You are on page 1of 77

Common Law cannot be Provincial Governments R v Gundy If accused does not INTERPRETING CRIMINAL PROVISIONS

used to create offences s.92(14) challenge admissibility of Interpreting the criminal code is similar
b/c of concerns related to Jurisdiction to create non- Breathalyzer results on the basis that to interpreting other statutes.
principles of legality, and criminal offences (regulatory Charter rights were violated, the However one must be aware of the
b/c criminal offences offences) and use jail to enforce Crown is not required to establish the following considerations:
should be clear, certain, these offences. Provinces have officer had reasonable and probable Definitions The Criminal Code has
and should pre-exist the jurisdiction over the administration grounds to make the demand. definitions for many of the terms used, but
act being prosecuted. of justice within the province Reasonable and probable they are not always easy to locate.
Section 9(a) No person s.92(14) grounds - objective and o Section 2 Criminal Code contains
shall be convicted or Charter subjective test. Where definitions that apply through the code.
discharged under The Charter imposes limits on grounds depend upon a o Parts the code is divided into Parts - at
s.730(guilty) of an offence at the jurisdiction of all governments fail, Crown must prove that the beginning of each Part there will be a
CL. S8 NO CL OFFENCES subject to s.1 reasonable officer reasonably believed that he definition section that applies solely to that
ALLOWED limitations clause and the was using an approved device. Part.
Frey v Fedoruk Held the seldom-used s.33 THE CLASSIFICATION OF o Provision - Sometimes definitions are
peeping was not otherwise notwithstanding clause. OFFENCES found in or around the relevant statutory
criminal and not falling within The Charter can be used by the Indictable Offences Generally provision to be interpreted.
any category of offenses courts to invalidate offences more serious offences. Usually carry Strict Construction Historically,
defined by the Criminal Law created by Parliament, and strike higher maximum penalties. criminal statutes were interpreted strictly
without more eg. assault. It is down rules of criminal procedure. Election For indictable offences, in favour of the liberty of the accused.
up to Parliament, not the Uncommon though. the accused may choose to have a The accused would get the benefit of the
courts, to make a course of R v Heywood H convicted for trial by superior court judge and jury, doubt or ambiguity in matters of
conduct criminal. sexual assault of children. This superior court judge alone or by interpretation. This principle continues to
Defences: CL defences are conviction made him subject to provincial court judge. apply, but has been heavily modified by
available under criminal law section 179(1)(b), which Section 469 lists a series of the purposive interpretation.
and can still be created by prevented certain convicted offences that must be tried R v Pare See below purposive
the courts. individuals from loitering. He was by a judge and jury, so the interpretation.
The CL can deeply caught loitering at a playground. accused is given no election. Purposive Interpretation Canadian
influence the way that Held - The SCC found that Section 553 lists a number law makes liberal use of purposive
statutory criminal offences section 179(1)(b) for vagrancy of offences that will be tried interpretation, in which the language
are interpreted. Section 8(3) was overbroad and thus violated in provincial court, so the that is used in the provision being
Every rule and principle of section 7 Charter and could not accused is given no election. construed is interpreted harmoniously
CL that justifies or excuses be saved under section 1. The Section 471 trial by jury is with the statute as a whole, with the
an act or a defends a charge offence was struck down. compulsory for all indictable underlying purpose of the provision in
continues in force and R v Oakes Oakes caught with offences, unless some other mind so as to best accomplish its
applies to CC offences. vials of hash oil as well as cash. Code provision creates an underlying purpose, always bearing in
Levis v Tetrault SCC Charged with trafficking. Section 8 exception to that requirement. mind that the limit on purposive
recognized the common law of the Narcotics Control Act Summary Offences Generally interpretation is that damage cannot be
defence of official induced provided for a shift in onus onto less serious. Mode of trial court done to the language employed.
error of law. the accused to prove that he of criminal jurisdiction. o R v Pare Pare challenged the
R v Jobidon Fight outside was not in possession for the S.768(2) have a 6 month provision of the first-degree murder law
a bar, Jobidon beat purpose of trafficking. Held limitation from when the offence that states that murder is when a person
contender so badly he died. The reverse onus created by was committed. kills another while committing an
Held The SCC held that the presumption of possession Never greater than 18 month indecent assault. In Pares case,
consent cannot be used as a for purposes of trafficking indecent assault concluded on a boy
term of imprisonment. Only
defence for assault which violated the presumption of before killing him. He claimed he did not
provincial jail.
may cause serious hurt or innocence (s. 11(d)) and could Hybrid Offences the prosecutor fall under the language of the law. The
non-trivial bodily harm. not be justified under s. 1. The has the right to elect whether to treat court held that before using strict
Consent would be a valid rule of criminal procedure was interpretation of the law, a purposive
the offence as indictable or summary.
defence where the harm was struck down. approach is necessary. Under this approach,
Until the prosecutor elects,
trivial or where it is part of a the purpose of
The Charter can also be hybrid offences are treated as
socially valuable activity, such the law when enacted was to include cases
as sports. minority (Sopinka) used as an interpretive indictable offences.
In every statutory provision where there is a break between the assault
held that the victim tool. Courts to permit and the murder, and as a result, the law
Haggart could never have constitutional values to influence that creates an offence,
intended while
consented to such an the way statutes are interpreted. Parliament classifies the offence.
The classification has committing to be a continuous sequence of
beating. R v Labaye The Charter
implication for the penalties that events forming a single transaction. Pare =
POWER TO CREATE changed the criminal concept of guilty.
CRIMINAL OFFENCES indecency through a progression are possible and the procedure French/English Federal laws, like the
Federal Government s. of cases described therein. Held that will be used (including the
Criminal Code are passed in both of
91(27) The Court approved of the harm- Classification of offences
affects: Canadas official languages.
Jurisdiction to create only approach and wrote that
o Each version is equally authoritative.
non-criminal offences harm or significant risk of harm o Jurisdiction of the courts over
the offence. o The Scope of police o Ambiguities in one language can be
(regulatory offences) and is easier to prove than a
powers o Procedures for clarified by the other.
use jail to enforce these community standard of
R v J(D) - ??
offences. Only decency. The Court went on to compelling appearance and interim
release The Charter can have an important
government able to establish more guidelines as to
o Manner of proceedings in court influence on the way statutory
create criminal offences measure harm. The SCCs
provisions are interpreted b/c of the
(true crimes) decision upheld consensual group o Statute of limitations indictable
= none; summary = 6 months from presumption that statutes were
The procedure during sex and swinging activities in a
club and alleged bawdyhouse as completion of offence. intended to be constitutionally valid.
criminal hearings, is o Sentencing indictable = max. o R v Labaye See above.
governed by Federal rules being consistent with personal
autonomy and liberty. imprisonment exceeds 2 yrs; o Canadian Foundation for Children &
and by the common law. summary = max. 6 months or fined the Law v Canada (The spanking
Rules of Practice (not
R v Malmo-Levine The $2,000 or both (unless higher Case) The foundation argued against
criminal law power, they say, section 43 of the CC (corrective force
The Charters largest impact on penalty prescribed by Parliament).
includes the protection of o Jail offender sentenced more against children if reasonable under the
criminal procedure has been in
vulnerable groups. Thus the circumstances), on the basis of vagueness
creating constitutional procedural than 2 years = federal penitentiary
government is able to control (indictable); less than 2 years = because children under two cannot be
activities for the protection of corrected, and children over 12 will only be
Section 482 Criminal Code provincial jail (indictable or
drug users and society. The harmed by corrective force. The court held
Permits courts to create rules summary).
SCC rejected a constitutional o Appeal Indictable = court of that the law was not vague or
challenge of the of practice to govern
administrative mechanics of appeal; summary = superior court overbroad, because it delineated who
criminalization of marijuana. of the province. was allowed to use the force, why the
practice in criminal courts.
force should be used, and the use of
the word reasonable is enter with intent, Must willingness to do an act cannot consent. For the purpose of
not vague, as it is an break and enter a trigger a legal duty). possessionoffences; possession = control.
essential element of place as defined in Code CL Duty to Act Not guilty.
the law, and is also an with mens rea. 4) Is it Majority created CL duty to ID R v Terrence Accused passenger in
objective test of possible to construe act of yourself to police when caught stolen car. Joyride with buddy
conduct which is not the accused, being kind of committing an offence (R. v. Moore - driving.Cannot be guilty for simply being in
vague as such. act described in the M biked through red light, committed physical possession of the stolen
o Arbour J: However, while provision. traffic offence). goods.There is a necessary mens rea
vagueness does not R v DAngelo Public Failure to ID obstruct officer in element too.
require that a law be swimming area includes a performance of duties. POSSESSION OF MATERIALS FOUND IN
absolutely certain; no law swimming pool open to ***IF THERE IS A BREACH OF A RESIDENCE
can meet that standard members of a building complex. DUTY*** STEP 3A The Act of R v Pham Constructive possession
However, while discretion If the offence is an Omission: Possession: requires non-quiescent knowledgand a
is inevitable, a law will be too Whether an offence can At times, part of the actus reus of measure of control. To constitute joint
vague if the legislation has occur by omission is a an offence has an inherent mental possession, there must beknowledge,
given a plenary discretion to question of construction. element to it and the element of consent, and a measure of control on the
do whatever seems best in a To be guilty by omission: possession. part of the persondeemed to be in
wide set of circumstances 1) the offence must This illustrates that the divide possession.
o Arbour J After a contemplate guilt for between actus reus and mens rea is STEP 3B Consent (as an Element of
comprehensive review of omissions not a solid one. For the purposes of Actus Reus)
existing s. 43, emphasizing 2) the accused must be possession offences, unlawful Often the question of absence of consent
the number of acquittals placed under a legal duty possession by the victim is an important actus reus
she decided that the to act either by the requires = knowledge, consent and condition that must be present for
phrase reasonable under provision charging him or by the ability to exercise control. Section offences to occur.
the circumstances in s. 43 some incorporated provision 4(3): Subjective test. Burden on the Crown. If
violated the childrens 3) the omission in question CONSTRUCTIVE POSSESSION - (a) the Crown can prove that there was
security of the person must be a failure to fulfil A person has anything in consent, the Act is no longer unlawful
interest in s. 7 and that the that legal duty possession when he has it in his renders an unlawful act lawful.
principle was not too vague (i) You need to find a legal personal possession or R v Jobidon Fight outside a bar, J beat
to be in accordance with duty to act recognized by knowingly: (i) has it in the contender so badly he died. Held The
fundamental justice. criminal law (statute or CL) actual possession or custody SCC held that consent cannot be used
THE ELEMENTS OF A AND (The charge for the of another person, or as a defence for a criminal actsuch as
CRIMINAL OR omission will likely come (ii) has it in any place, assault which may cause serious hurt
REGULATORY OFFENCE from 1st group. But Crown whether or not that place or non-trivial bodily harm.
STEP 1 What is the will try to anchor the duty belongs to or is occupied by R v Cuerrier C had unprotected sex with
Question? in CL, or CC (2nd group) him, for the use or benefit of 2 women and didnt disclose HIV status.
Who are you? Crown or Some Criminal Code himself or of another person, Charged with aggravated assault. Held
accused. Straighten out Provisions criminalize the and Failure to disclose HIV
facts and timeline. JOINT POSSESSION - (b) where one statusconstituted fraud and a
failure to act:
STEP 2 Go to the Code prosecutable crime (aggravated
Other CC provisions impose of two or more persons, with the
Elements of the Offence knowledge and consent of the rest, assault). Womensconsent to
a legal duty to act, and
Statutory origin (s. 9) unprotected sexual activity was invalid
criminalize breach of this has anything in his custody or
Language? Duty? Fault? possession, it shall be deemed to be b/c obtained by fraud.
provision: Section 219
What does the Crown in the custody and possession of Required all criteria to prosecute on
(criminal negligence)
need to prove? Section 180 (2) (common each and all of them. these grounds: (1) The accused
o In order to obtain a nuisance) Section 215 Section 2 Controlled Drugs and committed an act that a reasonable
conviction for a criminal or (failure to provide the Substances Act Possession person would see asdishonest,
regulatory offence the crown necessities of life) Section means (2) There was a harm, or a risk of
must always prove beyond a 222 (manslaughter) w/in the meaning of harm, to the complainant as a
reasonable doubt (BARD) Section 215 (providing subsection 4(3) of the CC. result of that dishonesty,
that the accused necessities of life) MANUAL POSSESSION (3) The complainant would not have
committed the prohibited act Section 216 (undertaking R v York Y found stolen goods in consented but for the dishonesty
(R v Lifchus). his warehouse and put them in his
to administer medical by theaccused.
All elements of the offence truck to dispose of them. He was
assistance) Section 217 R v Ewanchuk E made sexual advances
must be present at the same
(undertaking to do an act) charged with possession of stolen on an interviewee. She said no,but he
time or there will be no crime goods. ForCrown to prove
Section 217.1 continued, and she failed to object
(R v Williams). possession, they must establish 1)
(organization liability) further. Argued implied consent.
Section 252(1) (legal duty manual or physical handing Held Held that there was no defence of
3 COMPONENTS Of of the prohibited object, 2)
to stop at scene of implied consent to sexual
ACTUS REUS knowledge, and 3) control.
accident) assault.Actus Reus: 1) touching
1) WHAT IS THE Personal possession is
Statutory Duty to Act objective, 2) sexual nature of the
S.215 defines duty to provide established where an contact
BY THE STATUTE, 2) accused person exercises
necessities to those under objective, 3) absence of consent
CAUSATION, 3) physical controlover a prohibited
their charge. CL broadly subjective. Look at complainants
VOLUNTARINESS object with full knowledge of its
interpreted under their subjective internal state of mind.
STEP 3 Is the offence an
charge to include elderly and character, however briefthe physical Mens Rea: 1) intention to touch, 2)
act or omission? contact may be, and where there is
ill parent (R. v. Peterson son knowing
Always start with was some evidence to show theaccused
neglected old dependent of, or being reckless of or willfully blind
there an act then go on to person took custody of the object
father). to, a lack of consent on the part of the
was there an omission. If the willingly with intent to deal with itin
o Test Would a reasonably person touched. Consent is subj & no
offence is an Act: some prohibited manner.The
prudent person, in charge of defence of implied consent. Limits on
1) Read the Code and accused, having only become aware
another, reasonably foresee that honest but mistaken belief of consent
find out if it is a that thegoods were stolen, panicked
failure to provide necessaries of - silence, passivity or ambiguous
positive act or and drove them away from his
life would endanger health or life of conduct doesnt constitute consent.
omission 2) Once you premises. He wasnot guilty of this
person. STEP 4 If it was an Act/Omission, was it
read the code, check offence although he failed to inform
An undertaking must be Voluntary or Willed?
the section for the police. His conductwas
a binding commitment, Voluntariness is defined as the mental
defining terms see s. inconsistent with any intention to
upon which reliance is requirement of the actus reus (R.
2 retain or deal with the goods.
reasonably placed, for v.Parks) it is the voluntary movement of
definitions 3) Read the CONSTRUCTIVE JOINT
legal duty to arise in s.217. your body.
section for what is POSSESSION
(R. v. Browne court found no There can be no actus reus unless the Act
required for it to be an R v Marshall Passing drugs
undertaking of legal duty. Mere described by the offence must
act ie. s.348(1)(a) around in the car, no control over the
expression of words indicating a bevoluntary in the sense that it must
offence of break and otherpeople. Passing joint close to
be the willed act of the BUT only feds can legislate accordance with the (s.9). Common law defences still
accused. (R. v.King) CRIMINAL OFFENSES under principles of fundamental allowed s.8(3).
Involuntariness can occur s.91(27). justice. Use of Common Law in Statutory
as a result of
automatism, Policing and Prosecutions Specific Legal Rights
Jobidon p23 v. The Queen (1991 SCC)
sleepwalking,intoxication, What branches are responsible (s.8): unreasonable search s. 265(1)(a): Jobidon is charged with
OR, bc of external for the administration of the and seizure assault after a fight in which the other
situation where you had criminal code? S.8 to 10 protects those person was killed. Jobidon argues that
no choice speeding o Constitution Act, 1867 subject to investigation by they agreed to fight therefore other
to the hospital. o 91(27) Criminal Law, feds can the state party consented.
Voluntariness enforce any criminal law. (If you 8 unreasonable search Decision: common law legitimately
cases:Examples can pass it you can enforce it) and seizures served in this appeal to find certain
associated with o 92(14) Administration of 9 arbitrarily detained or situations where people are not allowed
mentaldisorderNot Justice. imprisoned to consent and that already existing
associated with o Look at s.2 of the Criminal 10 for those who principles in the common law should be
mentaldisorder Code, Feds can investigate all have been arrested considered if the Code does not
crimes, but in practice most are rights to counsel etc. expressly displaced the common law.
Rabey argues non- handled by the provinces. s. 11 to 14 To protect Consent in this context, it is not a good
insaneautomatism o RCMP Federal agency often those who are tried and thing to allow people to voluntarily fight.
caused by acting as a police force convicted of an offence Consent must be interpreted to mean
psychologicalblow from employed by provinces 11.e right not to be denied that consent will exist when trivial bodily
mean letter (fails) Corrections reasonable bail harm is intended and caused (i.e. in
Parks sleepwalker kills Federal penitentiaries s. 91(28), 11.b tried within reasonable sporting events). Anything more serious
inlaws gets non-insane 2 years or more Provincial time than this there is no real consent,
automatism (todaywould prisons 92(6), less than 2 years 11.d presumed innocent therefore Jobidon found guilty.
be insane) 2 years or more rule, (Criminal until proven otherwise in a Dissent: Justice Sopinka dissents
Stone husband stabs 47 Code, s. 743.1) fair trial argues that the Court has essentially
times swoosh effect Trial Courts 11.f right to a jury in certain created a common-law offence (offence
test for inane vs.Non- Superior Courts: Supreme circumstances created was the intentional application of
insane auto Court, Queens Bench and Court 11.h once acquitted, force with the consent of the victim) by
Lucki driving on slippery rd of Appeal, Federal Court accused has a right not to changing the meaning of s. 265(1)(a),
inwrong lane no AR, Trier-of-fact: person in a trial tried again for the same which they are not allowed to do under
NG (courtconfuses who decides factual (as crime s.9 of the CC.
AR+MR) opposed to legal issues, thats s.12 everyone has the right Common Law Defenses
Wolfe strikes with phone, the judge) issues, this may be a not to be subjected to Amato defense advanced was
butreflexsive action (court judge or jury. cruel and unusual entrapment, a defense the SCC had not
confusesAR+MR) Serious crimes, eg murder, treatment or punishment previously recognized.
Ryan robbery to win lottery treason etc. tried in Superior
case reflexive action not
s.15 everyone equal under Decision: The SCC wants to give judges
courts the law
involuntary ifyou the flexibility to change with the
Provincial Courts If a law infringes on one of these
voluntarily create circumstances and change with the times.
No juries, judges appointed by rights, the onus is on the state
dangeroussituation So the courts can recognize new common-
the province. to prove that under s.1 it is a
Scope of the federal law defenses.
Offenses: all summary reasonable infringement
criminal law power: Doctrine of Strict Construction (DSC):
conviction offenses, provincial The Criminal Code
prohibited act with penal When the text of a statute can be
regulatory offenses, many Criminal Code contains wide
consequences understood in more than one way, the
indictable offenses. ranging offences, depending on
(a) Not colourable approach which would afford the greatest
On indictable offences, the offence they are designed to do
invasion of provincial benefit to the accused is adopted
defendant can choose prov/QB 1 of 3 things;
power. Goulis, Pare used a contemporary
Summary conviction offense 1) protect bodily integrity
Provincial Regulatory approach to the doctrine of strict
can go to jail for up to 18 mo. (murder, assault, etc.)
Offences: Constitution Act construction. These are all examples of the
Indictable offense: punishment 2) protect property (theft,
1867, s. 92 (15) court looking to what Parliament aimed at
set out in Criminal Code (usually fraud etc.)
The imposition of doing with the legislation first, before going
not more than 5 years). 3) proclaim standards of
punishment by fine, to strict construction. Plain meaning of
Appeals acceptable societal behaviour
penalty, or imprisonment statute considered first, if ambiguity
Either side can appeal. In (possession/sale of drugs)
for enforcing any law of the persists then benefit given to accused
Canada you can appeal an
province made in relation acquittal, but only on errors of Common Law Offences: Pare (issue of strict construction because
to any matter coming law etc Double jeopardy does Frey v. Fedoruk (this is not a while committing was contested). Even if
within any of the classes of not attach because its an a murder is not premeditated it can still be
criminal case, one individual v. the 1st degree if it is committed while the
subjects enumerated in appeal, not a re-trial. other) One common law offence
this section. accused is committing another listed crime
Summary conviction v. was breach of the peace. In this
-Property and Civil in the CC (i.e. sexual assault).
indictable offenses: for case the breach was peeping.
Rights (92(13)) - Issue: In this case can the doctrine of strict
summary regardless of where Fedoruk in defense says he was construction be used to benefit the criminal
matters of a local and
you were convicted, you appeal conducting a citizens arrest that because the murder was committed after the
private nature (92(15)).
to the superior court, and then defense hinges on whether or not sexual assault? 6
Dominant Purpose Test:
Upheld Struck Down with leave to the court of appeal peeping was a crime. Fedoruk Decision: Upon considering statute, there is
and with leave again, to the argues that it was a common-law
highway traffic (OGrady v. no ambiguity, assault and murder seen as
offense (since breaching the Kings
Sparling) -prostitution SCC. With indictable, you go single transaction
peace is not in the criminal code).
(Westendorp) film automatically to the Court of Decision: SCC finds that they cant Non-retroactivity
classification and Appeal and with leave to the find something criminal which had Charter ss. 11(g) & (i)
censorship - abortion Principle that crimes cannot be
(Morgentaler) SCC. There is an automatic right not in the past been found to be
criminal in the case law, we cant created or punished retroactively.
compulsory drug treatment to appeal to the SCC when in the create new common law crimes. Applies to both charge and
(Schneider) -censorship Court of Appeal there is a dissent The common-law method was thus punishment.
(Swtiman v. Enlbling) on a legal issue too uncertain. We put a high
1982, Charter of Rights and importance on certainty.
Freedoms: large no. of Legal Rights in the Charter
Charter cases are criminal 1953 revision of the Oakes Test (see Orbanski SMp for good
cases. General Legal Criminal Code in response in ex.) - used for assessing whether
- *Federal govt can also Right (s.7): right to part to Frey v. Fedoruk that charter limit is reasonable and
legislate REGULATORY life, liberty, and security abolished common-law offences justified
OFFENSES (as can of the person, not to be EXCEPT for contempt of court (1) objective of the law must be
provinces) deprived thereof except in sufficiently important. Must show that
the law is of pressing considered. Ignorance is (1) For large complex societies to (1) It violates principles of fundamental
and substantial concern no excuse. function we need certain justice (Charter s. 7)
(pretty easy) 2. Give too much LAW shared values to govern (2) Prescribed by law (s.1) you can
ENFORCEMENT human norms otherwise we argue that the limitation is not
(2) show DISCRETION: We want to
proportionality of the get social disorder, prescribed by law because it is so
limit arbitrariness to avoid (2) To ensure that these values vague
effects of the law on the abuses by law
right being infringed are passed on we can be (3) Can also argue that it fails the
(minor, severe?) and fairly heavy-handed through minimal impairment part of s. 1. An
Canadian Foundation for
balance it against the paternalism, all-encompassing prohibition on certain
Children, Youth and the
positive effects of the law. (3) Societal integration things (i.e. Speech) will catch too many
Law v. Canada A.G.
Are the means and the conformity things and people wont know what
ends in a reasonable (2004) CFCYL p29
o Liberal Approach (i.e. Mills, they can say.
degree of proportionality Case about reasonableness of
Feinberg): APPLICATION: Extremely difficult to
to each other? parents using force in child
(1) We need to have demonstrate in practice, courts go to
correction (CC s. 43) - shows
o To establish autonomy, that is the great lengths to find certainty
that courts will go to great
proportionality is basic social contract, not Problems w/ VAGUENESS:
lengths to clarify whats not in a
there a rational conformity; 1. No FAIR NOTICE to citizens absolute
statute in plain language.
connection? Does the (2) Millean notion of harm, do certainty is not required, there has to be
Decision: upheld provision not
law impair the Charter what you want as long as sufficient guidance, common law and
too vague or broad, serves as
right as minimally as it doesnt harm others (i.e. societal standards are considered.
possible? Is there guidance not direction. No
consensual crimes, or Ignorance is no excuse.
proportionality between violation of charter ss. 2/15 suicide should not be a 2. Give too much LAW ENFORCEMENT
the good and bad effects D. Overbreadth
crime for example that is
of the law? Laws means are far
a paternalistic law).
DISCRETION: We want to limit arbitrariness
to avoid abuses by law enforcement.
more sweeping than its
S.7 is the Catch-all (3) Exceptions Canadian Foundation for Children,
objective. Consider the
everyone has the right 2. The Economic Approach: Youth and the Law v. Canada A.G.
means chosen by state in
to life, liberty, and (bentham, becker) ? (2004) CFCYL p29
relation to purposes.
security of the person and 1. We assume rationality of Case about reasonableness of parents
Overbreadth occurs when a
the right not to be ppl in system using force in child correction (CC s. 43) -
state emplovs means that are
deprived thereof except 2. We assume that people shows that courts will go to great lengths to
far broader than necessarv
in accordance with the have all the info they clarify whats not in a statute in plain
for an obiective.
principles of fundamental (1) need language.
Overbreadth v.
justice. This section 3. People have concrete Decision: upheld provision not too vague
vagueness (Heywood
mirrors s.1 in many ways interests that dont or broad, serves as guidance not direction.
and courts have been change and can be No violation of charter ss. 2/15
** This is the foundation for the
reluctant to find that a assumed, we can D. Overbreadth
automatism defen ce
violation of s. 7 is saved maximize utility according - Laws means are far more sweeping than
**Overbreadth and vagueness are
under s. 1. to preferences (which are its objective. Consider the means chosen by
related in that both are the result of
Vagueness and the taken as a given) state in relation to purposes. Overbreadth
a lack of sufficient precision by a
Charter (Nova Scotia legislature in the means used to 4. People make decisions occurs when a state emplovs means that
Pharm) based on the above are far broader than necessarv for an
accomplish an 7
You can argue that a law objective. In the case of perfect rationality with obiective.
is unconstitutionally perfect information with (1) Overbreadth v. vagueness
vagueness, the means are not
vague in three ways: set preferences. (Heywood p27) Overbreadth and
clearly defined. In the case of
Charter Limits Jobidon v. The vagueness are related in that both are the
(1) It violates principles of overbreadth the means are too
Queen result of a lack of sufficient precision by a
fundamental justice sweeping in relation to the
Issue: Is consent a defence to a legislature in the means used to accomplish
(Charter s. 7) objective.
serious assault? Held: No an objective. In the case of vagueness, the
(2) Prescribed by law (2) Application
(s.1) you can argue Reasons: means are not clearly defined. In the case of
Heywood p27,
that the limitation is Fights are socially useless overbreadth the means are too sweeping in
CFCYL p29, Demers
not prescribed by law Heywood p27 Case if you Not in the public interest to relation to the objective.
because it is so vague have been convicted of a allow this sort of thing (2) Application Heywood p27, CFCYL
(3) Can also argue that it sexual offense you cant go to Result in this case was the p29, Demers
fails the minimal death of a young man on his Heywood p27 Case if you have been
public place with children for
impairment part of s. engagement day convicted of a sexual offense you cant
an undetermined amount of
1. An all- Argued for the sanctity of go to public place with children for an
encompassing time. Law was struck down for
human body should vitiate against undetermined amount of time. Law
prohibition on certain being (1) overbroad on the validity of consent to bodily was struck down for being (1)
things (i.e. Speech) geographical terms, (2)
Charter Limits Jobidon v. The overbroad on geographical terms, (2)
will catch too many chronologically overbroad,
Queen chronologically overbroad, (3) too
things and people (3) too broad in that it
Issue: Is consent a defence to a broad in that it affected ALL convicted
wont know what they affected ALL convicted of
serious assault?Held: No of sexual assaults even if not on kids,
can say. sexual assaults even if not on
APPLICATION: Extremely kids, (4) enforced without Reasons: (4) enforced without notice to those
difficult to demonstrate in notice to those affected Fights are socially useless affected
practice, courts go to Not in the public interest to Charter Limits Jobidon v. The Queen
Limits on Criminal Law
great lengths to find allow this sort of thing Issue: Is consent a defence to a serious
When should we regulate
certainty Result in this case was the assault? Held: No
human behaviour with
death of a young man on his Reasons:
criminal sanction and
Problems w/ engagement day Fights are socially useless
when isnt it? And who
VAGUENESS: Argued for the sanctity of Not in the public interest to allow this
gets to decide?
human body should vitiate sort of thing
1. No FAIR NOTICE to Theories of Criminal
citizens absolute against the validity of consent to Result in this case was the death of a
Law, 2 sets of theories:
certainty is not bodily harm young man on his engagement day
1. The Moral
required, there has to Vagueness and the Charter Argued for the sanctity of human body
be sufficient guidance, o Conservative Approach (i.e. (Nova Scotia Pharm) should vitiate against the validity of
common law and You can argue that a law is consent to bodily harm
Stephen, Devlin):
societal standards are unconstitutionally vague in three v. Welch
Ontario CA held that referred to by some create an offence that consider the values of promoting dignity and
consent would not be a constitutional scholars as the prohibits purchasing sexual services equality and protecting children and
defence to a charge of dialogue theory. This is the or communicating in any place for that communities. Thus, the concern is whether
assault potential state of affairs for purpose; the new laws offend security of the person
Complainant claimed that some of Canadas prostitution and freedom of expression or whether they
create an offence that
she did not consent to the laws in the Criminal Code. On will be upheld as constitutional (Blaze
acts occasion, after Parliament re- prohibits receiving a material benefit Carlson and Fines).
But, court said that the drafts and passes an amended that derived from the commission of So, there are constitutional experts who
defendant could still be guilty law, there is yet another an offence referred to in paragraph believe that the new legislation will result in
even if there had been challenge where the SCC is (a); further Charter challenges (Blaze Carlson
consent asked to determine the create an offence that and Fines). Will the dialogue continue?
Court explained that constitutionality of the amended prohibits the advertisement of sexual - - Pornography
hurting people is wrong law. Often, the SCC upholds the services offered for sale and to R. v. Butler p68 (1992 SCC) Justified
doesnt matter whether the amended law as constitutional. authorize the courts to order the infringement on certain types of porn
victim gave consent However, sometimes the SCC seizure of materials containing such (freedom of expression) Accused operated
Prostitution: (Prostitution will once again send Parliament advertisements and their removal shop selling porn material, charged with 77
Reference) back to the drawing board. This from the Internet; counts of violating s.163lCode.
Not illegal in Canada, but we process is referred to by some modernize the offence that (distribution is prohibited of materials
have criminalized almost constitutional scholars as the prohibits the procurement of persons with explicit sex with violence, and
every other aspect of dialogue theory. This is the for the purpose of prostitution; explicit sex without violence but which
prostitution besides the act potential state of affairs for subjects people to treatment that is
create an offence that
itself (i.e. communicating for some of Canadas prostitution degrading or dehumanizing) - S.163
prohibits communicating for the
the purposes of, keeping a laws in the Criminal Code. In violates freedom under s.2 (freedom of
purpose of selling sexual services
common bawdy house etc) December 2013, in Canada expression) but could be upheld under
in a public place, or in any place open
and these have been found (Attorney General) v. Bedford, s.llCharter: (1) Community standard of
to public view, that is or is next to a
to be constitutional 2013 SCC 72, the Supreme tolerance - determine standard of
place where persons under the age of
Reference Re ss. 193 and Court of Canada held that the community (2) S.163 only refers to types
18 can reasonably be expected to be
195.1(1) of the Criminal provisions of the Criminal Code 1 & 2 of porn: risk of harm (3) Is the
Code (1990) p62 that dealt with keeping a bawdy legislative objective outweighed by
Court upheld under the house (section 210), living off ensure consistency infringement of freedom? No, objective
Charter certain sections of the avails of prostitution between prostitution offences and the aimed at avoiding harm. Butler p68 Test
the Criminal Code that deal (section 212(1)(j)), and existing human trafficking offences; In determining if pornography is too
with prostitution communicating in public with and explicit or graphic(obscene - where
Court Held: respect to a proposed act of specify that, for the exploitation of sex is undue), the
- s. 195.1(1) (against prostitution (section 213(1(c)) purposes of certain offences, a following test was created:
communicating in a public were unconstitutional. weapon includes anything used, Community Standard of Tolerance
place for the purposes of According to the SCC, these designed to be used or intended for Responds to the changing morals of the
engaging in prostitution) provisions put the safety and use in binding or tying up a person nation. Does not ask people what they
did infringe freedom of lives of prostitutes at risk by against their will. would view, but what would they allow
expression under s. 2(b) of preventing them from The enactment also makes others to see. (the most important step of
Charter, but that it was implementing safety measures consequential amendments to other the test)
justified under s. 1 it was such as hiring security guards Acts. Degradation - sex depicted in a
held to be a reasonable or screening potential clients. The Government also promised $20 degrading or dehumanizing manner,
limit The SCC concluded that these million to be aimed at getting which includes submission,
- Held that neither provisions offended the Charter prostitutes out of sex work (Blaze subordination and humiliation, will not
(included s. 193 - against section 7 right to life, liberty and Carlson and Fine). The government generally be accepted. To depict sex in
operating a bawdy security of the person, and were says the bill will protect and keep this way is against the principles of
house ) violated s. 7 of the no t in accordance with the communities safe by allowing dignity, and this kind of exploitation is
Charter although they principles of fundamental justice. prostitutes to rent apartments, screen harmful, especially to women.
infringed liberty and The SCCs declaration of invalidity clients, hire a receptionist or security Internal Necessities Does the
security of the person, they was suspended for one year. guard, and advertise their own sexual exploitation have a legitimate role
did so in accordance with Having decided to redraft these services (Confused about changing in advancing a theme or plot in an
the principles of provisions, Parliament prostitution laws in Canada? Bill C-36 artistic, literary, intellectual or scientific
fundamental justice conducted online consultations. In Primer). work? If so, it may be justified. This kind
Constitutional law experts, addition, Parliament looked at Blaze Carlson and Fine report that of sexual exploitation is not just dirt for
such as Peter Hogg, speak models for dealing with prostitution Evangelical and pro-family groups dirts sake, but has a purpose.
about the relationship from other countries (e.g., in support the Bill, but sex workers and R. v. Sharpe p71 (2001 SCC) Justified
between the Supreme Nordic countries, buying sex is their legal advocates said the law provision prohibiting possession of child
Court of Canada (SCC) and illegal but selling it is not). Canada would be vulnerable to a porn BC trial judge ruled s.163.1(4)lCode
Parliament as a dialogue. Justice introduced Bill C-36 constitutional challenge on many provision (forbidding possession of porn)
Parliament passes a law, the Protection of Communities and fronts. also LILE SIS BOOK EMPORIUM
which might later be Exploited Persons Act on June 4, Because purchasing sex will be a - SCC found the provision constitutional: 1)
challenged as being 2014. Because purchasing sex will crime, there are concerns that sex Provision combats material that poses
contrary to the Canadian be a crime, there are concerns that workers will be forced to negotiate risk of harm to kids. 2) Provision violated
Charter of Rights and sex workers will be forced to with prospective clients in hidden the freedom of expression but was
Freedoms (Charter). negotiate with prospective clients locations, which will expose them to justified under s. 11Charteras the
Often, after declaring the in hidden locations, which will safety concerns similar to those government
challenged law to be expose them to safety concerns caused by the former provisions. objective of protecting children from
unconstitutional, the SCC similar to those caused by the Further, it will be illegal to advertise exploitation was proportional to the
will delay the effect of this former provisions.The House of sex services (of others) and one must violation.
declaration for several Commons Justice Committee is decide whether the place one is Two exceptions (also apply to making
months to give Parliament examining the proposed new law selling sex is occupied by young child porn):
the opportunity to address in summer 2014. According to persons. This will continue to raise -a) does not prohibit possession of
the constitutional the Legislative Summary prepared safety issues about where one can expressive material created through the
deficiency, yet ensure there by the Library of Parliament: legally sell sex. However, the new efforts of a single person and held by
is not a gap in Canadas Bill C-36 amends the Criminal laws purposes have been written in that person alone, exclusively for his or
regulation of an important Code to, among other things, such a way that judges evaluating her own personal use, such as personal
activity. This process is their constitutionality would have to journals and drawings
-b) does not prohibit inordinately vague, overly (3)Oppressive conditions (2) Police should have held off investigation
possession of visual broad, no retroactive application (4) Trickery (see below) they exploited opportunity to violate Ds
recordings created by or of law, only voluntary conduct Trickery rights.
depicting that person, but should attract criminal liability 1) Courts may consider certain forms (3) Under s.24(2), evidence obtained in
only where these (Ruzic), right to a fair trial, law of of trickery, such as the use of violation of Charter should be excluded as it
fabricated evidence, in determining would bring AOJID.
recordings do not depict causation and mens rea (Cribbin),
whether the interrogation was (4) Purposive interpretation of 1O(b):
unlawful sexual activity, are presumption of innocence oppressive and hence involuntary. designed to protect fairness to A with
held only for private use, (Wholesale Travel,) 2) Even where a court determines respect to incriminatinq themselves. R. v.
and were created with the Police Powers Kent Roach on that a statement is voluntary, it may Oickle 2000 SCC - confession thrown
consent of those persons Parkers Theory, Criminal exclude it if it was obtained by trickery out
depicted The Harm Control vs. Due Process so appalling as to shock the Failed polygraph (not admissible in court
Principle Criminal Control p107: community. R. v. Spencer, 2007, anyways), admitted he set gfs car on fire
R. v. Malmo-Levine; R v Efficiency - Assembly line SCC, SM p13 - confession after a 6 hour interview that he asked many
Caine (2003 SCC) model: go through arrest, admissible, R tried to make deals w/ times to leave from, police played good
Justified infringement on use conviction, punishment as fast police who refused. However, police cop (2) Section 10 of the Charter:
of marijuana Issue of as possible (current system allowed visit to gf conditional on COMPONENTS OF s. 10 of Charter
criminalization of simple government. Procedural aspects giving confessions. no offer of Triggered by arrest or detention
leniency made to R w/ respect to gf, (Therens, Thomsen, Obranski, Elias),
possession of marijuana are seen as obstacles; currently
only withholding visit to her until at Police have no legal power to demand
contrary to principles of an obiective-oriented process) - least partial confession was made -
cooperation in interrogation. They can seek
fundamental justice, as to Though concerned with limiting not strong enough inducement. fact it, but not demand it.
whether it causes to harm to abuse of powers, criminal that R took bargaining role was (Obranski) If police have reasonable
others. Challenge to Narcotic control system wants to control significant. Affirmed use of Oickle grounds to believe that you are driving
Control Act provision. SCC: outside of criminal process; if test: Do a contextual analysis to impaired by alcohol, they can demand s.
imprisonment for marijuana the polices conduct is see if will of subject has been 254(2) that you provide a breath sample. If
possession does not violate unreasonable, we should not overborne. Used above factors. quid you refuse, you can be charged with an
s.7 principle against gross exclude evidence or give a stay pro quo is the most important offence of Refusing to Blow. s254(5)
disproportionality: (1) Court: Due Process: Fairness of trial consideration, but is not exclusive, *They cannot physically force you to do it,
harm principle is not a and pre-trial when an inducement is alleged to but youll be charged if you dont. 10b rights
strict legal principle since - Excludes evidence obtained have been offered by a person in must be given before blood
authority -regardless, it is the strength sample/breathalyzer sample can be taken
many examples of through unreasonable
of the inducement and his or her s.254(3) - note that this is not required if
criminal laws do not methods; focuses on possible circumstances, that is to be youre too drunk to understand right to
cause harm to others remedies if police misbehave. considered in the overall contextual counsel (Mohl)
(cannibalism, bestiality, This system considers analysis into the voluntariness of the R. v. Therens 1985) Three types of
incest). (2) A claimed exclusionary rules (excluding accused statement-inducements detention outlined
charges based on s. 7l tainted evidence) as it is become improper only when Facts: accused collides w/ tree, officer takes
Charter since it is his believed that evidence that is standing alone or in combination to station to provide breath sample under
chosen lifestyle. Court: obtained through force is with other factors, they are strong 254(3) (not screening device), accused
his lifestyle choice is not unreliable. There is less trust enough to raise a reasonable doubt complies, over legal limit; at no time was
protected by s. 7 since in the police and skepticism of about whether the will of the informed of right to counsel under 10(b).
harm is not insignificant their powers. subject has been overborne Issue: Was this a detention under s.10? If it
Questioning Suspects: Operating mind! (lowered Clarkson was a detention was 10(b) violated?
or trivial. (3) Court
acknowledges Parliament Most important tool police have. p113 requirement) (Whittle SCC Reasons: In its use of detention, s.10 is
1994) you can confess as long as directed to restraint of liberty other than
entitlement to act under Allows police to gather evidence you basically understand what you
arrest in which a person may reasonably
crim power for reasons and (hopefully) incriminating are saying and comprehend that require assistance of counsel but might be
other than avoidance of statements from the accused. the evidence may be used against impeded from doing so but for the
harm to others, but is Two standards, Confessions you. If you exercise poor judgment, constitutional guarantee. s.254(5) of Crim
subject to Charter rules Rule and s. 10 of the Charter that doesnt necessarily meant that Code: criminal liability under this section is
such as arbitrariness, (1) Confessions Rule (common you didnt have this level of sufficient to make compliance involuntary.
irrationality, gross law rule of evidence, you dont understanding. Schizophrenic heard Detention (besides physical threat) can be
disproportionality. A used need to invoke the Charter to use it voices to confess, wasnt fully rational effected if person submits in the deprivation
because its a common law rule) but had some understanding of the of liberty and believes that the choice to do
the legality of alcohol and
Boudreau, Clarkson consequences. otherwise doesnt exist.
tobacco as an example of
Voluntary Confession Rule: Clarkson v. The Queen (1986 Finding: 10(b) violated, evidence of breath
arbitrariness of the law. evidentiary rule: Whenever a SCC) sample excluded under 24(2) b/c obtained
Court: Parls choice to person makes a statement to Facts: Voluntary confession rule: as a result of flagrant and overt Charter
limit one harmful police or other persons in authority, exclusion of evidence because D was violation. Three Categories of Detention:
behavior more than and Crown wants to submit it as drunk when she murdered her (1) Physical Compulsion
another is not arbitrary or evidence, prosecution must show husband. Police instructed of her right (2) Legal Compulsion
irrational of the law by that statement was submitted to counsel; meanwhile, A blabbed (3) Psychological compulsion - accused
itself. Of note from Malmo voluntarily BRD, otherwise all about murder in their presence. reasonably believe no choice but to submit
- -a principles of evidence collected can not be Issues: Are the drunken confessions *NEED TO KNOW In Canada, when the
fundamental justice must: used. admissible? Is an involuntary police question someone with the intention
-a) be a legal principle Rationales for rule confession admissible? (No) of furthering the investigation by gathering
-b) about which there is 1. Ensures the innocent are Decision: Accused had not voluntarily information, the court tends to find that the
not convicted waived right with full awareness of person is NOT detained under s.10. But,
significant societal
2. Society places tremendous consequences. Appeal permitted; when the polices prime motive is to elicit
consensus that it is
weight on self-incriminating evidence excluded, court restored self-incriminating evidence, then the person
fundamental to the way in
evidence acquittal: WILL considered to be detained under s. 10.
which the legal system
3. Public underestimates how often (1) D could not waive her 1O(b) right R. v. Thomsen (1988) violation saved
ought fairly to operate, and people confess to crimes that they to counsel until she was sober under s. 1.
