA says sleepwalking is a form of non-insane automatism R v Rabey 1980 SCC I: Was this a disease of the mind or resulting from an external cause (non-insane automatism)? R: (1) Central question in deciding on the defence of automatism is whether or not the accused was suffering from a disease of the mind? Whether or not a disease of the mind is a question of law for the judge but the question of whether or not the facts in a given case disclose the existence of such a disease is a question to be determined by the trier of fact. (2) This was a psychological blow. But ordinary stresses of life won’t do it, if ordinary stresses send you over the edge that may be  pathological condition, not normal, will have disease of the mind. The stress must be such that is understandable that you responded to it in the way you did. DISSENT Dickson: Automatism defence should be available whenever there is evidence of unconsciousness throughout the commission of the crime that cannot be attributed to fault or negligence on his part. Such evidence should be supported by expert medical opinion that the A did not feign memory loss and that there is no underlying pathological condition which points to a disease requiring detention and treatment. An emotional blow can allow for automatism defence. (here, the “blow” was the shattering of his image of Miss X) DISSENT: His infatuation created an abnormal condition in his mind, under whose influence he acted unnaturally and violently to an imagined slight which a normal person would not react similarly. -s.16 presumption of sanity. Crown has not rebutted the presumption on the evidence. -disagrees with CA’s notion that an extraordinary external event can cause a state of dissociation or automatism if and only if all normal persons subjected to that sort of shock would reach in that way -doesn’t see the policy rationales behind locking this kid up: condition was transient, unlikely to recur, no medical treatment required, not the result of self-induced intoxication. Therefore, the question must be a pragmatic one: is the trigger of the dissociative state one that is likely to recur? -same rules should apply to emotion blow automatism cases as do physical blow(concussion) ones R v Parks 1992 SCC F: Guy experiencing serious personal problems, including loss of job, which makes it difficult for him to sleep. One night, falls asleep in living room, gets up, drives 23 km to parents in law place, strangles father in law, kills mother in law. Goes to police station acting crazy saying he killed two people with his bare hands. TJ leaves it to jury the defence of non-insane auto, jury acquits. I: Did the TJ err in leaving to the jury the defence of automatism rather than that of insanity? R: La Forest + 5: (1) When defence of non-insane auto is raised TJ must decide whether to leave it to the jury: 1) Is there some evidence on the record to support leaving the defence with the jury (evidential burden rests with the A) 2) Whether the condition alleged by the A is, in law, non-insane automatism. If yes, goes to the jury. o This is when the crown must always prove that an A has acted voluntarily. Thus, onus is on them at this stage to prove absence of automatism BRD (2) Determine whether medical evidence constitutes a disease of the mind by looking at it through legal or policy component. Two distinct approaches: 1. Continuing Danger – any condition that is likely to present a recurring danger to the public should be treated as insanity, this is a factor at policy stage; recurrence suggests insanity but absence of recurrence doesn’t preclude it. 2. Internal Cause – a condition stemming from the psychological or emotional make up of the accused, rather than some external factor, should lead to a finding of insanity (as per Rabey ). *These are meant as analytical tools and are not determinative in and of themselves. CJ Lamer: (1) Sleepwalking is not a disease of the mind in the absence of evidence that sleepwalking was the cause of the accused’s state of mind. So it is possible for sleepwalking to be a disease of the mind. A: Court goes ahead and categorizes sleepwalking according to the following: It is not a mental illness, it is very rare for them to commit violent acts, no medical treatment, no evidence that Ps sleepwalking was linked to a disease of the mind. -this guy is acquitted. He is not an NCR-MD based on above evidence. *Peace bond talk because what can we do with ppl who are found not to be NCR-MD and therefore fall outside of s.16 CC: -Possibility of common law peace bond applied to someone with sane automatism who is acquitted. Recall s 810 of the CC. -Lamer J.: use the common-law power re: peace bonds. Follow principles of natural justice: notice, permission to make representations, reasons. Any infringement of liberty can be justified. -SCC majority: such a power must be exercised exceedingly narrowly, and its conformity withCharter is doubtful. Parks did not present adequate facts to warrant using the power. •