-c) it must be identified didnt commit enough to do so with full knowledge Issue: whether demand made by cop to
with sufficient precision to 4. Disincentive towards police of the rights the procedure was accompany him to his car and provide
yield a manageable abuses ie torture etc. enacted to protect and the effect the breath sample (under 234(1) now 254(2))
standard against which to Three things court will consider waiver will have on those rightsshe resulted in detention of appellant under s.10
measure deprivations of in determining Voluntariness: did not know what was at stake. of Charter
life, liberty, or security of (1)Operating mind - (Whittle) (1)a - waiver - must be clear and Reasons:
person -the harm principle (2)Was there a threat or a promise unequivocal that the person is waiving See definitions of detention from Therens
is not a principle of (quid pro quo?) violence=always the safeguard with full knowledge p173:
fundamental justice ex. of exclude, offers to procure lenient
princs - law cannot be treatment = almost always exclude
- The request under 234(1)) cant denigrate counsels integrity, Limit on s. 10(b) right of drivers in -Police didnt interrupt ongoing criminal
to give roadside sample does can plea bargain both cases was prescribed by law, enterprise, offence was brought on by their
meet this criteria and 2. 2nd (Prosper p125) must give scope of the police power to check conduct, would not have occurred otherwise.
appellant was therefore accused a reasonable the sobriety of drivers at the -Length of time (6mo) show police had to go
detained. opportunity to talk to a lawyer roadside is: a procedure cannot be beyond merely providing opportunity
- Then found denial of right to (not indefinite). relevant factors - is reasonable... unless it can be -Most important factor here: informer
counsel implicit in wording of counsel available? urgency? performed at the site of the acting threateningly in woods; if police have
234(1) (forthwith, roadside) suspect must be diligent, however detention, with dispatch, with no to go this far they have gone beyond
but this denial of 10(b) rights 3. BUT lawyer of choice is danger to the safety of the detainee providing reasonable opportunity.
justified under s.1 of Charter also guaranteed, law is not clear and with minimal inconvenience to Finding: entrapment applies (accused met
(noting that counsel is what reasonability standard is here the detainee -necessarily calls for a burden of proof - BOP), allow appeal, set
available at the more serious 4. Courts will consider factors such case-specific inquiry. Also, Limit on aside conviction, ordered new trial (?) and
Breathalyzer stagepolice as the time of day, and the right to counsel during questioning entered stay of proceedings
station). importance of carrying on the and compliance with s. 254(2) Entrapment TEST:
NOTE: In R. v. Grant 1991 investigation immediately demand for roadside screening (a)The authorities provide a person w/ an
30 min delay was not device sample is reasonable under opportunity to commit an offence w/out
acceptable Have to ask someone if they Oakes test. acting on a reasonable suspicion that this
In R. v. Bernshaw want to talk to a lawyer. Must Oakes Test: justified limit because: person is already engaged in criminal
immediate demand nor record the answer. (1) objective of reducing the effects of activity or pursuant to a bona fide inquiry;
required after immediate If no , police can proceed impaired driving is a compelling state (sufficient connection between the past
alcohol consumption - 15 min If yes Implementational objective, (2) infringement on the right conduct of the accused and the provision of
delay acceptable Duties to counsel is rationally connected to an opportunity?)
2 categories to think about R. v. Prosper p125 (1994 SCC) that objective, (3) minimal impairment (b) Although having such a reasonable
that SC has read-in to s.10: Violation of s. 1O(b) right: - scope of powers carefully limited suspicion or acting in the course of a bona
Informational Duties exclusion of evidence) and limitation on right to counsel fide inquiry, they go beyond providing an
(Brydges p123, Bartle) Accused was arrested for impaired temporal, (4) Proportionality - opportunity and induce the commission of
10a - Police must tell you driving, informed of legal aid and screening is short and minor an offence. (what the average non-
ALL of the reasons you are his 10(b) right, but after attempting inconvenience predisposed person would have done?)
being arrested or detained. If to call 15 legal aid lawyers, he Administering the road-side -To determine whether police have gone
the nature of the investigation stated that he could not afford screening test, prior to consulting farther than providing opportunity, a
changes while you are being private counsel. Accused failed a a lawyer was held to be a justifiable number of factors useful to consider (10 on
detained, they have to tell breath test. - Evidence was breach of the Ds Charter s. 10b p139) More on Bona Fide Inquiry: R v.
you that as well. inadmissible: taking of the breath rights. Barnes, SCC, 1991 p141, bona fide
10b have to tell you that sample infringed on rights. - Court: Ratio: Why can police get away with inquiry requires: -1) the officers conduct
not necessary to impose this? (1) Time is an important must be motivated by the genuine purpose
free duty counsel exists, and
requirement to ensure all consideration accuracy of the of investigating and repressing criminal
give you the number
detainees get legal counsel, as Breathalyzer, activity; and-2) the inquiry must be directed
have to provide without (2) Objective of road safety not at a suitable area. BFI - Here, officer
delay, unless imminent risk of 10(b):
1) Does not impose positive efficient to stop people for long induced person outside of Granville mall,
serious bodily harm periods of time (police should be out where officer reasonably believed drug
constitutional obligation of
must ensure basic level of enforcing the law, not waiting on sides offences were occuring. Conversely,
linguistic understanding - of roads for people to talk to lawyers) random virtue-testing only arises when a
2) Far-reaching implications; it
may need interpreter (3) and the road-side screening police officer presents a person with the
would mean in order to arrest,
every province must have a duty device number can only go to opportunity to commit an offence without a
R. v. Brydges p123 (1990) suspicion NOT conviction for reasonable suspicion that: -a) the person is
counsel system. - Suggested
The defendant said that he
remedy: police should hold off until impaired. already engaged in the particular criminal
couldnt afford a lawyer and Entrapment: activity; or -b) the physical location with
person gets counsel, even if
the SC found that his Generally arises in investigation of which the person is associated is a place
benefit of presumption is lost.
statement was a request for a
R. v. Manninen p119 (1987 SCC) consensual crimes where the particular criminal activity is
lawyer that should have Rationales (Mack p135, Posner) likely occurring
Exclusion of confession when
triggered the police to help Moral - permits discrimination, police Amato p132 v. The Queen (1982) no
police used baiting question
him do that including telling can go too far, also Economic - waste entrapment asking to buy drugs is not in
Suspect detained for robbery;
him about duty counsel or itself entrapment
asked to see lawyer, but request of resources. Police cant be
Legal Aid in that jurisdiction. Facts: Informer (persistently) asks Amato
was ignored. Suspect was tricked arbitrarily testing the virtue of random
Ratio: as part of information (A) for coke, A sells him small amt. Informer
into admitting he had the weapon. people. central issue is not
given re: 10(b), detainees disciplining police or prosecutorial persists for more, A sells him oz. -D
- Confession inadmissible:
should be informed of conduct, but avoiding the improper introduced to undercover cop who asks
accused right to counsel was
existence of Legal Aid/duty (persistently) for coke, cop told D that he
denied. Nature of the questioning invocation by the State of the judicial
counsel/equivalent didnt screw around and that he needed
(two simple questions followed by process and its powers (Mack p135)
**After this case Ontario set coke to answer to these ppl and if not,
baiting one) led to involuntary self-
up toll free number (24 hour), these ppl would come see D. Next day, D
incrimination. Act of answering R. v. Mack (1988) Test for
Nova Scotia didnt Entrapment Appellant gets new sold cop 2 oz coke and charged and
some questions does not
R v. Bartle (1994) - if there is convicted for trafficking
indicate that one has voluntarily trial
a list of lawyers on-call you Reasons: Evidence falls short of evidence
waived ones right to counsel. Facts: Accused a former drug
must inform the defendant of required to establish entrapment; amounts
R v. Obranski, R v. Elias (2005 user w/ several convictions
that service as well and to no more than persistent solicitation by
SCC) SMp21 police do not have -Repeatedly (over 6mo period) asked
about how you can access it. by informer for drugs, repeatedly said informer/undercover officer.
to give s. 10(b) right during
Facts: Accused arrested for no (only real estate now) -Informer importuned D, police simply had
roadside screening
drunk driving, informed of -Informer took accused into woods w/ relationship w/ informerthis doesnt give
Facts: Obranski stopped after
right to counsel and rise to entrapment
seen running through a stop sign handgun, said one could get lost in
availability of legal aid but not woods (accused thought this was a -Only where police tactics leave no room for
and swerving on the road. Elias
the free 1-800 number criminal intent can entrap. enter into
stopped in his vehicle at a random threat)
Decision/Reasons: Court -Informer took accused to see a determination of guilt.
road-side stop. In both cases
held that 10(b) rights violated, Dissent: there was persistent importuning,
officers could smell alcohol when purchaser (undercover cop), showed
excluded Breathalyzer under $50,000 police had no reason to suspect that
they approached the cars. Both
24(2) -Accused was arrested when accused was related to such activity.
were arrested and neither was
Implementational Duties -This enterprise by police would in all
advised of right to retain a lawyer delivered 12oz of coke (bought on
(Manninen p119, Prosper circumstances be viewed by community as
prior to being tested or questioned. credit) to informer.
p125, Obranski and Elias shocking; such conduct is contrary to proper
Both charged with impaired driving History: Trial: convicted (said more
SM p21). probable that accused became principles of justice.
and driving over 80
Decision: SCC the police acted involved for profit rather than fear); Procedural Issues:
1. 1st component must hold Appeal court: confirmed conviction; To be decided by trial judge, proper
lawfully when they stopped
off when accused requests a remedy: stay of proceedings (Jewitt p131).
Reasons: Lawful police conduct now at SCC
lawyer, (cant persistently
wont always be outlined in statute.
question (Manninen p119),
Guilt established first, then - (2) there was no requirement in grounds that she was about to commit C. We make it harder to investigate criminal
look at entrapment; the statute that the search be a crime. Crown has to show that the matters because those usually involve less
If jury, judge decides based on reasonable and probable warrantless search was reasonable, powerful people who need more protection.
entrapment grounds. they must establish:
BOP - Onus on accused to Ratio A reasonable search and (1)Reasonable grounds to believe Thomson Newspapers Ltd. v. Canada
prove on balance of seizures occurs if: that there was a narcotic in place; (Director of Investigations, Restrictive
probabilities that entrapment -1) Prior Authorization where it is (2)Whether the manner of the search Trade Practices Commission) (1990) p148
occurred. feasible to obtain prior was reasonable. Seizure by the throat Finding: court held that the power of the
authorization, I would hold that was found to have been director of investigations to demand the
An Economic Theory of the such authorization is a pre- unreasonable unless cop had production of documents under s.17 of
Criminal Law (Richard A. condition for a valid search and reasonable grounds to believe that Combines Investigation Act did not violate
Posner) SM p27 seizure -2)Neutral Arbiter it is the person was a drug handler. s.8 of Charter though it did amount to
police inducements that necessary for the person Sniffer Dogs - AM and Kang-Brown seizure under the section.
merely affect the timing and authorizing the search to be able Kang-Brown, SCC, 2008 - officer Reasons: To require warrant for any power
not the level of criminal to assess the evidence as to tried to look into guys bag at bus of investigation would, in these
activity are socially whether that standard has been depot, guy didnt want him to, sniffer circumstances, immunize perpetrators from
productive; those that met, in an entirely neutral and dog alerted to drugs, arrest. All judges discovery/prosecution. Power to search/take
increase the crime level are a impartial manner; and agree its a search away documents is more intrusive than
waste of social resources -3) RPG where the states interest Lebel+3 = need RPG for sniffer dog mere power to order production of them.
Search and Seizure: Hunter is law enforcement and the search. Not auth at common law Dissent: Important to look past form of
p144, Collins, Buhay SM individuals interest is his Binne+1 = need RS because of information gathering and look at the effect
p29 expectation of privacy, reasonable minimal intrusion and high accuracy - the gathering has on the individual. Looked
Pre-Charter case Entick and probable grounds, established no RS at criteria from Hunter
v. Carrington (hundreds of upon oath, to believe that an Deschamps+1=need RS because - Concluded that these requirements not
years ago in Britain) where offence has been committed and minimally intrusive, RS in this case, satisfied, s.17 violates s.8
police were searching for that there is evidence to be found consider totality of circumstances WHY DID THE COURT RULE
evidence of sedition and at the place of the search, Bastarache =need generalized susp, DIFFERENTLY THAN IN HUNTER?
entered home without constitutes the minimum standard, R. v. AM, SCC, 2008 - sniffer dog Difference in the search power in the cases,
consent and were sued for consistent with s. 8 of the charter, search found drugs in backpack in because in this case they were just
trespass (plaintiff won). A for authorizing search and seizure. gym, students knew search would demanding documents, whereas in Hunter
mans home is his castle. Reasoning: s.8 acts as limitation happen they were actually taking documents during
Common law protected from on powers of search that the gov Lebel+3=no auth at common law, an intensive search
search and Seizure under has; it is entrenched (not student entitled to privacy at school Others (R. v. M (M.R.) SM p45 Hunter
application of trespass laws vulnerable to change by legislative Binne+1=no RS, exclude Standards Relaxed for schools
enactments); guarantees a Deschamps+1=RS, no SEP , no OEP R. v. M.(R.)(1998 SCC) SM
Section 8 challenges: broad/general right. Bastarache=unreasonable search, p45Requirement for lawful search and
Number of different ways that -Guarantee from unreasonable dont exclude, not- conscriptive seizure in school setting Search conducted
state action can be search/seizure only protects a EXCEPTIONS TO WARRANT by vice-principle (in RCMP presence) on
challenged under s. 8 of reasonable expectation; REQUIREMENT grounds that he was told by several students
Charter. Set out in Collins assessment must be made State must demonstrate, when it that the appellant was selling drugs on
-In a s. 8 charter case, you whether publics interest to be left conducts a search, that it was school property. - Search was reasonable:
need: alone must give way to govt in authorized by a neutral third party. modified standard should apply to searches
-1) to prove state action (s.32 order to advance its goals, notably In Thompson Newspapers court of students on school property conducted by
- applies to state or state law enforcement. found that it was NOT required to get teachers not acting as agents of the police,
agents) Finding: the disputed statute does a warrant because a regulatory because orderly environment needed for
-2) need a search or seizure not embody the above seizure, no criminal sanctions and learning. Search was authorized by the
-3) need it to be requirements, therefore it is sometimes its too hard to get a provisions of Nova Scotia Education Act. -
unreasonable inconsistent w/ the Charter warrant based on the evidence. Vice-principal was not acting as an agent of
-To show an unreasonable NOTE 4 REQUIREMENT (FROM Hunter p144 also a classic example the Police; search would have occurred w/o
search, you can do 1 of three BARRON): the neutral and of a regulatory search (NOT going RCMP. - Reasonable expectation of
things: impartial arbiter retains the after criminals) but because of the privacy was diminished, as a student in a
First way to challenge discretion to not authorize the fairly unrestricted nature of school, where teachers are responsible for
under s. 8 - can challenge search investigative powers, court found that safe school environment - standard to be
the law itself as being 2. Second way to challenge search violated s. 8. *This case is in applied to searches by school
unreasonable in allowing under s.8 the action of the police opposition to Thompson Newspapers. authorities:
searches and seizures. Law wasnt authorized by law (common Exception to the Hunter rule, a search of a
law or statute) in the first place. Onus is on crown to prove student by a teacher may not require a
applied generally, does it warrantless search was reasonable
violate s.8? (Stillman p167)Entick v. warrant ahead of time 18
Hunter v. Southam Carrington (Britain hundreds of and it will not create the presumption that
years ago) cant just go into Regulatory searches (Thomson the search is prima facie unreasonable.
Competition Bureau Newspapers p148) Section in the
responsible for fair peoples houses to search for A warrant is not essential in order to
competition. The CB (federal evidence because not authorized Combines Act requiring books and conduct a search of a student by a school
by law to do so. records as part of an investigation authority.
agency) enforcing Combines
Act was suspicious that 3. Third way to challenge under challenged. The regulation and - The standard should NOT be that a search
s. 8 argue that the law in this investigation of competition is a by school authorities is prima facie
Southam company was regulatory law (federal, but not
engaged in unfair competition case was applied unreasonably. unreasonable if no warrant is obtained.
Example of this case: criminal law). Courts found that the - Standard of care expected of schools is
and wanted to search offices Hunter Standards will be relaxed in sufficient to justify relaxed standard
of Edmonton Journal to R. v. Collins [1987] SCR 265
Facts: Police conducting the context of regulatory The school authority must have
establish this. Edmonton
Journal challenged the surveillance of drug dealers who investigations, i.e. dont need prior reasonable grounds to believe that school
search and took Hunter tended to swallow goods before authorization and reasonable and regulations have been breached and a
being caught by police. Woman probable grounds. search of the student would reveal this
(director of CB) to court. B. Why would they do this? Too hard
Challenged the law allowing about to swallow a balloon, the cop breach.
grabbed her by the throat to to get to get evidence in advance so School authority is in the best position to
the search under s.8 . we cant make it too hard for the state assess information given to them and relate
Decision: prevent it. The technique is
- (1) a member of this actually authorized by law (as valid to investigate, plus the people it to the situation existing in their school, and
incidental to arrest), as applied generally being investigated are
commission was NOT
generally the law complies with wealthy companies and organizations decide whether reasonable grounds exist.
independent of government there seems to be some implicit - The basic principle that a reasonable
like a judge (impartial) and s.8, BUT as applied in this
search must be based on reasonable and
also had an important role in particular case it didnt. Decision: agreement to play by the rules state
needs to be able to investigate what probable grounds should still apply, but
the investigation. Search was unreasonable.
they are doing, also because there is teachers are in a better position to
Independent body authorizing Reasons: Because in this case
less social stigma with regulatory determine if reasonable grounds exist.
searches is reqd the police didnt demonstrate
infractions. The following is a list of reasonable
reasonable and probable
grounds, but it is not exhaustive: info
received from a student regulate law-enforcement in In the case of first degree Look at the statutory provision of the
considered to be credible, certain kinds of searches. murder, under s.231(5) code offence. Is there express language of
info from more then one If there IS a REP, then we have (crime of mens rea?
student, a teacher or the ability to regulate law- domination), a jury must also If no, is the offence a true crime (in
principals observations, enforcements search powers. consider the additional R v Criminal Code) or regulatory offence?
any combination, etc. The Depending on the case (i.e. R.v. Harbottle a o If it is a true crime, go to STEP 7A. The
compelling nature of the M) the standards may be more lax substantial causation standard but mens rea is presumptively, any
information and the (i.e. in the case of regulatory only after finding the accused guilty of subjective form of mens rea (Buzzanga).
credibility of these or other principles) or more stringent (in the murder. Higher standard of o If it is a regulatory offence go to STEP 7C.
sources must be assessed case of criminal investigations responsibility of imputable cause The mens rea is presumptively,
by the school authority in STEP 5 If the Act was is required to strict liability (Sault St. Marie).
the context of the Voluntary was there Causation? secure a first-degree murder If yes, the language governs. If the
circumstances existing at Where the relevant offence conviction. Higher standard of offence expressly sets out the mens rea
the particular school. prescribes a consequence responsibility for that offence, then the only tasks are:
that must occurbefore the of imputable cause is required to o (1) To ascertain the express words of
The search must be offence is complete.o Issue secure a first-degree murder mens reas
reasonable arises most frequently in conviction. o (2) To determined whether the express
Factors to consider to st
manslaughter, murder, assault ***Harbottle apply only to 1 degree words of mens rea, if any, are so low or
determine if a search was causing bodilyharm, criminal murder, whereas Smithers all minimal; that they violate principles of
reasonable negligence causing death other cases of murder.*** fundamental justice in s.7 Charter?
1. Can it be inferred by the where death occurs later on. The test for causation for homicide is
relevant Education Act that The mens rea expressed in an offence
Crown must prove that the whether the acts of the accused
the school authority is applies to all elements of the actus reus ,
accused made a significant were a
authorized to conduct unless the offence provides otherwise,
contribution to significant contributing cause to the
searches in appropriate expressly or by (judicial) implication. (ie. The
theconsequences that death (R v Nette).
circumstances? In the school mens rea for theft is intentionally. Intention
occurred BARD (of the offence Both Menezes and Nette illustrate applies to all elements of the actus reus: (1)
environment such a statutory they are being charged how must imputable causation
authorization would be taking, (2) property (3) which is not your own
under). principles
reasonable. (4) without the owners consent).
History of causation One- explain why blame can be assigned in
2. The search itself must be liner: criminal cases, in spite of
carried out in a reasonable arguments STEP 7A
o The law has evolved in this area
manner. It should be from the traditional two-step that might, in civil cases, reduce or
conducted in a sensitive test (factual, even eliminate civil liability. SUBJECTIVE MENS REA
manner and be minimally legal), to Smithers a cause STEP 6 Was there an
Subjective mens rea - actual state of mind
intrusive. beyond the diminimous range, intervening cause that broke the of the subject of the prosecuting (the
3. To determine whether the to todays chain of
search was reasonable all standard from Nette a significant Causation?
the circumstances will have cause. As the threshold for Is the original cause continuing to Presumption people usually intend the
to be considered. causation increases, the Crowns operate? Or was the intervening natural consequences of their acts.
job gets more difficult (ie: cause so This holds, unless intention is
The standard from M.(R.) will smithers was overwhelming that it made the initial communicated.
only be applied if agent good for crown, nette is good for act part of the history of events The law assumes that the accused knew
acting for school is not a defence). (Smith)? of the elements of the offence.
police officer R v. Williams guy finds out he Nette was it a significant Unless, the defence of mistake of fact is
PENNEY argues that if you has AIDS no sufficient contribution? made out.
are going to bring in the causation bc we Nette thin skull take your victim If a true crime is silent as to the mental
police, then shouldnt the dont know if it was transmitted b4 as you find them state, and offence requires a consequence,
Charter apply? The student or after learning he was Menezes Drag racing, accused it is implied that intention or recklessness
may now be facing criminal infected. had backed off, deceased continued, in bringing out the consequence will suffice.
charges and a criminal record Significant cause is hard to prove crashed and died. Held not guilty of ELEMENT 1 If the offence is a true
so it would seem to make BARD if there are multiple criminal negligence causing death, crime, there is a rebuttable
sense that the search should parties, guilty of dangerous driving. Kids presumption that the offence is a full
be conducted in accordance intervening acts, remoteness. decision to keep driving WAS mens rea offence.
with the Charter. Therefore, if causation is not intervening Subjectivity principle: Where the
REASONABLE proved, the cause. Deceased, independent agent, offence is a true criminal offence, the
EXPECTATION OF accused cannot be convicted of an chose to maintain excessive speed, Crown must establish that the accused
PRIVACY (REP) offence that requires his act to death result of independent action. who committed the prohibited act did
General principles produce a so intentionally or recklessly, or with wilful
(Hunter, Lebeau p150 & prohibited consequence. Make sure that all elements of the act blindness toward them: Sault Ste
Lofthouse, Buhay SM p29 R v Menezes Causation is a are PROVEN BEYOND A Marie
(has TEST) two-stage analysis, requiring REASONABLE DOUBT! Thus, there is a presumption of subjective
Electronic Surveillance factual Once you have established the Act, mens rea for true
(Wong p152, Duarte p156) causation and legal or imputable you must move on to the MENS crimes (Sault Ste. Marie)
causation. REA. NB: For subjective mens rea the prosecution
Plain View Doctrine
R v Nette N admitted to an STEP 7 Did the Accused have the must prove intention,
(Buhay SM p29)
undercover officer that he had requisite Mens Rea? recklessness or wilful blindness beyond a
Sense-Enhancing Mens Rea is the mental elements reasonable doubt. Conduct is
Technologies (Tessling robbed and
SM p35) killed a 95 year old widow. Held of the offence. Usually referred to as advertent: Intention, knowledge,
The SCC upheld the Smithers test subjective state of mind of the recklessness, wilfully
Search or seizure, accused. ELEMENT 2 Presumption can be rebutted
generally mean the same
causation in a criminal charge for However, there are now offences if the words or the
thing because of the inclusive that have an objective mens rea (ie. context of the offence and statute seem to
manslaughter or murder.
word or in s.8. Requires a negligence). indicate a mens rea other than the one
The test for causation for
reasonable expectation of
second degree murder need not o Objective mens rea is determined presumed was intended.
privacy. according to what a reasonable
be However, the presumption can be displaced
expressed as a contributing person in
REP test is a cost-benefit by evidence express or implied that the
cause of death, outside the de the position of the accused would legislature has adopted an objective test or
analysis: benefits or privacy have known or foreseen.
minimis even absolute liability for some aspect of the
(vis a vis the individual) vs.
range. Instead it would be more Interpretation of a true crime will be offence.
benefits of surveillance (vis a
preferable to use positive terms interpreted as requiring subjective
vis society). mens
such Criminal Code
When we say there was no as significant contributing rea, unless it is clear that Parliament Fault presumption on silent
REP, we forgo our ability to cause to the death. wished to impose objective liability. section: subjective but we are
moving towards objective.
Look to the language of the presumption. SCC has never purposes of obstructing justice. He was the person committing the act
offence straight was therefore not guilty. seeking sexual gratification), but this is
Note the difference between out said this presumption has not determinative.
negligent conduct and changed, however SCC decisions R v R(J.S.) R(J.S.) intended to Knowledge
reckless such as Creighton exhibit a move shoot into a crowd, with intent to kill a It is unrealistic for the Crown to prove
conduct. towards a presumption of objective human being (albeit not the one
what the accused knows thus, it is
Reckless: requires proof that fault (gross negligence) for silent killed), opening the door to his
the Code offences. Note, in our presumed that the accused knows the
possible murder conviction during his
accused was subjectively discussion of statutory conditions of the actus reus exist.
upcoming trial, depending on how the
aware of interpretation, the Goulis case Unless the accused presents a mistake
evidence comes out.
the prohibited risk and was established that any vagueness in Subjective Mens Rea with of act defence.
reckless a In sexual offence context, the mistake
Objective Features
as to whether the statute is to be interpreted in of fact defence is heavily limited for
Some criminal offences use
consequences favour policy reasons, see below.
occurred. of the accused. Therefore if any standards to define criminal conduct
R v Ewanchuk E made sexual advances
Negligence: Is the failure to ambiguity arises, based on (ie. some assault are sexual, others
on an interviewee. She said no, but he
act as a Goulis, we should adopt are not).
If accused to have subjective continued, and she failed to object
reasonable person without subjective fault at a minimum
further. It was argued that this
foreseeing (note: this is not what the SCC has appreciation that relevant criminal
standard has been met prior constituted implied consent. Held
the possible consequences of been doing). Wilson thinks the
your starting point should be SF with conviction would allow content of The SCC held that there was no defence
action. OF offence to vary by offender; not of implied consent to sexual assault.
Subjective Objective only in exceptional circumstances sensible. o Ie. The accused can Actus Reus: 1) touching objective, 2)
Clear Language: Look for on commit fraud if he intends the sexual nature of the contact objective, 3)
words clear statutory indication of relevant transaction, even if he absence of consent subjective. Look at
such as intent, wilfully, parliament. doesnt appreciate that a transaction complainants subjective internal state of
knowingly, it is sometimes useful in defences of that nature is dishonest. o If it mind. Mens Rea:
purposely, wilfully blind, were otherwise objective dishonest 1) intention to touch, 2) knowing of, or being
reckless duress, necessity, self defence people would be held to lower reckless of or wilfully blind to, a lack of
(without wanton), deliberately Objective fault Does the conduct standards that the rest of us. consent on the part of the person touched.
Special Stigma - offence of No consent exists when complainant fears
R v Theroux The accused was
Constitutionally requires the accused go beyond a failure to convicted of fraud for accepting physical violence subjective approach.
subjective mens rea: Look to act reasonably and does it take on deposits from investors in a building
see if a Limits on honest but mistaken belief of
project having told them that he had consent - silence,
it is murder (Martineu), character of a marked [and purchased deposit insurance when in passivity, lapse of time, or ambiguous
attempted substantial] departure from the fact he had not. The court considered conduct doesnt constitute
murder (logan), crimes reasonable person? (Tutton) the mens rea of fraud under s. 380. consent.
against Criminal negligence = marked and Held - The mens rea of fraud is
humanity (flinta), and theft substantial departure (R. v. J.F.) established by proof of subjective Wilful Blindness
(obiter in All other objective fault crimes = knowledge of the prohibited act, and Wilful blindness is related to, but distinct
Martinueau) marked departure modified from recklessness.
subjective knowledge that the Subjective state of mind requires the
Traditional subjective Fault objective test (Beatty) prohibited act could have as a accused to personally foresee the risk of a
Offences: like sexual assault If the language in the statute consequence the deprivation of fact but then wilfully avoids confirmation
and indicates it an objective mens rea another. Conduct and knowledge
assault offences, these are go to STEP 7B. so as to be able to deny knowledge.
established = accused guilty; whether
ELEMENT 3 Where the intended prohibited consequences or Wilful blindness fits best when used
held subjective based on
presumption of full mens rea not. Trier of fact can infer as a substitute for knowledge. o
tradition or
applies, that mens rea will be intent/knowledge from accuseds Courts and Parliament have habit of
precedent (Darrach).
satisfied by proof that the accused actions. There is no requirement thatusing wilful blindness
If these words/ offences are the accused subjectively appreciate
committed the offence either interchangeably with recklessness.
found the dishonesty of his acts.
intentionally, recklessly, or through (See s.273.2 it is not a defence that
then you are dealing with a
wilful blindness (but does not that the accused believed that
subjective fault requirement. That an act of deceit which is
If you are dealing with include committing the crime complainant consented to the activity
negligently). made carelessly without any that forms the subjectmatter of the
subjective you expectation of consequence, as for
must establish that the charge, where (a) the accuseds belief
If you are dealing with subjectve example, an innocent prank or a arose from the accuseds (ii)
accused had mens rea, you must establish statement mad in debate which is recklessness or wilful blindness). o
a guilty mind; you must that the accused had a guilty not intended to be acted upon, This leads to confusion the two
establish mind. You must establish BARD, would not amount to fraud because concepts are not the same, cannot be
BARD that the accused acted that the accused acted with:
with: the accused would have no equated.
Levels of fault from knowledge that the prank would
the intent or purpose (not highest standard to lowest: put the property of those who Generally the accused must know that
motive!) the conditions, which are set out in the
R v Chase The accused was offence, exist before the offence can occur.
to achieve the prohibited Intent/Purpose
charged with sexual assault with The mens rea of wilful blindness can be
result or Knowledge (goes to wilful
his 15 yearold neighbour, he substituted for full knowledge.
Was wilfully blind to result, blindness)
or Recklessness Criminal grabbed her breast. Held The act
Was reckless to result Negligence of sexual assault should be looked R v Currie A guy approached Currie and
(lowest form of SF Note: Recklessness is the at objectively, if the act appears to offered him $5 to cash a cheque for him.
The cheque had a signature of endorsement
***Motive is not a default in statutes that are not be sexual, then it is sexual assault.
on the back [it was forged by the dude who
requirement of MR. clear. As long as the circumstances of gave him the cheque]. Currie took it to the
Clear Language: Look for Intention, ulterior Mens Rea - The the assault objectively infringe the bank, cashed it and gave the cash to the
words accused must have the very sexual integrity of the complainant, dude. Trial judge accepted as evidence the
such as ought, should have, intention required by the relevant then that makes the offence one of accuseds testimony that he had no
negligence, reasonably, provision. sexual assault. The sexual part of suspicion that the cheque did not belong to
wanton and the sexual assault is the actus reus the dude. He was charged and convicted
reckless, good reason, R v Vandergraff V intended to
throw the object, but not to make not mens rea. Factors to be with unlawfully and knowingly uttering a
Silent: if the Code is silent forged document on the basis that he was
contact with the victim. His considered - Part of the body
say in wilfully blind as to the forged nature of the
the past there was a assault was not intended and he touched, the nature of the conduct ,
presumption was not guilty. R v Murray the situation in which it occurred, endorsement. Did accused know that the
endorsement on the cheque was forged?
that all Code offences had a Murray intended to hold the the words and gestures, all other
Held - No. Appeal allowed. Doctrine of
subjective fault element. Stu/ Bernardo tapes, but not for the circumstances (including threats),
Wilful Blindness: Wilful blindness requires
Beaver case support this and intent may also be relevant (i.e.
that accused himself objective features - exists only does it take on a character of a than merely trivial or transitory and usually
deliberately failed to inquire where objectively unjustifiable to marked (and substantial) departure involves an act of deliberate violence.
into his suspicions. The fact take risk accused understood he from the reasonable person? STEP 7C
that a person OUGHT to was taking. The fact that the (Tutton). REGULATORY OFFENCES
have or SHOULD have accused may have felt the risk to R v Creighton Drug user doing drugs Regulatory offences can be full mens rea
inquired does not constitute be justifiable would be no answer.
with victim. Injected cocaine into offences (absolute liability), which are true
knowledge or wilful
blindness. Wilful blindness Recklessness applies where victims arm with her consent. She crimes. However, for a regulatory offence to
requires actual suspicion. R provision creates a consequence stopped breathing and died. C be interpreted as such there needs to be a
v Duong Accused charged doesnt require some more charged with unlawful act clear indication that mens rea is required.
with accessory after the fact limited kind of mens rea. manslaughter offence. Held - Proof of ELEMENT 1 If it is a regulatory offence,
to murder. He allowed an R v Theroux See above. offence - objective foreseeability of there is a rebuttable presumption that you
individual wanted for murder risk of bodily harm - which is neither are dealing with objective fault. The starting
to stay at his apartment. He R v Buzzanga and Durocher Two trivial nor transitory. point is strict liability (Sault Ste. Marie).
heard about the killing francophone men charged with 1) is the actus reus They are presumed to be strict liability
through the media and the wilfully promoting hatred against established - requires negligence offences o offences that can be committed
killer told him he was in an identifiable group. The accused constitute marked departure (test) by simple, non-penal negligence, with the
trouble for murder. Held published an anti-francophone from standards of a reasonable accused bearing the burden of proving an
Knowledge that the accused
brochure in an attempt to provoke person in all the circumstances of the absence of negligence to avoid conviction.
may have committed some
a backlash against case. 2) is the mens rea is ELEMENT 2 Is the presumption rebutted?
general crime is not sufficient.
The crown will meet its antifrancophones. Elements of the established - standard = reasonable Strict liability the accused may raise
burden if the accused had offence: The person must, by (1) person in the circumstances of the defence. Up to the accused to show that
actual knowledge of the communication of statements, (2) accused. Inference may be negated he/she was duly diligent. Burden of proof
offence committed or actual wilfully (3) promote hatred against by evidence raising reasonable doubt lies with the accused. This is presuming
suspicion + with conscious (4) an identifiable group. Held as to the incapacity to appreciate the culpability not innocence.
decision not to make inquiries Wilful in this subsection means risk. Personal factors = not relevant (i) Does the wording in the provision
to confirm suspicion. Here with the intention of promoting (thin skull rule). R v Beatty exclude a defence of due diligence?
the accused just thought hatred and does not include Accused charged with dangerous (s.84.1 HTA)
there was some sort of recklessness. Wilfully intending operation of motor vehicle causing (ii) Does the wording lend to an absolute
connection. Wilful blindness to bring about the proscribed death truck crossed solid highway liability offence by expressly excluding
is sufficient for the knowledge
consequences; not wilfully doing line, collided w oncoming car, killing the possibility of innocence? (R v
requirement in s. 23
accessory after the fact. the act. all. Held SCC mens rea of criminal Chapin)
Generally, wilfully connotes an negligence bases offences - modified (iii) Look at the nature of the penalty (if there
Note: Where the accused intention to bring about a objective test = marked departure is threat of imprisonment, even default
chooses to make no proscribed consequence. from civil norm. A mere departure of a on fine, it cannot be absolute liability)
inquiries, speculation about STEP 7B reasonably prudent person = (SSM/Reference re Motor Vehicle)
what the accused would have OBJECTIVE MENS REA AND threshold for civil negligence; (iv) Look at the intention of Parliament and
learned is irrelevant to the
TRUE CRIMES NOT penal negligence. Mere the content of the rest of the statute.
determination of the
Objective Mens Rea (fault) departure/marked departure Were they silent about DD on one
blameworthiness of that
accuseds state of mind. standard not concerned with distinction = question of degree. The section and not other? If so, maybe they
the accuseds thinking at the actus reus requires proof BARD that, intent Absolute Liability offence.
R v Vinokurov V was in time, but rather evaluating their objectively, the accused was (v) Look to the wording of the statute
possession of stolen goods conduct. Criminal negligence = operating the vehicle in a manner (reckless, wilfully, intent, knowledge) (R
and denied knowing they objective fault = reasonable dangerous to the public. Regard had v Chapin) Strict Liability
were stolen. Does person. to nature, condition, and use of ELEMENT 3 If it is a strict liability
recklessness suffice for
Murder Convictions place car was operated and amount offence, then the burden shifts to the
knowledge? Held No. The
No objective fault for murder - of traffic at time. Momentary lapse of accused to prove on a balance of
offence in question requires
proof that the accused convictions must be based on attention, insufficient to found criminal probabilities:
knows that property had subjective mens rea in the form of culpability. That he acted with reasonable care or due
been obtained from the full-scale intention (constitutional Predicated Offences diligence?
commission of an indictable requirement). Exception to penal negligence That the act was a mistake of fact?
offence. R v Martineau The SCC held requirement - predicated offences. Do not argue ignorance of the law (s. 81
that liability for murder cannot be They are aggravated forms of of Provincial Offences Act says not a
Wilful blindness is imputed
based on any mens rea less than offences that apply when serious Absolute Liability
knowledge, whereas
recklessness is subjective foresight of death. B/c of consequences result, and that include ELEMENT 4 If the presumption was
something less. Where a the stigma and punishment for a within their elements another rebutted the accused has no defence and
statute requires actual murder conviction, the principles of complete but lesser offence, a the Crown must only prove that act BARD
knowledge, wilful fundamental justice requires this. predicate offence. (including causal link and voluntariness).
blindness will suffice because Thus, constructive murder in For predicated offences the Some regulatory offences operate as
it is the equivalent of s.230 and objective liability consequences need not be brought absolute liability offences that will be
actual in s.229 = about by penal negligence. It is committed whenever the relevant actus reus
knowledge, whereas unconstitutional. enough if the accused commits the is proved, provided this is clearly what the
recklessness is not and is Principle = The punishment for underlying or predicated offence, and legislators intended when establishing the
insufficient. murder carries with it the greatest that the aggravated consequence that offence.
punishment and stigma in society has been thereby cause was Subjective Fault
Recklessness = subjective
and should be reserved for those objectively foreseeable. ELEMENT 5 - The burden rest on the Crown
state of mind. Requires the
accused to continue to act, in who intended to cause death or Unlawful act causing harm, to prove BARD that the accused had intent
spite of actually and bodily harm that was likely to unlawful act causing death, (see subjective analysis).
personally foreseeing the risk cause death. aggravated assault. In each case the Cases:
that their actions will bring Penal Negligence - Marked unlawful act is interpreted to require The Emergence of Strict Liability
about the prohibited Departure Test objective foresight of harm R v R v Sault Ste. Marie Charged with
consequences. o Contrast For crimes using objective fault DeSousa Fight broke out at a party, discharging materials into creek and
Negligence which applies if a as the mens rea, penal accused threw bottle at wall and impairing water quality. Independent
reasonable person would negligence (a more restricted form broken glass flew into victims arm. contractor hired to dispose of waste, put it in
have foreseen risk (even if of negligence) is generally Held - The unlawful act must also be landfill next to creek. City said not
accused does not personally required. objectively dangerous - likely to injure responsible b/c contractor built landfill. Issue
see the risk)
Objective fault Does the another person. Reasonable person = was fault requirement. Held Strict liability.
Recklessness is a conduct of the accused go beyond realise act would subject person to Accused entitled to a new trial. The court in
subjective mens rea with a failure to act reasonably and risk of bodily harm. Bodily harm -more considering provincial pollution legislation
held that there are 3 diligence, operated under an To abet includes encouraging, There is no liability for being a passive
categories of offences honest/reasonable mistake of fact. instigating, promoting or spectator of an offence: Dunlop & Sylvester
created by statute R v Cancoil Thermal Factory procuring the crime What constitutes a passive presence:
distinguished as follows: removed guard on machinery b/c to be committed: Greyeyes SCC Presence at the commission of an offence
interfered with clearing scrap. 1997 can be evidence of aiding and abetting if
(1) full mens rea offences
Employee loses tip of finger by MENS REA: in mens rea is accompanied by other factors, such as prior
requiring proof by the accident. Violates safety legislation implied because each offence knowledge of the principal offenders
prosecution of a positive that requires employers to provide must have a intention to commit the offence or
state of mind such as guard from moving parts. Original mens rea requirement attendance for the purpose of
intent, knowledge or guard would have prevented. Issue o There must be intent or encouragement:
recklessness (True was fault requirement regulatory recklessness: Beaver Dunlop & Sylvester
criminal offences) and strict liability b/c includes Common Purpose Rule R v Dunlop and Sylvester - Group attack,
(2) strict liability offences in possible jail time. Good example of Section 21(2) - Where two or more rape, identified the accused, accepted he
which there is no vulnerability justification. Held persons form a common intention to: had only gone to bring beer and only stayed
necessity for the Absolute liability offence, but if so, (i) carry out an unlawful purpose; for a few minutes. Held - Mere presence at
prosecution to prove it would offend s. 7. Should and the event or passive acquiescence is not
mens rea but which leave interpret in a way that does not (ii) to assist each other therein and enough to find someone guilty as aider and
it open to the accused to violate the charter. The court any one of them, in carrying out abetter.
avoid liability by providing considered officially induced error the common purpose, COUNSELING
that he took all as a defence to a provincial (ii) commits an offence, each of them
An accused can be convicted of
reasonable care; and offence. It was held that the who knew or ought to have known
counselling offences, whether or not the
defence is available as a defence that the commission of the
a. Public welfare offences counselled are actually committed.
to a regulatory offence where the offence would be a probable
offences are prima Counseling = encourage before the act.
accused reasonably relied upon consequence of carrying out the
facie in the second Distinguish abetting and counselling
the erroneous legal opinion or common purpose is a party to that
category unless the Abetting = psychological
advice of an official who is offence.
statute includes the encouragement/support at scene of offence
responsible for the administration E.g. common purpose to rob a
words such as or enforcement of the particular bank but not commit murder. If Counseling = not at scene of offence but
wilfully evidencing law. Retrial. murder occurs then other person will encourages before the illegal act
an intent that he Levis (City) v Tetreault An not be liable as outside the common takes place
offence be placed in accused must demonstrate the purpose. Mens Rea Test for s21(2) Section 22 (1) - Where:
the first category. objective reasonableness of the liable if they knew or ought to have (i) a person counsels another person to be a
(3) offences of absolute advice given and the reliance on known commission of the offence was party to an offence; and (ii) that other person
liability where it is not the advice. The issue must be a probable consequence TEST: is afterwards a party to that offence, the
open to the accused to considered from the perspective of ought to have known can assess person who counselled is a party to that
exculpate himself by a reasonable person in a situation fault based on an objective standard offence, notwithstanding that the offence
showing that he was similar to that of the accused. SCC regardless of mens rea for principal was committed in a way different from that
free of fault. recognized the common law offence. which was counselled.
a. Offences in the defence of official induced error of The Extended Counselling Rule
third category law. Ie person ought to have know an (2) Every one:
would be those in EXTENSIONS OF CRIMINAL unintended result was likely. (i) who counsels another person to be a
respect of which the LIABILITY party to an offence is a party to every
legislature has It is not only the person who Exception for offences for which offence that the other commits in
made it clear that actually performs the actus reus subjective mens rea is consequence of the counselling that the
guilt would follow (the principal offender) who can constitutionally required Words person who counselled knew or ought to
proof merely of the be convicted of the offence. or ought to have known are have known was likely to be committed in
proscribed act. AIDING, ABETTING constitutionally inoperative e.g. consequence of the counselling.
Those who aid (physically murder, attempted murder: Logan, NB: exception for offences which
Constitutional support) or abet (encourage) the SCC 1990. constitutionally require subjective mens rea
Considerati accused to commit the offence can as ought to have known is unconstitutional
ons R v Logan - Accused helped plan a
be convicted. i.e. murder , attempted murder (have to
R v Chapin Duck hunting & robbery (but wasnt there) - someone
Persons who aid and abet an show actual intention)
charged with baiting area. was shot and almost killed. The
offence can be convicted of (3) Counselling, defined to include procure,
Held - Court said not offences they did not intended to accused is charged (as a party) with solicit or incite.
reasonable to make her aid or abet provided that offence attempted murder for the robbery and Mens Rea for Counselling
check whole area for bait. is a foreseeable outcome of the injuring of the store cashier. Appealed
on the issue of mens rea for Mens rea requirement is intention or
First, determined if regulatory offence they did intend to aid or recklessness. Hamilton (selling ways of
offence. If yes, presume strict abet. attempted murder - the
constitutionality of objective standard doing credit card fraud over the internet) 6-3
liability, unless wording says Section 21(1) Every one is a majority held that recklessness was
something else (ie. wilfully, party to an imposed in s. 21(2) common
interest doctrine. Held - Parliament sufficient as he was aware of the risk that
intentionally, etc) or if high offence who someone may use his programs for fraud
penalty (ie. jail time). Charter (a) Actually commits it; allowed to have different fault levels
even though his intention was not to
standards. (b) Does or omits to do anything for principals and parties, but if counsel.
for the purpose of aiding any offence has constitutionally required R v Hamilton - Sent out teaser email
Reference re Section 94(2) of person to commit it; or To minimum fault level, then cant be
the Motor Vehicle Act (B.C.) advertising machine to generate credit card
aid under s. 21(1)(b) means to convicted as party w/o meeting that
Driving minimum. numbers; charged w/counselling fraud. Trial
assist or help the actor e.g.
judge acquitted b/c motivation monetary
while license suspended = drive person to offence:
Two step process: figure out if there is rather than malicious, but didnt discuss
absolute liability offence & Greyeyes omits = things
mens rea so new trial. Dissent said
penalty = mandatory prison that make it easier to commit a constitutionally required minimum
the offence. E.g. leaving a and, if not then s.21(2) is fine and if recklessness not enough for mens rea. Held
time. Held Not saved here. yes, then make sure that minimum - Mens rea required for counselling -
No record of law offending s. back door open to make is
easier to get into premises met too. recklessness or wilful blindness. Actus reus
7 and being saved under s.1 = actively encouraging crime (if its socially
to date. Offence with MENS REA: In (b) mens rea is 1) Attempted murder requires
expressed as for the purpose harmful to do it, then its just as socially
possibility of jail time cannot subjective mens rea. harmful to counsel someone else to do it).
be absolute liability under s. 7 of o for the purpose of 2) S. 21(2) is unconstitutional with
means with intent to as per Mens rea = intending offence to be
of Charter, it offends the respect to the objective part, committed or knowing it will likely be
principles of fundamental Hibbert 1995 o Therefore can when it is tied to a crime that
apply to the commercial aider committed (can be intent or recklessness,
justice. Possible for someone constitutionally requires maybe wilful blindness).
without fault, to be thrown in e.g. if gun seller knows you are
subjective Counselling offence that is NOT committed:
jail, offends s. 7. The accused going to use gun to commit a
mens rea (murder, attempted murder, Section 464 Except where otherwise
opportunity to defend by crime he will be liable as he
war crimes, crimes with expressly provided by law, the following
demonstrating that they were sold to accused with intent to
stigma infer subjective mens rea; provisions apply in respect of persons who
without fault - exercised due aid in a crime
therefore no ought). counsel other person to commit offences,
(c) Abets any person in
committing it. Passive Spectator namely:
(a)every one who counsels Other indictable offences, liable R v Dery Police overheard the Section 16 of the Criminal Code modifies
another person to commit for fully indictable penalty. accused attempting to conspire to the common law defence of insanity.
an indictable (d) Conspires to commit summary commit To have access to this defence, the
offence is, if the offence is not offence, liable for full summary possession of stolen liquor. Held - accused must establish that he has a
committed, guilty of an penalty. Attempting to conspire to commit an mental disorder as defined by the case law
indictable offence There is liability for attempting to offence is not a crime in Canada. This
and that it affected him in one or both of the
and liable to the same commit an offence. case exposes the limits of
punishment to which a Section 660 Where the piggybacking ways described in section 16(1).
person who attempts to completed commission of an incomplete forms of liability. Section 16 (1) No person is criminally
commit that offence is liable, offence charged is not proved, but Attempting to conspire to commit a responsible for an act committed or an
and the evidence establishes an substantive offence is not a crime in omission made while suffering from a mental
(b) every one who counsels attempt to commit the offence, the Canadian law. disorder that rendered the person incapable
another person to commit accused may be convicted of the CORPORATE AND ASSOCIATION of appreciating the nature and quality of the
an offence attempt. LIABILITY act or omission or of knowing that it was
punishable on summary Mens Rea for Attempts Corporations are liable for the acts wrong .
conviction is, if the offence is R v Ancio Husband went to of their agents for strict and absolute (2) Every person is presumed not to suffer
not committed, guilty of an estranged wifes boyfriends place liability offences. from a mental disorder, until proved on a
offence punishable on with gun, they struggled and gun These offences turn on actus reus balance of probabilities.
summary conviction. went off (not clear if accident). alone no need to use any legal
(3) The burden of proof, that accused
ATTEMPTS Issue was mens rea for attempted devices to ascribe mens rea to the
Not all crimes need to be murder. Held The level of intent corporation. The Criminal Code suffered mental disorder and should be
completed before an offence should the same as for attempted corporate liability provisions do not exempt from criminal responsibility, is on the
arises. murder or murder. Mens rea of apply to regulatory offences. party raising the issue.
Section 24 (1) Every one attempt = mens rea of fully crime. For true crimes the Criminal Code Definition of Mental Disorder
who, having an intent to Mens rea for attempted murder sets out standards for corporate and R v Cooper The accused strangled
commit an offence, does or requires proof of the specific intent association liability. someone to death. The accused argues that
omits to do anything for the to kill. No lesser mens rea will Section 22.1 In respect of an he blacked out for the last part of the
purpose of carrying out the suffice. The Crown must prove offence that strangulation and at the time did not have
intention is guilty of an intent to commit the offence in requires the the necessary mens rea (for murder offence
attempt to commit the offence question (mens rea) and that some prosecution to mens rea is knowing that the victim is likely
whether or not it was possible steps had been taken towards the prove negligence, an organization is
to die). Held Mens rea at the beginning
under the circumstances to commission of the offence going party to the offence if,
commit the offence; (2) The o the act carries throughout the whole
beyond mere acts of preparation (a) acting within the scope of their
question whether an act or (actus reus). act. The term disease of the mind = any
omission by a person who Mere Preparation vs. Attempt illness, disorder or abnormal condition
(i) one of its representatives is a party
has an intent to commit an R v Deustch The accused was which impairs the human mind and its
to the once, or
offence is or is not mere charged with attempting to procure (ii) Two or more of its representatives functioning, excluding, however, self-
preparation to commit the women to have sex with another engage in conduct, whereby the act induced states caused by alcohol or drugs,
offence, and too remote to person [now s.212(1)(a)]. He or omission, such that, if it had been as well as transitory mental states such as
constitute an attempt to placed an ad in the newspaper and the conduct of only one hysteria or concussion. Personality
commit the offence, is a interviewed the women explaining representative, that representative disorders may constitute disease of the
question of law. that it would be their job to haves would have been a party to the mind. This case provides a definition of
The Discrete Offence of sex with clients. Held - No offence; and (b) the senior officer who mental disorder, although it has been
Counselling satisfactory general criteria can be is responsible for the aspect of the
modified by R v Park.
Section 463 Attempts, formulated to determine the organizations activities that is
accessories. difference between mere R v Parks - Husband kills in laws in
relevant to the offence departs or sleep. Held - Multi-factor
Persons who attempt to preparation and an attempt. The the senior officers, collectively, depart
commit or are accessories distinction between preparation policy test
markedly from the standard of care,
after the fact to the and attempt is essentially a in the circumstances, could The court said there is no single
commission of offences: qualitative one, involving the reasonably be expected to prevent a
(a) If indictable offence test. We will look at and consider
relationship between the nature representative of the organization
carrying liability to life, and and quality of the act in question from being a party to the offence. everything to determine if there is a
convicted, liable to 14 years. and the nature of the complete Mental Disorder. SCC acknowledged
(b) If indictable offence offence, Last stage test: if theres Applies to objective fault or that there were two distinct approaches
carrying liability to 14 years nothing else you can do to carry negligence offences where an to the disease of the mind inquiry: (i)
or less, and convicted, liable out the prohibited consequence, association is charged. the continuing danger and (ii) internal
to maximum penalty for thats got to be enough to Section 22.2 In respect of an cause theories. Concluded: that both
completed offence. constitute an attempt. offence that requires the prosecution theories stemmed from a common
/(d) If summary offence and It is a question of law for the to prove fault other than negligence concern for public safety and that both
convicted, liability to full judge to decide if the actions of an organization is a party to the approaches are merely analytical aids
penalty for summary the accused were beyond mere offence if, with the intent at least in in deciding which defence should be
conviction offence. preparation: 24(2) part to benefit the organization, one of
available as a matter of policy.
The offence of conspiracy in The court has accepted a Multi- its senior officers, (a) acting within the
which the agreement to factor Approach : There is no scope of their authority, is a party to Appreciates
commit a crime is a crime single determinative test. The court the offence; R v Cooper The word appreciates
Section 465 (1) In respect should consider everything and requires beyond mere knowledge of the
of conspiracy: determine if there has been an (b) having the mental state required to physical quality of the act and requires a
(a) Conspires to commit attempt (judgment call on the be a party to the offence and acting capacity to apprehend the nature of the act
murder or cause another to facts). Factors to take into account: within the scope of their authority, and its consequences.
commit murder, guilty of time, location and acts under the directs the work of other Wrong
indictable offence, liable to control of the accused remaining to representatives of the organization so R v Oommen O had paranoid delusion
life imprisonment. be accomplished: Deutsch Also that they do not act or make omission that a killing is necessary in selfdefence b/c
(b) Conspires to prosecute consider if it was the accused last specified in the offence, or knowing he thought someone was after him and he
person for offence they did step or if he was on the job or in that a representative of the
organization is or is about to be a kill them. Held - Issue not whether the
not commit, guilty of proximity to the location and
indictable offence and liable: party to the offence, does not take all accused had a general capacity to know
completion of the offence; has
(i) If offence carries liability there been a substantial step from reasonable measures to stop them right from wrong, but rather the ability to
for life or term not exceeding the commencement of the act. from being a party to the offence. know that a particular act was wrong in the
14 years, liable for 10 years. Attempting to Conspire to Applies to subjective mens rea circumstances and hence to make a rational
(ii) If offence carries liability Commit offences charged against an choice of whether to do it or not . Accused
for less than 14 years, liable Substantive association. not criminally responsible when delusional
for 5 years. Offence SELECT CRIMINAL DEFENCES and perceives a wrong act as right or
MENTAL DISORDER justifiable, and b/c of the disordered
condition of his mind he is unable to
rationally evaluate his R v Swaby S charged with (1) Evidentiary burden Trial drunk and did not realized what he had done
actions. Unnecessary to operating a motor vehicle judge to determine if until it was over. Sexual assault is a general
show that, if the delusions while having knowledge that evidence intent offence can accused raise
another occupant is in convincing for automatism intoxication as a defence? Held - The SCC
were true, a specific defence
held by a 4-3 majority that the
such as self-defence would possession of an illegal firearm. defence (great deal of
general/specific distinction is upheld. Sexual
also apply. S stopped car, passenger bolted. persuasiveness) before the jury assault is a general intent crime for which
Sociopathic or He found out of gun after arrest. can hear it; intoxication due to voluntary consumption is
Psychopathi Held trial judge erred in jury (2) Trial judge decide accuseds not a defence; voluntary drunkenness may
c Offenders direction. Court held, without condition mental disorder or be a substitute for fault element in crimes of
R v Kjeldsen Personality voluntariness there was no actus non-mental disorder automatism; general intent. The evidence of intoxication
disorders or psychopathic reus to be punished. If accused (3) Burden on accused to prove can only go to the Trier of fact in general
personalities capable of only acquired knowledge at the involuntariness b/c of intent offences if there is evidence that the
automatism (BOP); intoxication is so extreme that it is akin to
constituting disease of the point when the passenger was
automatism. HELD: that the accused was
mind. However, the defence exiting the vehicle then an acquittal (4) Expert evidence must confirm morally at fault as he voluntarily got drunk
of insanity is not made out should be entered. involuntariness; and is therefore responsible for his actions
where the accused has the Non-Insane Automatism (5) Judge to consider whether as a result of that decision. The accused is
necessary understanding of Defence condition satisfied the legal not morally innocent and is, indeed,
the nature, character and R v Parks While sleepwalking, test criminally blameworthy.
consequences of the act, but drove across town and attacked in- for disease of the mind Jury instructions on intoxication and
merely lacks appropriate laws (killed mother, injured father). consider (i) internal cause, (ii) intent
feelings for the victim or lacks Hed been under stress and wasnt continuing danger; R v Robinson Robinson killed a man but
claimed to have acted w/o intent
feeling of remorse or guilt for sleeping well. Issue was distinction (6) Involuntariness caused by
b/c he was intoxicated. After having been
what he has done, even between insane and non-insane any less severe shock or
instructed on provocation, selfdefence
though such lack of feeling automatism b/c asleep the whole mere and intoxication, the jury found him guilty of
stems from disease of the time. Held sleepwalking not a stress is presumed to be second-degree
mind. disease of the mind, it is a form of triggered by a factor internal murder. The instructions to the jury as to the
VOLUNTARY ACTS non-insane automatism. Since to the defence of intoxication were
NEGATIVING succeed with defence entitled accused and thus a disease of the erroneous. Held - Rule: before the trial judge
THE ACTUS accused to acquittal. Automatism mind; puts forward
REUS AND goes to actus reus (voluntariness). (7) Jury decides if non-insane intoxication to the jury, he or she must be
satisfied that the effect
AUTOMATISM The SCC acknowledged that there automatism applies. Succeeds only
of the intoxication was such that the effect
Automatism is divided into were two distinct approaches if proven on BOP thats shifting might have impaired
the burden on the defence.
two categories: to the the accused foresight of consequences
Unless there is a clear external cause
o (1) insane (or mental disease of the mind inquiry: (i) the (trigger equivalent to a sufficient to raise a
disorder) automatism If continuing danger and (ii) shock) as per the evidence, a claim reasonable doubt. Once this is done, then
this defence applies, the internal of automatism will be the issue for the jury is
court is really applying cause theories. Internal cause categorised as a mental disorder whether the Crown has satisfied beyond a
mental disorder defence b/c (contra Rabey) and not related under s.16. reasonable doubt that the accused has the
the accused person who is to a mental Persuasive Burden requisite intent. Proof of capacity to have the
mens rea is not constitutional. It needs to be
automatistic because of a disease. His poor sleep hygiene R v Fontaine Paranoid, on drugs,
about whether you had the actual mens rea
disease of the mind cannot was a result of a stressful time shot and killed someone. Trial judge for the offence. Just because someone had
said no basis for automatism despite
appreciate the nature and of life, the capacity to form the intent does not
expert testimony of disease of the
quality of his act or have the and with the right changes the mind, so new trial. Held Trial judge mean that they actually did form that intent.
capacity to understand that automatistic episode would erred. In determining whether an This is especially true if its an essential
the act is wrong. If not never happen accused has met the evidential element of the offence. THEREFORE, issue
criminally responsible, again. Reaffirms that jury decides burden necessary to leave the issue when determining intoxication is intent, not
committed to institution. o (2) whether suffering condition @ with the jury, the trial judge must capacity.
non-insane (non-mental time of assume the truth of the evidence that EXTREME INTOXICATION
tends to support the defence and Extreme intoxication is distinct from the
disorder) automatism If act @ judge decides whether
leave questions of reliability, credibility simple intoxication defence. Where
this defence applies, a condition is a disease of the extreme intoxication applies, it can operates
and weight to be determined by the
complete acquittal is mind (not as a defence to any offence, whether
jury. Automatism should generally be
appropriate. bound to follow psychiatrists). put to jury where asserted and theres specific intent or general intent.
Definition Internal/external cause, some corroborating evidence. The The theory behind the defence is that a
A state of impaired distinction jury decides whether persuasive person can become intoxicated enough that
consciousness (not insignificant b/c both negate the burden discharged. his mind may cease to operate sufficiently to
unconsciousness) where an MR. The real matter is: is the Some of the excessive language of make conscious choices relating to his
individual has no voluntary automatism related to a disease of Stone was qualified by the Court. actions.
SIMPLE INTOXICATION Parliaments response to Daviault
control over their action. the mind or not?
eradicate defence in sexua l
Voluntariness is the key The result of this decision was Intoxication NOT a justification or offence and violence cases
excuse for criminal conduct.
element of automatistic controversial enough that the SCC Section 33.1 (1) It is not a defence to an
The law of simple intoxication
behavior since a defence of took procedural steps to cut the operates as way of limiting cases offence referred to in subsection (3) that the
automatism amounts to a defence back in R v Stone (it is not where the judge or jury can factor accused, by reason of self-induced
denial of the voluntariness clearly an external cause, then it intoxication into mens rea intoxication, lacked the general intent or the
component of the actus reus : will be considered mental disorder determinations. voluntariness required to commit the
Stone Automatism operates as under s.16, unless evidence to General Intent It is assumed offence, where the accused departed
where there appears to be the contrary). that the accused was not intoxicated, markedly from the standard of care as
described in ss(2). NB: legislation
some disconnect between R v Stone Argument with wife. even if he was, when determining if
the accused had the relevant mens maintains specific/general intent distinction.
the actions of the accused She attacked him with verbal Cant use evidence of intoxication for
rea. Specific Intent - The defence
and his conscious will. The insults. He blacked out, lost general intent offences when intoxication is
applies if intoxication prevents
accuseds physical motions consciousness. He woke up and formation of the specific intent self induced. Can only use evidence if
were not culpable where they she was stabbed 47 times. required by the relevant offence. intoxication for specific intent offences.
are not voluntary or thought- Claimed non-insane automatism. Common Law Rule - NB: Intoxication must have been self-
directed or conscious. Trial judge said mental General/Specific induced for s33.1 to have effect. (2) A
To satisfy actus reus disorder Intent person departs markedly from the standard
requirement, acts have to be automatism. Held No. Guilty. R v Bernard The accused was on of reasonable care generally recognized in
Canadian society and is thereby criminally at
willed (voluntary). The SCC decided to clarify the law, trial for sexual assault causing bodily
harm. Accused forced complainant to fault where the person, while in a state of
Voluntariness by these points: self-induced intoxication that renders the
have sex which he did b/c he was too
person unaware of, or assaulted and who causes death provocation by blows, words or NECESSITY
incapable of consciously or grievous bodily harm in repelling gestures. The defence of necessity permits the
controlling, their behaviour, the assault is justified if: Preventing Assault conduct of the accused to be excused where
voluntarily or involuntarily (a) he causes it under reasonable Section 37(1) Every one is justified in its elements are met. The defence is heavily
interferes or threatens to apprehension of death or grievous using force to defend himself or any circumscribed. R v Latimer Euthanized
interfere with the bodily bodily harm from the violence with one under his protection from assault, daughter, who had cerebral palsy; claimed
integrity of another person. which the assault was originally if he uses no more force than is defence of necessity. Held - There are three
(3) Section applies to an made or with which the assailant necessary to prevent the assault or elements to the defence of necessity:
offence that includes as an pursues his purposes; and (b) he repetition of it. (1) imminent peril or danger Ongoing pain
element an assault or any believes, on reasonable grounds, (2) Nothing in this section shall be did not constitute emergency.
other interference or threat of that he cannot otherwise preserve deemed to justify the wilful infliction of (2) the absence of a reasonable legal
interference by a person with himself from death or grievous any hurt or mischief that is excessive, alternative He could have struggled on.
the bodily integrity of another bodily harm. having regard to the nature of the (3) proportionality between the harm inflicted
person. **Applies whether or not the assault that the force used was and the harm to be avoided
Extreme Intoxication accused provoked the assault intended to prevent. Harm inflicted (death) was immeasurably
Defence to General Intent being ** Operates as a general defence more serious than the pain resulting from
Offence R v Daviault defended against and intends to that is broad Tracys operation which Mr. Latimer sought
Chronic alcoholic raped a cause death or grievous bodily enough to subsume to avoid. The first two elements must be
woman in a wheelchair, was harm** the other defences. Courts tend not to evaluated on a modified objective standard
seriously hammered. Didnt R v Pintar Courts should use it if any of the other that involves an objective evaluation that
remember until he woke up consider which self-defence provisions apply ** takes into account the situation and
naked in his bed. The provisions apply and only instruct Subjective and Objective characteristics of the particular accused
extreme intoxication defence on those. Where a wider defence Components Air of Reality person. The proportionality requirements
was created in this case is available, instruct on that one. TEST must be assessed on an objective standard.
under the influence of the Section 34(2) is broader in scope R v Cinous Accused shot There must be an Air of Reality - The
Charter. Can a state of than 34(1). Section 34(2) applies confederates, who he believed evidentiary burden lies on accused and
drunkenness be so extreme even if accused provoked assault intended to kill him . Held - A single air judge can withdraw defence from jury if no
that is constitutes a basis for and cases involving (intentional) of reality test applies to all defences . air of reality.
defending a crime which death or GBH. No proportionate The question remains whether there DURESS
requires general intent? Held force requirement. S. 34(2) is (1) evidence (2) upon which a The defence of duress is available under
The SCC recognized that if question - whether the accused properly instructed jury acting the Code and at common law.
extreme intoxication were to reasonably believed that he could reasonably could acquit if it believed Statute - Compulsion by threats
occur the Charter would not otherwise preserve himself the evidence to be true. Section 17 A person who commits an
require an acquittal since from death or GBH. Available for No special test for sexual offences. In offence under compulsion by threats
voluntariness is a principle of murder charges whether intended applying test, trial judge considers of immediate death or bodily harm from a
fundamental justice and the to kill or cause GBH or not; totality of the evidence, assuming person who is present when the
relevant mens rea would be generally use s.34(2) for murder. evidence from the accused is true. offence is committed
absent. Thus, self-induced Self-defence in Case of For the defence to succeed under o [immediate & present held to be
intoxication can be a defence Aggression section 34 there must be: (1) the unconstitutional]
to a general intent offence, Section 35 Every one who has existence of an unlawful assault; (2) a is excused for committing the offence if
including sexual assault. without justification assaulted reasonable apprehension of a risk of the person believes that the threats will be
Extreme drunkenness another but death or GBH; and (3) a reasonable carried out and if the person is not a party
inducing a state akin to did not commence the assault with belief that it is not possible to to a conspiracy or association whereby the
insanity or automatism is a intent to cause death or preserve oneself from harm except by person is subject to compulsion o [not part
defence to a general intent grievous bodily killing the adversary. of the group that makes you do act i.e. if part
offence. However, the burden harm, or has without justification Each element has both a subjective of mafia and mafia makes you do something
is on the accused to prove provoked an assault on himself and objective component. The you cannot claim the defence]
the defence on a balance of by accuseds perception of the situation but this section does not apply where the
probabilities and the another, may justify the use of is the subjective. With respect to each offence committed is: high treason or
accuseds testimony would force subsequent to the of the three elements, the approach is treason, murder, piracy, attempted murder,
have to be supported by assault if first to inquire about the subjective sexual assault, sexual assault with a
expert evidence. (a) he uses the force perceptions of the accused, and then weapon, threats to a third party or causing
Note: B/c of the enactment of (i) under reasonable apprehension to ask whether those perceptions bodily harm, aggravated sexual assault,
s.33.1 , this ratio only applies of death or grievous bodily harm were objectively reasonable in the forcible abduction, hostage taking, robbery,
to certain general intent from the violence of the person circumstances. Here, there was no air assault with a weapon or causing bodily
offences, and no longer whom he has assaulted or of reality to the defence - No evidence harm, aggravated assault, unlawfully
sexual assault. provoked, and (ii) in the belief, on that the accused reasonably believed causing bodily harm, arson or an offence
DEFENCE OF THE reasonable grounds, that it is that his own safety and survival under sections 280 to 283 (abduction and
PERSON necessary in order to preserve depend on killing the victim at the detention of young persons.
Four statutory defences of himself form death or GBH; moment. Elements:
self-defence. (b) he did not, at any time before Battered Women Context (1) Immediacy Requirement immediate
Apply where the accused is the necessity of preserving himself R v Lavallee Abusive partner. One threat of death/bodily harm (2) Presence
being unlawfully assaulted, or from death or grievous bodily harm night, he threatened her and she shot Requirement person threatening you must
reasonably believes he is arose, endeavour to cause death him as he was leaving room. Held be there (3) Belief Requirement the
about to be unlawfully or grievous bodily harm; and he Imminent requirement in s. 34(2) accused must believe that the threat will be
assaulted, but each of the declined further conflict and quitted assumed assault must be in progress. carried out (subjective)
four separate offences has its or retreated from it as far as it was However, in battered women context (4) Compulsion Requirement - Not a party to
own additional requirements feasible to do so before the the issue is whether she reasonably conspire or associate (5) Exclusions some
that must be satisfied. necessity of preserving himself apprehended death or GBH, on the offences excluded This section identifies a
Self-defence against from death or grievous bodily harm occasion in question, from a threat by limited defence, but the CL and Charter
Unprovoked arose. the deceased to kill the accused at have been used to extend its application.
Assault ** Applies where the accused some later time. Expert evidence may Common Law
Section 34(1) Every one who provoked the assault, but this be used in battered women context R v Hibbert - The accused gets his friend to
is unlawfully assaulted defence show reasonable apprehension. come down to the lobby, where
without having provoked the has lost much of its relevance Modified objective standard: the another person shoots him. He did it out of
assault is justified in repelling given that section 34(2), which standard is what the accused fear for his own life. At his trial for
force by force if: is less reasonably perceived, given her attempted murder, the accused relied on the
the force he uses is not restrictive than section 35, can be situation and experience. defence of duress. His argues
intended to cause death or used where assaults are Evidence of BWS relevant to that he did not have the mens rea for this
grievous bodily harm and is provoked. The concept of determining (Lavallee): offence. He did not intend to aid
no more than is necessary to provocation is defined for the (i) Whether the apprehension was and abet. He also does not have the mens
enable him to defend himself. purposes of reasonable rea because he did not form a
** Applies whether or not self-defence in section 36 ** (ii) Whether there were reasonable common unlawful purpose to kill his friend.
death or grievous bodily harm Provocation grounds for a belief in the Held - CL defence of duress
is caused** Section 34(2) Section 36 Provocation includes, necessity of available to a party to an offence such as
Every one who is unlawfully for the purposes of ss. 34 and 35, killing: learned helplessness murder or robbery. CL defence of
duress similar to the defence commits an offence); CL applies Refusal by a justice does not attorney general. Private prosecutions
of necessity - can only be to secondary parties. prevent the informant from seeking a now tend to occur only when the attorney
invoked Statute threat could be against summons or warrant from a different general or her agent has refused to lay
where there is no legal way 3rd party, doesnt have to be justice based on the information. charges.
out of the situation of against actual person under The Charging Document A private prosecutor may appear
duress the duress; CL no restrictions to When an accused is tried by a personally or be represented by counsel.
accused faces. Defence person who commits offence. provincial court judge that information In all cases, indictable or summary, the
unavailable if safe avenue of Statute subjective test; CL is the relevant document. Whereas attorney general may intervene in a private
escape was available to the objective test when the accused is not tired by a prosecution for the purposes of assuming
accused. Existence of safe THE CRIMINAL CHARGE provincial court judge, an indictment the carriage of the prosecution or for the
avenue of escape = objective LAYING THE CHARGE is prepared (Section 566(1)). purposes of entering a stay of proceedings.
standard. What you have to The time when an information is Section 577 Criminal Code allows o With respect to indictable offences, this
show is that compliance with laid before a justice is the point at for direct indictments, which permit power is recognized expressly in section
the law is demonstrably which some person passes from the prosecutor to prefer an indictment 579 of the Criminal Code. o Section 579.1
impossible. being a suspect to being an when the accused has not been given Criminal Code- gives power to the Attorney
Modified objective test: if accused. The focus from this the opportunity to request a General of Canada with respect to private
reasonable person in same point on is to prove the guilt of the preliminary inquiry, the preliminary prosecutions concerning federal offences
circumstances would have person. inquiry has been commenced but not outside the Criminal Code in which no
thought there was another The process of laying the charge concluded, or the accused was provincial attorney general has intervened.
way out, then defence does consists of both a ministerial and a discharged following the preliminary o With respect to summary conviction
not apply. In considering judicial function. inquiry. offences, the definition of prosecutor refers
reasonable person - personal Section 504 Criminal Code The This power also applies where a to instances in which the attorney general
circumstances of the accused justice will receive the information. committal for trial has been quashed, has not intervened. o It is arguable that
are relevant should be Indictable offences are charged or where a trial judge has specifically express provision is not necessary because
considered. when an information is sworn, declined to order an accused to stand the power of the attorney general to
Common law defence of received and approved by a trial on a charge not laid but disclosed intervene is well established at common law.
duress: judicial officer in accordance with in the evidence at the preliminary trial. The Criminal Code includes procedural
1) Imminent, not immediate this section. This section states As it is a special power, in effect steps that must be observed at the
threat. some elementary requirements overriding procedures the accused commencement of a private prosecution. o
2) No safe avenue of escape that must be met before a justice would otherwise be entitled to benefit Section 507.1 requires that any information
(Hibbert) may receive and consider from, a Crown prosecutor can only laid under section 504 by a private informant
3) Proportionality same as information. prefer a direct indictment with the must be referred to a judge of the provincial
seen in the defence of An information must be in writing personal consent in writing of the court. There are several provisions of the
necessity (Laitmer) and under oath, and it must allege Attorney General. Code that allow for a privately laid
Charter Standard of Moral the commission of an offence by Jurisdiction information to be received and, if endorsed,
Involuntarin an identifiable person. Almost all criminal cases in Canada to lead to the issuance of an order for the
ess It must also contain allegations are public prosecutions conducted by respondent to be bound over. o Section
R v Ruzic A woman was that affirm the territorial jurisdiction agents of the attorney general. 810.
given heroin and was told to of the justice before whom it is laid. However, anyone may commence Territorial Jurisdiction
take it to Canada and The informant must declare in a prosecution by laying an As a general rule, a person can only be
threatened that if she did not the information that he has Public Prosecutions held liable under Canadian criminal law for
then they kill her mother who reasonable grounds to believe that The attorney general is the an offence that he commits within Canadian
was in Belgrade. She is an offence has been committed. principal law officer of the Crown, territorial limits. Section 6(2) Criminal Code
caught and charged with Part XXVII Criminal Code which means that he or she is the The principle of limitation is based upon
importing drugs. She pleads Procedure for offences prosecuted chief barrister and solicitor for the the historical rationale that a violation of the
duress defence. by summary conviction, the same government. Prosecutions are criminal law is a violation of the sovereigns
She challenged the as section 504. almost never conducted personally by peace. Accordingly, the scope of the criminal
constitutionality of s.17 Section 506 Criminal Code the attorney general, but by persons law is normally coextensive with the
under s.7 of the Charter. Provides that the information may who are legally authorized to act in territorial sovereignty of the state.
Held - be laid in the manner set out in Section 2 Criminal Code specifies This general principle is subject to
An accused principle offender Form 2. It is prudent that the that the attorney general may be exceptions. o For example, an offence
may rely upon the CL information is laid in this manner. represented by his deputy. committed abroad but has a real and
defence of duress (see Section 507 Criminal Code the prosecutor in section 2 includes substantial connection to Canada, it falls
Hibbert). Moral judge has the ability to take counsel appearing for the attorney within the class of offences committed in
involuntariness is a discretionary and judicial action. general with regard to indictable Canada (Libman v The Queen). o There are
principle of fundamental Private prosecution = The offences. provisions which explicitly create exceptions
justice informant is not a peace officer or With regard to summary conviction giving Canadian courts jurisdiction over
protected by section 7 of the an agent of the attorney general. o matters, the definition of prosecutor in offences committed outside Canadian
Charter. Cant convict The Code provides that the section 785 allows prosecution by the territorial limits. These provisions reflect
someone whos attorney general may intervene in attorney general, counsel appearing obligation or agreements contracted by
behaviour is morally any private prosecution that has for him, or an agent. In some Canada in treaties with other states.
involuntary and the been commenced, either to circumstances, a summary conviction As a generalisation it is safe to say that
technical requirements assume carriage of it or to stop it prosecution may also be conducted the Charter is unlikely to have much
(immediacy and present by means of a stay of proceedings by a peace officer. influence on investigative techniques
requirements) are (sections 579.01 and 579.1). Parliament occasionally imposes a employed abroad. o The Charter was found
inconsistent with this Section 507 Criminal Code Once requirement that the attorney general to apply in R v Cook, where two Canadian
principle of moral the information has been received consent to the prosecution of some police officers went tot the US and
voluntariness. There can be under section 504, the justice who offences. This requirement is found in interrogated an accused after having given
situations where you have a receives the information must section 2 of the Code, or in the him a s.10(b) warning that was clearly
threat of future harm made by consider the substance of the provision that creates the offence, deficient. (HOWEVER) o The SCC
someone who is not present informants allegations. and it is a condition that must be met concluded in R v Harpe that the approach to
when you commit the The justice must decide whether before a prosecution may be extraterritorial application of Charter in Cook
offence, which can still lead to endorse it. commenced consent usually Not all offences are committed in a single
to behaviour that is morally The Code does not state required in relation to offences that place. As a result, there can be jurisdiction in
involuntary. explicitly the standard that the are highly sensitive to the public, or more than one country, more than one
Thus, the SCC found that the justice must apply in this decision, consideration of the public interest is province or territory, or more than one
immediate and presence but it is clear that the justice must required. judicial district within a province or territory.
requirements of s.17 violate personally consider and agree that Private Prosecutions o A prosecution may be conducted in any
s.7. Struck down as there are reasonable grounds to Any person may commence a province or territory in which an element of
unconstitutional. believe that an offence was criminal prosecution by swearing an the alleged offence occurred thus allowing
Duress Statute vs. committed by the person being information before a competent for concurrent jurisdiction; so long as some
Common charged (R v Jeffrey). judicial authority. part of the actus reus of the offence
Law If the justice is satisfied, they will A private prosecutor is any occurred in that district. o For example, R v
Statute applies only to sign the information. Thus, the prosecutor under the Code who is not Bigelow, the court noted that offences could
principals (a person who charge is formally laid and an agent of the attorney general. have elements that mean they were
prosecution begins. They prosecute in the place of the committed in more than one province. The
commission of the overt act indictment. o Restrictions Any R v Hanna Accused charged with Insufficient Charges
of boarding a plane with the charge cannot be joined with theft of gravel of NSPC. Only Often the requirement in s. 581 that a
child in Ontario, that this act murder (s. 589) exception, if evidence of ownership showed gravel count must contain sufficient detail to give
was part of a pre-planned offence arises out of the same owned by Power Corp. Held no the accused reasonable information and to
scheme, and that the mother transaction or accused consent to
possibility that the accused could fail identify the transaction. Test The
was deprived of her custody the joinder.
rights in Ontario because of Section 591(3) criteria to join to identify the event that gave rise to indictment must lift the charge from the
this act, was sufficient to give counts. Judge can order an the charged. Vezina accused general to the particular (R v Brodie).