• •



$" R v Stone 1999 SCC F: Wife discourages husband from visiting children of former marriage. She threatens divorce, says she has told police that she is being abused, says he is lousy in bed, small dick etc. A says he feels a whoosh, stabs her 47 times, wakes up in mexico and returns to CDA and turns himself in. I: Was there an evidentiary basis for leaving the defence of non-MD automatism with the jury? Answer! No. R: (1) Law presumes ppl act voluntarily. Defence of automatism amounts to a claim of non-volitional action. Therefore, A must rebut the  presumption of voluntariness. Imposes an evidentiary burden, on a BoP to prove involuntariness to a trier of fact. (2) TJs are now to start from the proposition that the condition the A claims to have suffered from is a disease of the mind. They must then determine whether the evidence in the particular case takes the condition out of the disease of the mind category. This is a departure from previous cases such as Parks  where they start from the presumption of sanity. -result of this is that it will only be in rare cases that automatism is not caused by mental disorder. (3) Question should not solely depend on whether it was caused by external/internal factors, instead it should be amore holistic approach must ask whether the A constitutes a continuing danger AND consider any other policy factors. This is a catch all. Not at all obvious how this is different from the second factor. -endorses Dickson J’s dissent in Rabey , La Forest J in Parks (4) Court cannot require accused to substitute his defence of involuntariness or insanity. A: - the onus placed on the A is necessary to further the objective behind the presumption of voluntariness. Leaving this burden with the crown to prove voluntariness contradicts the laws presumption of volition. -in determining whether the evidentiary burden has been met, TJ will weigh expert testimony with this non closed list of other factors which may include: -severity of the triggering stimulus, corroborating evidence of bystanders, corroborating medical history of automatisticlike dissociative states, whether there is evidence of a motive for the crime, whether the alleged trigger of the automatism is also the victim of the violence. DISSENT Binnie + 3: There is always a burden on the Crown to prove voluntariness despite classification of insane/non-insane by the  judge. - Internal cause theory is to be viewed with skepticism. Rabey  as clarified in Parks , does not impose a presumption that a lack of voluntariness must be attributed to the existence of a mental disorder any time there is no identification of a convincing external cause. *Here court is bringing in limitations to the presumption of innocence NOT parliament. This is a rare occurrence. Symbolic that the court does not like this defence but they have to recognize it. * the SCC majority went even further and ruled that, before the defence could be left with the jury, the trier oflaw must first be persuaded on a balance of probabilities that the defence should succeed. This aspect of Stone has since been rejected by the SCC in R v Fontaine. $

R v Luedecke 2008 Ont CA F: Guy goes on a bender. Night before does mushrooms and gets really drunk. Next night, gets wasted again at a party consuming upwards of 12 drinks. Has been awake for 22 hours. Falls asleep on couch beside a girl. Starts having non-consensual sex with passed out girl. She awakens while he is having intercourse with her. A flees, goes to parents house, and falls asleep. Wakes up wearing a condom. TJ finds this was an involuntary act, and was not the product of a mental disorder. He was acquitted. R: (1) Automatism is the legal term to define one specific kind of involuntary action. It refers to involuntary conduct that is the product of a mental state in which the conscious mind is disassociated from the part of the mind that controls action.It is not a defence in the true sense. But is is a denial of commission of the AR of the crime. (2) Person who is found NCR-MD must be granted an absolute discharge if the court or review board is not satisfied that they pose a significant risk (3) s.672.54 there must be evidence establishing the significant risk. That risk must be a real risk of criminal conduct involving physical or  psychological harm to individuals in the community. A risk of trivial harm or miniscule risk of significant harm will not suffice to deprive the individual of his/her liberty. (4) Finding of NCR-MD does not stigmatize A: -s.672.54 is aimed to individually assess the danger and/or treatment in relation to a single offender who is found to be NCR-MD. -dissociative state but wore a condom? He did not attempt to conceal what he had done -Stone ruling very influential on the outcome of this case: Court focuses on how often the triggers will be present in the future (reflects holistic approach). If it will be around often enough then they will treat it as a recurring thing. Mere fact that it could recur means you will  be treated as a danger. -A says cant label me as someone with a mental disorder because it will stigmatize them. It will label him as dangerous. -Court says a finding of NCR MD doesn’t stigmatize. Not prepared to recognize that there even is a stigma attached to it. R v Fontaine 2004 SCC

$# R: Tries to address confusion coming out of Stone: In all these instances the role of the trial judge is to determine whether or not a  particular issue is a live issue - if there is evidence that if placed before a reasonable jury deliberating if evidence was credible they could acquit. If the answer to that is yes then issue should go to trier of fact, trial judge shouldn’t assess credibility or weigh evidence. R v Bouchard-Lebrun 2011 SCC F: Guy is on ecstasy, has religious hallucinations, is beating a guy up, good Samaritan intervenes and is thrown down stairs and gets head stomped in. I: Whether a toxic psychosis caused exclusively by a single episode of intoxication constitutes a mental disorder within the meaning of s.16 CC? R: (1) In these sorts of cases, court should start from the general principle that temporary psychosis is covered by the exclusion from Cooper . Principle is not absolute. It can be rebutted by the A by showing that, at the material time, he or she was suffering from a disease of the mind that was unrelated to the intoxication-related symptoms. (2) TJ is not bound by the medical evidence, since medical experts generally take no account of the policy component of the analysis required by s.16 CC. A: -to argue that toxic psychosis must always be considered a mental disorder is to say that the legal characterization exercise under s.16 CC depends exclusively on a medical diagnosis. -it would shift the responsibility for deciding whether the A is guilty from the judge/jury to the expert -applied the holistic approach set out in Stone -an external cause – any normal person taking drugs could have developed toxic psychosis. -No evidence pointing to continuing danger – nothing to show he suffered from disease of mind before or after the effects of the drug have wained. -no s16 defence for this guy and he hasn’t challenged s.33(1) so he is blocked from claiming that he was in a state of non-mental disorder automatism.

5%$'(,(-.'()*$ .*1 #2-%$#$ 61#,#*-#$7 •



These “positive defences” allow an A to be acquitted notwithstanding the fact that the elements of the AR and MR may have  been satisfied. Exist in part because it is impossible to predict beforehand ever possible defence available to an A in the future.

Air of Reality for Defences R v Cinous 2002 SCC R: Air of reality test = a defence should be put to the jury if and only if there is an evidential foundation for it. Whether viewed in the light most favourable to the accused could they potentially acquit, if yes then it should go to jury. (even if judge sits alone still has to think about that b/c has to write decision) 1. TJ must put all defences that arise on facts to jury whether or not they are specifically raised by accused and if air of reality

2. 3. 4.

TJ has positive duty to keep any defences from jury that lack evidence Air of reality test imposes evidential burden on accused. not persuasive one. Question for TJ is whether evidence discloses a real issue to be decided by jury, and not how the jury should ultimately decide the issue 5. Question of law subject to appellate review A: -Allowing a defence to go to the jury in absence of an evidential foundation would invite verdicts not supported by the evidence. Serving to confuse the jury and get in the way of a fair trial and true verdict. -There is no requirement that the evidence be adduced by the A. Can come in all forms.