Ontario courts jurisdiction. indictment to be severed in order charged with fraud, information An accused must be reasonably informed
The Code provides that to send some counts or some co- specified Bank of Montreal victim. of the charge (Cote). Meaning of
people alleged to have accused to a separate trial. Crown unable to prove Bank suffered insufficiency an error egregious enough
committed an offence have Onus on the accused, on BOP, to loss. Held Information would have that the charge must be quashed (Moore).
fled the jurisdiction, may be show separate trials should be been valid without specifying victim. An information will not be held to be a
transferred to the judicial held (R v Cross). Thus, Crowns inability to prove was nullity if the information specifies the time,
district in which the offence is Application to sever may occur mere surplusage. (NO NEED TO place, victim and the offence. Even if the not
alleged to have been later in trial, however some
committed (section 543). PROVE BMO FACED LOSSES, precisely stated (ie. exact time).
prejudice must arise that was not STILL FRAUD)
A court may accept a guilty R v B.(G.) No 2 - The date of the offence
present at the beginning (R v
plea from an accused of an If a detail is to be considered is not generally an essential element of the
offence committed in another surplsuage depends whether the offence of sexual assault. It is a crim no
jurisdiction and impose Joinder and Severance of accuseds defence will be prejudiced matter when it is committed.
sentence, provided the Accused Saunders one accused took A count can be struck down on the basis
attorney general consent Can sever multiple accused form stand, testified had conspired to that it does not disclose an offence known to
(section 478(3)). the same indictment and hold import narcotics, but not in this law (Regina v Fremeau).
A trial that is scheduled separate trials. particular heroin instance. Held Not Duplicitous Charges
within the judicial district of General Rule accused who are holding the Crown to proof of the
the alleged offence may be A duplicitous count is one that charges the
alleged to have committed a crime particular narcotic alleged would have
moved to another district accused with committing two different
together should be tried together. been prejudicial; Vezina The
within the same province. o offences, and its objectionable because the
Section 591(3) Judge has
Section 599 provides that a accused wouldnt conduct defence ambiguity prevents the accused from
change of venue may be discretion to sever trials where differently had Bank as victim knowing the case to meet.
ordered if it is expedient to required in interest of justice. allegation not been made. No Essentially, the accused is given too much
the ends of justice. o The The Court did not to grant prejudice, thus Crown doesnt have to information. This is a distinct rule from s.
accused or the prosecutor separate trials in circumstances prove that fact. 581(1), which limits a count to a single
must show cause as to why a b/c there was not sufficient Remedies for a Defective Charge factual situation; duplicity rule limits it to a
change is necessary ie. if evidence that the co-accused
the jury is not impartial, or the Potential Remedies single legal issue. Sault Ste. Marie Held
would actually have given
applicant can identify a What to do when a charge is - the section had created one offence,
evidence useful to the applicant
cogent reasons to suggest alleged not to be sufficient b/c it does polluting, which could be committed in a
even if he were made compellable not comply with the necessary
that the trial would be unfair number of ways. The accused would have
or prejudicial to either party if (Agawa). The fact that some requirements. Error in indictments, no doubt about the case to meet, and so no
it continued where it began. evidence will be admissible against can: o Be so flawed that it is an objection should be taken to the charge.
THE SIGNIFICANCE OF one accused but not others is also absolute nullity a trial judge has no R v Fischer Charge did not differentiate
THE CHARGE relevant, but not sufficient to jurisdiction to hear the matter, charge between general theft section and theft by a
A trial is not an inquiry into require severance. must be quashed. (The Crown can lay person required to account suggested the
whether the accused Content of Charges
committee some criminal new information and not violate accused was guilty of both; not duplicitous.
Two interrelated rules dealing
offence. It is to determine Double Jeopordy rule). o The charge Conspiracy cases a single count
with indictments:
whether the Crown might be flawed, but not a nullity charging an accused with more than one
(1) Section 581(3) A count
prosecutor can prove the trial judge may amend the charge conspiracy = duplicitous.
specific allegation that has shall contain sufficient detail of the (grant adjournment to remedy If a charge is duplicitous, it is not fatally
been made, beyond a circumstances of the alleged prejudice). o Charge contains an flaws. Section 590(2)(b) allows an
reasonable doubt. The offence to give the accused error, which can be made smaller by s accused to apply to have a count that is
accused is in jeopardy of reasonable information with 601 which govern amendments to double or multifarious either amended or
conviction only for the offence respect to the act or omission to be defective counts. divided into two or more counts, an
charged, and for any offences proved against him and identify the These provisions do not completely
that are included in the application that is to be granted where the
transaction referred to but
criminal charge. remove the possibility of a charge ends of justice require it.
otherwise the absence or
R v G.R. The court has being quashed (Moore Preference Only trial judge has jurisdiction to divide a
insufficiency of details does not
stressed the importance is amendment over quashing. But a count when it embarrasses (the accused)
charging documents (by vitiate the count. technical error here led to acquittal). in his defence (Broad criteria gives trial
information or indictment) (2) The Surplusage Rule It is Crown may not be able to amend at judge great discretion). An appeal court is
holding that it is fundamental open to a court to find that detail all (R v Tremblay The accused not to interfere with the trial judges
to a fair trial that an accused actually provided in a count is called expert witnesses to show that discretion unless the judge acted unjudicially
know the charge or charges surplusage (additional and acts in a bawdy house were not or the decision resulted in an injustice
he or she must meet. unnecessary detail), and the fact indecent. After the Crown applied to
THE VALIDITIY OF THE (Litchfield). Lilly real estate broker
need not be proven, despite being amend deleting the words practice of
CHARGE charged with theft. The accused had two
Joinder and Severance of indecency. SCC held trial judge separate defences to the single charge.
R v N.C. Accused charged
Charges correctly refused, would have caused The count should have been divided
Rules surrounding with trafficking cocaine. Substance irreparable prejudice). Crown may when this became apparent at trial;
indictment was CL, now in fact was baby powder and be require to provide particulars when especially b/c jury trial.
Code. aspirin. Would be an offence still count is flawed (s. 587). Accused THE ADVERSARIAL PROCEEDING
An indictment (Form 4) can under NCA. Held accused cannot use particulars as a way of A trial is the opportunity for the Crown
contain any number of charged with trafficking cocaine, limiting the options available to the prosecutor to prove the specific allegations
counts (each count thus Crown obliged to prove
covers a single Crown (R v Thatcher Crown thought made in the charge (information or
substance was cocaine. Failure = accused either killed wife personally
transaction). indictment) beyond a reasonable doubt.
R v Saunders Multiple
Possible to hold trial on or hired someone). The key characteristics of the Canadian
accuseds charged with conspiracy A charge is defective when it
one or more indictments criminal trial is therefore the specific
simultaneously to import heroin. Held Charge departs from the golden rule - that the allegation.
accused must consent or would have stood, if it did not accused is entitled to be reasonably This is done during a trial.
trial judge believed it is in specify heroin; but Crown had to informed of the transaction alleged Pleas
the interest of justice. prove conspiracy related to that against him, thus giving him the Section 606 Sets out the pleas
The charges are then narcotic. possibility of a full defence and a fair available to an accused charged with an
jointly charged into a single
trial. offence (guilty, not guilty, special pleas or
autrefois acquit (formally not required to call every witness reopen its case at trial judges common sense, everyday use. The jury
aquitted), autrefois convict however, trial judge may call discretion. o Some authorities should be instructed that a reasonable doubt
(Double Jep), and pardon). courts witnesses. Defence can suggest that it is possible to apply to is a doubt based on reason and common
Special pleas = amount to then X. o Section 652 allows a admit new evidence not only after sense which must be logically based on the
claim that the matter has jury to have a view in order to argument, but indeed sometime after evidence and it must not be based on
already been dealt with. see any place person or thing. o a verdict has been reached. sympathy or prejudice and must not be
Guilty = an admission by Section 545 allows a trial Addresses to the Jury o Closing imaginary or frivolous. Proof establishing a
the accused of performing judge to imprison a witness who Arguments By Counsel Section probability of guilt is not sufficient to
the physical actions, that refuses to testify for periods of 651 says if the defence has not establish guilt beyond a reasonable doubt.
make up to offence, up to 8 days at a time. called evidence, then the Crown Credibility and BARD
accompanied by the mental Presentation of the Defence argues first, but if the defence has R v Dinardo When a case turns largely on
state. Waive trial. Not Case o Application for a Direct called evidence, then it argues first. o determinations of credibility, the sufficiency
Guilty = demands the Crown Verdict an accused may apply CharGing the Jury Section 650.1 of the reasons should be considered in light
proves all elements of the for a DV prior to defence permits a judge to confer with Crown of the deference afforded to trial judges on
offence and disproves the presenting its evidence. o Power and the defence with regards to what credibility findings. Deficiencies will rarely
existence of any defences. arises at CL direct verdict = no matters should be explained to the merit intervention on appeal. However, a
An accused can later case to meet, accused is not jury. The purpose of charging the jury failure to sufficiently articulate how credibility
withdraw a guilty plea if there guilty , acquitted. o Where the is to decant and simplify the case, concerns were resolved may constitute
are valid grounds for being Crown fails to providence evidence leaving the jury with a sufficient reversible error. Where the defence rests on
permitted to do so. This on an essential element of the understanding of the facts as they the overall lack of credibility and reliability of
could lead to a plea being set offence, the trial judge can direct relate to relevant legal issues. o Trial the complainants testimony, it is incumbent
aside. Section 650 the acquittal of the accused. o judge has considerable discretion upon the trial judge to explain, how these
requires an accused to be Direct verdict can be granted on regarding the content and form of difficulties were resolved to reach a verdict
present in court during the charge laid, but the trial will charge. o The judges charge should beyond a reasonable doubt.
whole trial, and present for a continue to decide whether the be fair, dispassionate, and should be Jury and BARD
plea. accused is guilty of an included the last thing said to the jury before R v J.H.S Appeal from sexual assault
Section 800 permits an offences (R v Titus acquitted they commence their deliberations. o conviction. The accused, who denied all
accused charged with a on 1st degree murder, but trial A charge should review the facts, allegations of impropriety, was tried before a
summary conviction offence continued to see if guilty of 2nd prosecutors/accuseds theories of the judge and jury. The complainant and the
to appear by counsel. degree). o Defence case, and the defences which arise accused were the principal witnesses. The
Pleas entered by Presentation of Evidence for the jury. Trial judge charge on all trial judge charged the jury on the credibility
counsel to indictable Accused that doesnt succeed or defences that arise on the facts, of the witnesses and specifically instructed
offences, are binding on make direct verdict, entitled to call whether accuses raised them or not. the jury that the trial was not a choice
accused who was present evidence. o Defence to exercise Particular issues in case (ie. use of between two competing versions of the
at the time (R v Dietrich). discretion on how to present case. criminal record, circumstantial events. The jury convicted. Held - The
Order of Trial o Accused is a competent evidence, ID evidence, alibi reading the charge as a whole, the
Trial procedures set out witness at trial, but not evidence). o Instructions should instruction to this jury satisfied the ultimate
in Parts XIX, XX, and compellable. Failure to testify cover the procedural aspects of the test formulated by Cory J. in W. (D.) as
XXVII. o Trial proceeds cannot be made the subject of jury deliberations (ie. hung jury). o being whether the jury could not have been
continuously unless comment by the judge or Judge may offer opinions on matters under any misapprehension as to the correct
adjournment granted. o prosecutor (CEA s.4(6)). of fact in instructions. o After charge, burden and standard of proof to apply. The
Accused to be present - can (Evidence Act) judge consults with counsel SCC was satisfied that the trial judge
be excused by judge. o Reopening the Crowns Case opportunity to object to charge. o Re- reminded the jury that they must consider all
Judge can ask questions o After defence presents evidence, charging the Jury Where a judge of the evidence when determining
during trial, may raise bias. trial moves to closing arguments. re-charges following submissions reasonable doubt and that they should not
Juries can ask limited o Splitting the case (leading some from counsel, same criteria apply as decide whether something happened
questions. of the Crowns evidence after the original charge. o A re-charge simply by comparing one version of events
Opening Statements accuseds case has been may rectify an error in the original with another, or choosing one of them.
Crown presents case first presented), not allowed. o Crown charge thus, whole charge is Other Burdens
with opening statement to may be able to reopen its case satisfactory. o May be required to re- While the Crown prosecutor must prove
jury explain theory and depends on whether the accused charge after deliberations begin b/c guilt beyond a reasonable doubt at the end
evidence to be called. o wil l be prejudiced in making a jury has sent questions to judge this of the case, there are other burdens of proof
Crown not obliged to call all defence. o Decision at trial judges is significant. o Jury asking about that operate during the criminal process: o
witnesses announced; jury discretion in the interest of issue in case instructions must be Evidential burdens that some rules of
may make adverse justice. o Generally this is new repeated, correct and comprehensive. law impose in order for a party who wishes a
inferences. o Normally the evidence unforseen by the o An error in a re-charge following a matter to be placed in issue to succeed in
defence is not entitled to Crown and in the interest of question for the jury cannot be saved having that matter placed in issue. o The
make an opening address to justice. o R v Sylvester under original charge, b/c the fact that accused must at times satisfy an evidential
the jury immediately following Officer received phone called after the question was asked shows the burden in order to have a matter placed in
the Crowns opening closing arguments. Caller claimed jury didnt adequately understand the issue. o There are numerous rules of
remarks. o Trial judge at they lied on the stand. Crown original charge. The Presumption of evidence called presumptions that operate
discretion to allow this. permitted to reopen, present this Innocence and the Ultimate Standard to assign burdens of proof on the accused.
Defence wont have to wait evidence. Defence allowed to of Proof At a Canadian trial, the A presumption is a rule of law that
until end of Crowns case. cross and make further accused is presumed to be innocent, directs judges and jury to assume that a
Presentation of the submissions. Rebuttal Evidence a right guaranteed by section 11(d) of fact is true (known as the presumed
Crown Case o Following o Rebuttal evidence must concern the Charter. fact) in any case where the Crown
opening statement Crown matters that the Crown is This means that ultimately, at the proves that another fact is true (known
counsel is required to present reasonably surprised to find in end of the whole case, the Crown as the basic fact), unless the accused
evidence providing the issue. (R vBiddle) o If the test for must prove the guilt of the accused can rebut the presumed fact according to
charges against the accused. meeting rebuttal evidence is met, beyond a reasonable doubt. This is the assigned standard of proof. Those
o Evidence taken under then it cannot be said that the the Crowns ultimate burden in both a presumptions known as mandatory
oath, accused entitled to accused did not know the case to criminal or regulatory prosecution. presumptions can be rebutted by the
X-Exam witnesss meet. o Section 650(3) applies Proof Beyond A Reasonable Doubt accused simply raising a reasonable
evidence. o An accused where the Crown has led rebuttal R v Lifchus Proof beyond doubt about whether the presumed fact
can concede various parts of evidence, permitting the accused reasonable doubt does not require follows from the basic fact. Where a
the Crowns case. o Crown to make full answer and defence. proof of a case to an absolute mandatory presumption is rebutted, the
has discretion in how it Reopening the Defence Case o certainty. The reasonable doubt test presumed fact falls back into issue
presents its case. o Crown Open to the defence to apply to should never be put in terms of notwithstanding the presumption, and
must be proved by the Crown must direct the jury on the law that be or that the judge may be of the A publication ban should be ordered
in the ordinary way, without applies to that defence. See view that any other conclusion would when (a) serious risk to the proper
the assistance of the Defence of Person. be perverse. The trial judge may give administration of justice is required b/c
presumption. Other R v Fontaine same as above an opinion on the matter but never a reasonably alterative measures will not
presumptions operate as for Defence of automatism. R v direction. prevent the risk and (b) the salutary
reverse onus provisions, Oakes The onus of proving that aR v Hamilton In this case, the effects of the ban outweigh the
deeming the presumed fact limit on a right or freedom judge assumed the combined role of deleterious effects on the rights and
to exist where the Crown guaranteed by the Charter is advocate, witness and judge. This interests of the parties and the public,
proves the basic fact reasonable and demonstrably fundamentally changed the nature of including the right to free expression, the
unless the accused justified in a free and democratic the proceedings and contributed to right of the accused to a fair and public
disproves the presumed society rests upon the party errors in principle reflected in the trial, and the efficacy of the
fact on the balance of seeking to uphold the limitation. sentence imposed. A trial judge does administration of justice. Onus on
probabilities. A While the standard of proof under not have to remain passive during the person seeking ban.
presumption can be easily this section 1 is the civil standard, sentencing phase of the criminal Contempt of Court o CL power of
recognized as a this test must be applied rigorously process. Trial judges can, and finding people in contempt of court is
mandatory presumption and where evidence is required in sometimes do, assume an active role expressly preserved by s.9 o Appeal
because the legal rule order to prove the constituent in the course of a sentencing procedures from contempt of court s. 10.
raising the presumption elements of a section 1 inquiry, proceeding. In a criminal trial, it is o Contempt of court (1) contempt
will use the term evidence and this will generally be the case, generally left to the parties to choose committed in the face of the court; (2)
to the contrary to describe it should be cogent and persuasive the issues, stake out their positions, contempt not committed in the face of
the burden of rebuttal. and made clear to the court the and decide what evidence to present the court. o Superior courts have
A presumption will be consequences of imposing or not in support of those positions. The trial jurisdiction over both; inferior courts
interpreted as a mandatory imposing a limit. The court will also judges role is to listen, clarify where only (1). o Contempt can cover different
presumption where it fails to need to know what alternative necessary, and ultimately evaluate behaviours insolence to the court,
set out the required standard measures for implementing the the merits of the competing cases refusal to answer questions while under
of rebuttal because of objective were available to the presented by the parties. oath. o Applied to accused, counsel or
section 25 (1) of the legislators when they made their Powers of the Court witness. o A judge can respond to
Interpretation Act. decisions. It may be however that Control over the Court Process contemptuous behaviour either (1) through
Many presumptions there will be cases where certain o Trial judge significant discretion on the ordinary procedures, which give the
operate in alcohol driving elements of the analysis under how to run trials curtail X-Exam, accused the usual procedural guarantees
prosecutions and are used to section 1 are obvious or self- prevent irrelevant or harassing of a criminal trial; (2) through a more
determine whether the evident. questions, and ask questions of summary procedure (only used where
accused has more than a R v Boucher The standard of witnesses. o Test Whether a urgent and imperative to act
legal amount of alcohol in his proof that must be met to rebut the reasonably minded person who had immediately). o Procedure - (1) person is
blood while driving or having presumption of identity and been present throughout the trial put on notice to show cause as to why
care or control of a motor accuracy is reasonable doubt. The would consider that the accused had she should not be found in contempt of
vehicle. o For example, defence has no burden of proof. not had a fair trial. o Section 485 court; (2) adjournment should be given
section 258(1)(a) a The Neutral Impartial Trier preserves the courts jurisdiction over for person to obtain counsel; (3) Found in
reverse onus provision, A neutral, impartial Trier of law an accused despite a failure to contempt allowed to make
ss. 258(1)(c), (d.1), and (g) makes the legal decisions, comply with any of the Codes representations as to sentence. o Failure
all mandatory whereas a neutral impartial Trier of provisions concerning adjournments to follow process = error of law.
presumptions. fact makes factual findings at the or remands. o Judge has discretion Mistrials o Judge has authority to
Presumptions are prima end of the trial. Most criminal around circumstances in which declare a mistrial at virtually any point in the
facie contrary to the Charter trials conducted by judge alone - evidence will be heard. o Judge may proceedings. o Inappropriate publicity,
and must be saved under s.1. judge performs the role of both the exclude some or all members of the errors during jury selection, improper
R v Arcuri The meaning of Triers. public from the trial this violates comments by Crown during opening
prima facie case. The test for In a Jury tria l: judge = Trier of section 2(b) Charter freedom of statement/closing submissions, or
committal is the same law; jury = Trier of fact. o Judge press, but may be saved s a inadmissible evidence accidently given to
whether the evidence is makes all legal and procedural reasonable limit. o Section 486.1 jury all can lead to mistrial (remedy of last
direct or circumstantial. decisions during the trial, and gives a judge power in the manner in resort). o Other remedies adjournment,
Where there is direct directs the jury, by training them in which some witnesses are allowed to reopening the case, clearly instructing the
evidence as to each element the law that applies. Jury then testify. o Trial judge may express jury that they are to ignore the submission or
of the offence, the accused makes the factual decision and opinions on the facts but must information they ought not have heard. o
must be committed to stand renders the holding. not create a reasonable The general principle is that a mistrial is
trial; even if the accused Sentence is a question of law apprehension of bias. declared if the Crowns jury address is so
adduces exculpatory sentencing done by judge and not Publication Bans o In improper that it deprives the accused of the
evidence. If the Crowns case jury. o The jury should not be told exceptional circumstances a trial right to a fair trial. o Accused or Crown
consists of circumstantial of the possible sentence for fear judge may order publication ban. o can apply for mistrial in jury or judge
evidence, the judge must that his will inspire sympathetic Only in certain circumstances b/c they alone case. o Section 653 a trial judge
engage in a limited weighing rather than a legal verdict. conflict with the open court principle. may declare a mistrial if satisfied that a jury
of the evidence because A neutral, impartial judge does o Section 486.4- A judge may ban is unable to agree on a verdict. o A new trial
there is an inferential gap not mean he is passive. the publication of any information that can be held following a mistrial, and the
between the evidence and Nevertheless, the essence of the would identify the complainant or a accused cannot plead autrefois acquit or
the matter to be established. adversarial system is that the witness in a trial for a variety of listed autrefois convict because of mistrial.
The judge must determine parties initiate the proof that is sexual offences. o Section 486.5 The Role of the Prosecutor
whether the evidence is brought forward, not the judge. bans publication on identity of victim The prosecutor is an advocate, but also a
reasonably capable of R v Gunning The air of reality or witnesses. o Section 276.3 quasi-judicial officer. o This means that the
supporting the inferences that test applies to affirmative defences prevents reporting of information prosecutor cannot act solely as an advocate,
the Crown asks the jury to such as self-defence, but it is regarding an application to admit but must make decisions in the interest of
draw. never the function of the trial judge evidence of previous sexual activity. justice and the larger public interest,
R v Cinous If the accused in a jury trial to assess the o Section 648 prevents the including the interests of the accused.
wants to have a defence evidence and make a publication of evidence from a trial The prosecutor has many discretionary
considered, the accused determination that the Crown has while jurors are separated before decisions that can be made and should act
must show that the defence proven one or more of the beginning deliberations. o CL as a minister of justice.
has an air of reality to it. If essential elements of the offence power of judge to grant publication R v Cook There is no duty of the Crown to
the accused succeeds the and direct the jury accordingly. It bans Dagenais/Mentuck TEST call particular witnesses including the
judge must consider the does not matter how obvious the for publication bans: complainant. References in case law to the
defence, and in a jury trial judge may believe the answer to Crown calling all witnesses who are
essential to the narrative if the accused pleads not guilty, used to commit an offence; or premises without a warrant, to stop cars
refers only to the burden of preparing the case fully, (iv) property relating to a randomly to check for impaired drivers,
proof in that where the challenging the sufficiency of criminal organization. o set up road blocks, etc. o Stenning Test
narrative of the case is not prosecutorial evidence, and Individual police applied; officer may have been a trespasser, he
adequately set forth, the advancing all defences that investigative powers i) use was in execution of his duty b/c he was
investigating, and thus, the accused was guilty of
elements of the offence might properly arise. a tracking device to monitor
assaulting an officer in the execution of duty (in
not be properly proven and GETTING TO THE TRIAL: THE the location of a person or
the Crown risks losing the CRIMINAL object, (ii) install number 24(2) CHARTER ALLOWS FOR THE EXCLUSION
case. There is no duty on the INVESTIGATIONPOLICE recorders on a telephone, (iii) OF EVIDENCE BASED ON BREACH OF CHARTER
Crown to call particular POWERS obtain blood samples, (iv) RIGHT. IF NO CHARTER VIOLATION IS FOUND,
witnesses including the Police officers are obtain handprints, THE PRE-CHARTER POSITION ON EVIDENCE
complainant. In the rare case independent of the Crown fingerprints, footprints, or APPLIES NO BASIS TO EXCLUDE RELEVANT
where the tactical prosecutor. Independence impressions of teeth, (iv) EVIDENCE (SO LONG AS IT WAS RELIABLE,
disadvantage to the defence important - permits prosecutor install a wiretap device.. MEANS BY WHICH IT WAS OBTAINED DID NOT
calling a potentially hostile to act as quasi-judicial officer, Etc. o Section 487.01 peace MATTER). IF CERTAIN ACTIVITIES WILL NOT
witness would be manifestly and act as an investigator. officer can apply for a warrant to use any CONSTITUTE A CHARTER BREACH, POLICE ARE
unfair, the trial judge is Police often seek legal advice device or investigative technique or AUTHORIZED TO ENGAGE IN THOSE
entitled to consider this factor from Crown - wording of search procedure or do anything that would be an
in determining whether to call warrants, etc. Powers of police unreasonable search and seizure if it were STATUTORY POWER EXISTS, AND NO PRE-
the witness him or herself.R constrained by law (derived not done under a warrant. o Other statutes EXISTING OR ANCILLARY CL POWER WILL BE
v Proulx A prosecutor may from statute, CL or implications create investigative techniques ie. INVOKED, THE EVIDENCE WILL BE ADMITTED
apply to the court for a from either) in the interest of Ontario Coroners Act (take JUST AS THOUGH THE POLICE WERE ACTING
probation order in addition to securing liberty. samples of bodily fluids in death WITH AUTHORITY.
any punishment that may be Police powers limited by investigations), Customs Act Consent
imposed for that offence. The Charter - section 8 (search of people crossing the Principle - Police need no statutory or CL
offender is required to (unreasonable search and border), Firearms Act (inspectors authority to obtain evidence by making a request
appear, and the prosecutor is seizure); section 9 (arbitrary without a warrant allowed to of a suspect.
required to be heard before detention). o Courts balance of enter premises to search for There is no statutory or CL authority allowing the
the court makes the order to police investigations and law prohibited firearms on police to compel lineups, however, consent of a
suspect is a perfectly adequate source of authority
change the sentence (s. enforcement. The law of evidence reasonable grounds).
from the police perspective.
732.2).? Krieger v Law supports limits on police powers. o Common law powers Limits on accused consent exist ie.
Society of Alberta This Unconstitutional search or Historical CL Powers CL DNA sample provided for one offence, but used
case describes the scope of arbitrary detention - powers include power of police to for other purposes violates guarantees about
judicial review generally of evidence obtained as a search incident to an arrest or to enter unreasonable search and seizure. However, if
the exercise of powers of the result DNA warrants are only a private dwelling in hot pursuit accused provides DNA samples without attaching
Attorney General. In available in the case of designated of a person fleeing arrest. limits, no privacy, full consent.
summary, within the course of offences predominantly sexual Search incident to an arrest Mere compliance is not sufficient to show that
prosecutorial discretion, the offences and offences causing Cloutier v Langlois - power for police the accused is actually consenting.
courts cannot interfere except death of bodily harm may be officers to search a person who has Consent, even if given initially, can be revoked
in circumstances of flagrant excluded from already been arrested to seize (R v Thomas policed entered house, but
impropriety. Prosecutorial consideration. possessions, guard safety of consent revoked before owner of the house
assaulted police officer. Thus, police officer was
discretion refers to decisions General Police Powers police/accused, prevent escape/provide
not acting in the execution of duty and the
regarding the nature and Statute evidence against prisoner. accused was acquitted).
extent of the prosecution and Primary source for police powers is To do more than a frisk Powers of Search and Seizure
the Attorney Generals the Code. Powers for police to search, police must have Barron v Canada The SCC said that the
participation in it. Decisions directly enforce the law o Section reasonable and probable decision to grant or withhold the warrant requires
that govern a Crown 494-528 allow police officers grounds to believe that a the balancing of two interests o (i) that of
prosecutors tactics or (and others) to arrest an accused strip search is necessary in the individual to be free of
conduct before the court, do or compel an accuseds the particular circumstances intrusions of the state and o (ii)
not fall within the scope of appearance in court via a of the arrest should be that of the state to intrude on the
prosecutorial discretion and summons or appearance conducted at police station, privacy of the individual for the
are governed by the inherent notice. o Section 25-33 unless pressing reason purposes of law enforcement.
jurisdiction of the court to powers allowing the use of force to otherwise (R v Golden). The states statutory ability to intrude on an
control its own processes execute powers authorized by law, to Arrest in private dwelling individual to become greater in recent years.
once the Attorney General prevent the commission of some police have the CL power to arrest within a Search
has elected to enter into that offences, or to prevent a breach of the private dwelling without permission of Search defined with a purposive approach,
forum. peace. entry (Eccles v Bourque). Hot based on the goal of s. 8 Charter. Intent of
The Role of the Powers aimed at pursuit case, right extends beyond section is to protect individuals from
Defence investigating crime search indictable offences to provincial offences unjustified state intrusions upon their
The defence counsel is an warrants and wiretaps o (R v Macooh). privacy. Thus, a state investigative technique is
officer of the court, and Section 487 general search Warrantless entry into a dwelling to or is not a search depending on whether it
therefore must be respectful warrant provision, allowing a justice to arrest would be prima facie unreasonable infringes on a persons reasonable expectation of
and honest with the court and issue a warrant authorizing the search and would prima facie violate the Charter privacy.
must not attempt to mislead of a building, receptacle or place and (R v Feeney). Seizure measured based on whether the
the court as to the state of the seizure of evidence found there. o Ancillary Powers Doctrine accuseds reasonable expectation of privacy was
the law. Justice must be satisfied that that (WATERFIELD TEST) o It is always infringed.
There is a distinction between evidence that is
Subject to this and the search will produce evidence with possible for new CL police powers to be
seized and evidence that is merely found.
rules of law and ethics, the respect to the commission of an created. o TEST whether police act was Stillman the accused had not abandoned a
defence counsel is obliged offence. o Warrant may be lawful due to a CL power (Waterfield): tissue, since he was in custody for many days and
to act solely in the interest of issued on reasonable (1) Does the conduct fall within the could not possibly avoid creating bodily samples
the accused, advising the grounds that a search will general scope of any duty imposed by at some point.
accused on the implications find (i) something in statute or recognized by CL Nguyen police officer offered an accused a
of, and propriety, of pleasing respect of which an offence (2) does the conduct, albeit piece of gum while transporting him from
guilty, securing advantage of has been committed; (ii) (although) within the general scope of detention to court. He knew he would discard the
such a duty, involve an unjustifiable use of gum before entering the courtroom. Held
all procedural and the whereabouts of a
powers associated with the duty o Test has seizure and s. 8 violation.
constitutional protections person believed to have been used to support police powers to Search with a Warrant
available to the accused that committed an offence; (iii) protect foreign dignitaries, to enter
are not properly waived; and property intended to be
Searching Places - Impression Warrant allows a Reasonable expectation of rather for proceeding without a warrant. o
Section 487 This section peace officer to obtain handprint, privacy includes (1) personal Absent exigent circumstances, there is a
allows the issuance of a warrant footprint, tooth impression, or other privacy (ie. requirement of prior authorization by a judicial
for the search of a building, body part. stripsearched); officer as a precondition to a valid seizure for the
receptacle or place if satisfied Other statutory search Warrant (2) Territorial privacy (searches criminal law purposes (Colarusso). o
on oath of reasonable grounds Provisions of places contingent on place being Exigent circumstances in search and
that evidence falling into one of Generally these provisions share the searched ie. home more privacy than seizure context is an imminent danger of the
the 4 categories will be found. o basis characteristics of section 487 car); (3) Informational privacy. loss, removal, destruction or disappearance of the
(i) anything on or in warrant can only be issued if a justice (Tessling FLIR territorial evidence if the search or seizure is delayed
respect o which an is satisfied by information on oath that privacy not informational. Not (Grant).
offence has been there are reasonable grounds to invaded. Gives reading on heat. Consent warrantless search will be
committed; o (ii) anything authorize investigation. Some Information alone, meaningless). authorized if the suspect consents to the search.
that will provide evidence warrants are for purely investigative (1) Framework for minimum o Consent valid? Extent of consent? o
regarding an offence or purposes, others are for tracking Charter standards are set out in R Acquiescence and compliance
the location of a person devices, etc. v Collins. Once it has been signal only a failure to object; they
suspect of committing an Reviewing Warrants there is determined that an individual has a dont constitute consent (R v
offence; o (iii) anything no provision for appeal from the reasonable expectation of privacy, the Wills). o For consent to be a valid waiver of the
reasonably believed to be issuance of a warrant (Knox issue becomes whether the search accuseds s.8 right, the accused must have at
intended to be used to Contracting v Canada). itself is reasonable. (i) Is the search least sufficient available information to make the
commit an offence for Can challenge the process used to authorized by law? preference meaningful (R v Borden). The
which the person could be issue a warrant by: Certiorari Police derive authority from statute, CL police must disclose any specific use they intend
arrested without warrant; review the process by which the and consent . The Code and other at the time they take the sample (Arp provided
o (iv) offence related to warrant was issued. This process does statutes allow warrantless searches in hair samples).
property. not result in either the return of the certain circumstances. (i) Is the law itself reasonable?
The warrant must be issued by items seized or their exclusion as CL search incident to arrest, allows Where a statutory warrantless search power
a justice (Hunter v evidence (R v Zevallos). Quashing warrantless searches. exists, courts tend to read down the power in a
Southam). The warrant is the warrant, renders the search Ancillary Power Doctrine allow way that makes it coincide with constitutional
issued to a particular person who warrantless, thus prima facie creation of new, CL, warrantless powers. minimum standards.
is responsible for how the search unreasonable and violates s. 8. It is Parliaments role, not the courts, to If the power in question is a CL one, asking
is carried out (R v strachan). Challenge of warrants best left determine what new search powers are whether the search is authorized by law
Place includes the area for trial violation/remedy necessary (Wong). require the court to decide the extent of the CL
surrounding a building thus, a dealt w together. Central Statute CDSA (Controlled power. (i) Was the manner in which the
search of the area without a issue in reviewing warrants is Drugs and Substances Act) search was carried out reasonable?
warrant is prima facie whether the requirements for and Code. o Section 11 CDSA Search power may exist, but the
unreasonable (Hunter). its issuance under the Code allows a peace officer to obtain a warrant manner in which it was conducted may
Warrants are issued on have been met Q: Whether to search a place for a controlled be unreasonable.
an ex parte basis. there was evidence upon substance, for anything in which a Manner = physical way search carried
Section 448 - a warrant which the issuing judge could controlled substance is concealed, for out.
shall be executed by day unless have decided to issue the offence related property, or for evidence in Collins accused searched for drugs, officer
reasonable grounds for executing warrant. Evidence used to respect of an offence under the CDSA. o grabbed her by the throat. Held Search power
it by night are provided to the justify the warrant may be Section 11(5) CDSA a peace officer existed, but search unreasonably carried out.
issuing justice, and the warrant removed then the Q is if the is entitled to search any person found in Section 487.01 General Warrant
itself authorizes its execution by remaining evidence could the place, if the officer has reasonable Provision. Creates warrants to use any device
night. have still justified the warrant. grounds to believe that the person has the or investigative technique or procedure or do any
Search of the Person Reviewing courts can quash controlled substance or thing set out in the thing described in the warrant that would, if not
DNA warrants a warrant based on either the warrant. o Section 11(7) CDSA authorized, constitute unreasonable search and
Section 487.04 487.091 inadequacy of the material permits an officer to conduct a warrantless seizure. May be done on the grounds that an
- The basic requirements for a remaining after some search when the grounds for a warrant offence will be committed (s.487.01(1)(a)).
DNA warrant necessitate that a information is excised, or exist but exigent circumstances make it Section 487.01(1) no other statutory
provincial court judge be based on behaviour of the impracticable to obtain a warrant. o provision can authorize the procedure in question.
satisfied by information on oath police that intentionally misled Section 487 Code - does not permit Intention behind provision is to show that there
that a bodily substance or otherwise subverted the search of the person. CL Search of the are no limits on the techniques that can be
connected with an offence has process of prior authorization. person often authorized on warrantless, authorized.
been found, that a person was a Warrant quashed = search CL, basis Search incident to arrest do not It is intended to provide warrants to perform
party to the offence, and that conducted on warrantless require the police to have reasonable investigative techniques that are not covered by
DNA analysis of the substance basis. grounds for the search. It simply flows other criminal code provisions.
will provide evidence about Searches without Warrants from that fact that the accused had been This section is aimed at avoiding loss of
whether the bodily substance (1) A warrantless search is prima arrested (Debot). o The Ontario Court of evidence in cases of video surveillance and other
was from that person. facie unreasonable under s. 8 Appeal has decided that searches of a cases.