Necessity and Duress •



Two kinds of defences identified by the SCC in Perka o Justificatory defences claim that, although the accused satisfied both the actus reus and mens rea of an offence, she did nothing wrong . -Self-defence. Excusatory defences claim that, although the accused may have satisfied both the actus reus and mens rea of an offence, o and acted wrongly, she nonetheless should not be punished because she was not culpable. -Necessity and Duress In both cases, accused is not punished but a justificatory defence has normative and social policy implications that an excusatory defence does not (in theory)

$$ Necessity a CL defence, not found in the CC It is excusatory, where it is invoked, the wrongness of one’s conduct is implicitly conceded Perka ( ) Applies where the accused’s conduct was morally involuntary  (Perka  quoting George Fletcher) o Suggests the A could not realistically have done otherwise, which would negate the AR. BUT they could have acted otherwise in principle. So morally involuntary NOT morally blameless. Test for defence of necessity (a purely objective test here) ( Perka ): 1. At a minimum the situation must be so imminent and the peril must be so pressing that normal human instincts cry out for action and make a counsel of patience unreasonable. 2. Was there a legal alternative to disobeying the law. If there was such a legal alternative, the choice to disobey  becomes a voluntary one and defence does not apply then. 3. Proportionality requirement - The harm inflicted must be less than the harm sought to be avoided.  Necessity is available even if the initial act that put the accused into peril in the first place was illegal  Perka ( )  Latimer  softens the Perka test: 1. First two branches of the test are to be applied using a modified objective test: We consider the accused perception of the circumstances, though the accused’s beliefs must be both honest and reasonable. 2. Third branch of the test is purely objective • • •



• •

R v Dudely and Stephens 1884 F: Cannibalism at sea I: is this a justification for murder? R: Temptation is not an excuse; compulsion doesn’t weaken legal definition of the crime. Defence of necessity not allowed for taking another’s life. A: To preserve one’s life is generally speaking a duty, but it may be the plainest and highest duty to sacrifice it. Verdict: guilty of murder, sentence ! death. Crown interferes after and commutes sentence to just 6 months. *Shows how reluctant courts are to embrace necessity defence in the case of something like murder. R v Perka 1984 SCC F: 3 appellants on ship off coast of Columbia. They receive air drops of weed. 33.49 tons of it. Plan is to sail to Alaska, meet another ship th and hand off weed. The 4  appellant departs Seattle to meet them in Alaska. The original ship has lots of issues, and due to this, turns on CDN shore for repairs. Cops arrest them there with the weed. R: (1) At the heart of the defence of necessity is the perceived injustice of punishing violations of the law in circumstances in which the  person had no other viable or reasonable choice available; the act is wrong but is excused because it was realistically unavoidable. (2) Test for defence of necessity (a purely objective test here): (A) At a minimum the situation must be so imminent and the peril must be so pressing that normal human instincts cry out for action and make a counsel of patience unreasonable. (B) whether the agent had any real choice? Was there a legal alternative to disobeying the law. If there was such a legal alternative, the choice to disobey becomes a voluntary one and defence does not apply then. (C) Proportionality requirement - The harm inflicted must be less than the harm sought to be avoided. (3) Negligence or involvement in criminal or immoral activity do not disentitle the actor to excuse of necessity. Anything indicating that the wrongful deed was not truly involuntary would disentitle. Relevant considerations toward contributory fault that may disentitle: o If one can show situation was foreseeable to a reasonable observer OR That the actor contemplated or ought to have that his actions would likely give rise to an emergency requiring o the breaking of the law (4) Difference between Justification and an Excuse: Justification: challenges the wrongfulness of an action which technically constitutes a crime. The concept of punishment often seems incompatible with the social approval bestowed on the doer -cannot apply necessity defence under this because to hold that illegal acts can be validated on the basis of their expediency would import an undue subjectivity into the law. Courts would be second guessing the legislature. Excuse: concedes the wrongfulness of the action but asserts that the circumstances under which it was done are such that it ought not to be attributed to the actor. We disapprove intensely, but in appropriate circumstances, our law will not punish them A: -Necessity applies only as an excuse. Rational because it is inappropriate to punish actions which are normatively involuntary -new trial ordered because TJ did not properly instruct on need for their to be no legal way out. -Dickson: adamant that only operates as an excuse because never justified to break the law. This is a hard line. *First case to bring up idea of moral involuntariness in the context of a defence R v Latimer SCC F: Father mercy kills daughter. R: ,-./0/12 !"#$% 31234 52-03162 /374