(S.487.04). (Hunter v Southam) home incident to arrest are not allowed, Requirements: o The warrant can only be
The judge is required to believe An accuseds reasonable expectation other than in exceptional circumstances issued by a judge or justice, not by a justice of the
that issuing the warrant is in the of privacy is an important consideration (R v Golub). o The actual purpose peace (R v S.A.B). The judge can attach
best interest of the administration in deciding how reasonable a search or motivating the search is a central issue conditional to ensure that any search or seizure
of justice. seizure has been. Reasonable (Caslake). The power to search incident authorized by the warrant is reasonable in the
Section 487.05(2) expectation of privacy requires to arrest depends essentially on 3 circumstances (s. 487.01(3)). The judge
requires the judge to have regard balancing state and individuals questions was the arrest lawful? Was the must be satisfied that it is in the best
to all the relevant matters interests. o Individua ls person has search truly incidental to that arrest? Was interests of the administration of justice to
nature of offence, circumstances greater privacy interest when the the search conducted in a reasonable issue the warrant (s. 487.01(1)(b)).
of its commission, qualified search involves a body cavity manner? (Stillman). o The police must Power of Detention
person available to take sample. (Simmons) as opposed to the trunk be able to point to reasonable grounds to Section 10 Charter gives various
Section 487.07(1) - Peace of ones car (Wise). o State a believe that a strip search, rather than a rights on arrest or detention, including
officer taking sample is required person should reasonably expect less usual pat-down, is required in the right to counsel.
to inform the suspects of the privacy while crossing an international particular circumstances (Golden). o Detention can include situations
content of the warrant, the border (Lewis) or when placing items Search during an investigative detention where police have an actual legal power
procedure for taking sample, and in a school locker where officials are CL power to search during an investigative to compel a person to remain, but also
authorization to use force. require to provide a safe environment, detention (R v Mann). situations of psychological detention,
Where an accused is convicted maintain order and discipline (M(M.R.)). There must be independent reasonable no such power exists, but the person
of a primary offence (sexual Edwards no charter grounds specifically justifying the search. complied with the police demands
assault or homicide), the court protection for privileged o The search must be conducted in a nonetheless (R v Thomsen).
shall order a DNA sample to be guests in an apartment, reasonable manner (Collins). The Statute the ability to make
taken for the DNA databank. For lacking the ability to regulate search must be limited to a pat-down, breathalyser demands, random routine
secondary designated offences, access to it by others. unless it gives reasonable grounds to traffic stops, custom searches
the court may order if it is in the Belnavis a passenger in a car believe that a more intrusive search is =legislatively created detentions. CL
best interest of the administration has no reasonable expectation of necessary. o Exigent Courts can create new CL police powers
of justice. privacy. Circumstances - are not the using the Waterfield Test . o Dedman
justification for the search itself, but used CL power to authorize random stops
of cars. o Mann used CL perceived by the absolutely, subject release conditions, or interest to issue a warrant. o Section 513 -
powers to create police power of individual: whether the held custody pending the trial). the peace officer to whom a warrant is directed
investigative detention short of police were providing Gaining Jurisdiction Over The must be within the territorial jurisdiction of the
arrest and to permit a police general assistance; Accused person who issued it. Section 703 A warrant
roadblock. maintaining general order; Central Question Whether the issued by any court other than a justice or a
Investigative Detention A making general inquiries regarding accused is properly before the court. provincial court judge can automatically be
person can be briefly detained for a particular occurrence; or, singling o Accused w/n territorial limits of the executed anywhere in Canada. o Section
questioning if the detaining out the individual for focused courts jurisdiction or the accused has 703(2) A warrant from a justice or provincial
officer has some articulable investigation. (b) The nature of otherwise been lawfully ordered to court judge can be executed anywhere in the
cause for detention (R v the police conduct, appear before that court (s. 470). province in which it is issued. Section 511
Simpson). including the language Section 485 excuses most errors Arrest warrants do not expire, but simply
There is no general power of used; the use of physical relating to the appearance of the remain in force until executed. o Section
detention for investigative contact; the place where the accused. Jurisdiction over an offence 29 - requires an officer executing a warrant
purposes (Mann). o Police interaction occurred; the presence is not lost simply b/c a judge fails to to have it where it is feasible to do so, and to
cannot detain a person b/c they of others; and the duration of the comply w any of the Code provisions provide it where requested. Anyone who
are suspicious in some general encounter. respecting adjourments or remains. arrests, with or without warrant, to give
way they must be suspicious of The particular characteristics or Section 485(1.1) jurisdiction over notice to the arrested person of (a) the
a particular person b/c of some circumstances of the an accused is not lost b/c of process or warrant under which he
suspected connection to a individual where relevant, nonappearance. Section 485(2) The makes the arrest, or (b) the reason for the
particular crime already know to including age; physical courts have broad authority to issue arrest.
them. Police Roadblocks stature; minority status; level process, such as a bench warrant for Arrest without a warrant: o Section
The court approved the of sophistication. arrest, that allows jurisdiction over the 494 (1) creates arrest powers available to
actions of the police setting The majority went on to find person to be regained in the event that it is anyone (2) creates special arrest powers relating
up a roadblock (Clayton). o that Mr. Grant was lost. to property owners. (1) Anyone may arrest a
The Majority applied the psychologically detained when Courts have no jurisdiction - person whom he finds committing an indictable
Waterfield Test. They he was told to keep his hands persons under the age of 12 offence. Or anyone may perform an arrest when
basically said that police have in front of him and when the (s. 13 presumed to be incapable she believes, on reasonable grounds. That some
power to do anything that is other officers moved into of a crime), persons immune from person has committed a criminal offence and is
reasonable. position to prevent him from prosecution b/c of policy (ie. diplomats, escaping and being freshly pursued by some
R v Grant - The Court walking forward. Therefore, he Crown). other person with authority to arrest. (2) Anyone
created a number of factors to was arbitrarily detained, and Time limits: o Indictable offences who owns or is in lawful possession of property
consider when determining denied his right to counsel. Generally not barred by a period of can arrest, not only for indictable offences, but
whether a person had been Power to Break the Law limitation or prescription. o Summary also for any criminal offence they find being
detained for the purpose of Section 25.1-25.4 permit offences Barred six months committed on or in relation to their property. o
sections 9 and 10 of the designated police officers to break the following the completion of Section 2 property = real or personal
Charter. The Court also created a law. The sections talk about such an the offence. property. o Section 495 (1) creates
new test for determining whether officer being justified in doing Section 11(g) Charter criminal arrest powers available only to
evidence obtained by a particular things. All these provisions offences do not have peace officers. (1)(a) and (b)
Charter breach should do is protect particular officers from retrospective application, cannot allow a peace officer to arrest in
be excluded under criminal liability in particular situations. charge conduct that was not an any situation but 2 (i) where the
section 24(2) of the offence when it occurred. In a officer did not find the accused
Charter, replacing the An officer designated by a federal or situation where a person committing the offence, the
Collins Test. (1) The provincial minister, is justified in commits an offence and, before offence is only a summary
majority found that committing an act or omission that he or she is sentenced, a new conviction one, or no arrest
detention refers to a would otherwise constitute an offence law alters the fine or term of warrant has been issued, or (ii)
suspension of an if the following two conditions are met: imprisonment that applies, that where the officer believes that a
individuals liberty TEST o (1) the officer is person must be sentenced under summary conviction offence is
interest by a investigating an offence or whichever law is the more lenient about to be committed.
significant physical or criminal activity. o (2) (s. 11(i)). o Exception R v Finta Section 495(1)(a) permits a peace officer to
psychological Permitted to break the law if, SCC said partial exception for war arrest anyone who has committed an indictable
restraint. in their judgement, that is a crimes allegedly committed in Europe offence or who, on reasonable grounds, he
Psychological reasonable choice. during WWII. believes has committed or is about to commit an
detention is This power is intended for Section 11(b) Charter indictable offence.
established either officers performing undercover guarantees the right to trial within a Section 495(1)(b) permits a peace
where the individual work, or for other officers on reasonable time. o Unreasonable delay officer to arrest anyone he finds
has a legal obligation an emergency basis. causes charter violation remedy = stay of committing a criminal offence.
to comply with the Section 25.1(11) limits on proceedings (effect- no jurisdiction to Section 495(1) permits a peace
restrictive request or the ability of designated proceed). officer to arrest a person if he reasonably
demand, or a officer to break the law: (a) Unreasonable delay has 2 believes that a warrant exists for the
reasonable person intentional or criminal possible causes: o (1) May be persons arrest. Section 495(2) o
would conclude by negligence causing death or attributable to one of the Applies for relatively less serious offences.
reason of the state bodily harm to another person parties, or conceivably the (a) (c) applies to indictable
conduct that they had o (b) the wilful attempt in any court, but if the responsible offences in the absolute
no choice but to manner to obstruct, pervert or party is the accused there jurisdiction of a provincial court
comply. defeat the course of justice, or will be no remedy under s. 24 judge, hybrid offences and to
(2) In cases where o conduct that would violate of the Charter. o (2) summary conviction offences. o
there is no physical the sexual integrity of an Institutional delay, that is (d) officers may arrest b/c she
restraint or legal individual. attributable to the absence believes on reasonable grounds that an
obligation, it may not GETTING TO THE TRIAL: of adequate resources for the arrest is the only way to (i)
be clear whether a CONTROL OVER THE administration of justice in a establish the identity of the
person has been ACCUSED timely manner. person, (ii) secure or preserve
detained. To SECURING JURISDICTION OVER The Arrest evidence of or relating to the
determine whether THE ACCUSED AND INTERIM An arrest consists of words offence; or (iii) prevent the
the reasonable person RELEASE The police and non-police of arrest accompanied either by continuation or repetition of the
in the individuals have specified powers to arrest touching of the person with a view to offence or the commission of another
circumstances would individuals. Arrest (taking detention, or by the person submitting to offence. o (e) arrest b/c it is evident to
conclude the state physical control over the subject) is to the arrest (R v Whitefield). the officer that an appearance notice will not
had deprived them of be used as a last resort - when other The word arrest need not actually be be sufficient.
the liberty of choice, measures available for ensuring the used, provided the accused can be Section 495 (3) an officer under s.
the court may good conduct and attendance before reasonably supposed to have understood 495(1) is deemed to be in the
consider, inter alia , the criminal justice process are not that she was under arrest (R v Latimer). execution of duty notwithstanding s.
the following factors: practical or desirable. o These are the Arrest with a warrant: o Section 495(2) ought to use an appearance
(a) The circumstances appearance notice, the promise to 507 A summons, rather than a notice (not required and leaves arrest
giving rise to the appear, and the summons. Arrested warrant, must be issued unless the possibility open). Section 25(1)
encounter as would individual - must be released or given a evidence discloses reasonable grounds Anyone making a lawful arrest, is
reasonably be bail hearing (decides whether released to believe that it is necessary in the public justified in using as much force as
necessary to do so, provided required to answer questions, but that or less. o The officer in charge is The Bail Hearing
she is acting on reasonable does not mean police cannot ask them able to release by issuing an The Code creates what is usually referred
grounds. Section 26 An (R v Singh). appearance notice, intent to to as a ladder approach to bail. The
officer is criminally responsible Compelling Appearance compel by way of summons, accused is presumed to be entitled to
for using excessive force. Without Arrest promise to appear, or
release and the Crown must justify each
Rights on Arrest o Section The Code provides: recognizance. Section 507 -
503 requires that an arrested o powers to police to Before the first appearance, an increasing step of intrusiveness.
person be taken in front of a require an accused to information must be laid before a Bail hearing:
justice of the peace to consider attend court through some justice. If the justice is not Section 515 the justice shall order that
the issue of release within 24 type of written demand, or satisfied that there are reasonable the accused is released on an undertaking
hours. o It depends on a case- to arrest the person: grounds to believe an offence has without conditions, unless the Crown shows
by-case basis, but release within preference is given to not been committed, he will cancel any cause as to why something more restrictive
24 hours might still be arresting. o if possible, form or process that has been is justified.
unreasonable delay (R v W. appearance should be previously issued by a peace Section 515 (1) - There are only 3
(E.)). o Section 10 (a) sought without arrest and officer, and will direct notice be
grounds on which continued detention of an
Charter an accused is to be detention. o That where a given to the person who had been
informed promptly of the reasons person is released, issued such process. If the justice accused may be ordered. The first two are
for the arrest or detention. o preference should be given endorses the information, he either relatively uncontroversial: o (a) the
Section 10 (b) Charter to the means of compelling confirms the form of process detention is necessary to ensure the
Guarantees the right to retain appearance that is least already issued or cancels it and accuseds attendance in court; or o (b)
and instruct counsel without onerous, especially as issues a summons or warrant for the detention is necessary for the
delay and to be informed of that regards the imposition of a arrest. Section 505 following an protection or safety of the public o on
right. o Charter rights are money debt as a form of accuseds arrest and release, a any other just cause being shown and,
subject to the reasonable limits security. Compelling charge is to be laid as soon as without limiting the generality of the
clause in section 1 subject to appearance pre-charge practicable thereafter and in any
foregoing, where detention is necessary
such reasonable limits Ways to compel a person to attend event before the time stated, for
prescribed by law as can be court before an information is laid, and appearing in court in whatever in order to maintain confidence in the
demonstrably justified in a free is actually charged: o Arrest without documentation has been issued to the administration of justice, having regard to all the
and democratic society. o warrant (s. 495(1)). o accused with her release. circumstances, including the apparent strength of
Section 10(b) obligations: Appearance notice, a Compelling Appearance Post- the prosecutions case, the gravity of the nature of
Informationa l an accused must promise to appear, or a Charge - Review by the justice the offence, the circumstances surrounding its
be informed of the right to retain recognizance. Section occurs before police interaction commission and the potential for a length term of
and instruct counsel w/o delay. 495(2) Prefers less intrusive with the accused. imprisonment. Section 515 (2) Sets out
Normally done through a means. In the case of less serious The justice will issue the range of restrictions on liberty, short of
standard caution: that is offences, an officer should not process in the form of either
detention, that can be imposed on an accused as
distributed to police officers, necessarily use arrest powers. o summons or an arrest
which they read to the accused. Section 495(2) Less serious warrant. Summons is a conditions of release. They are: o (a) an
Special circumstances require offences are (a) indictable offences document issued by the court undertaking with conditions o (b) a
police to ensure the accused listed in s. 553 (those in the commanding the accused named recognizance without sureties and
understands ie. language absolute jurisdiction of a provincial therein to attend court at a without deposit that is, the accused
difficulties, mental disability, etc. court judge); (b) hybrid offences; specified time and place. It is in promises to pay a sum of money if she
(Evans). Implementationa summary conviction offences. o Form 6, and specified the date to does not appear as required; o a
l - (i) Where an Section 496 For s. 495(2) appear in court, a date to appear recognizance with sureties that is, a
arrested person has offences, an officer should issue an for fingerprinting and the 3rd party also agrees to owe
indicted a wish to appearance notice, unless there is consequences of non appearance
speak to counsel, the good reason to arrest. (s. 509(1),(4)&(5)). It is to be
the debt if the accused
police must provide Section 495 (2) (e) & (d) served in person, or left with an adult does not appear o (d) a
that person with a Good reason to arrest is limited to at the persons last known address (s. recognizance without sureties but with
reasonable the possibilities that the person will not 509(2)). Arrest warrant same a deposit for money or other valuable
opportunity to do so; show up in court unless arrested or details as summons but adds a command security this condition can only be
(ii) when an arrested that there is a need to: o (i) establish to peace officers within local jurisdiction to imposed with the consent of the
person has requested the identity of the person, o (ii) secure arrest the person charged and to bring her prosecutor, and; o (e) a recognizance
counsel the police or preserve evidence of or relating to to court. with or without sureties and with a
must hold off from the offence, or o (iii) prevent the The judge has discretion to choose deposit of money or other valuable
questioning or continuation or repetition of the offence summons or arrest warrant. Section
otherwise seeking to or the commission of another offence. 507(4) directs a justice to issue a
security if the accused is not ordinarily
elicit evidence from Section 145 Failure to appear summons unless there are
resident in the province within 200 kms
that person until she under an appearance notice is an offence reasonable grounds to believe that a of the place in which he is in custody.
has had a reasonable and an arrest warrant can be issued under warrant is necessary in the public Section 515(3) - A justice cannot make an
opportunity to contact s. 508. Section 497(1) Even interest. order under any of paragraphs (b) to (e)
counsel. if a person has been arrested, an unless the prosecutor shows cause as to why an
Implementational duties officer can release that person with Section 507(1)(b) a judge will order under the immediately preceding paragraph
differ from informational the intention to compel her decide to issue a warrant in order to would be inadequate. (LADDER APPROACH)
ones in 3 separate but appearance by means of a compel the accused to attend before Section 515(4) (4.3) provide the
related ways: summons or an appearance him or some other justice for the various types of conditions that may, or may not,
(i) they do not arise for every notice. same territorial division. be imposed when an order for release is made
accused only arise when an Section 497(1.1)(a)(iv) a under s. 515(2).
Section 507(6) The Code allows
accused has actually indicated a peace officer might also decide not R v Hall The Court held that the portion of
wish to speak to counsel, (ii) they to release the accused after arrest the justice who issues an arrest section 515(10) permitting detention on any
can be waived requires an in order to ensure the safety and warrant to endorse it for the specific other just cause being shown was
accused to have full knowledge security of any victim of or witness purpose of authorizing the officer in unconstitutional as it gave too much discretion to
of the right giving up; arrested to the offence. charge of a station or lock-up to the judge to deny bail without just cause. The
person can expressly/implied In the event that a person is release an accused, pending her Court however upheld the portion of section
decline to contact counsel. arrested without warrant and appearance in court. Section 499 515(10), which allows the denial of bail to
(iii) they can be lost through a taking into custody by the arresting the officer in charge is then maintain confidence in the administration of
lack of reasonable diligence if peace officer, he will be brought authorized to release the accused. justice as it was a valid and just reason to deny
an arrested person is not being before the officer in charge or bail. The standard is based on the view that the
Section 503 if a person is
reasonably diligent in exercising another peace officer. reasonable member of the community would be
his rights police are not obliged Section 498 Officer in charge arrested and the police decide not to satisified that the denial of bail would be
to hold off their investigation (R can also decide to release the release under any of the various
necessary to maintain confidence in the system.
v Tremblay). Not an arrested person and is directed to powers to do so, the person must be (Ie. The test of vagueness) HOLDING: A.
implementational duty a prefer this course. Offences for brought before a justice without JUST CAUSE will exist if the denial of bail can
person who has been arrested release summary conviction, reasonable delay, and in any case occur in a narrow set of circumstances and if the
and has already spoken with hybrid, s. 553 offences, or any within 24 hours. denial is necessary to promote the proper
counsel may then be questioned other offence punishable by functioning of the bail system. b. The need to
by police. The person is not imprisonment for a term for 5 years maintain confidence in the administration of
criminal justice is a value which some condition of where there would be irreparable Innocence at stake Test: o The
falls within the ambit of release can be arrested prejudice to the integrity of the accused must establish the
just cause in S. 11E. with or without warrant. justice system if the prosecution threshold:
DECISIONS ON BAIL HAVE THE GETTING READY FOR TRIAL continued. Held both tests met, The information he seeks from the solicitor-client
REAL CAPACITY TO AFFECT THE DISCLOSURE stay issued. communication is not available from any other
CONFIDENCE IN THE AOJ AND A right of the accused and obligation o La police officer taped recorded source; and He is otherwise unable to raise a
IN THE BAIL SYSTEM ITSELF. on the Crown = full disclosure of interview with complainant in reasonable doubt. If this has been
Exceptions: investigation (information gathered by sexual assault case, prior to charges satisfied, the judge should
Section 515(6) The police during investigation). Except laid. Complainant = 13. Tape proceed to the Innocence at stake
onus is reversed for a what is clearly irrelevant or privileged. lost. Held Test: o (1) The accused seeking
number of offences. The section 536 Disclosure Accused s. 7 right not production of the solicitor-client
justice is directed to order that occurs before the accused violated. Court found, communication has to
the accused shall be detained elects mode of trial for despite police best efforts, demonstrate an evidentiary basis
unless the accused shows cause indictable offences. evidence will sometimes be to conclude that a communication
not to do so. Accused not an Accused may seek relevant third lost. Where the Crown can show that exists that could raise reasonable
ordinary resident in Canada. o party records applications evidence was not lost due to unacceptable doubt as to his guilt. o (2) If such
Offence was alleged to be brought depend on negligence, the duty to disclose is not an evidentiary basis exists, the
committed while the accused was whether charge is sexual beached. It will be possible for the trial judge should examine the
already out on bail o Offence was offence or some other accuseds right to full answer communication to determine
a criminal organisation, offence. Issues of proper and defence whether, in fact, it is likely to raise
terrorism, or national security disclosure - assigned trial to be breached only when a reasonable doubt as to the guilt
offence o Offence related to judge resolves them. R v accused can establish actual of the accused.
failing to attend court as ordered Stinchcombe The SCC changed prejudice. (1) Counselling Records Such as
by some previous process o The the state of affairs of disclosure. They Dixon failure to disclose did not psychiatric, medical, or other
offence was punishable by life concluded that an accused person has become apparent until after the trial. Held counselling records regarding a
imprisonment under the CDSA. a right, under s. 7 Charter, to the right to disclosure is but one complainant.
Section 515(11) For disclosure of the Crowns case. They component of the right to make full answer Issue usually with production (the
section 469 offences, ie stated that the Crown must and defence. Although the right handing over of documents in a 3rd
murder, a justice has no disclose all relevant to disclosure may be parties hands) not disclosure (handing
authority to release the information to the violated, the right to over documents in the hands of the Crown).
accused and must order accused, whether make full answer and defence OConnor Accused charged with sexual
her detained to be dealt inculpatory or exculpatory, may not be impaired as a assault. Disclosure of complainants medical,
with according to law. subject to Crowns result of the counselling and school records. SCC set out
The accused in privilege or irrelevant violation. procedure to be applied for disclosure of 3rd party
accordance with s. 522, information. Relevant o Taillefer The court changed the documents: o (1) The accused must
will be taken before a information must be approach in Carosella to a three- persuade the judge to examine
judge of the superior disclosed, regardless if part test the records personally. Consider :
court. There is a reverse Crown intends on (1) Was the accuseds right to disclosure accuseds right to make full
onus in this hearing, with introducing it into breached? (2) If so, did that breach answer and defence, weigh 3rd
the accused in being evidence, before election violate the accuseds right to make full parties privacy interests, Accused
requires to justify release or plea. Statements of answer and defence? must satisfy the trial judge that
(s. 522(2)). If the accused persons who provide (3) If so, what remedy should be granted? there is a reasonable possibility
is ordered to be released, information must be Privileged Information that he information is logically
any of the ordinary disclosed. Michaud v Quebec Obligation probative to an issue at trial or
conditions of release can be 1) Creation of Right The Crown to disclose is not absolute. the competence of a witness to
imposed. has a duty to disclose evidence to the The Crown may justify non- testify. o (2) Having looked at
Section 520 & 521 A accused. Must disclose all material it disclosure in circumstances the records, the judge is required
decision made by a justice proposes to use at trial and especially where the public interest in to decide whether to release it or
concerning release or all evidence which may assist the nondisclosure outweighs the some portions of it to the accused.
detention may be reviewed accused even if the Crown does not accuseds interest in Factors (i) the extent to which
by a judge upon propose to adduce it. (R v disclosure. the record is necessary for the
application of the accused Stinchcombe). (1) Informer Privilege accused to make full answer and
or the prosecutor. 2) Structure of Right The material to CL Rule - The identity of police defence; (ii) the probative value of
Section 525 Where be disclosed includes all witness informers is entitled to the highest level of the record in question; (iii) the
interim release has statements, whether the Crown intends protection to protect individuals and nature and extent of the reasonable
been denied an accused to call the witness or not, and notes or investigative method (Bisaillon v expectation of privacy vested in that
person in custody is entitled to will say statements where no actual Keable). record; (iv) whether production of that
an automatic review if the statements exist (R v Stinchcombe). o Innocence at stake exception record would be premised upon any
trial has not commenced with a The obligation to disclose is a If evidence establishes a basis for this discriminatory belief or bias, and (v) the potential
specific time frame. continuing one, the Crown must exception, identifying information will be prejudice to the complainants dignity, privacy or
Section 523 A disclose any additional revealed. Ie. the informer is a material security of the person would be occasioned by
preliminary inquiry information it receives. o witness to the crime, acted as an agent production of the record in question.
judge or trial judge can Defence has a continuing provocateur, or planted the material found STATUTORY RULE
vacate any previous obligation to seek under a search warrant (R v Leipert). o In response Parliament enacted ss.
order (whether for detention or disclosure. It is not Only if the accused can establish 278.1 to 278.91 rules for production
release) and substitute a different entitled to assume that it some basis to conclude that of records in the hands of 3rd parties
order where cause to do so is has received all relevant without disclosure the practically replaced OConnor standards.
shown. information (Dixon). 1) accuseds innocence is at o Applies prima facie to all 3rd party
Section 518 Sets out the Remedy for Breach The Crowns stake, should the trial judge records, including records already in the
principles of evidence discretion with regards to disclosure consider disclosure. hands of the Crown.
at bail hearings, which can be reviewed by the trial judge if The Crown has the choice of staying Section 278.5(2) the judge must balance
allows the justice to defence counsel disagrees with the proceedings rather than making disclosure (R the salutary and deleterious effects of producing
receive and base his way in which it has been exercised (R v Solosky). the record for the judges own inspection.
decision on evidence v Stinchcombe). o Non- (1) Solicitor-Client Privilege Section 278.5(1) Accused to show that
considered credible or disclosure may result in CL Rule It is a principle of fundamental the records likely relevant, and the production is
trustworthy by him in remedy of new trial, stay of justice (R v McClure). Accused may necessary in the interest of justice. Decision
the circumstances of proceedings. o Carosella infringe anothers solicitor client privilege based on 5 factors in OConnor Section
each case. However, a accused charged with gross indecency. in order to make full answer and defence. 278.1 Only records of the type listed in which
bail hearing cannot be Complainant visited rape crisis centre. McClure Just with informer there is also a reasonable expectation
used to interrogate or Accused applied for production of privilege, the obligation to of privacy will be governed by the
examine the accused notes. They has been destroyed. disclose arises only when the scheme.
about the offence Accused has a Charter right to accuseds innocence is at PRELIMINARY INQUIRIES
itself. disclosure; non-disclosure = breach. A stake. At the preliminary inquiry, the judge
Section 524 - An stay should only be granted if must determine whether the Crown has presented
accused who has or (i) prejudice to the accused a prima facie case
is about tho violate cannot be remedies; or (ii)
If so, accused is Charter, including remedies waives the preliminary A judge has no jurisdiction at the
committed to stand for delay, non-disclosure, or inquiry and thus no issues preliminary inquiry to order the
trial and the the production of evidence arises b/c the provincial court prosecution to call a witness and
prosecutor will be obtained in violation of a judge has jurisdiction over all cannot himself call a witness.
called upon to draft an constitutional right. of the offences charged. (1) Address to Accused
indictment, which will (1) Commencement If she elects trial by judge alone, Section 541(2) - At the close of the
replace the original Section 536 an accused who or judge and jury, the preliminary prosecution evidence, the Code requires the justice to
information as the new is charged with an indictable inquiry will proceed on the address an accused who is not represented by
charging document. offence within the absolute electable offences and the others counsel. Allowing them to say something addressing
If the Crown does not jurisdiction of a provincial would have to be separately charges, but what they say can be held against them
establish a prima facie court judge shall be remanded charged in another information. at trial.
case, the accused is to appear before such a judge (1) Presence of the Accused (1) Defence Evidence
discharged and the for trial within the territorial The accused is entitled to be Section 541 The defence is entitled to
prosecution on the jurisdiction in which the offence present that the preliminary adduce evidence on behalf of the accused,
charge that has been was allegedly committed. inquiry. Section 537(1)(j.1) including testimony by the accused, but is not
laid ends. A The possibility of having a judge has discretion to excuse the obliged to call witnesses.
discharge at the preliminary inquiry in respect accused from all or part of the The preliminary inquiry provides an
preliminary inquiry is of an indictable offence will inquiry. opportunity for the defence to acquire further
not an acquittal. The depend on (i) the classification Section 537 (1)(j) and (k) discovery of the case as a whole. Section
prosecution can relay of the offence; and (ii) the accused may appear by an 715 If evidence was taken on oath at
the charge and try election of the accused as to a electronic connection. the preliminary inquiry in the presence of the
again, but will not do mode of trial. Section 544 if the accused accused, and the witness either refuses to testify
so unless important (1) Scope absconds during the preliminary or is dead, insane, too ill to travel, or absent from
new evidence is Section 535 directs the justice inquiry, the accused is deemed to Canada, then the evidence can be introduced at
uncovered. of the judge to inquire into the have waived the right to be trial.
Section 577 - The charge of any indictable offence present. The justice may continue R v Hawkins a witness testified at the
Attorney General also has or any other indictable offence the inquiry to its conclusion or if preliminary inquiry, but then married the accused, thus
the authority to lay direct in respect of the same an arrest warrant has been issued, incompetent to testify at trial. She was not refusing to
indictment, which gives transaction disclosed by the adjourn it. testify; thus s. 715 did not apply allowing her
jurisdiction to a court to try evidence taken in accordance Counsel for the accused is entitled evidence to be led at trial.
the accused. The direct with Part XVIII. The scope of to act for the absconding publication Bans
indictment can be used to re- the preliminary inquiry is not accused, and may still call Section 537(1)(h) and 486 judge has
institute a prosecution after a limited to the offences as witnesses. discretion to exclude the public from court.
preliminary inquiry discharge, or charged in the information. o If the accused has absconded, the Section 539 a publication ban is imposed
to bypass a preliminary inquiry It can extend to any indictable justice is entitled to draw adverse by order of the justice before any evidence is
altogether by indicating the offence disclosed by the inferences. taken it is discretionary if sought by the
accused directly to trial. evidence, provided it arises (1) Constitutional Issues prosecution and mandatory if sought by the
Before an accused is tried on from the same transaction Mills - The SCC decided that a accused.
an indictable offence, a (narrative of conduct that may court conducting a preliminary Section 539(2) if the accused is not
preliminary inquiry may be comprise several acts and inquiry is not a court of represented by counsel, the Code obliges the
conducted by a justice, at the may disclose several competent jurisdiction judge to inform him of the right to seek a
request of the prosecution or the offences). Section 541 under the charter. Thus, if publication ban.
accused, unless the offence is Expressly allows the accused to call an accused seeks to apply for Committal
within the absolute jurisdiction of evidence and this can include a constitutional remedy Section 548 - DIRECTS THE JUSTICE OR
the provincial court judge. exculpatory evidence on a under section 24 or 52, they JUDGE AT THE PRELIMINARY INQUIRY TO
This can be overridden if the matter of defence. The only forum for such a motion COMMIT THE ACCUSED FOR TRIAL ON ANY
AG elects to proceed by way of preliminary inquiry has also is the court of trial. INDICTABLE OFFENCE IF THE EVIDENCE IN
direct indictment, (s. 577), been used as an opportunity SUPPORT OF THAT CHARGE IS SUFFICIENT. IF
which effectively puts the to lay an evidentiary ALSO REQUIRES that the accused be discharged
indictment immediately before foundation for an issue that Evidence in respect of any charge on which the evidence
the court of trial. can only be decided at trial. (1) Admissibility is not sufficient. Shephard The SCC
The function of the Section 601 judge given Section 540 Evidence at the stated that the test of sufficiency at the
preliminary inquiry is to broad powers to amend preliminary inquiry is taken under preliminary inquiry, as for a directed
afford the parties an the charges in the oath and recorded. verdict and for committal in
opportunity upon request information at preliminary Prosecution witnesses are heard extradition matters, is whether a
to test the evidence of inquiry. first and may be x-examined by the reasonable jury, properly instructed,
specific witnesses on Challenges to quash the accused or counsel. could find the charge proved beyond
specific issues in information at the Evidence tendered at the reasonable doubt.corY j in WD o Test if
preparation for trial. preliminary inquiry will preliminary inquiry must comply sufficiency at preliminary inquiry is
Jurisdiction succeed only in cases with the principles and rules of concerned with the completeness of the
There is no inherent where there is a radical admissibility that apply at trial. prosecution evidence on the elements of the
jurisdiction. The only jurisdictional defect that Section 540(7) A justice acting offence. Direct evidence on all
powers that may be lies beyond the power of under this Part may receive as elements = accused committed.
exercised by the judge are amendment in s.601. evidence any information that The judge should discharge the
those that are explicitly (1) MULTIPLE ACCUSED AND would not otherwise be admissible accused if no reasonable trier of fact
granted in the Code or that MULTIPLE COUNTS but that the justice considers could find the accused guilty on the
are necessarily implicit in If multiple accused are credible or trustworthy in the evidence adduced by the prosecution.
those provisions. charged in a single circumstances of the case, If the accused is discharged at the
Section 537(1)(i) information, each is entitled including a statement that is made preliminary inquiry, there is no
provides that a judge at to make a request for a by a witness in writing or acquittal and thus the accused cannot
the preliminary inquiry preliminary inquiry, as is the otherwise recorded. claim protection against double
may regulate the course prosecution. Section 567 (1) Cross-examination of jeopardy if the prosecution should
of the inquiry in any way Empowers a judge not to Prosecution Witnesses subsequently proceed against him on
that appears to be record the election of an The accused is permitted to x- the same charge or related charges,
desirable and not accused if it would necessarily examine a prosecution witness either by means of fresh information or
inconsistent with any lead to severance of the on any matter that could lead to direct indictment.
other provision of the accused. The judge at THE the conclusion that the Review
Code. A judge at a PRELIMINARY INQUIRY prosecution evidence is - DECISION TO COMMIT OR DISCHARGE AT A
preliminary inquiry has no CANNOT INQUIRE INTO insufficient and in a manner that PRELIMINARY INQUIRY CAN ONLY BE REVIEWED
power to grant any SUMMARY-CONVICTION might be useful in a subsequent ON THE BASIS OF AN ACTION FOR CERTIORARI.
remedy other than those OFFENCES AND INDICTABLE trial. Section 537(1.1) - The It is open to the Crown to seek
contemplated by the OFFENCES WITH THE justice has the express power to certiorari in the case of discharge.
Code. ABSOLUTE JURISDICTION OF immediately stop any part of it that Section 577 THE CROWN HAS A SIMPLER
The SCC has held that THE PROVINCIAL COURT. is in the opinion of the justice, OPTION OF PREFERRING A DIRECT INDICTMENT
the judge cannot grant a If the accused elects trial abusive, too repetitive or otherwise DESPITE THE DISCHARGE, SO MORE
remedy under the in provincial court, she inappropriate. FREQUENTLY CERTIORARI APPLICATIONS
REVIEW OF A DECISION TO peace decides whether to issue a BASED ON 2 JUSTIFICATIONS In either judge alone or jury trials, there will
COMMIT. CERTIORARI IS summons or a warrant, where a case (i) the potential juror would face a conflict often be preliminary legal issues to be resolved
ONLY GRANTED IF THE JUDGE for doing so is made out to require the in serving on a jury, or (ii) what the juror before the trial gets going ordinarily dealt with by
HAS FALLEN INTO accused to attend court. does in everyday life is more important the assigned trial judge.
JURISDICTIONAL ERROR. O Section 505 If person arrested than, or for some other reason justifies a In a jury trial, it is often
ERRONEOUSLY EXCLUDING without a warrant, an obligation exists general exemption from, serving on jury convenient to assign the judge
EVIDENCE, UNLIKELY A to present whatever process was duty. and to dispose of these matters
JURISDICTIONAL ERROR issued to a justice of the peace. SELECTING JURORS : O before a jury is selected, or if the
UNLESS RISES TO LEVEL OF Section 508 imposes an SECTION 629 the accused or the motions can be resolved
DENIAL OF NATURAL JUSTICE obligation on the justice to prosecutor can challenge the jury array, expeditiously, select the jury and
(Dubois). perform a screening but it is only based on partiality, require it to leave the courtroom
IF TRIAL JUDGE FAILS TO process similar to that in s. fraud or wilful misconduct on until the motions are completed.
COMPLY WITH A MANDATORY 507. the part of the sheriff or (1) Timing and Means
PROVISION OF THE CODE IT IS A If the accused was arrested, he or she other officer by whom the Section 645(5) trial judge, in a jury trial,
JURISDICTIONAL ERROR. will (under s. 503) be taken in front panel was returned. o before the jury has been selected, is authorized to
Section 548 requires a of a justice of the peace who will decide Criminal trial must commence deal with any matter that would be dealt with in the
judge to commit the accused for whether to hold or release the accused. with 12 jurors. o Section 644 (1) absence of the jury.
trial if there is sufficient Section 515 the bail hearing allows a judge to discharge a juror based Some pre-trial motions are
evidence. It also requires a will be conducted in accordance with on illness or other reasonable charge, and specifically permitted in the Code
preliminary inquiry judge to these procedures. a juror previously selected might seek to Ie. application for change of venue (s. 599), for
discharge the accused if on arraignment the be excused under this section. o particulars (s. 587), for exclusion of the public
the whole of the evidence no accuseds initial Section 644(1.1) provided the jury from trial or a publication ban (s. 486), or to
sufficient case is made out. appearance in court to has not begun to hear evidence, a jury can severe counts (s. 591(3)). Section 625.1
Sazant the ACCUSED HAD answer the charge. choose a replacement juror. o Section Parties and the court can see
BEEN DISCHARGED AT THE If the offence is hybrid, 644 (2) directs that the jury remains whether an agreement can be
PRELIMINARY INQUIRY ON A the Crown should elect properly constituted, unless the judge reached that will expedite the
CHARGE OF SEXUAL ASSAULT. whether to proceed by orders otherwise, provided the number of trial. Ie. if the voluntariness of
PRELIMINARY INQUIRY JUDGE indictment or summary jurors is not reduced below 10. statements will be admitted.
SAID THAT THERE WAS conviction at this stage. Exemptions o Section 632 allows (1) Particular Pre-Trial Motions
ABSOLUTELY NO EVIDENCE OF If the matter is summary a trial judge to excuse jurors based on any Charge of Venue:
NON-CONSENT. COMPLAINANT conviction, automatically of the three grounds (1)personal o At CL, trials are to be held in the area in which
HAD TESTIFIED HE DID NOT or by election, the accused interest in the matter to be the offence occurred. Section 599 it is
WANT TO PARTAKE IN THE enters a plea and will be tried; (2)relationship with possible to apply to change the venue in which the
SEXUAL ACTIVITY. HELD - THE tried on the information in judge, prosecutor, accused, trail will be held. Either the defence or
JUDGE HAD MADE A Form 2. Section 471 - If the counsel for the accused, or a the Crown can apply for a change
JURISDICTIONAL ERROR. matter is indictable, trial must be by prospective witness; and of venue on the grounds that (a)
R v Arcuri - Supreme judge and jury unless some other part (3)personal hardship or other it appears expedient to the ends
Court of Canada of the code specifies otherwise. reasonable cause. o Section of justice; or (b) a competent
reviewed the test for Section 469 gives a superior court 633 the judge can stand authority has directed that a jury
committal for trial on a of criminal jurisdiction the ability to try jurors aside. They are only is not to be summoned at the time
preliminary inquiry an offence. recalled for possible appointed in a territorial division
and discussed the Section 468 gives a court of selection if the array is where the trial would otherwise by
questions to be asked criminal jurisdiction the ability to try exhausted without a law be held. o Change venue id pre-
by a preliminary any offence other than those listed in s. complete jury. Challenges trial publicity has made it too
inquiry judge. The 469. for Cause o Section 638 difficult for the accused to obtain
Court ruled that Section 558 an accused can grounds which a juror may be challenged a fair trial. Prejudice must not be
although the test for elect not to have a jury, except for the for cause. Both Crown and accused are capable of being cured by
preliminary inquiry is offences listed in s.469. entitled to an unlimited number of safeguards in jury selection,
the same whether the Section 473 an accused can challenges for cause. instructions from the trial judge to
evidence is direct or elect not to have a jury even for the Some grounds are factual ie. jury, or by the rules of evidence.
circumstantial, the offences listed in s. 469 with the jurors is an alien. Some grounds are Fitness to Stand Trial: Pre-trial motion
nature of the judges consent of the AG. based on physical incapacity to perform to determine if the accuse is fit TO STAND TRIAL
task varies according Section 536(2) the accused is juror duties i.e language barrier. o IE. SUFFERS FROM MENTAL DISORDER. O PART
to the type of evidence asked to elect a mode of trial. Section 638 (1) (f) can challenge on XX.1 FITNESS PROVISIONS FOCUS ON THE
advanced by the Crown. Section 553 if the offence is basis that a juror is not indifferent ACCUSEDS MENTAL STATE AT THE TIME OF
The judge must therefore weigh listed as in the absolute jurisdiction of between the Queen and the accused. TRIAL, AND WHETHER IT IS FAIR TO PROCEED.
the evidence, in the sense of a magistrate, then the accused does (1) Counsel has to satisfy the trial judge o Section 672.22 Everyone is presumed to
assessing whether it is not elect and is tried in a provincial that the challenge for cause should be be fit to stand trial. requirements:
reasonably capable of court. Section 565(1) if the permitted counsel must tell the trial (1) Section 2 Unfit to stand trial
supporting the inferences that accused refuses to elect, the trial will judge the basis for the challenge. (2) The requires that accused suffered from a mental
the Crown asks the jury to draw. be by judge and jury. challenge itself. Counsel is permitted to disorder.
This weighing, however, is Section 598 if the accused elects ask questions of the jurors to determine (2) Accused is unable to account to
limited. The judge does not ask trial by judge and jury, but then fails to whether the juror will in fact be able to act conduct a defence at any stage of the proceedings
whether she herself would appear, then the later trial will not be in impartially. o An unsuccessful challenge before a verdict is rendered or to instruct counsel,
conclude that the accused is front of a judge and jury unless the for cause does not prevent a peremptory and, in particular, unable on account of mental
guilty. Nor does the judge draw accused shows a legitimate excuse. challenge from being used (Cloutier). disorder to (a) understand the nature
factual inferences or assess Section 579 the Crown may Peremptory Challenges o Section 634 of the proceedings, (b)
credibility. The judge asks only stay proceedings with the Peremptory challenges allow the accused understand the possible
whether the evidence, if believed, ability to recommence or the Crown to dismiss a potential juror consequences of the proceedings,
could reasonably support an within 1 year. w/o explanation. o Each party has 20 communicate with counsel. o A
inference of guilt. Jury Selection peremptory challenges in cases of high party arguing that the accused is
THE JURY TRIAL Section 471 every indictable treason or 1 s t degree murder, 12 for other unfit has the burden of proof on a
If a jury trial is to be held, a trial offence shall be tried by a judge and offences carrying 5 years or more, and 4 in balance of probabilities (section
judge is assigned, and a jury jury except where otherwise expressly all other cases. o If a trial on more than 1 672.23(2) and 672.22). If the above
is selected. provided by law. Section 92(14) charge, the number of peremptory requirements are met, reasonable
Selecting Mode of Trial Constitution Act provinces given challenges is for the most serious grounds are made out that the
Section 504 anyone can jurisdiction over the administration of offence charged. o Section accused is unfit to stand trial.
lay an information alleging justice in the province. 634 - More than 1 accused, each accused Once this is made out, then the
the commission of an Section 626 jurors must be receives the proscribed number, Crown actual question of fitness is
offence in front of a justice qualified in accordance with the laws in receives that same number as all the decided.
of the peace. the province. No person can be accused combined. o Accuseds use of Charter Motions o Section 11(b)
Section 788 - this is the disqualified from jury service based on the challenges = unconstrained. o Crown guarantees any person charged
document under which a sex. Generally, a juror is required to must exercise challenges in conformity with an offence has the right to
summary conviction trial will be the age of majority in the province, a with Charter principles and values. be tried within a reasonable
take place. resident of the province and a Canadian time. o Morin TEST for s. 11(b) claim.
Some delay is inevitable. The a third criterion A consider one anothers views Error of law based on insufficient reasons (1)
question is, at what point does balancing between the (Sims). the appeal court must ask whether the reasons are
the delay become unreasonable? interests of the accused Provided no improper pressure, inadequate; (2) it must be determined whether that
4 considerations must be served by irrelevant considerations are imposed and inadequacy prevents appellate review.
weighed: granting a stay, and the the right to disagree is clear, the trial judge If both stages of the test are met then a new trial
(1) the length of the interest of society in can urge the jury to find agreement (R v should be ordered (Gagnon).
delay having a final decision on Littlejohn) Duty to give reasons applies to acquittals.