$% First two branches of the test are to be applied using a modified objective test: We consider the accused perception of the circumstances, though the accused’s beliefs must be both honest and reasonable. Third branch of the test is purely objective A: Harm he is trying to avoid is not less than that experienced by the daughter. Clear legal alternative. No situation of imminence.  Nothing to leave to a jury. -Court did not rule out the possibility of the defence of necessity applying in homicide cases. Duress • • •







A defence both at CL and under s.17 of the CC. It is explicitly stated as an “excuse” At CL duress requires a threat of death or serious bodily harm with no safe avenue of escape. At CL, defences of necessity and duress are so similar that they both should be based on the idea of normative involuntariness. These defences include a requirement that it can only be invoked if there is “no legal way out” of the situation the A faces. ( Hibbert ) “No legal way out” is to be judged on an objective basis: The As perceptions of the surrounding facts can be highly o relevant to the determination of whether his or her conduct was reasonable under the circumstances and thus whether his or her conduct is properly excusable.  (Hibbert ) o Creighton is not applicable when what is at issue is the standard of reasonableness to be used in establishing the availability of an excuse-based defence.  (Hibbert ) o Result is that the CL defence is now objective. S.17 is still subjective. S.17 violates s.7 of charter and cannot be saved under s.1. (temporal and proximity constraints stricken). Its strictness allows individuals who acted involuntarily to be declared criminally liable. It is too narrow. Ruzic ( ) o A must raise the defence and introduce some evidence about it. Once this is done, the burden of proof shifts to the Crown under the general rule of criminal evidence. Must show BRD that there was no duress that they acted under. ( Ruzic ) SCC says the same test applies for both parties and principals in duress (modified objective)  Ryan ( ): o Threat of present or future death or bodily harm directed at A or third party. o A “reasonably believes” the threat. o There is no safe avenue of escape, evaluated on a modified objective standard.  Hibbert  ( ) o A “close temporal connection” but NOT immediacy – immediacy is unconstitutional  (Ruzic, Davis) o Proportionality, evaluated on modified objective basis. o  Not available to person involved in a conspiracy Distinction still between principals being subject to s.17 and parties/accomplices subject to CL.Only difference is that principals are subject to exclusionary offences in the code.

R v Carker (No 2) 1967 SCC F: R had damaged pipes in his cell where he was being held at Oakalla Prison Farm in BC. Claims he committed this offence under the compulsion of threats from inmates in other cells during a prison riot scenario. He was under threats of bodily harm and perhaps death. I: s.17 applicable? R: (1) To invoke s.17 CC as a defence must show immediate death or grievous bodily harm will result and the person who utters the threats must be present when the offence is committed. (2) Court held that the CL defence had been superseded by the occupation of the field by the CC defence. A: CL rules and principles respecting duress as an excuse have been codified in s.17. A did not commit this offence under threats of immediate death or immediate grievous bodily harm. None of the threatening parties were in his cell either. Crown appeal allowed, conviction restored. R v Paquette 1977 SCC F: Victim is killed by stray bullet in robbery. 3 participants. S and C directly participate and plead guilty. A is also charged under s.21(2) non-capital murder. A was threatened with death by the other two. He was forced to drive them to the crime scene and wait for them. I: Does the defence of duress apply to s.21(2)? R: (1) The CL defence of duress is available to a person who is sought to be made a party to the offence by virtue of s.21(2). (2) A person whose actions have been dictated by fear of death or grievous bodily injury cannot be said to have formed a genuine common intention to carry out an unlawful purpose with the person who has threatened him with those consequences if he fails to cooperate. (3) s.17 only applies to “principals” because it uses the term “commits” *We get a split in law of duress: if principal act look to s.17, if a party to then look at CL R v Hibbert 1995 SCC F: Accused charged with attempted murder, based on the allegation that he was party to the shooting of C by B. A had gone to apartment of C and arranged for him to come to the lobby. Once C arrived, B shot him four times. A says B threatened to shoot him if he did not

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