(2) waiver of time the merits (Regan). THIRD Improper exhortation may lead to a new Acquittal = reasonable doubt (vs. conviction =
periods CRITERIA FOR STAY trial. BARD). RD can arise b/c an inadequate foundation
(3) the reasons for the TEST ABOVE Rendering a Verdict for guilt has been laid. Thus, takes less reasons to
delay, including THE TRIAL VERDICT Once jury deliberations are finished, the be adequate in the case of acquittal (R v Walker).
inherent time JURY TRIALS jury foreman announces its verdict in DOUBLE JEOPARDY AND ISSUE ESTOPPEL
requirements of the Where there has been a jury court. Where a verdict has been rendered, the accused
case, trial, the judge will charge Juries may be polled (every juror asked cannot be tried again for the same offence or for
actions of the accused the jury on the relevant law, individually about the verdict) usually an offence based on the same factual allegations
actions of the Crown and the jury will retire to done when there is doubt that unanimity he has been acquitted or convicted of.
limits on institutional deliberate, returning with a exists (R v Laforet). Once jury has Under the doctrine of issue estoppel the Crown
resources, and general verdict (ie. a verdict been discharged by the trial judge, neither is prevented from attempting in future
other reasons for delay delivered without reasons). If judge nor jury has authority to act. proceedings from re-litigating factual issues that
(4) prejudice to the there is a conviction, the judge R v Head foreman announced have already been decided against the Crown.
accused will conduct a sentencing verdict, not guilty. Jury Section 11(h) Charter Any person charged with
o Askov 6 8 months from hearing and impose a discharged. Accused acquitted. an offence has the right if finally acquitted of the
committal to trial. sentence. Foreman indicated later that the offence, not to be tried again, and if finally found
o Morin affirmed above. Jury Sequestration jury could have found the guilty and punished for the offence, not to be tried
Added delay in provincial courts Section 647 & 748 Following accused guilty of an included or punished for it again. R V Mahalingan
should be 8 10 months. the jury charge and offence (never said). Held Trial Issue estoppel does not prevent the Crown from
Accused can re-charge, a trial judge can judge was functus officio, no leading evidence on any issue raised in a previous
strengthen s. 11(b) allow the jury to separate rather than longer had jurisdiction to inquire trial resulting in an acquittal. It does preclude the
claim by showing commence deliberations immediately, into matter or correct error. Crown from adducing evidence that is
infringements of a and in this even a publication ban is Acquittal stood. inconsistent with determinations of issues which
liberty or fair trial imposed. Once the jury begins R v Burke Jurys verdict guilty, court were finally resolved in the accuseds favour at a
interests as well. o its deliberations it is thought foreman said not guilty. previous trial, on the basis of either a positive
Absent of proof of sequestered (isolated in a way Held If jury required to reconsider factual finding or reasonable doubt. The accused
serious prejudice, s. to keep from it any potential verdict, functus officio rule applies. TEST: bears the onus in establishing that the issue has
11(b) claims have sources of information). The If no reconsideration, trial judge to decide been conclusively decided in his or her favour.
become less likely to verdict CONVICTION OR if reasonable apprehension of bias. If no,
be granted. Abuse of ACQUITTAL MUST BE UNANIMOUS. judge can correct error. If yes, judge must
Process Requires that While sequestered- the jury may send allow verdict recorded to stand or declare
the proceedings are non-administrative inquiries to the mistrial (to prevent miscarriage of justice).
oppressive or judge. The judge is to (a) read the Thus, judge residual jurisdiction when
vexatious and that communication in open court in the there has been an irregularity. Mistrial
they violate the presence of all parties; (b) give counsel declared, new trial ordered.
fundamental principles an opportunity to make submissions in Jury Secrecy
of justice under the open court prior to dealing with the Section 649 It is an offence for
communitys sense of question; answer the question for the anyone present in the jury room to
fair play and decency jury in open court in the presence of all disclose any information about
(R v Keyowski). o At CL, the parties (R v Fontaine). o Ie. the jurys deliberations, other than in
issue was societys interest in a request copy of the Code, transcripts of connection with an investigation of
fair process, and whether wiretaps, judges instructions, rehear obstruction of justice under s. 139(2). o
proceedings had become so evidence, clarification of the legal At CL, also prevent anyone who overhears,
unfair that they were contrary to issues. even accidentally, the jurys deliberations
the interests of justice (R v A trial judge has discretion and is not from disclosing the information.
Power). o CL and s. 7 have obliged to answer every request from R v Pan Extrinsic matter = some
been merged, b/c abuse of the jury precisely as asked. 3rd party has contact with jury or gave
process claims can be decided A trial judge should information to a juror. Intrinsic matter
based on whether they violate the consult on how to respond, = the effect the contact or information had
accused right to a fair trial (R v and propose alternatives on jury deliberations. CL rule and s.
OConnor). o Stay of or ask the jury to 649, jury secrecy rule, only prevent
Proceedings o OConnor - deliberate further to intrinsic matters from being
If the abuse of process has decide more specifically disclosed.
caused prejudice to the accused what their concern is; not Mercier could leave evidence that the
or threatened integrity of the simply refuse s. D(8)(b) Crown prosecutor has erased words from
justice system, for a STAY to be (R v Ostrowski). Basic rule the blackboard in the jury room (extrinsic
appropriate, TEST : no additional matter). Evidence concerning effect this
(1) the prejudice caused information/evidence that had on jurys reasoning, intrinsic, not
by the abuse in question did not come out at trial admissible.
will be manifested can be given to the jury JUDICIAL VERDICTS
perpetuated or once they have begun Where there has been a judge alone trial,
aggravated through the deliberating, and it might the judge will render the verdict. The
conduct of the trial, or by be necessary to tell the jury that judge is obliged to give
its outcome; and there was no evidence led on the point reasons for decision. If the
(2) no other remedy is in question (R v Templeman). accused is convicted, the
reasonably capable of exhorting the Jury judge will conduct a
removing that prejudice. Section 653 - IF THE JURY IS sentencing hearing.
o A stay is intended to UNABLE TO REACH UNANIMITY, THEN Sheppard there is no general duty
prevent the perpetuation A TRIAL JUDGE MAY DISCHARGE THE for a trial judge to give reasons, however,
of a wrong that will JURY AND ORDER A NEW TRIAL. in many circumstances the failure to do so,
otherwise continue to If the jury is in a deadlock, or do so adequately, will be an error of law
affect the first step is to call them in and giving rise to a ground of appeal. Held
the parties and the exhort them to reach a verdict. Trial judge delivered boiler plate reasons
community (Regan). The exhortation is to that indicated, in a single sentence that he
o If any doubt exists focus on the process of had considered the testimony and burden
about whether a stay deliberation itself, and the Crown. These reasons were insufficient
should be granted, the encourage the jury for the accused, or an appeal court, to
Court has created members to listen to and know the basis for the conviction. Thus
conviction overturned.
R. v. Litchfield Evidence In a trial by judge sanctions that have one or more of the
Practice -- Collateral Application for non-suit alone, the Crown first following objectives:
attack - non-suit - granted -- Whether this proceeded on those counts (a) to denounce unlawful conduct;
Sexual assault by Court had jurisdiction to relating to vaginal (b) to deter the offender and other
practising male review pre-trial examinations. The trial persons from committing offences;
physician on severance order -- If so, judge refused the Crown's to separate offenders from society,
female patients -- whether pre-trial motion to hold a voir dire to where necessary;
Counts severed severance order should determine the admissibility (d) to assist in rehabilitating offenders;
and divided by be set aside -- Whether of the evidence relating to (e) to provide reparations for harm
judge in chambers any of the evidence the severed counts and done to victims or to the community;
before indictment excluded at trial should ruled that the Crown could and (f) to promote a sense of
preferred before have been admitted -- proceed by calling all of the responsibility in offenders, and
trial judge -- Three Whether non-suit should evidence relating to the acknowledgment of the harm done to victims
trials to be held have been granted. severed counts, subject to and to the community.
depending on Criminal law - Whether any of a subsequent ruling on Section 718.01 Offences against children.
whether assault the evidence excluded at admissibility. The Crown When a court imposes a sentence for an offence
dealt with genitals, trial should have been called all of the evidence that involved the abuse of a persons under the age
breasts or other admitted -- Whether relating to the severed of 18 years, it shall give primary consideration to
areas of body -- non-suit should have counts, as well as the the objects of denunciation and deterrence of
Trial judge refusing been granted. evidence of the such conduct.
to admit evidence Prior to trial, respondent complainants in the trial Section 718.1 Fundamental principle. A
between counts -- applied for an order that going to the counts before sentence must be proportionate to the gravity of
Application for each count be tried the court and the evidence the offence and the degree of responsibility of the
non-suit granted -- separately or of two medical experts. offender.
Whether this Court alternatively that the The trial judge, on a voir Section 718.2 Other sentencing principles. A
had jurisdiction to counts be severed by dire, refused to admit the court that imposes a sentence shall also take into
review pre-trial complainant. The judge evidence of several other consideration the following principles:
severance order -- hearing the motion (not women of similar assaults (a) a sentence should be increased
If so, whether the trial judge) ordered by the respondent. He also or reduced to account for any
pre-trial severance that three different trials refused to admit the relevant aggravating or mitigating
order should be set be held depending on testimony of the circumstances relating to the offence or the
aside -- Whether the part of the respondent's ranking offender, and, without limiting the generality of the
any of the evidence complainant's body medical officer as to foregoing, (i) evidence that the
excluded at trial involved in the assault -- counselling the respondent offence was motivated by bias,
should have been genitalia, breasts or had received from her after prejudice or hate based on race,
admitted -- other matters. The complaints were lodged national or ethnic origin,
Whether non-suit counts therefore were against him while he language, colour, religion, sex,
should have been not only severed but practised in the military. age, mental or physical disability,
granted --Criminal also divided such that The trial judge sexual orientation, or any other
Code, R.S.C., 1985, separate trials were to subsequently ruled all the similar factor, (ii) evidence that the
c. C- 46 , ss. 265(1) ( be held for events that evidence relating to the offender, in committing the
a), (2) , (3) (c), 590(3 occurred within one visit severed counts offence, abused the offenders
) , 591(3) (a), (4) , 64 to the respondent's inadmissible as irrelevant spouse or common-law partner,
5(5) , 676(1) (a), 686 office by the same or, even if relevant, too (ii.1) evidence that the offender, in
(4) (a), (b) complainant. prejudicial. THE committing the offence, abused a person under
(i), 693(1) (b). RESPONDENT the age of eighteen years, (iii) evidence that the
Jurisdiction -- SUCCESSFULLY offender, in committing the offence, abused a
Appellate courts -- BROUGHT A MOTION FOR position of trust or authority in relation to the
Pre-trial severance A NON-SUIT AT THE victim, (iv) evidence that the offence was
of counts of sexual CLOSE OF THE CROWN'S committed for the benefit of, at the direction of or
assault -- Three CASE AND WAS in association with a criminal organization, or (v)
trials to be held ACQUITTED. THE COURT evidence that the offence was a terrorism offence
depending on OF APPEAL DISMISSED shall be deemed to be aggravating circumstances;
whether assault THE CROWN'S APPEAL. (b) a sentence should be similar to sentences
dealt with genitals, AT ISSUE HERE WERE: imposed on similar offenders for similar offences
breasts or other (1) WHETHER THIS COURT committed in similar circumstances;
areas of body -- HAD JURISDICTION TO (CONSISTENCY) where consecutive sentences
Trial judge refusing REVIEW A PRE-TRIAL are imposed, the combined sentence should not
to admit evidence SEVERANCE ORDER, AND be unduly long or harsh;
between counts -- (2) IF SO, WHETHER THE (d) an offender should not be deprived of liberty, if
Application for PRE-TRIAL SEVERANCE less restrictive sanctions may be appropriate in
non-suit granted -- ORDER SHOULD BE SET the circumstances; and (e) all available sanctions
Whether this Court ASIDE; (3) WHETHER ANY other than imprisonment that are reasonable in the
had jurisdiction to OF THE EVIDENCE circumstances should be considered for all
review pre-trial EXCLUDED AT TRIAL offenders, with particular attention to the
severance order -- SHOULD HAVE BEEN circumstances of aboriginal offenders.
If so, whether ADMITTED; AND Section 718.3 Degree of Punishment
pre-trial severance (4) WHETHER A NON-SUIT (1) Where an enactment prescribes
order should be set SHOULD HAVE BEEN different degrees or kinds of punishment
aside -- Whether GRANTED. in respect of an offence, the punishment
any of the evidence Held: The appeal should be to be imposed is, subject to the limitations
excluded at trial allowed. prescribed in the enactment, in the
should have been SENTENCING discretion of the court that convicts a person
admitted -- GENERAL PRINCIPLES OF who commits the offence.
Whether non-suit SENTENCING Discretion respecting punishment
should have been For the most part, the general principles (2) Where an enactment prescribes a
granted. of sentencing have been codified in the punishment in respect of an offence, the
Criminal Code. punishment to be imposed is, subject to the
Section 718 Purpose. The limitations prescribed in the enactment, in
fundamental purpose of the discretion of the court that convicts a
sentencing is to contribute, along person who commits the offence, but no
with crime prevention initiatives, punishment is a minimum punishment
to respect for the law and the unless it is declared to be a minimum
maintenance of a just, peaceful punishment.
and safe society by imposing just (3) Where an accused is convicted of an
offence punishable with both fine and
imprisonment and a term of deem dot be resumed, as the Retribution bears little relation to (b) subject to subsection 119(2) of the
imprisonment in default of case may be, on the day on vengeance Youth Criminal Justice Act, the history
payment of the fine is not which the convicted person is Retribution should also be of previous dispositions under the
specified in the enactment arrested and taken into custody conceptually distinguished from Young Offenders Act, chapter Y-1 of the
that prescribes the under the sentence. its legitimate sibling, Revised Statutes of Canada, 1985, the
punishment to be imposed, (5) Notwithstanding (1), where the denunciation Retribution requires history of previous sentences under
the imprisonment that may sentence that is imposed is a fine with that a judicial sentence properly the Youth Criminal Justice Act, and of
be imposed in default of a term of imprisonment in default of reflect the moral blameworthiness of previous findings of guilt under this Act and
payment shall not exceed payment, no time prior to the day of the particular offender The objective any other Act of Parliament;
the term of imprisonment execution of the warrant of committal of denunciation mandates that a the history of any alternative measures
that is prescribed in counts as a part of the term of sentence should also communicate used to deal with the offender, and the
respect of the offence. imprisonment. societys condemnation of that offenders response to those measures; and
Cumulative punishments (6) An application for leave to appeal is particular offenders conduct (d) any matter required, by any regulation
(4) The court or youth justice an appeal for the purposes of this Retribution must be considered in made under subsection (2), to be included in
court that sentences an section conjunction with the other legitimate the report.
accused may direct that the R v C.A.M. Facts - The objectives of sentencing. Idem
terms of imprisonment that accused pleaded guilty to R v Priest The primary objectives (4) The report must also contain
are imposed by the court or numerous counts of sexual in sentencing a first offender are information on any other matter required
the youth justice court or that assault, incest and assault individual deterrence and by the court, after hearing argument from
result from the operation of with a weapon, in addition to rehabilitation. The sentence should the prosecutor and the offender, to be
subsection 734(4) or other lesser offences, arising constitute the minimum necessary included in the report, subject to any
743.5(1) or (2) shall be from a largely uncontested intervention that is adequate in the contrary regulation made under subsection
served consecutively, pattern of sexual, physical and particular circumstances. Community- (2).
when (a) the accused emotional abuse inflicted upon based dispositions must be Copy of report
is sentenced while his children over a number of considered and more serious forms of (5) The clerk of the court shall provide a
under sentence for an years. None of the offences punishment should be imposed only copy of the report, as soon as practicable
offence, and a term of committed carried a penalty of life when necessary. Furthermore, a trial after filing, to the offender or counsel for the
imprisonment, imprisonment. The trial judge, judge should have either a pre- offender, as directed by the court, and to the
whether in default of remarking that the egregiousness sentence report or a very clear prosecutor.
payment of a fine or of the offences, sentenced the statement with respect to the Section 722 Victim impact statement.
otherwise, is imposed; accused to a cumulative accuseds background and (1) For the purpose of determining the
(b) the accused is found sentence of 25 years circumstances, before imposing a sentence to be imposed on an offender
guilty or convicted of an imprisonment, with individual sentence of imprisonment on the first or whether the offender should be
offence punishable with sentences running both offender. discharged pursuant to section 730 in
both a fine and consecutively and concurrently. R v Boucher In cases involving respect of any offence, the court shall
imprisonment and both The CA reduced the sentence to violence, arising out of an existing or consider any statement that may have
are imposed; 18 years and 8 months. Issue - failed domestic or romantic been prepared in accordance with
the accused is found Did the CA err in holding that relationship, the main sentencing subsection (2) of a victim of the offence
guilty or convicted of retribution is not a legitimate objectives are denunciation and describing the harm done to, or loss suffered
more than one offence, principle of sentencing? Held - deterrence. Further, sentences by, the victim arising from the commission of
and Yes ; the appeal was allowed imposed must promote a sense of the offence.
(i) more than one fine is and the sentence of 25 years responsibility in offenders and an Procedure for victim impact
imposed, restored. Lamer CJC: The BC acknowledgement of the harm done, statement
(ii) terms of imprisonment Court of Appeal erred in applying not only to the immediate victim, but (2) A statement referred to in subsection
for the respective as a principle of sentencing that also to the community at large. In (1) must be
offences are imposed, or fixed-term sentences under the cases like this, the likelihood of (a) prepared in writing in the form and in
(iii) a term of Criminal Code ought to be capped enduring psychological trauma to the accordance with the
imprisonment is imposed at 20 years, absent special victim from the irrational, controlling procedures established by a program
in respect of one offence circumstances and obsessive nature of the designated for that purpose by
and a fine is For many of the lesser crimes misconduct is significant. the lieutenant governor in council of the
imposed in respect of presently before our courts, a single or Procedure province in which the court is
another offence; or cumulative sentence beyond 20 years Section 720 Sentencing exercising its jurisdiction; and
(d) subsection would undoubtedly be grossly Proceedings. (1) A court shall, as (b) filed with the court.
743.5(1) or (2) excessive, and probably cruel and soon as practicable after an Presentation of statement
applies. unusual offender has been found guilty, (2.1) The court shall, on the request of a
Section 719 In other circumstances, such a stern conduct proceedings to determine victim, permit the victim to read a statement
Commencement of sentence would be both fitting and the appropriate sentence to be prepared and filed in accordance with
sentence. appropriate imposed. Section 721 Report by subsection (2), or to present the statement
(1) A sentence The ultimate protection against probation officer. (1) Subject to in any other manner that the court considers
commences when it is excessive criminal punishment lies regulations made under subsection appropriate.
imposed, except where a within a sentencing judges overriding (2), where an accused, other than an Evidence concerning victim admissible
relevant enactment duty to fashion a just and organization, pleads guilty to or is (3) Whether or not a statement has been
otherwise provides. appropriate punishment which is found guilty of an offence, a probation prepared and filed in accordance with
(2) Any time during which proportional to the overall officer shall, if required to do so by a subsection (2), the court may consider any
a convicted person is culpability of the offender court, prepare and file with the court a other evidence concerning any victim of the
unlawfully at large or is A sentencing judge should generally report in writing relating to the offence for the purpose of determining the
lawfully at large on refrain from imposing a fixed-term accused for the purpose of assisting sentence to be imposed on the offender or
interim release granted sentence which so greatly exceeds an the court in imposing a sentence or in whether the offender should be discharged
pursuant to any provision offenders expected remaining life determining whether the accused under section 730.
of this Act does not count span that the traditional goals of should be discharged under section Definition of victim
as part of any term of sentencing have all but 730. (4) For the purposes of this section and
imprisonment imposed on depleted their Provincial regulations section 722.2, victim , in relation to an
the person. functional value (2) The lieutenant governor in council offence, (a) means a person to whom
(3) In determining the Retribution is an accepted, and of a province may make regulations harm was done or who suffered physical
sentence to be imposed indeed important, principle of respecting the types of offences for or emotional loss as a result of the
on a person convicted of sentencing in our criminal law which a court may require a report, commission of the offence; and (b) where
an offence, a court may It represents the hallowed and respecting the content and form the person described in paragraph (a) is
take into account any principle that criminal of the report. dead, ill or otherwise incapable of
time spent in custody by punishment, in Content of report making a statement referred to in
the person as result of addition to advancing utilitarian (3) Unless otherwise specified by the subsection (1), includes the spouse or
the offence. considerations related to court, the report must, wherever common-law partner or any relative of
(4) Notwithstanding (1), a deterrence and rehabilitation, possible, contain information on the that person, anyone who has in law or
term of imprisonment, should also be imposed to following matters: fact the custody of that person or is
whether imposed by a trial sanction (a) the offenders age, maturity, responsible for the care or support of that
court or the court appealed the moral culpability of the character, behaviour, attitude and person or any dependant of that person.
to, commences or shall be offender willingness to make amends;
Section 723 Submissions that sufficient evidence was than 2 years. (1) Except where reduced and the unexpired portions of the
on facts (1) Before adduced at the trial; otherwise provided, a person remaining term or terms on the day on which
determining the sentence, (b) the party wishing to rely on a who is sentenced to that person was transferred under this
a court shall give the relevant fact, including a fact imprisonment for (a) life, (b) a section amounted to less than two years,
prosecutor and the contained in a presentence report,
term of two years or more, or (c) that person shall serve that term or terms in
offender an opportunity to has the burden of proving it;
make submissions with either party may cross-examine two or more terms of less than accordance with subsection (3). (6) For the
respect to any facts relevant any witness called by the other two years each that are to be purposes of subsection (3), penitentiary
to the sentence to be party; served one after the other and does not, until a day to be fixed by order of
imposed. (d) subject to paragraph (e), the that, in the aggregate, amount to the Governor in Council, include the
Submission of evidence court must be satisfied on a two years or more, shall be facility mentioned in subsection 15(2)
(2) The court shall hear any balance of probabilities of the sentenced to imprisonment in a of the Corrections and Conditional
relevant evidence existence of the disputed fact penitentiary. Release Act . Section 745 Sentence
presented by the before relying on it in determining Subsequent term less than two of life imprisonment. Subject to section
prosecutor or the the sentence; and (e) the
years 745.1, the sentence to be pronounced
offender. prosecutor must establish, by
Production of evidence proof beyond a reasonable doubt, (2) Where a person who is sentenced against a person who is to be sentenced to
(3) The court may, on its own the existence of any aggravating to imprisonment in a penitentiary is, imprisonment for life shall be (a) in respect
motion, after hearing fact or any previous conviction by before the expiration of that sentence, of a person who has been convicted of
argument from the prosecutor the offender. sentenced to imprisonment for a term high treason or first degree murder, that
and the offender, require the R v Bremner The appellant of less than two years, the person the person be sentenced to
production of evidence that received 18 months incarceration shall serve that term in a penitentiary, imprisonment for life without eligibility
would assist it in determining on 4 counts of indecent assault but if the previous sentence of for parole until the person has served
the appropriate sentence. committed in the late 1960s and imprisonment in a penitentiary is set twenty-five years of the sentence;
Compel appearance early 70s. The appellant was an
aside, that person shall serve that (b) in respect of a person who has been
(4) Where it is necessary in officer in a quasi-naval
the interests of justice, the organization and the victims were term in accordance with subsection convicted of second degree murder
court may, after consulting sea cadets between 13-16 years (3). where that person has previously been
the parties, compel the old. The court of appeal changed Imprisonment for term less than convicted of culpable homicide that is
appearance of any person the incarceration to a conditional two years murder, however described in this Act,
who is a compellable witness sentence. Fairness in the (3) A person who is sentenced to that that person be sentenced to
to assist the court in sentencing process was adversely imprisonment and who is not required imprisonment for life without eligibility
determining the appropriate affected by the admission of to be sentenced as provided in for parole until the person has served
sentence. victim impact statements subsection (1) or (2) shall, unless a twenty-five years of the sentence;
Hearsay evidence containing inappropriate
special prison is prescribed by law, be (b.1) in respect of a person who has been
(5) Hearsay evidence is material including
admissible at recommendations as to the sentenced to imprisonment in a prison convicted of second degree murder where
sentencing length of sentence, statements or other place of confinement, other that person has previously been convicted of
proceedings, but the sought to achieve personal than a penitentiary, within the an offence under section 4 or 6 of the
court revenge and the use of province in which the person is Crimes Against Humanity and War
may, if the court psychiatric diagnostic terms in convicted, in which the sentence of Crimes Act that had as its basis an
considers it to be in reference to the accused. R v imprisonment may be lawfully intentional killing, whether or not it
the interests of Cromwell Plea bargain and joint executed. was planned and deliberate, that that
justice, compel a submission. A judge who is Long-term supervision person be sentenced to imprisonment
person considering rejecting a joint
(3.1) Despite subsection (3), an for life without eligibility for parole until
to testify where the recommendation should so advise
person counsel and provide them with an offender who is subject to long-term the person has served twenty-five years
(a) has personal opportunity to justify the supervision under Part XXIV and is of the sentence;
knowledge of the recommended sentence. sentenced for another offence in respect of a person who has been
matter; Incarceration during the period of the convicted of second degree murder, that the
(b) is reasonably Section 732 Making of supervision shall be sentenced to person be sentenced to imprisonment for life
available; and probation order. (1) Where a imprisonment in a penitentiary. without eligibility for parole until the person
is a compellable person is convicted of an Sentence to penitentiary of has served at least ten years of the
witness. person serving sentence sentence or such greater number of years,
offence, a court may, having
Section 724 Information
accepted. (1) In determining regard to the age and character elsewhere (4) Where a person is not being more than twenty-five years, as
a sentence, a court may of the offender, the nature of the sentenced to imprisonment in a has been substituted therefor pursuant to
accept as proved any offence and the circumstances penitentiary while the person is section 745.4; and (d) in respect of a
information disclosed at the surrounding its commission, (a) lawfully imprisoned in a place person who has been convicted of any other
trial or at the sentencing if no minimum punishment is other than a penitentiary, that offence, that the person be sentenced to
proceedings and any facts prescribed by law, suspend the person shall, except where imprisonment for life with normal eligibility
agreed on by the prosecutor passing of sentence and direct otherwise provided, be sent for parole.
and the offender. that the offender be released on immediately to the penitentiary, Section 718.3(4) - Cumulative
the conditions prescribed in a and shall serve in the punishments. The court or youth justice
(2) Where the court is
probation order; or (b) in penitentiary the unexpired portion of court that sentences an accused may direct
composed of a judge and
jury, the court (a) shall accept addition to fining or sentencing the term of imprisonment that that that the terms of imprisonment that are
as proven all facts, express the offender to imprisonment for person was serving when sentenced imposed by the court or the youth justice
or implied, that are essential a term not exceeding two years , to the penitentiary as well as the term court or that result from the operation of
to the jurys verdict of guilty; direct that the offender comply of imprisonment for which that person subsection 734(4) or 743.5(1) or (2) shall
and (b) may find any other with the conditions prescribed was sentenced to the penitentiary. be served consecutively, when (a) the
relevant fact that was in a probation order. Transfer to penitentiary accused is sentenced while under sentence
disclosed by evidence at the Idem (5) Where, at any time, a person who for an offence, and a term of imprisonment,
trial to be proven, or hear is imprisoned in a prison or place of whether in default of payment of a fine or
(2) A court may also make a
evidence presented by either
probation order where it confinement other than a penitentiary otherwise, is imposed;
party with respect to that fact.
Disputed facts discharges an accused under is subject to two or more terms of (b) the accused is found guilty or convicted
(3) Where there is a dispute subsection 730(1). imprisonment, each of which is for of an offence punishable with both a fine
with respect to any fact that Section 743 Imprisonment with less than two years, that are to be and imprisonment and both are imposed;
is relevant to the no other provision. Every one who served one after the other, and the the accused is found guilty or
determination of a sentence, is convicted of an indictable aggregate of the unexpired portions of convicted of more than one offence,
(a) the court shall request offence for which no punishment is those terms at that time amounts to and
that evidence be adduced as specially provided is liable to two years or more, the person shall (i) more than one fine is imposed,
to the existence of the fact be transferred to a penitentiary to (ii) terms of imprisonment for the respective
imprisonment for a term not
unless the court is satisfied
exceeding 5 years. Section 743.1 serve those terms, but if any one or offences are imposed, or (iii) a term of
Imprisonment for life or more more of such terms is set aside or imprisonment is imposed in respect of one
offence and a fine is imposed (d) remain within the jurisdiction of offence, with any modifications of the supervisor, which report must include,
in respect of another offence; the court unless written permission that the circumstances require, where appropriate, signed statements of
or (d) subsection 743.5(1) to go outside that jurisdiction is and subsection 495(2) does not witnesses.
or (2) applies. obtained from the court or the apply; Admission of report on notice of intent
supervisor; and (e) notify the court despite paragraph (a), if an (5) The report is admissible in evidence if
Conditional Sentences of
or the supervisor in advance of any allegation of breach of condition is the party intending to produce it has,
Imprisonment change of name or address, and made, the proceeding is before the hearing, given the offender
Section 742 Definitions. In promptly notify the court or the commenced by reasonable notice and a copy of the
sections 742.1 to 742.7, supervisor of any change of (i)the issuance of a warrant report.
change, in relation to employment or occupation. for the arrest of the offender Requiring attendance of supervisor or
optional conditions, includes Optional conditions of for the alleged breach, witness
deletions and additions; conditional sentence (ii) the arrest (8) The offender may, with leave of
optional conditions means order without warrant of the the court, require the attendance, for cross-
the conditions referred to in (2) The court may prescribe, as offender for the alleged examination, of the supervisor or of any
additional conditions of a breach, or witness whose signed statement is included
subsection 742.3(2);
conditional sentence order, that the (iii) the compelling of the offenders in the report.
supervisor means a person offender do one or more of the appearance in accordance with Powers of court
designated by the Attorney following: paragraph (d); (9) Where the court is satisfied, on
General, either by name or (a) abstain from (d) if the offender is already a balance of probabilities, that the
by title of office, as a (i) the consumption of alcohol or detained or before a court, the offenders offender has without reasonable excuse,
supervisor for the purposes other intoxicating substances, appearance may be compelled under the the proof of which lies on the offender,
of sections 742.1 to or (ii) the consumption of drugs provisions referred to in paragraph (a); breached a condition of the conditional
742.7. except in accordance with a (e) if an offender is arrested for the sentence order, the court may reverse
Section 742.1 Imposing medical prescription; alleged breach, the peace officer who onus
(b) abstain from owning, makes the arrest, the officer in charge or a (a) take no action;
of a Conditional Sentence.
possessing or carrying a judge or justice may release the offender (b) change the optional conditions;
If a person is convicted of an weapon; and the offenders appearance may be suspend the conditional sentence
offence, other than a serious provide for the support or care of compelled under the provisions referred to order and direct
personal injury offence as dependants; in paragraph (a); and (i) that the offender serve in custody
defined in section 752, a (d) perform up to 240 hours of (f) any judge of a superior court of a portion of the unexpired sentence, and
terrorism offence or a criminal community service over a criminal jurisdiction or of a court of (ii) that the conditional sentence
organization offence period not exceeding eighteen criminal jurisdiction or any justice of the order resume on the offenders release from
prosecuted by way of months; peace may issue a warrant to arrest no custody, either with or without changes to
indictment for which the (e) attend a treatment program matter which court, judge or justice the optional conditions; or
approved by the province; and (f) sentenced the offender, and the provisions (d) terminate the conditional sentence
maximum term of
comply with such other reasonable that apply to the issuance of telewarrants order and direct that the offender be
imprisonment is ten years or conditions as the court considers apply, with any modifications that the committed to custody until the expiration of
more or an offence desirable, subject to any circumstances require, as if a breach of the sentence.
punishable by a minimum regulations made under subsection condition were an indictable offence. Warrant or arrest suspension of running
term of imprisonment, and 738(2), for securing the good Interim release of conditional sentence
the court imposes a sentence conduct of the offender and for (2) For the purpose of the order
of imprisonment of less than preventing a repetition by the application of section 515, the release from (10) The running of a
two years and is satisfied that offender of the same offence or the custody of an offender who is detained on conditional sentence order
the service of the sentence in commission of other offences. the basis of an alleged breach of a imposed on an offender is
Obligations of court condition of a conditional sentence order suspended during the period that
the community would not
(3) A court that makes an order shall be governed by subsection 515(6). ends with the determination of
endanger the safety of the under this section shall (a) cause a Hearing whether a breach of condition had
community and would be copy of the order to be given to the (3) The hearing of an allegation of occurred and begins with the
consistent with the offender; a breach of condition shall be commenced earliest of
fundamental purpose and (b) explain the substance of within thirty days, or as soon thereafter as (a) the issuance of a warrant for the arrest
principles of sentencing set subsection (1) and sections is practicable, after of the offender for the alleged breach,
out in sections 718 to 742.4 and (a) the offenders arrest; or (b) the arrest without warrant of the
718.2, the court may, for the 742.6 to the offender; (b) the compelling of the offender for the alleged breach, and
purpose of supervising the cause an explanation to offenders appearance in accordance with (c) the compelling of the offenders
be given to the offender of the paragraph (1)(d). Place appearance in accordance with paragraph (1)(d).
offenders behaviour in the
procedure for applying under (3.1) The allegation may be heard by any Conditions continue
community, order that the section 742.4 for a change to the court having jurisdiction to hear that (11) If the offender is not detained in
offender serve the sentence optional conditions; and allegation in the place where the breach is custody during any period referred to in
in the community, subject to (d) take reasonable alleged to have been committed or the subsection (10), the conditions of the order
the offenders compliance measures to ensure that the offender is found, arrested or in custody. continue to apply, with any changes made
with the conditions imposed offender understands to them under section 742.4, and any
under section 742.3. the order and the explanations. Attorney Generals consent subsequent breach of those conditions may be
Section 742.3 For greater certainty (3.2) If the place where the offender is dealt with in accordance with this section.
Compulsory Conditions of (4) For greater certainty, a found, arrested or in custody is Detention under s. 515(6)
failure to comply with outside the province in which the breach is (12) A conditional sentence order referred
Conditional Sentence
subsection (3) does not affect alleged to have been committed, to in subsection (10) starts running again on the
Order. (1) The court shall the validity of the order. no proceedings in respect of that breach making of an order to detain the offender in
prescribe, as conditions of a Section 742.6 Procedure shall be instituted in that place custody under subsection 515(6) and,
conditional sentence order, on breach of condition. (1) For without unless section 742.7 applies, continues
that the offender do all of the the purpose (a) the consent of the Attorney running while the offender is detained under the
following: of proceedings under this General of the province in which the order.
(a) keep the peace and be of section, breach is alleged to have been committed; Earned remission does not apply
good behaviour; (a) the provisions of Parts or (13) Section 6 of the Prisons
(b) appear before the court XVI and XVIII with respect to (b) the consent of the Attorney and Reformatories Act does not
when required to do so compelling the appearance of General of Canada, if the proceedings that apply to the period of detention in
by the court; an accused before a justice led to the issuance of the conditional custody under subsection 515(6).
report to a supervisor apply, with any modifications sentence order were instituted by or on Unreasonable delay in execution
(i) within two working days, or that the circumstances require, behalf of the Attorney General of Canada. (14) Despite subsection (10), if there was
such longer period as the and any reference in those Adjournment unreasonable delay in the execution of a warrant,
court directs, after the making Parts to committing an offence (3.3) A judge may, at any time during a the court may, at any time, order that any period
of the conditional sentence shall be read as a reference to hearing of an allegation of breach of between the issuance and execution of the
order, and (ii) thereafter, breaching a condition of a condition, adjourn the hearing for a warrant that it considers appropriate in the
when required by the conditional sentence order; reasonable period. interests of justice is deemed to be time served
supervisor and in the manner (b) the powers of arrest for Report of supervisor under the conditional sentence order unless
directed by the supervisor; breach of a condition are those (4) An allegation of a breach of condition the period has been so deemed under
that apply to an indictable must be supported by a written report subsection (15).
Allegation dismissed or custody, the custodial period The offender must be convicted endanger the safety of the community by
reasonable excuse ordered shall, unless the court of an offence that is not punishable by serving a conditional sentence, such a
(15) If the allegation is considers that it would not be in a minimum term of imprisonment sentence would not be in conformity with the
withdrawn or dismissed the interests of justice, be served The court must impose a term of objectives of s. 718.
or the offender is found to consecutively to any other period imprisonment of less than two
have had a reasonable of imprisonment that the offender years Probation and Community Service
excuse for the breach, is serving when that order is made. The safety of the community would
the sum of the followingMultiple sentences not be endangered by the offender Section 731 Making of probation order. (1)
periods is deemed to be (3) If an offender is serving both a serving the sentence in the Where a person is convicted
time served under the custodial period referred to in community of an offence, a court may, having regard to
conditional sentence subsection 4. A conditional sentence the age and character of the
order: (2) and any other period of would be consistent with the offender, the nature of the offence and the
(a) any period for which imprisonment, the periods shall, for fundamental purpose and principles circumstances surrounding its
the running of the the purpose of section 743.1 and of sentencing set out in ss. 718 to commission,
conditional sentence section 139 of the Corrections and 718.2. (a) if no minimum punishment is
order was Conditional Release Act, be The requirement in s. 742.1(a) that prescribed by law, suspend the passing of
suspended; and deemed to constitute one sentence the judge impose a sentence of sentence and direct that the offender be
(b) if subsection (12) of imprisonment. imprisonment of less than two years released on the conditions prescribed in a
applies, a period Conditional sentence order resumes does not require the judge to probation order; or
equal to one half of(4) The running of any period of the firstimpose a sentence of (b) in addition to fining or sentencing
the period that the conditional sentence order that is imprisonment of a fixed duration the offender to imprisonment for a term not
conditional sentence to be served in the community before considering exceeding two years, direct that the offender
order runs while the resumes upon the release of the whether that sentence can be served comply with the conditions prescribed in a
offender is detained offender from prison on parole, on in the community probation order.
under an order statutory release, on earned Instead, a purposive interpretation
referred to in that remission, or at the expiration of of s. 742.1(a) should be adopted Idem
subsection. the sentence. In a preliminary determination, the
Powers of court reverseR v Proulx Note: the range of sentencing judge should reject (2) A court may also make a probation order
onus offences eligible conditional apenitentiary term and probationary where it discharges an accused under
(16) If a court is sentences has been altered since measures as inappropriate subsection 730(1).
satisfied, on a balance of this case was decided, yet the o Having determined that the Section 732.1 Definitions. (1) In this
probabilities, that the principles continue to apply. Facts - appropriate range of sentence is a section and section 732.2, change, in
offender has without The accused entered guilty pleas term of imprisonment of less than two relation to optional conditions, includes
reasonable excuse, the to one count of dangerous driving years, the judge should deletions and additions;
proof of which lies on the causing death and one count of then consider whether it is optional conditions means the conditions
offender, breached a dangerous driving causing bodily appropriate for the offender to serve referred to in subsection (3) or (3.1).
condition of the harm. He was sentenced to 18 his or her sentence in the community
conditional sentence months of incarceration, to be In making this determination on Compulsory conditions of probation
order, the court may, in served concurrently on both whether the accused would endanger order
exceptional cases and in the charges. The sentencing judge the community , the judge should
interests of justice, order that concluded that a conditional (2)
consider the risk posed by the specific The court shall prescribe, as conditions of a
some or all of the period of sentence pursuant to s. 742.1 of offender and take into consideration probation order, that the offender do all of
suspension referred to in the Code, would not be two factors the following:
subsection (10) is deemed to appropriate because it would be Two factors should be taken into ) keep the peace and be of good behaviour;
be time served under the inconsistent with the objectives of account ) appear before the court when required to do
conditional sentence order. denunciation and general The risk of the offender re- so by the court; and
Considerations deterrence. The Court of Appeal offending ) notify the court or the probation officer in
(17) In exercising its allowed the appeal and substituted 2. The gravity of the advance of any change of name or address,
discretion under subsection a conditional custodial sentence damage that could ensue in the and promptly notify the court or the
(16), a court shall consider for the jail term. Issue - Did the trial event of re-offence A conditional probation officer of any change of
(a) the circumstances judge err in not imposing a sentence can provide significant employment or occupation.
and seriousness of the conditional sentence? Held - No; denunciation and deterrence Optional conditions of probation order
breach; appeal allowed. SCC considered The more serious the offence, the
(b) whether not the principles to be applied under longer and more onerous the (3) The court may prescribe, as additional
making the order would section 742.1. conditional sentence should be conditions of a probation order, that the
cause the offender undue Lamer CJC: Where a combination of both punitive offender do one or more of the following:
hardship based on the The new types of sanctions and restorative objectives may be (a) report to a probation officer
offenders individual introduced in the 1996 achieved, a conditional sentence will (i) within two working days, or such
circumstances; and amendments were enacted likely be more appropriate than longer period as the court directs, after the making
(c) the period for both to reduce reliance on incarceration Where objectives such of the probation order, and
which the offender was incarceration as a sanction as denunciation and deterrence are (ii) thereafter, when required by the
subject to conditions while and to increase the use of particularly pressing, incarceration will probation officer and in the manner directed by
the running of the conditional principles of restorative justice generally be the preferable sanction the probation officer;
sentence order was in sentencing A conditional A conditional sentence may be (b) remain within the jurisdiction of the
suspended and whether the sentence should be imposed even where there are court unless written permission to go outside that
offender complied with those distinguished from aggravating circumstances, although jurisdiction is obtained from the court or the
conditions during that period. probationary measures the need for denunciation and probation officer;
Section 742.7 If the Probation is primarily a deterrence will increase in these (c) abstain from
person imprisoned for new rehabilitative sentencing tool. circumstances No party is under a (i) the consumption of alcohol or other
offence. (1) If an offender Parliament intended burden of proof to establish that a intoxicating substances, or
who is subject to a conditional sentences to conditional sentence is either (ii) the consumption of drugs except in
conditional sentence include both punitive and appropriate or inappropriate in the accordance with a medical prescription;
order is imprisoned as arehabilitative aspects circumstances Sentencing judges (d) abstain from owning, possessing or
result of a sentence o Therefore, conditional have a wide discretion in the choice of carrying a weapon;
imposed for another sentences should generally the appropriate sentence and are (e) provide for the support or care of
offence, whenever include punitive conditions entitled to considerable deference dependants;
committed, the running of that are restrictive of the from appellate courts A court of (f) perform up to 240 hours of community
the conditional sentence offenders liberty appeal should only intervene to vary a service over a period not exceeding eighteen
order is suspended during o Conditions such as house sentence imposed at trial if the months;
the period of arrest should be the norm, not sentence is demonstrably unfit In this (g) if the offender agrees, and subject to
imprisonment for that the exception case the sentencing judge considered the program directors acceptance of the offender,
other offence. Section 742.1 of the Code lists that a term of imprisonment of 18 participate actively in a treatment program
Breach of condition four criteria that a court must months was appropriate and declined approved by the province;
(2) If an order is made under consider to permit the accused to serve his (g.1) where the lieutenant governor in council of
paragraph 742.6(9) or (d) before deciding to impose a term in the community She found the province in which the probation order is made
to commit an offender to conditional sentence that, while the accused would not
has established a program for curative treatment
in relation to the consumption of committing a subsequent including an offence under section desirable, and the court shall thereupon
alcohol or drugs, attend at a offence; and 733.1, or is imprisoned under endorse the probation order accordingly
treatment facility, designated by (g) comply with any other paragraph 731(1)(b) in default of and, if it changes the optional conditions or
the lieutenant governor in council reasonable conditions that the payment of a fine, the order extends the period for which the order is to
of the province, for assessment court considers desirable to continues in force except in so far remain in force, inform the offender of its
and curative treatment in relation prevent the organization from as the sentence renders it action and give the offender a copy of the
to the consumption by the committing subsequent impossible for the offender for the order so endorsed.
offender of alcohol or drugs that offences or to remedy the harm time being to comply with the Compelling appearance of person
is recommended pursuant to the caused by the offence. order; and bound
program; Consideration organizations (b) no probation order shall (6) The provisions of Parts XVI and
continue in force for more than XVIII with respect to compelling the
(g.2) where the lieutenant (3.2) Before making an order three years after the date on which appearance of an accused before a
governor in council of the under paragraph (3.1)(b), a court the order came into force. justice apply, with such modifications
province in which the shall consider whether it would be Changes to probation order as the circumstances require, to
probation order is made has more appropriate for another (3) A court that makes a probation proceedings under subsections (3)
established a program regulatory body to supervise the order may at any time, on and (5).
governing the use of an development or implementation of application by the offender, the Section 733.1 Failure to comply with
alcohol ignition interlock device the policies, standards and probation officer or the prosecutor, probation order. (1) An offender
by an offender and if the procedures referred to in that require the offender to appear before who is bound by a probation order and who,
offender agrees to paragraph. it and, after hearing the offender and without reasonable excuse, fails
participate in the program, one or both of the probation officer or refuses to comply with that order is guilty
comply with the program; Form and period of order and the prosecutor, of
and (a) an indictable offence and is liable to
(h) comply with such (4) A probation order may be (a) make any changes to the
in Form 46, and the court that optional conditions that in the opinion imprisonment for a term not exceeding
other reasonable conditions as of the court are rendered desirable by two years; or
the court considers desirable, makes the probation order
shall specify therein the period a change in the circumstances since (b) an offence punishable on summary
subject to any regulations made those conditions were prescribed, conviction and is liable to imprisonment
under subsection 738(2), for for which it is to remain in
force. (b) relieve the offender, for a term not exceeding eighteen
protecting society and for either absolutely or on such terms months, or to a fine not exceeding two
facilitating the offenders Obligations of court
or for such period as the court thousand dollars, or both.
successful reintegration into (5) The court that makes a deems desirable, of compliance Where accused may be tried and
the community. probation order shall with any optional condition, or punished
Optional (a) cause a copy of the order (c) decrease the period for
conditions (2) An accused who is charged with an
to be given to the offender; which the probation order is to offence under subsection (1) may be tried
organization (b) explain the conditions of remain in force, and the court shall and punished by any court having
(3.1) The court may the order set under thereupon endorse the probation
jurisdiction to try that offence in the place
prescribe, as additional subsections (2) to (3.1) order accordingly and, if it changes
and the substance of where the offence is alleged to have been
conditions of a probation the optional conditions, inform the
section 733.1 to the offender of its action and give the committed or in the place where the
order made in respect of an accused is found, is arrested or is in
organization, that the offender; offender a copy of the order so
(c) cause an explanation to be endorsed. custody, but where the place where the
offender do one or more of
the following: given to the offender of the Judge may act in chambers accused is found, is arrested or is in custody
procedure for applying is outside the province in which the offence
(a) make restitution under subsection (4) All the functions of the is alleged to have been committed, no
to a person for any loss or 732.2(3) for a change to court under subsection (3) may be proceedings in respect of that offence shall
damage that they suffered the optional conditions and exercised in be instituted in that place without the
as a result of the offence; of the substance of chambers.
Where person convicted of offence consent of the Attorney General of that
(b) establish policies, subsections 732.2(3)
(5) Where an offender who is province. R v Ziatas Facts - Appeal by
standards and procedures and (5); and
bound by a probation order is the accused from the sentence imposed
to reduce the likelihood of (d) take reasonable measures
upon conviction after his plea of guilty to a
the organization to ensure that the offender convicted of an offence, including
committing a subsequent understands the order and an offence under section 733.1, charge of assault with intent to resist
offence; the explanations. For and arrest contrary to s. 246(2)(b) of the
(c) communicate greater certainty (a) the time within which an Code. The trial judge imposed a fine of $150
those policies, standards (6) For greater certainty, a failure appeal may be taken against that and placed the appellant on probation for a
and procedures to its to comply with subsection (5) conviction has expired and the term of one year. One of the conditions of
representatives; does not affect the validity of offender has not taken an appeal, the probation order was that the appellant
(d) report to the court the probation order. (b) the offender has taken an
should not operate a motor vehicle for the
on the implementation of Section 732.2 Coming into force appeal against that conviction and the period of one year. Issue - Was the driving
those policies, standards of order. (1) A probation order appeal has been dismissed, or
(c) the offender has given prohibition a valid probation condition for
and procedures; comes
written notice to the court that assault with intent to resist arrest? Held -
(e) identify the senior into force
officer who is responsible ) convicted the offender that the No; appeal allowed. The trial judge
on the date on which the order
for compliance with those offender elects not to appeal the proceeded upon a wrong principle,
is made;
policies, standards and conviction or has abandoned the inasmuch as he imposed this term of the
) where the offender is sentenced
procedures; appeal, as the case may be, in probation order as an additional punishment,
to imprisonment under
(f) provide, in the addition to any punishment that may whereas his only power, was to impose such
paragraph 731(1)
manner specified by the ) be imposed for that offence, the court reasonable conditions as he considered
or was previously sentenced to
court, the following that made the probation order may, desirable for securing the good conduct of
imprisonment for another
information to the public, on application by the prosecutor,
offence, as soon as the offender the accused and for preventing the repetition
namely, require the offender to appear before
is released from prison or, if by him of the same offence or the
(i) the offence of it and, after hearing the prosecutor
released from prison on commission of other offences . Note - The
which the organization was and the offender,
conditional release, at the ruling in Ziatas with respect to the residual
convicted, (d) where the probation order
expiration of the sentence of subcategory, s. 732.1(3)(h), has been
(ii) the sentence was made under paragraph 731(1)
imprisonment; or
imposed by the court, and ) (a), revoke the order and impose any followed in a number of cases.
where the offender is under a
(iii) any measures conditional sentence order, at sentence that could have been Fines
that the organization is the expiration of the conditional imposed if the passing of sentence Section 734 Power of court to impose
taking including any sentence order. Duration of had not been suspended, or fine. (1) Subject to subsection (2), a court
policies, standards and order and limit on term of order (e) make such changes to the that convicts a person, other than an
procedures established (2) Subject to subsection (5), optional conditions as the court organization, of an offence may fine the
under paragraph (b) to ) where an offender who is bound deems desirable, or extend the period offender by making an order under section
reduce the likelihood of it by a probation order is for which the order is to remain in
734.1 (a) if the punishment for the offence
convicted of an offence, force for such period, not exceeding
one year, as the court deems does not include a minimum term of
imprisonment, in addition to Moneys found on offender circumstances, or (ii) that the offender appropriate agreement is in effect between
or in lieu of any other (6) All or any part of a fine has, without reasonable excuse, the government of the province and the
sanction that the court is imposed under this section refused to pay the fine or discharge it Government of Canada.
authorized to impose; or (b) if may be taken out of moneys under section 736. Section 787 General penalty. (1)
the punishment for the found in the possession of the Reasons for committal Unless otherwise provided by law,
everyone who is convicted of an
offence includes a minimum offender at the time of the ( 2) Where no time has been
offence punishable on summary
term of imprisonment, in arrest of the offender if the allowed for payment of a fine
conviction is liable to a fine of not
addition to any other sanction court making the order, on and a warrant committing the more than five thousand dollars or
that the court is required or being satisfied that ownership offender to prison for default of to a term of imprisonment not
authorized to impose. of or right to possession of payment of the fine is issued, exceeding six months or to both.
Offenders ability to pay those moneys is not disputed the court shall state in the Imprisonment in default where not
(2) Except when the by claimants other than the warrant the reason for otherwise specified
punishment for an offender, so directs. immediate committal. (2) Where the imposition of a fine
offence includes a Provincial regulations or the making of an order for the
minimum fine or a fine is (7) The lieutenant governor in Period of imprisonment payment of money is authorized by
imposed in lieu of a council of a province may law, but the law does not provide that
(2.1) The period of imprisonment in
forfeiture order, a court make regulations respecting default of payment of the fine shall be imprisonment may be imposed in
may fine an offender the calculation of the costs and specified in a warrant of committal default of payment of the fine or
under this section only if charges referred to in compliance with the order, the court
referred to in subsection (1) or (2).
may order that in default of payment
the court is satisfied that subparagraph (5)(a)(i) and in
of the fine or compliance with the
the offender is able to paragraph 734.8(1)(b). Compelling appearance of person order, as the case may be, the
pay the fine or discharge Application to other law bound defendant shall be imprisoned for a
it under section 736. (8) This section and term not exceeding six months.
(3) The provisions of Parts XVI
Meaning of default of sections 734.1 to 734.8 and XVIII with respect to Discharges
payment and 736 apply to a fine compelling the appearance of an Section 730 Conditional and absolute
(3) For the purposes of this imposed accused before a justice apply, with discharge. (1) Where an accused, other
section and sections under any Act of Parliament, such modifications as the than an organization, pleads guilty to or is
734.1 to 737, a person except that subsections (4) circumstances require, to found guilty of an offence, other than an
is in default of and (5) do not apply proceedings under paragraph (1) offence for which a minimum punishment is
payment of a fine if the if the term of imprisonment in (b). prescribed by law or an offence punishable
fine has not been paid in default of payment of the fine Effect of imprisonment by imprisonment for fourteen years or for
full by the time set out in provided for in (4) The imprisonment of an life, the court before which the accused
the order made under that Act or regulation is offender for default of payment appears may, if it considers it to be in the
of a fine terminates the operation best interests of the accused and not
section 734.1. (a) calculated by a different
of sections 734.5 and 734.6 in contrary to the public interest, instead of
Imprisonment in default of method; or convicting the accused, by order direct that
relation to that fine. Section 736
payment (b) specified, either as a the accused be discharged absolutely or on
Note, there is no fine-option program
(4) Where an offender is minimum or a maximum. Section in force in most provinces, including the conditions prescribed in a probation
fined under this section, a 734.6 Civil enforcement of fines, Ontario. order made under subsection 731(2).
term of imprisonment, forfeiture. (1) Where (a) an Fine option program. (1) An
determined in offender is in default of payment of offender who is fined under section Period for which appearance notice, etc.,
continues in force (2) Subject to Part XVI,
accordance with a fine, or (b) a forfeiture imposed 734 may, whether or not the offender
where an accused who has not been taken
subsection (5), shall be by law is not paid as required by is serving a term of imprisonment
into custody or who has been released from
deemed to be imposed in the order imposing it, then, in imposed in default of payment of the
custody under or by virtue of any provision
default of payment of the addition to any other method fine, discharge the fine in whole or in
of Part XVI pleads guilty of or is found guilty
fine. provided by law for recovering the part by earning credits for work of an offence but is not convicted, the
Determination of term fine or forfeiture, the Attorney performed during a period not greater
appearance notice, promise to appear,
(5) The term of General of the province to whom than two years in a program summons, undertaking or recognizance
established for that purpose by the
imprisonment referred to in the proceeds of the fine or issued to or given or entered into by the
lieutenant governor in council (a)
subsection (4) is the lesser of forfeiture belong, or (d) the accused continues in force, subject to its
of the province in which the fine
(a) the number of days that Attorney General of Canada, terms, until a disposition in respect of the
was imposed, or (b) of the province
corresponds to a fraction, where the proceeds of the fine or in which the offender resides, accused is made under subsection (1)
rounded down to the nearest forfeiture belong to Her Majesty in where an appropriate agreement is unless, at the time the accused pleads guilty
or is found guilty, the court, judge or justice
whole number, of which (i) right of Canada, may, by filing the in effect between the government of
orders that the accused be taken into
the numerator is the unpaid order, enter as a judgment the that province and the government of
custody pending such a disposition.
amount of the fine plus the amount of the fine or forfeiture, the province in which the fine was
costs and charges of and costs, if any, in any civil court imposed, if the offender is admissible Effect of discharge
committing and conveying in Canada that has jurisdiction to to such a program. (3) Where a court directs under
the defaulter to prison, enter a judgment for that amount. Credits and other matters subsection (1) that an offender be
(2) A program referred to in discharged of an offence, the offender shall
calculated in accordance with Effect of filing order
subsection (1) shall determine the be deemed not to have been convicted of
regulations made under (2) An order that is entered as a
rate at which credits are earned and the offence except that (a) the offender may
subsection (7), and (ii) the judgment under this section is may provide for the manner of appeal from the determination of guilt as if it
denominator is equal to eight enforceable in the same manner crediting any amounts earned against were a conviction in respect of the offence;
times the provincial minimum as if it were a judgment obtained the fine and any other matters (b) the Attorney General and, in the
hourly wage, at the time of by the Attorney General of the necessary for or incidental to carrying case of summary conviction
default, in the province in province or the Attorney General of out the program. proceedings, the informant or the
which the fine was imposed, Canada, as the case may be, in Deemed payment informants agent may appeal from the
and (b) the maximum term of civil proceedings. (3) Credits earned for work decision of the court not to convict the
imprisonment that the court Section 734.7 Warrant of performed as provided by subsection offender of the offence as if that decision
could itself impose on committal. (1) Where time has (1) shall, for the purposes of this Act, were a judgment or verdict of acquittal of
conviction or, if the been allowed for payment of a fine, be deemed to be payment in respect the offence or a dismissal of the information
of a fine. against the offender; and the offender
punishment for the offence the court shall not issue a warrant
Federal-provincial agreement may plead autrefois convict in respect
does not include a term of of committal in default of payment (4) Where, by virtue of of any subsequent charge relating to
imprisonment, five years in of the fine (a) until the expiration of subsection 734.4(2), the proceeds of
the offence.
the case of an indictable the time allowed for payment of the a fine belong to Her Majesty in right of Where person bound by probation
offence or six months in the fine in full; and (b) unless the court Canada, an offender may discharge order convicted of offence (4) Where
case of a summary conviction is satisfied (i) that the mechanisms the fine in whole or in part in a fine an offender who is bound by the
offence. provided by sections 734.5 and option program of a province pursuant conditions of a probation order made
734.6 are not appropriate in the to subsection (1), where an at a time when the offender was
directed to be discharged the public interest 5. Generally, recognizance and, where the justice Section 810.1 Where fear of sexual
under this section is the first condition would or summary conviction court decides offence. (1) Any person who fears on
convicted of an offence, presuppose that the accused that it is so desirable, the justice or reasonable grounds that another person
including an offence under is a person of good character, summary conviction court shall add will commit an offence under section 151,
section 733.1, the court that without previous conviction, such a condition to the recognizance. 152, 155 or 159, subsection 160(2) or (3),
made the probation order that it is not necessary to section 163.1, 170, 171 or 172.1,
may, in addition to or in lieu Surrender, etc. subsection 173(2) or section 271, 272 or
enter a conviction against him
of exercising its authority in order to deter him from (3.11) Where the justice or 273, in respect of one or more persons
under subsection future offences or to summary conviction court adds a who are under the age of 16 years, may
732.2(5), at any time rehabilitate him, and that the condition described in subsection lay an information before a provincial
when it may take action entry of a conviction against (3.1) to a recognizance order, the court judge, whether or not the person or
under that subsection, revoke him may have significant justice or summary conviction persons in respect of whom it is feared
the discharge, convict the adverse repercussions 6. In court shall specify in the order the that the offence will be committed are
offender of the offence to the context of the second manner and method by which (a) named.
which the discharge relates condition the public interest in the things referred to in that Appearances
and impose any sentence the deterrence of others, while subsection that are in the (2) A provincial court judge who
that could have been it must be given due weight, possession of the accused shall be receives an information under
imposed if the offender had does not preclude the surrendered, disposed of, subsection (1) may cause the parties to
been convicted at the time of judicious use of the discharge detained, stored or dealt with; and appear before a provincial court judge.
discharge, and no appeal lies provisions 7. Discharges (b) the authorizations, licences and Adjudication
from a conviction under this should not be exercised as an registration certificates held by the (3) If the provincial court judge
subsection where an appeal alternative to probation or person shall be surrendered. before whom the parties appear is
was taken from the order suspended sentence. satisfied by the evidence adduced that
directing that the offender be 8. Discharges should not be the informant has reasonable grounds
Reasons for the fear, the judge may order that the
discharged. applied routinely to any
R v Fallofield Facts - The particular offence (3.12) Where the justice or summary defendant enter into a recognizance to
accused pleaded guilty to a Recognizance Orders Section conviction court does not add a keep the peace and be of good behaviour
charge of being in unlawful for a period that does not exceed 12
810 Where injury or damage condition described in subsection
possession of some pieces of months.
feared. (1) An information may be (3.1) to a recognizance order, the
carpet of a total value of less Duration extended
laid before a justice by or on behalf justice or summary conviction court
than $200, knowing the same shall include in the record a statement (3.01) However, if the provincial court
of any person who fears on
to have been obtained by judge is also satisfied that the defendant
reasonable grounds that another of the reasons for not adding the
theft. He is a corporal in the was convicted previously of a sexual
person will cause personal injury to condition.
Canadian Armed Forces, offence in respect of a person who is
him or her or to his or her spouse Idem
aged 26, married, and with under the age of 16 years, the judge may
or common-law partner or child or (3.2) Before making an order
no previous record. The trial order that the defendant enter into the
will damage his or her property. under subsection (3), the justice
judge declined to grant the recognizance for a period that does not
Duty of justice
discharge, convicted the or the summary conviction court exceed two years.
(2) A justice who receives an
appellant, and sentenced him shall consider whether it is Conditions in recognizance
information under subsection (1)
(3.02) The provincial court judge may add
to a fine of $100, or in shall cause the parties to appear desirable, in the interests of the
default, 30 days in prison. any reasonable conditions to the
before him or before a summary safety of the informant, of the
Issues - 1. Did the trial judge recognizance that the judge considers
conviction court having jurisdiction person on whose behalf the
err in refusing to grant an information was laid or of that desirable to secure the good conduct of
in the same territorial division.
absolute or a conditional the defendant, including conditions that
Adjudication persons spouse or common-law
discharge? 2. If so, can the (a) prohibit the defendant from engaging
(3) The justice or the partner or child, as the case may
CA make such an order? in any activity that involves contact with
summary conviction court before be, to add either or both of the
Held - 1. Yes; 2. Yes; appeal persons under the age of 16 years,
which the parties appear may, if following conditions to the
allowed. At trial - convicted including using a computer system
satisfied by the evidence adduced recognizance, namely, a condition
and fined $100, because it within the meaning of subsection
that the person on whose behalf (a) prohibiting the defendant from
was not unintentional or strict 342.1(2) for the purpose of
the information was laid has
liability. Appeal allowed, being at, or within a distance communicating with a person under that
reasonable grounds for his or her
Discharge ordered. fears, (a) order that the defendant specified in the recognizance from,
Discharge should not be (b) prohibit the defendant from
enter into a recognizance, with or a place specified in the
used nor denied routinely for attending a public park or public
without sureties, to keep the peace recognizance where the person on
any offence. By reviewing the swimming area where persons under the
and be of good behaviour for any whose behalf the information was
authorities the court age of 16 years are present or can
period that does not exceed twelve laid or that persons spouse or
concluded that the reasonably be expected to be present, or
months, and comply with such common-law partner or child, as
application of section 730 is a daycare centre, schoolground or
other reasonable conditions the case may be, is regularly
as follows: playground;
prescribed in the recognizance, found; and (b) prohibiting the
1. The section may require the defendant to participate in a
including the conditions set out in defendant from communicating, in
be used in respect of any treatment program;
subsections (3.1) and (3.2), as the whole or in part, directly or
offence other than an offence (d) require the defendant to wear
court considers desirable for
for which a minimum indirectly, with the person on an electronic monitoring device, if the
securing the good conduct of the
punishment is prescribed by whose behalf the information was Attorney General makes the request;
defendant; or (b) commit the
(e) require the defendant to remain
law or the offence is defendant to prison for a term not laid or that persons spouse or
punishable by imprisonment within a specified geographic area unless
exceeding twelve months if he or common-law partner or child, as
for 14 years or for life or by the case may be. written permission to leave that area is
she fails or refuses to enter into
death 2. There is nothing in Forms obtained from the provincial court judge;
the recognizance.
the language that limits it to a (4) A recognizance and (f) require the defendant to return
technical or trivial offence 3. committal to prison in default of to and remain at his or her place of
(3.1) Before making an order
Of the two conditions residence at specified times; or (g)
under subsection (3), the justice or recognizance under subsection (3)
precedent to the exercise of require the defendant to abstain from the
the summary conviction court shall may be in Forms 32 and 23,
the jurisdiction, the first is that consumption of drugs except in
consider whether it is desirable, in respectively.
the court must consider that it Modification of recognizance accordance with a medical prescription,
the interests of the safety of the
is in the best interests of the of alcohol or of any other intoxicating
defendant or of any other person, (4.1) The justice or the summary
accused that he should be conviction court may, on substance.
to include as a condition of the
discharged either absolutely Conditions firearms
recognizance that the defendant application of the informant or the
or upon condition; if it is not, (3.03) The provincial court judge shall
be prohibited from possessing any defendant, vary the conditions
then that is the end of the fixed in the recognizance. consider whether it is desirable, in the
firearm, cross-bow, prohibited
matter 4. If it is decided that it Procedure interests of the defendants safety or that
weapon, restricted weapon,
is in the best interests of the (5) The provisions of this of any other person, to prohibit the
prohibited device, ammunition,
accused, then the court must defendant from possessing any firearm,
prohibited ammunition or explosive Part apply, with such modifications
consider that a grant of cross-bow, prohibited weapon, restricted
substance, or all such things, for as the circumstances require, to
discharge is not contrary to proceedings under this section. weapon, prohibited device, ammunition,
any period specified in the
prohibited ammunition or word may should replace the returned, where the amount is readily fine, the court shall first make the order of
explosive substance, or all word shall. ascertainable; restitution and shall then consider whether
of those things. If the judge (b) in the case of bodily or and to what extent an order of forfeiture or
decides that it is desirable to The court has the power to psychological harm to any person as an order to pay a fine is appropriate in the
do so, the judge shall add that issue a warrant for the arrest a result of the commission of the circumstances.
condition to the recognizance of the defendant and require offence or the arrest or attempted Section 741 Enforcing restitution
and specify the period during that he be detained in custody arrest of the offender, by paying to the order. (1) Where an amount that is
which the condition applies. or to make a release order person an amount not exceeding all ordered to be paid under section
Surrender, etc. under section 515. However, pecuniary damages incurred as a 732.1, 738, 739 or 742.3, is not paid
(3.04) If the provincial court because of a hearing under result of the harm, including loss of without delay, the person to whom the
judge adds a condition section 810.1 can only result income or support, if the amount is amount was ordered to be paid may, by
described in subsection in the defendant being readily ascertainable; and in the filing the order, enter as a judgment the
(3.03) to a recognizance, the required to enter into a case of bodily harm or threat of bodily amount ordered to be paid in any civil court
judge shall specify in the recognizance, the harm to the offenders spouse or in Canada that has jurisdiction to enter a
recognizance how the things circumstances in which it common-law partner or child, or any judgment for that amount, and that judgment
referred to in that subsection would be necessary in the other person, as a result of the is enforceable against the offender in the
that are in the defendants public interest to issue an arrest commission of the offence or the same manner as if it were a judgment
possession should be warrant will be limited to cases arrest or attempted arrest of the rendered against the offender in that court in
surrendered, disposed of, where that process is necessary to offender, where the spouse or civil proceedings.
detained, stored or dealt with preserve the integrity of these common-law partner, child or other Moneys found on offender
and how the authorizations, proceedings. The justice will person was a member of the (2) All or any part of an amount that is
licences and registration require the informant to make out a offenders household at the relevant ordered to be paid under section 738 or
certificates that are held by case that the defendant will not time, by paying to the person in
otherwise attend court or that the question, independently of any 739 may be taken out of moneys
the defendant should be
surrendered. defendant pose an imminent risk to amount ordered to be paid under found in the possession of the offender
the safety of children, which paragraphs (a) and (b), an amount at the time of the arrest of the offender if
Condition reporting section 810.1 is designed to not exceeding actual and reasonable the court making the order, on being
protect. If the justice does expenses incurred by that person, as satisfied that ownership of or right to
(3.05) The provincial court issue an arrest warrant, a result of moving out of the possession of those moneys is not
judge shall consider whether section 515 directs the justice offenders household, for temporary disputed by claimants other than the
it is desirable to require the to release the defendant on a housing, food, child care and offender, so directs. Section 741.1
defendant to report to the simple undertaking without transportation, where the amount is Notice of orders of restitution. Where a
correctional authority of a conditions, unless the readily ascertainable. court makes an order of restitution under
province or to an appropriate prosecutor shows cause why Regulations section 738 or 739, it shall cause notice
police authority. If the judge some more intrusive order (2) The lieutenant governor in of the content of the order, or a copy of
decides that it is desirable to such as recognizance with council of a province may make the order, to be given to the person to
do so, the judge shall add conditions is required. The regulations precluding the inclusion of whom the restitution is ordered to be
that condition to the discretion under section 515 provisions on enforcement of paid.
recognizance. restitution orders as an optional Section 741.2 Civil remedy not
must be exercised judicially
and bearing in mind the condition of a probation order or of a affected. A civil remedy for an act or
Refusal to enter into limited conditions that can be conditional sentence order. Section omission is not affected by reason only
recognizance imposed following a successful 739 Restitution to persons acting in that an order for restitution under section
(3.1) The provincial court application. Although section good faith. Where an offender is 738 or 739 has been made in respect of
judge may commit the 515 provides that the justice convicted or discharged under that act or omission.
defendant to prison for a term may order the detention of the section 730 of an offence and (a)
not exceeding twelve months defendant pending the any property obtained as a result of Victim Surcharges
if the defendant fails or hearing, that discretion is the commission of the offence has
been conveyed or transferred for Section 737(1) Victim surcharge. (1)
refuses to enter into the circumscribed by the
Subject to subsection (5), an offender
recognizance. provisions of section 515(10). valuable consideration to a person
acting in good faith and without who is convicted or discharged under
In light of the limited
section 730 of an offence under this Act or
Judge may vary consequences of a successful notice, or (b) the offender has
borrowed money on the security of the Controlled Drugs and Substances Act
recognizance application under section
that property from a person acting in shall pay a victim surcharge, in addition to
810.1, only in unusual
(4) A provincial court any other punishment imposed on the
circumstances will the justice good faith and without notice, the
judge may, on offender.
be entitled to order the detention of court may, where that property has
application of the
the defendant pending the hearing. been returned to the lawful owner or
informant or the the person who had lawful possession Exception
defendant, vary the Restitution of that property at the time the offence (5) When the offender establishes to the
conditions fixed in the Section 738 Restitution to was committed, order the offender to satisfaction of the court that undue
recognizance. victims of offences. pay as restitution to the person hardship to the offender or the
(1) Where an offender is referred to in paragraph ( a ) or ( b )
an amount not exceeding the amount
dependants of the offender would
Other provisions to apply convicted or discharged under result from payment of the victim
of consideration for that property or surcharge, the court may, on
(5) Subsections section 730 of an offence, the
the total amount outstanding in application of the offender, make an
810(4) and (5) court imposing sentence on or
respect of the loan, as the case may order exempting the offender from
apply, with such discharging the offender may, on
be. the application of subsection (1).
modifications as application of the Attorney General
Section 740 Priority to
the or on its own motion, in addition to
restitution. Where the court finds it
circumstances any other measure imposed on the Sentencing Aboriginal Offenders
applicable and appropriate in the
require, to offender, order that the offender
circumstances of a case to make, in Section 718.2(e) Other sentencing
recognizances make restitution to another person
relation to an offender, an order of principles. A court that imposes a sentence
made under this as follows:
restitution under section 738 or shall also take into consideration the
section. R v (a) in the case of damage
following principles:
Budreo Leave to, or the loss or destruction of, the 739, and (a) an order of forfeiture
to appeal to SCC property of any person as a result under this or any other Act of (e) all available sanctions other than
refused. of the commission of the offence or Parliament may be made in respect of imprisonment that are reasonable in the
the arrest or attempted arrest of property that is the same as property
The principles of in respect of which the order of circumstances should be considered for all
fundamental justice in the offender, by paying to the offenders, with particular attention to the
section 7 of the Charter person an amount not exceeding restitution may be made, or (b) the circumstances of aboriginal offenders. R v
the replacement value of the court is considering ordering the
requires that there be a Gladue Facts: Offender, an aboriginal
residual discretion to property as of the date the order is offender to pay a fine and it appears woman, plead guilty to stabbing death of her
issue process. Section imposed, less the value of any part to the court that the offender would husband. Sentencing judge sentenced her
810.1 (2) must therefore of the property that is returned to not have the means or ability to to three years imprisonment. Stated that s
that person as of the date it is comply with both the order of
be read down so that the restitution and the order to pay the 718.2(e) did not apply since she was living
in an urban area off-reserve and not within
the aboriginal. CA disagreed fact that an aboriginal offender in an order that clearly sets out (a) the the circumstances of the commission of the
with narrow application of s. an urban centre lacks a network of amount of the fine; offence and the character and
718.2(e) but did not vary the support does not relieve the circumstances of the offender, that the
sentence. Issues: How is s. sentencing judge of the obligation (b) the manner in which the fine is to expression of societys denunciation of the
718.2(e) to be applied? to try to find an alternative to paid; offence and the objectives of specific and
Held: the sentencing judge the time or times by which the fine, general deterrence would be adequately
may have erred in limiting the Punishment of Organizations or any portion of it, must be paid; and served by a period of parole ineligibility
application of s. 718.2(e) to (d) any other terms respecting the determined in accordance with the
Section 718.21 Additional Corrections and Conditional Release Act.
the circumstances of payment of the fine that the court
factors. A court that imposes a
aboriginal offenders living in deems appropriate.
sentence on an organization shall
rural areas or on-reserve. Principles that are to guide the court
also take into consideration the
BUT the offence was a
following factors: Effect of filing order (2) For greater certainty, the paramount
particularly serious one, and
(2) Section 734.6 applies, with any principles which are to guide the court under
the sentence was no (a) any advantage realized by
modifications that are required, when this section are denunciation and specific or
unreasonable. Appeal the organization as a result
an organization fails to pay the fine in general deterrence, with rehabilitation of the
dismissed. Reasoning: of the offence;
accordance with the terms of the offender, in all cases, being subordinate to
s. 718.2(e) mandatorily (b) the degree of planning these paramount principles. Section
requires judges to consider involved in carrying out the order. 745.2 Recommendation by jury.
all available sanctions other offence and the duration Subject to section 745.3, where a
than imprisonment and to pay and complexity of the Parole
particular attention to the jury finds an accused guilty of
offence; Section 743.6 Power of court to second degree murder, the judge
circumstances of aboriginal whether the organization delay parole. (1) Notwithstanding presiding at the trial shall, before
offenders. o It is remedial in has attempted to conceal subsection 120(1) of the
nature and is designed to discharging the jury, put to them
its assets, or convert them, Corrections and Conditional
ameliorate the problem of the following question:
in order to show that it is Release Act, where an offender
overrepresentation of not able to pay a fine or
aboriginal people in prisons, receives, on or after November 1, You have found the accused guilty of second
make restitution; 1992, a sentence of degree murder and the law requires that I
and to encourage judges to now pronounce a sentence of imprisonment
take a restorative approach. (d) the impact that the imprisonment of two years or
more, including a sentence of for life against the accused. Do you wish to
sentence would have on the
s. 718.2(e), however, imprisonment for life imposed make any recommendation with respect to
economic viability of the
alters the method of analysis otherwise than as a minimum the number of years that the accused must
organization and the continued
serve before the accused is eligible for
for sentencing judges in employment of its employees; punishment, on conviction for an
determining a fit sentence for offence set out in Schedule I or II to release on parole? You are not required to
(e) the cost to public
aboriginal offenders. o that Act that was prosecuted by way make any recommendation but if you do,
authorities of the investigation
your recommendation will be considered by
directs judges to undertake and prosecution of the offence; of indictment, the court may, if
me when I am determining whether I should
the sentencing of such (f) any regulatory penalty satisfied, having regard to the
offenders individually, but circumstances of the commission of substitute for the ten year period, which the
imposed on the organization or
also differently, because the the offence and the character and law would otherwise require the accused to
one of its representatives in
circumstances of aboriginal circumstances of the offender, that serve before the accused is eligible to be
respect of the conduct that
people are unique. o the the expression of societys considered for release on parole, a number
formed the basis of the offence;
judge must consider: (a) the denunciation of the offence or the of years that is more than ten but not more
(g) whether the
than twenty-five.
unique systemic or organization was or any of its objective of specific or general
background factors that may representatives who were deterrence so requires, order that the R v Zinck SCC considered circumstances
have played a part in bringing involved in the commission of portion of the sentence that must be in which delayed parole should be
the particular aboriginal the offence were convicted of served before the offender may be invoked. Delayed parole must be used in a
offender before the courts; a similar offence or sanctioned released on full parole is one half of
and (b) the types of the sentence or ten years, manner that is fair to the offender. The
by a regulatory body for similar
sentencing procedures and whichever is less. sentencing judge must engage in a double
sanctions that may be (h) any penalty imposed Power of court to delay parole weighing exercise.
appropriate in the by the organization on a (1.1) Notwithstanding section PROCEDURE
circumstances for the representative for their role in 120 of the Corrections and (1) First they must evaluate the
offender because of his the commission of the offence; Conditional Release Act, where facts of the case in light of the factors
particular aboriginal heritage (i) any restitution that the an offender receives a sentence set out in section 718 of the Code in
or connection. organization is ordered to make of imprisonment of two years or order to impose the appropriate sentence.
or any amount that the more, including a sentence of The issue of parole eligibility is not
If there is no alternative to
organization has paid to a victim imprisonment for life imposed considered at this stage. (2) The sentencing
incarceration the length of the
of the offence; and (j) any otherwise than as a minimum judge must then review the same facts
term must be carefully
measures that the organization punishment, on conviction for a primarily from the perspective of the
considered. o The jail term
has taken to reduce the criminal organization offence other
for an aboriginal offender requirements of deterrence and
likelihood of it committing a than an offence under section
may in some circumstances denunciation, which are given priority at this
subsequent offence. 467.11, 467.12 or 467.13, the
be less than the term
Section 735 Fines on court may order that the portion of the stage. The prosecution has the burden of
imposed on a non-aboriginal
organizations. (1) An sentence that must be served before demonstrating that the additional
offender for the same
organization that is convicted the offender may be released on full punishment of increased parole ineligibility is
offence. o Doesnt
of an offence is liable, in lieu parole is one half of the sentence or required. The offender must be allowed to
automatically reduce the
of any imprisonment that is ten years, whichever is less. make submissions and introduce additional
prison sentence of aboriginal
offenders; nor should it be prescribed as punishment for evidence in response to the request for
assumed that an offender is that offence, to be fined in an Power of court to delay parole delayed parole. Courts should be generous
receiving a more lenient amount, except where if adjournments are requested for this
(1.2) Notwithstanding section
sentence simply because otherwise provided by law, (a) purpose. Written reasons must be given at
120 of the Corrections and
incarceration is not imposed. that is in the discretion of the the end of the process. The reasons must
Conditional Release Act, where an
court, where the offence is an state with sufficient clarity the reasons for
offender receives a sentence of
Section 718.2(e) applies indictable offence; or (b) not
imprisonment of two years or more, the delayed parole order.
to all aboriginal persons exceeding one hundred
including a sentence of imprisonment APPEAL AND REVIEW
wherever they reside, thousand dollars, where the for life, on conviction for a terrorism APPEALS OF FINAL DECISIONS AND
whether on- or off-reserve, in offence is a summary offence or an offence under section JUDICIAL REVIEW OF INTERIM
a large city or a rural area. o conviction offence. 467.11, 467.12 or 467.13, the DECISIONS
The term community must
court shall order that the portion of the Final verdicts can be appealed.
be defined broadly so as to Application of certain provisions sentence that must be served before Interim decisions cannot be appealed.
include any network of fines the offender may be released on full o Interim decisions can be the subject of
support and interaction that
(1.1) A court that imposes a fine parole is one half of the sentence or judicial review applications where
might be available, including
one in an urban centre. The under subsection (1) or under any ten years, whichever is less, unless jurisdictional errors occur. o Judicial review
other Act of Parliament shall make the court is satisfied, having regard to may be necessary to challenge preliminary
inquiry results, to seek or appellant was convicted and (R v Yebes). Errors of Law separately to decide whether they
quash publication bans, or to the court of appeal is of the and Miscarriages of Justice constitute proof BARD.
suppress or access third opinion that the appellant There is no requirement that
party records; in these cases suffered no prejudice thereby. the verdict was not If Court of Appeal grants an appeal
if we wait until the end of the Rules governing appeals that supportable on the evidence. from an acquittal in a trial by judge
trial, the damage sought to permits an appeal to be An error of law is any alone , it can (i) order a new trial; (ii)
be prevented may have dismissed despite the presence of decision that was an enter a conviction. If trial by judge and
already occurred, hence the a legal error at trial, if it is found erroneous interpretation or jury only option, order a new trial.
judicial review application. that the error is harmless and does application of the law (R v Khan). Statutory Powers on Appeal:
In the case of appeals, not cause a miscarriage of justice. A miscarriage of justice can be either
different grounds of appeal substantive or procedural. Any error Section 683 A court of appeal can order
and procedural routes apply, (1) Appeals based on an that deprives an accused of a fair trial exhibits or other items produced, hear
depending on whether an error relating to question of is a legal error (Fanjoy v The witnesses or admit an examination of a
offence has been prosecuted fact or mixed fact and law Queen). Miscarriage of justice witness, and refer questions to a special
summarily or indictably. must result in an unreasonable can be matters of mixed law and commissioner. An appeal court can also
verdict or miscarriage of fact. The Curative Proviso amend the indictment where the accused
justice. (2) Appeals based S. 686(1)(b)(iii) TEST requires has not been misled or prejudiced.
on questions of law has a that there is a reasonable
Section 674 Only broader meaning in s. 675 Section 684 A court of appeal can
appeals authorized in possibility that the verdict would
than s. 686. S. 686 question have been different had the error assign counsel for an accused. Section
Parts XXI and XXCI of law may be treated as a 679 A court of appeal can order an
can be brought with not been made (Khan). To satisfy
question of mixed law and accused released pending an appeal.
regard to indictable : o (1) can show the error is
fact. harmless in itself, thus no prejudice to
offences. Section 688 An appeal court can order
Indictable offences (3) Even if an appeal meets the accused; o (2) show evidence that an accused in custody can only appear
Appeals by the Accused: the conditions of s. 686(1)(a), against the accused is so by electronic means.
o Bases upon which appeals it may not be granted overwhelming that even if Fresh Evidence on Appeal:
can be made - Section nonetheless. the appeal was granted and a
R v Palmer - Fresh evidence may be
675(1)(a) A person can The curative proviso and s. retrial ordered, the result introduced on appeal. Guidelines: o (1) The
appeal a conviction based 686(1)(b)(iv) = not all errors of would inevitably be a evidence should not be admitted if could
on a question of law law will lead to a successful conviction the provision
should only be applied if have been adduced at trial by due diligence;
alone (with leave from appeal.
o (2) The evidence must be relevant, it
the court of appeal), on a Only an error of law under s. conviction would be
686(1)(a)(ii) could be saved by inevitable or invariable bears upon a decisive or potentially decisive
question of fact, on a
mixed question of law the curative proviso in s. (S.(P.L.)) or that the result issue in trial; o (3) The evidence must be
and fact, or on any 686(1)(b)(ii). would necessarily have credible (reasonably capable of belief); and
ground of appeal that If an appeal is granted under s. been the same (B.(F.F.)). o (4) Must be that, if believed, with other
appears to the court of 686(1)(a) then the court of evidence at trial, could affect the result.
Procedural Irregularities
appeal to be a sufficient appeal quashes the conviction. Note the evidence sought to be
s.686(1)(b)(iv) If the procedural
ground of appeal. o Can either acquit the accused or irregularity was previously classified introduced must have been capable of
Bases upon which appeal order a new trial. If the appeal is as an irregularity causing a loss of admission at the initial trial hearsay or
can be granted Section dismissed on the basis that the jurisdiction, this section provides that opinion evidence that would not have been
686(1)(a) (i) the verdict accused was properly convicted on this is no longer fatal to the conviction admissible at trial is no more admissible on
should be set aside on the some part, then the appeal court and an analysis of prejudice must be appeal (R v Assoun).
ground that it is can substitute a verdict, affirm the undertaken in accordance with the Summary Offences
unreasonable or cannot be sentence, impose a new principles in s. 686(1)(b)(iii). Summary conviction appeals are taken to
supported by evidence; (ii) sentence, or remit the the provinces superior court of criminal
the judgement of the trial matter back to the trial Appeals by the Crown Section jurisdiction; not the court of appeal.
court should set aside on court for sentencing (s. 676(1)(a) - any ground of appeal
the ground of wrong 686 (2) & (3)). that involves a question of law alone. Section 813 What Can Be Appealed a
decision on a question of This right specifically applies in this defendant can appeal a conviction or order
law; or (iii) on any ground Section 686(1) & (d) the section to verdicts of acquittal or of made against her, and the Crown can
that there was a appeal court can hear appeals not criminally responsible on account appeal an order that stays proceedings on
miscarriage of justice. o relating to findings that an accused of mental disorder. an information or dismisses an information.
Grounds which the court of was unfit to stand trial, that an Both parties may appeal sentences, verdicts
appeal can dismiss an accused was not criminally Section 676(1)(b)&(c) allows of not criminally responsible, and fitness to
appeal Section 686(1)(b) responsible by reason of mental appeals of most decisions that could stand trial decisions.
If none of the above disorder, or with regard to special bring an end to a prosecution, such
grounds are made out; (i) verdicts. as an order of a superior court of Section 822(1) incorporates most of
although there was an criminal jurisdiction that quashes an ss. 683-689 by reference. All of the rules in
Section 687 a court of appeal indictment or fails to exercise s. 686(1) that concern appeals from
error, the accused was
can vary a sentence imposed jurisdiction on an indictment, and an convictions or acquittals are equally
properly convicted on
on an accused. Standard of order of a trial court that stays applicable to summary conviction offences.
another count or part of
Review Housen v Nikolaisen: o proceedings or quashes an Section 816 bail pending a summary
the indictment. o
Pure questions of law s. o. r. indictment. conviction appeal can be granted.
Section 686(b) - Appeal
is correctness, and an Section 822(4) it is possible for an
might be dismissed
appellate court can substitute Section 676(1)(d) the Crown appeal of a summary conviction matter to
despite an error (iii)
its opinion for that of the trial can appeal an accuseds sentence take place by a trial de novo.
curative proviso - with leave. o The Crown is required
judge. o Question of fact -
notwithstanding that the
higher standard. A finding of fact to satisfy the court that the verdict Section 829-838 create alternative
court is of the opinion would not necessarily have been the methods of appeal by either party,
should not be overturned in the
that on any ground same had the errors not occurred, o on erroneous point of law,
absence of a palpable and
mentioned in
overriding error, which amounts to and the Crown has a heavy onus in o excess of jurisdiction, or
subparagraph (a)(ii) the
prohibiting an appellate court from doing so (R v Sutton). o a refusal or failure to exercise jurisdiction.
appeal might be decided Grounds which an appeal could be
reviewing a trial judges decision if Ways in which treatment of
in favour of the appellant, there was some evidence upon launched are under s. 813. Section 836
it is of the opinion that no evidence can be a question of law a Defendant is only permitted to opt for one
which he or she could have relied (1) a question of law could concern
substantial wrong or to reach that conclusion. of the two methods of appeal.
miscarriage of justice has the legal effect of undisputed facts;
occurred, or (iv) Unreasonable Verdicts- the (2) misdirection as to the evidence Section 830 appeals under this section
notwithstanding any standard for assessing whether a can be a question of law, but only can be brought either on a transcript or an
procedural irregularity at verdict is unreasonable is whether in limited circumstances; (3) it is agreed statement of facts.
trial, the trial court had the verdict is one that a properly an error of law for a trial judge to
instructed jury acting judicially, instruct a jury to consider the Code permits a potential 2nd level of
jurisdiction over the class
of offence of which the could have reasonably rendered individual pieces of evidence appeal from summary conviction matters to
the court of appeal such an Section 548 requires a judge in practice most are handled s. 11 to 14 To protect those who are
appeal depends on leave of to commit the accused for trial if by the provinces. tried and convicted of an offence
the court and can be brought there is sufficient evidence. It o RCMP Federal agency often 11.e right not to be denied reasonable
only on a question of law (s. also requires a preliminary inquiry acting as a police force bail
839). employed by provinces 11.b tried within reasonable time
judge to discharge the accused if
Corrections 11.d presumed innocent until proven
Appeals to the SCC: on the whole of the evidence no
Federal penitentiaries s. otherwise in a fair trial
Section 691 - 695 sufficient case is made out. 11.f right to a jury in certain
91(28), 2 years or more
create a right to appeal Sazant the accused had been circumstances
Provincial prisons 92(6),
decisions of a court of discharged at the preliminary 11.h once acquitted, accused has a
less than 2 years
appeal regarding indictable inquiry on a charge of sexual right not to tried again for the same
offences to the SCC. assault. Preliminary inquiry judge 2 years or more rule, crime
Appeal to SCC can only said that there was absolutely no (Criminal Code, s. 743.1) s.12 everyone has the right not to be
be on question of law. It evidence of non-consent. 4 subjected to cruel and unusual treatment or
is possible to bring an Complainant had testified he did Trial Courts punishment
appeal to the SCC based not want to partake in the sexual Superior Courts:
s.15 everyone equal under the law
on whether the court of activity. Held - The judge had Supreme Court, Queens
appeal ought to have made a jurisdictional error. Bench and Court of If a law infringes on one of these rights, the
allowed the appeal (Yebes). Appeal, Federal Court onus is on the state to prove that under s.1 it
Scope of the federal criminal law
Tier-of-fact: person in a is a reasonable infringement
Whether the court of power: prohibited act with
trial who decides factual
appeal has made a correct penal consequences The Criminal Code
(as opposed to legal
decision in applying the (a) Not colourable issues, thats the judge) Criminal Code contains wide ranging
curative proviso is a invasion of provincial issues, this may be a
question of law; thus power. offences, depending on the offence they are
judge or jury. designed to do 1 of 3 things;
appealable to the SCC (R v Provincial Regulatory Serious crimes, eg
Mahoney). Offences: Constitution Act murder, treason etc. tried 1) protect bodily integrity (murder, assault,
Appeal only permitted (for 1867, s. 92 (15) in Superior courts etc.)
Crown or accused) (i) The imposition of Provincial Courts 2) protect property (theft, fraud etc.)
3) proclaim standards of acceptable
where a judge of the court
punishment by fine, No juries, judges societal behaviour (possession/sale of
of appeal dissents on a
penalty, or imprisonment appointed by the province. drugs)
question of law; (ii) where for enforcing any law of
the SCC gives leave to Offenses: all summary Common Law Offences:
the province made in conviction offenses, provincial
appeal a question of law. relation to any matter Frey p21 v. Fedoruk (this is not a
regulatory offenses, many
If accused was acquitted coming within any of the criminal case, one individual v. the other)
indictable offenses.
at trial but that acquittal classes of subjects One common law offence was
was replaced with a On indictable offences,
enumerated in this breach of the peace. In this case the
conviction on appeal the defendant can choose prov/QB
section. breach was peeping. Fedoruk in
accused can appeal on any -Property and Civil Rights Summary conviction defense says he was conducting a
question of law; whether (92(13)) - matters of a local and offense can go to jail for up to 18 citizens arrest that defense hinges on
there was a dissent in the private nature (92(15)). mo. whether or not peeping was a crime.
court of appeal or not (ss. Indictable offense: Fedoruk argues that it was a common-
691(1),(2) & 693). Dominant Purpose Test: punishment set out in Criminal law offense (since breaching the Kings
Code (usually not more than 5 peace is not in the criminal code).
Section 694.1 and 695 Upheld Struck Down
The SCC has the power to Appeals Decision: SCC finds that they cant find
appoint counsel for an highway traffic something criminal which had not in the past
accused and has the power
to make any order that the
(OGrady v. Sparling) Either side can appeal. In been found to be criminal in the case law, we
-prostitution (Westendorp) cant create new common law crimes. The
court of appeal could have Canada you can appeal an acquittal,
film classification and but only on errors of law etc Double common-law method was thus too uncertain.
made. censorship - abortion We put a high importance on certainty.
jeopardy does not attach because its
Judicial Review (Morgentaler) an appeal, not a re-trial. 1953 revision of the Criminal Code in
compulsory drug
(Exemplified in the
context of preliminary treatment (Schneider) Summary conviction v. response in part to Frey v. Fedoruk that
abolished common-law offences EXCEPT for
inquiries) Decision to -censorship (Swtiman v. indictable offenses: for summary
contempt of court (s.9). Common law
commit or discharge at a Enlbling) regardless of where you were
defences still allowed s.8(3).
preliminary inquiry can only 1982, Charter of Rights convicted, you appeal to the superior Use of Common Law in Statutory Interpretation:
be reviewed on the basis and Freedoms: large no. of court, and then with leave to the court
of an action for certiorari. Charter cases are criminal of appeal and with leave again, to the Jobidon p23 v. The Queen (1991 SCC) s.
cases. SCC. With indictable, you go 265(1)(a): Jobidon is charged with assault
It is open to the Crown to - *Federal govt can also legislate automatically to the Court of Appeal after a fight in which the other person was killed.
seek certiorari in the case of REGULATORY OFFENSES (as and with leave to the SCC. There is Jobidon argues that they agreed to fight
discharge. Section 577 can provinces) an automatic right to appeal to the therefore other party consented.
The Crown has a simpler SCC when in the Court of Appeal
option of preferring a direct BUT only feds can there is a dissent on a legal issue Decision: common law legitimately served in this
indictment despite the legislate CRIMINAL OFFENSES Legal Rights in the Charter appeal to find certain situations where people are
discharge, so more frequently under s.91(27). not allowed to consent and that already existing
certiorari applications involve Policing and Prosecutions General Legal Right (s.7): principles in the common law should be
an accused seeking review of considered if the Code does not expressly
What branches are right to life, liberty, and security of
a decision to commit. displaced the common law. Consent in this
the person, not to be deprived thereof
Certiorari is only granted if responsible for the context, it is not a good thing to allow people to
except in accordance with the
the judge has fallen into administration of the criminal voluntarily fight. Consent must be interpreted to
principles of fundamental justice.
jurisdictional error. o code? mean that consent will exist when trivial bodily
Erroneously excluding o Constitution Act, 1867 Specific Legal Rights (s.8): harm is intended and caused (i.e. in sporting
evidence, unlikely a unreasonable search and seizure S.8 events). Anything more serious than this there is
o 91(27) Criminal Law, feds can
jurisdictional error unless to 10 protects those no real consent, therefore Jobidon found guilty.
enforce any criminal law. (If you
rises to level of denial of can pass it you can enforce it) subject to investigation by the state 8
Dissent: Justice Sopinka dissents argues that
natural justice (Dubois). unreasonable search and
the Court has essentially created a common-law
o 92(14) Administration of Justice. seizures
If trial judge fails to comply offence (offence created was the intentional
9 arbitrarily detained or
with a mandatory provision of o Look at s.2 of the Criminal imprisoned application of force with the consent of the victim)
the Code it is a jurisdictional Code, Feds can by changing the meaning of s. 265(1)(a), which
10 for those who have been
error. investigate all crimes, but arrested rights to counsel etc. they are not allowed to do under s.9 of the CC.
Common Law Defenses as minimally as possible? Is there (2) Application Heywood p27, CFCYL the validity of consent to bodily harm 8 R v.
Amato p132: defense advanced proportionality between the good and p29, Demers Welch
was entrapment, a defense the bad effects of the law? Heywood p27 Case if Ontario CA held that consent would
SCC had not previously you have been convicted of a not be a defence to a charge of assault
S.7 is the Catch-all everyone has sexual offense you cant go to
recognized. Complainant claimed that she did not
the right to life, liberty, and security of public place with children for an consent to the acts
Decision: The SCC wants to give the person and the right not to be undetermined amount of time. But, court said that the defendant
judges the flexibility to change deprived thereof except in accordance Law was struck down for being
with the principles of fundamental could still be guilty even if there had been
with the circumstances and (1) overbroad on geographical consent
change with the times. So the justice. This section mirrors s.1 in terms, (2) chronologically
courts can recognize new many ways and courts have been overbroad, (3) too broad in that it Court explained that hurting people is
common-law defenses. reluctant to find that a violation of s. 7 affected ALL convicted of sexual wrong doesnt matter whether the victim
is saved under s. 1. assaults even if not on kids, (4) gave consent Prostitution: (Prostitution
Doctrine of Strict Construction enforced without notice to those Reference p62)
(DSC): When the text of a statute Vagueness and the Charter (Nova affected Not illegal in Canada, but we have criminalized
can be understood in more than Scotia Pharm)
almost every other aspect of prostitution besides
one way, the approach which You can argue that a law is the act itself (i.e. communicating for the purposes
would afford the greatest benefit unconstitutionally vague in three ways: Limits on Criminal Law
of, keeping a common bawdy house etc) and
to the accused is adopted When should we regulate these have been found to be constitutional
(1) It violates principles of human behaviour with criminal
Goulis p37, fundamental justice (Charter s. 7) sanction and when isnt it? And who Reference Re ss. 193 and 195.1(1) of the Criminal
Pare p41 used a (2) Prescribed by law (s.1) you can gets to decide? Code (1990) p62
contemporary approach to argue that the limitation is not Theories of Criminal Law, 2
prescribed by law because it is so Court upheld under the Charter certain sections of
the doctrine of strict sets of theories:
vague the Criminal Code that deal with prostitution
construction. These are all 1. The Moral Approaches:
examples of the court (3) Can also argue that it fails the o Conservative Approach (i.e. Court Held:
looking to what Parliament minimal impairment part of s. 1. Stephen, Devlin):
An all-encompassing prohibition
aimed at doing with the
on certain things (i.e. Speech) will (1) For large complex societies s. 195.1(1) (against communicating in
legislation first, before a public place for the purposes of engaging
catch too many things and people to function we need certain
going to strict construction. in prostitution) did infringe freedom of
wont know what they can say. shared values to govern
Plain meaning of statute expression under s. 2(b) of Charter, but that
APPLICATION: Extremely difficult to human norms otherwise we
considered first, if it was justified under s. 1 it was held to be
demonstrate in practice, courts go to get social disorder,
ambiguity persists then a reasonable limit
great lengths to find certainty (2) To ensure that these values
benefit given to accused
Pare p41 (issue of strict Problems w/ VAGUENESS:
are passed on we can be Held that neither (included s. 193 -
fairly heavy-handed through
construction because while against operating a bawdy house)
1. No FAIR NOTICE to citizens paternalism,
committing was contested). violated s. 7 of the Charter although they
absolute certainty is not required, (3) Societal integration
Even if a murder is not infringed liberty and security of the person,
there has to be sufficient guidance, conformity
premeditated it can still be 1st they did so in accordance with the principles
common law and societal o Liberal Approach (i.e. Mills, Feinberg):
degree if it is committed while the of fundamental justice
accused is committing another standards are considered. (1) We need to have autonomy,
listed crime in the CC (i.e. sexual Ignorance is no excuse. that is the basic social Pornography
assault). 2. Give too much LAW contract, not conformity;
ENFORCEMENT DISCRETION: We R. v. Butler p68 (1992 SCC) Justified infringement
(2) Millean notion of harm, do
Issue: In this case can the want to limit arbitrariness to avoid on certain types of porn (freedom of expression)
what you want as long as it
doctrine of strict construction be abuses by law enforcement. Accused operated shop selling porn material,
doesnt harm others (i.e.
used to benefit the criminal Canadian Foundation for Children, charged with 77 counts of violating s.163lCode.
consensual crimes, or
because the murder was Youth and the Law v. Canada A.G. (distribution is prohibited of materials with explicit
suicide should not be a crime
committed after the sexual (2004) CFCYL p29 sex with violence, and explicit sex without
for example that is a
assault? violence but which subjects people to treatment
Case about reasonableness of parents paternalistic law).
that is degrading or dehumanizing)
Decision: Upon considering using force in child correction (CC s. (3) Exceptions
statute, there is no ambiguity, 2. The Economic Approach:
assault and murder seen as
43) - shows that courts will go to great
(bentham, becker) ? S.163 violates freedom under s.2
lengths to clarify whats not in a statute
single transaction 1. We assume rationality of ppl (freedom of expression) but could be upheld
in plain language.
in system under s.llCharter: (1) Community standard
Non-retroactivity Decision: upheld provision not too 2. We assume that people have of tolerance - determine standard of
vague or broad, serves as guidance not all the info they need community (2) S.163 only refers to types 1 &
Charter ss. 11(g) & (i) 2 of porn: risk of harm (3) Is the legislative
direction. No violation of charter ss. 3. People have concrete
Principle that crimes objective outweighed by infringement of
2/15 interests that dont change
cannot be created or freedom? No, objective aimed at avoiding
and can be assumed, we can
punished retroactively. D. Overbreadth harm.
maximize utility according to
Applies to both charge and Butler p68 Test In determining if pornography is
preferences (which are taken
punishment. Laws means are far more as a given) too explicit or graphic(obscene - where
Oakes Test (see Orbanski SMp25 exploitation of sex is undue), the following test
sweeping than its objective. 4. People make decisions
for good ex.) - used for assessing was created:
Consider the means chosen by based on the above perfect
whether charter limit is
state in relation to purposes. rationality with perfect
reasonable and justified Community Standard of Tolerance Responds
Overbreadth occurs when a state information with set
to the changing morals of the nation. Does not ask
(1) objective of the law must be emplovs means that are far preferences.
people what they would view, but what would they
sufficiently important. Must show broader than necessarv for an Charter Limits
allow others to see. (the most important step of
that the law is of pressing and obiective. Jobidon v. The Queen
the test)
substantial concern (pretty easy) (1) Overbreadth v. vagueness Issue: Is consent a defence
(Heywood p27) Overbreadth to a serious assault? Degradation - sex depicted in a degrading or
and vagueness are related in Held: No dehumanizing manner, which includes
(2) show proportionality of the that both are the result of a Reasons: submission, subordination and humiliation, will
effects of the law on the right lack of sufficient precision by not generally be accepted. To depict sex in this
being infringed (minor, severe?) a legislature in the means Fights are socially useless
way is against the principles of dignity, and this
and balance it against the used to accomplish an Not in the public interest to kind of exploitation is harmful, especially to
positive effects of the law. Are the 7 allow this sort of thing women.
means and the ends in a Result in this case was the
reasonable degree of objective. In the case of death of a young man on his Internal Necessities Does the sexual
proportionality to each other? vagueness, the means are not engagement day exploitation have a legitimate role in advancing a
clearly defined. In the case of theme or plot in an artistic, literary, intellectual or
o To establish proportionality is overbreadth the means are too Argued for the sanctity of scientific work? If so, it may be justified. This kind
there a rational connection? Does sweeping in relation to the human body should vitiate against
the law impair the Charter right objective.
of sexual exploitation is not just behavior more than another is not statement to police or other persons in Issues: Are the drunken confessions admissible?
dirt for dirts sake, but has a arbitrary or irrational of the law by authority, and Crown wants to submit it as Is an involuntary confession admissible? (No)
purpose. itself. evidence, prosecution must show that
statement was submitted voluntarily BRD, Decision: Accused had not voluntarily waived
R. v. Sharpe p71 (2001 SCC) Of note from Malmo - -a principles of otherwise all evidence collected can not be right with full awareness of consequences. Appeal
Justified provision prohibiting fundamental justice must: used. permitted; evidence excluded, court restored
possession of child porn BC trial acquittal:
judge ruled s.163.1(4)lCode a) be a legal principle Rationales for rule
provision (forbidding possession b) about which there is (1) D could not waive her 1O(b) right to counsel
1. Ensures the innocent are not
of porn) significant societal consensus until she was sober enough to do so with full
that it is fundamental to the way knowledge of the rights the procedure was
2. Society places tremendous
SCC found the in which the legal system ought weight on self-incriminating
enacted to protect and the effect the waiver
provision constitutional: 1) fairly to operate, and will have on those rightsshe did not know
Provision combats material c) it must be identified with what was at stake.
3. Public underestimates how often
that poses risk of harm to sufficient precision to yield a (1)a - waiver - must be clear and unequivocal
people confess to crimes that
kids. 2) Provision violated manageable standard against that the person is waiving the safeguard with
they didnt commit
the freedom of expression which to measure deprivations of full knowledge
4. Disincentive towards police
but was justified under s. life, liberty, or security of person abuses ie torture etc. (2) Police should have held off investigation
11Charteras the the harm principle is not a Three things court will consider in they exploited opportunity to violate Ds
government principle of fundamental justice determining Voluntariness: rights.
9 ex. of princs - law cannot be (3) Under s.24(2), evidence obtained in violation
objective of protecting inordinately vague, overly broad, no (1)Operating mind - (Whittle)
of Charter should be excluded as it would
children from retroactive application of law, only (2)Was there a threat or a promise (quid
bring AOJID.
exploitation was voluntary conduct should attract pro quo?) violence=always exclude, offers
(4) Purposive interpretation of 1O(b): designed to
proportional to the criminal liability (Ruzic p291), right to a to procure lenient treatment = almost protect fairness to A with respect to
violation. fair trial, law of causation and mens rea always exclude incriminatinq themselves.
Two exceptions (also apply to (Cribbin p341), presumption of (3)Oppressive conditions
R. v. Oickle 2000 SCC - confession thrown out
making child porn): innocence (Wholesale Travel, p406) (4) Trickery (see below)
Trickery Failed polygraph (not admissible in court
a) does not prohibit
anyways), admitted he set gfs car on fire after
possession of expressive Police Powers 1) Courts may consider certain forms of
a 6 hour interview that he asked many times
material created through Kent Roach on Parkers Theory, trickery, such as the use of fabricated
to leave from, police played good cop
the efforts of a single Criminal Control vs. Due Process evidence, in determining whether the
person and held by that Criminal Control p107: Efficiency - interrogation was oppressive and
person alone, exclusively Assembly line model: go through hence involuntary. (2) Section 10 of the Charter:
for his or her own personal arrest, conviction, punishment as fast 2) Even where a court determines that a COMPONENTS OF s. 10 of Charter
use, such as personal as possible (current system statement is voluntary, it may exclude
journals and drawings it if it was obtained by trickery so Triggered by arrest or detention
government. Procedural aspects are
b) does not prohibit seen as obstacles; currently an appalling as to shock the community. (Therens p173, Thomsen p177, Obranski,
possession of visual obiective-oriented process) - Though R. v. Spencer, 2007, SCC, SM p13 -
recordings created by or concerned with limiting abuse of confession admissible, R tried to make Police have no legal power to demand
depicting that person, but powers, criminal control system wants deals w/ police who refused. However, cooperation in interrogation. They can seek
only where these to control outside of criminal process; police allowed visit to gf conditional on it, but not demand it.
recordings do not depict if the polices conduct is unreasonable, giving confessions. no offer of leniency (Obranski) If police have reasonable grounds to
unlawful sexual activity, are we should not exclude evidence or give made to R w/ respect to gf, only believe that you are driving impaired by alcohol,
held only for private use, a stay withholding visit to her until at least partial they can demand s. 254(2) that you provide a
and were created with the confession was made - not strong enough breath sample. If you refuse, you can be charged
consent of those persons Due Process: Fairness of trial and pre- inducement. fact that R took bargaining with an offence of Refusing to Blow. s254(5)
depicted role was significant. Affirmed use of Oickle *They cannot physically force you to do it, but
trial test: Do a contextual analysis to see if will youll be charged if you dont. 10b rights must be
The Harm Principle
of subject has been overborne. Used
R. v. Malmo-Levine; R v Excludes evidence obtained
above factors. quid pro quo is the most
given before blood sample/breathalyzer sample
can be taken s.254(3) - note that this is not
Caine (2003 SCC) p78
through unreasonable methods; important consideration, but is not required if youre too drunk to understand right to
Justified infringement on use of
focuses on possible remedies if exclusive, when an inducement is alleged counsel (Mohl p175)
marijuana Issue of criminalization
police misbehave. This system to have been offered by a person in
of simple possession of
considers exclusionary rules authority -regardless, it is the strength of
marijuana contrary to principles R. v. Therens p173 (1985) Three types of
(excluding tainted evidence) as the inducement and his or her
of fundamental justice, as to detention outlined
it is believed that evidence that is circumstances, that is to be considered in
whether it causes to harm to Facts: accused collides w/ tree, officer takes to
obtained through force is the overall contextual analysis into the
others. Challenge to Narcotic station to provide breath sample under 254(3) (not
unreliable. There is less trust in voluntariness of the accused statement-
Control Act provision. SCC: screening device), accused complies, over legal
the police and skepticism of their inducements become improper only when
imprisonment for marijuana limit; at no time was informed of right to counsel
powers. standing alone or in combination with
possession does not violate s.7 under 10(b).
principle against gross other factors, they are strong enough to
disproportionality: (1) Court: 10 raise a reasonable doubt about whether Issue: Was this a detention under s.10? If it was a
harm principle is not a strict legal Questioning Suspects: the will of the subject has been overborne detention was 10(b) violated?
principle since many examples of
criminal laws do not cause harm Most important tool police Operating mind! (lowered Clarkson p113 Reasons: In its use of detention, s.10 is directed
requirement) (Whittle SCC 1994) you can to restraint of liberty other than arrest in which a
to others (cannibalism, have.
confess as long as you basically person may reasonably require assistance of
bestiality, incest). (2) A claimed Allows police to gather
understand what you are saying and counsel but might be impeded from doing so but
charges based on s. 7l Charter evidence and (hopefully) comprehend that the evidence may be
since it is his chosen lifestyle. incriminating statements from the used against you. If you exercise poor for the constitutional guarantee. s.254(5) of Crim
Court: his lifestyle choice is not accused. Code: criminal liability under this section is
judgment, that doesnt necessarily meant sufficient to make compliance involuntary.
protected by s. 7 since harm is Two standards, Confessions that you didnt have this level of
not insignificant or trivial. (3) Rule and s. 10 of the Charter Detention (besides physical threat) can be effected
understanding. Schizophrenic heard if person submits in the deprivation of liberty and
Court acknowledges Parliament voices to confess, wasnt fully rational but
entitlement to act under crim believes that the choice to do otherwise doesnt
(1) Confessions Rule had some understanding of the exist.
power for reasons other than consequences.
(common law rule of
avoidance of harm to others, but Finding: 10(b) violated, evidence of breath sample
evidence, you dont need
is subject to Charter rules such to invoke the Charter to Clarkson p113 v. The Queen (1986 SCC) excluded under 24(2) b/c obtained as a result of
as arbitrariness, irrationality, Facts: Voluntary confession rule: flagrant and overt Charter violation.
use it because its a
gross disproportionality. A used exclusion of evidence because D was
common law rule)
the legality of alcohol and Three Categories of Detention:
Boudreau, Clarkson p113. drunk when she murdered her husband.
tobacco as an example of Police instructed of her right to counsel;
arbitrariness of the law. Court: Voluntary Confession Rule: evidentiary meanwhile, A blabbed about murder in (1) Physical Compulsion
Parls choice to limit one harmful rule: Whenever a person makes a their presence. (2) Legal Compulsion
(3) Psychological understanding - may need requirement to ensure all detainees Administering the road-side screening test,
compulsion - accused interpreter get legal counsel, as 10(b): prior to consulting a lawyer was held to
reasonably believe no R. v. Brydges p123 (1990) The be a justifiable breach of the Ds Charter
choice but to submit defendant said that he couldnt 1) Does not impose positive s. 10b rights.
*NEED TO KNOW In afford a lawyer and the SC found constitutional obligation of Ratio: Why can police get away with this?
Canada, when the police that his statement was a request government 14
question someone with the for a lawyer that should have 2) Far-reaching implications; it would (1) Time is an important consideration
intention of furthering the triggered the police to help him do mean in order to arrest, every accuracy of the Breathalyzer,
investigation by gathering that including telling him about province must have a duty (2) Objective of road safety not
information, the court tends duty counsel or Legal Aid in that counsel system. - Suggested efficient to stop people for long
to find that the person is NOT jurisdiction. remedy: police should hold off periods of time (police should be out
detained under s.10. But, until person gets counsel, even if enforcing the law, not waiting on
when the polices prime Ratio: as part of information given benefit of presumption is lost. sides of roads for people to talk to
motive is to elicit self- re: 10(b), detainees should be R. v. Manninen p119 (1987 SCC) lawyers)
incriminating evidence, then informed of existence of Legal Exclusion of confession when police (3) and the road-side screening device
the person WILL considered Aid/duty counsel/equivalent used baiting question number can only go to suspicion
to be detained under s. 10. **After this case Ontario set up toll Suspect detained for robbery; asked NOT conviction for impaired.
free number (24 hour), Nova to see lawyer, but request was Entrapment:
R. v. Thomsen p177 (1988)
violation saved under s. 1. Scotia didnt ignored. Suspect was tricked into Generally arises in investigation of
admitting he had the weapon.
R v. Bartle (1994) - if there is a list consensual crimes
Issue: whether demand made
Rationales (Mack p135, Posner)
by cop to accompany him to of lawyers on-call you must inform
the defendant of that service as
Confession inadmissible:
Moral - permits discrimination, police
his car and provide breath accused right to counsel was
sample (under 234(1) now well and about how you can can go too far, also Economic - waste
access it. denied. Nature of the of resources. Police cant be arbitrarily
254(2)) resulted in detention questioning (two simple
of appellant under s.10 of testing the virtue of random people.
Facts: Accused arrested for drunk questions followed by baiting central issue is not disciplining police or
Charter driving, informed of right to counsel one) led to involuntary self- prosecutorial conduct, but avoiding the
Reasons: and availability of legal aid but not incrimination. Act of answering improper invocation by the State of the
the free 1-800 number some questions does not judicial process and its powers (Mack
See definitions of detention indicate that one has voluntarily p135)
from Therens p173: Decision/Reasons: Court held that waived ones right to counsel.
10(b) rights violated, excluded R. v. Mack p135 (1988) Test for
The request under Breathalyzer under 24(2) Entrapment Appellant gets new
R v. Obranski, R v. Elias (2005 SCC) trial
234(1)) to give roadside
Implementational Duties SMp21 police do not Facts: Accused a former drug user w/
sample does meet this
(Manninen p119, Prosper p125, have to give s. 10(b) right several convictions
criteria and appellant
was therefore detained.
Obranski and Elias SM p21). during roadside Repeatedly (over 6mo period)
screening asked by informer for drugs, repeatedly
Then found denial
13 Facts: Obranski stopped after seen said no (only real estate now)
of right to counsel
implicit in wording of st
1. 1 component must hold off running through a stop sign and Informer took accused into woods
234(1) (forthwith, when accused requests a swerving on the road. Elias stopped in w/ handgun, said one could get lost in
roadside) but this denial lawyer, (cant persistently his vehicle at a random road-side woods (accused thought this was a
of 10(b) rights justified question (Manninen p119), stop. In both cases officers could threat)
under s.1 of Charter cant denigrate counsels smell alcohol when they approached Informer took accused to see a
(noting that counsel is integrity, can plea bargain the cars. Both were arrested and purchaser (undercover cop), showed
available at the more 2. 2nd (Prosper p125) must give neither was advised of right to retain a $50,000
serious Breathalyzer accused a reasonable lawyer prior to being tested or Accused was arrested when
stagepolice station). opportunity to talk to a lawyer questioned. Both charged with delivered 12oz of coke (bought on
(not indefinite). relevant factors impaired driving and driving over credit) to informer.
- is counsel available? 80 History: Trial: convicted (said more probable
NOTE: In R. v. Grant 1991
30 min delay was urgency? suspect must be that accused became involved for profit
not acceptable diligent, however Decision: SCC the police acted rather than fear); Appeal court: confirmed
3. BUT lawyer of choice is lawfully when they conviction; now at SCC
In R. v. Bernshaw also guaranteed, law is not stopped
immediate demand nor clear what reasonability Police didnt interrupt ongoing
required after immediate Reasons: Lawful police conduct wont criminal enterprise, offence was
standard is here always be outlined in statute. Limit on
alcohol consumption - 15 min 4. Courts will consider factors brought on by their conduct, would not
delay acceptable s. 10(b) right of drivers in both cases have occurred otherwise.
such as the time of day, and was prescribed by law, scope of
2 categories to think about the importance of carrying on the police power to check the sobriety Length of time (6mo) show police
that SC has read-in to s.10: the investigation immediately of drivers at the roadside is: a had to go beyond merely providing
Informational Duties Have to ask someone if procedure cannot be reasonable... Most important factor here:
they want to talk to a unless it can be performed at the site
(Brydges p123, Bartle) informer acting threateningly in woods;
lawyer. Must record the of the detention, with dispatch, with
no danger to the safety of the if police have to go this far they have
10a - Police must answer.
detainee and with minimal gone beyond providing reasonable
If no, police can opportunity.
tell you ALL of the inconvenience to the detainee
proceed Finding: entrapment applies (accused met
reasons you are being -necessarily calls for a case-specific
If yes
arrested or detained. If inquiry. Also, Limit on right to counsel burden of proof - BOP), allow appeal, set
the nature of the Implementational Duties during questioning and compliance aside conviction, ordered new trial (?) and
investigation changes R. v. Prosper p125 (1994 SCC) with s. 254(2) demand for roadside entered stay of proceedings
while you are being Violation of s. 1O(b) right: screening device sample is
exclusion of evidence) Entrapment TEST:
detained, they have to reasonable under Oakes test.
tell you that as well. Accused was arrested for impaired Oakes Test: justified limit because: (1) (a)The authorities provide a person w/ an
10b have to tell you driving, informed of legal aid and objective of reducing the effects of opportunity to commit an offence w/out
that free duty counsel his 10(b) right, but after attempting impaired driving is a compelling state acting on a reasonable suspicion that this
exists, and give you the to call 15 legal aid lawyers, he person is already engaged in criminal
number objective, (2) infringement on the right activity or pursuant to a bona fide inquiry;
stated that he could not afford to counsel is rationally connected to
have to provide private counsel. Accused failed a that objective, (3) minimal impairment (sufficient connection between the past
without delay, unless breath test. - Evidence was conduct of the accused and the provision of
- scope of powers carefully limited an opportunity?)
imminent risk of serious inadmissible: taking of the breath and limitation on right to counsel
bodily harm sample infringed on rights. - Court: temporal, (4) Proportionality -
must ensure basic not necessary to impose screening is short and minor
level of linguistic inconvenience
(b) Although having w/ informerthis doesnt give for fair competition. The CB (federal v. Carrington (Britain hundreds of years
such a reasonable rise to entrapment agency) enforcing Combines Act was ago) cant just go into peoples houses
suspicion or acting Only where police tactics suspicious that Southam company to search for evidence because not
in the course of a leave no room for criminal was engaged in unfair competition authorized by law to do so.
bona fide inquiry, intent can entrap. enter into and wanted to search offices of 3. Third way to challenge under s. 8
they go beyond determination of guilt. Edmonton Journal to establish this. argue that the law in this case was
providing an Dissent: there was persistent Edmonton Journal challenged the applied unreasonably. Example of this
opportunity and importuning, police had no reason search and took Hunter (director of case:
induce the to suspect that accused was CB) to court. Challenged the law R. v. Collins [1987] SCR 265
commission of an related to such activity. allowing the search under s.8 .
offence. (what the Facts: Police conducting surveillance of
average non- This enterprise by police Decision: drug dealers who tended to swallow
predisposed would in all circumstances - (1) a member of this commission goods before being caught by police.
person would have be viewed by community as was NOT independent of government Woman about to swallow a balloon, the
done?) shocking; such conduct is cop grabbed her by the throat to prevent
like a judge (impartial) and also had it. The technique is actually authorized
contrary to proper principles an important role in the investigation.
To determine by law (as valid incidental to arrest), as
of justice. Independent body authorizing
whether police have applied generally the law complies with
Procedural Issues: searches is reqd
gone farther than s.8, BUT as applied in this particular
providing opportunity, a To be decided by trial case it didnt. Decision: Search was
- (2) there was no requirement in the
number of factors useful judge, proper remedy: stay of statute that the search be based on unreasonable. Reasons: Because in this
to consider (10 on p139) proceedings (Jewitt p131). case the police didnt demonstrate
reasonable and probable grounds.
More on Bona Fide Inquiry: R reasonable and probable grounds that
v. Barnes, SCC, 1991 Guilt established first, Ratio A reasonable search and she was about to commit a crime.
p141, bona fide inquiry then look at entrapment; seizures occurs if: Crown has to show that the warrantless
requires: -1) the officers If jury, judge decides search was reasonable, they must
conduct must be entrapment 1) Prior Authorization where establish:
motivated by the genuine BOP - Onus on accused it is feasible to obtain prior
purpose of investigating to prove on balance of authorization, I would hold that (1)Reasonable grounds to believe that
and repressing criminal probabilities that entrapment such authorization is a pre- there was a narcotic in place;
activity; and-2) the occurred. condition for a valid search and
(2)Whether the manner of the search
inquiry must be directed seizure
was reasonable. Seizure by the throat
at a suitable area. BFI - An Economic Theory of the was found to have been unreasonable
Here, officer induced Criminal Law (Richard 16 unless cop had reasonable grounds to
person outside of A. Posner) SM p27 believe that the person was a drug
2)Neutral Arbiter it is
Granville mall, where handler.
police inducements that merely necessary for the person
officer reasonably
affect the timing and not the level authorizing the search to be able
believed drug offences
of criminal activity are socially to assess the evidence as to Sniffer Dogs - AM and Kang-Brown
were occuring.
productive; those that increase the whether that standard has been Kang-Brown, SCC, 2008 - officer tried to look into
Conversely, random met, in an entirely neutral and
crime level are a waste of social guys bag at bus depot, guy didnt want him to,
virtue-testing only arises impartial manner; and
resources sniffer dog alerted to drugs, arrest. All judges
when a police officer
presents a person with 3) RPG where the states agree its a search
the opportunity to commit Search and Seizure: Hunter interest is law enforcement and Lebel+3 = need RPG for sniffer dog search. Not
an offence without a p144, Collins, Buhay the individuals interest is his
SM p29 auth at common law
reasonable suspicion that: expectation of privacy, Binne+1 = need RS because of minimal intrusion
-a) the person is already reasonable and probable
engaged in the particular Pre-Charter case Entick and high accuracy - no RS
grounds, established upon oath, Deschamps+1=need RS because minimally
criminal activity; or -b) the v. Carrington (hundreds of to believe that an offence has
years ago in Britain) where intrusive, RS in this case, consider totality of
physical location with which been committed and that there is circumstances
the person is associated is a police were searching for evidence to be found at the
evidence of sedition and Bastarache =need generalized susp,
place where the particular place of the search, constitutes R. v. AM, SCC, 2008 - sniffer dog search found
criminal activity is likely entered home without the minimum standard,
consent and were sued for drugs in backpack in gym, students knew
occurring consistent with s. 8 of the search would happen
trespass (plaintiff won). A charter, for authorizing search
Amato p132 v. The Queen mans home is his castle. Lebel+3=no auth at common law, student entitled
and seizure. to privacy at school
(1982) no entrapment Common law protected from Reasoning: s.8 acts as limitation on
asking to buy drugs is not in search and Seizure under Binne+1=no RS, exclude
powers of search that the gov has; it Deschamps+1=RS, no SEP , no OEP
itself entrapment application of trespass laws is entrenched (not vulnerable to
Section 8 challenges: Number of change by legislative enactments); Bastarache=unreasonable search, dont exclude,
Facts: Informer (persistently) not- conscriptive
different ways that state action can guarantees a broad/general right.
asks Amato (A) for coke, A 17
be challenged under s. 8 of
sells him small amt. Informer Guarantee from EXCEPTIONS TO WARRANT
Charter. Set out in Collins
persists for more, A sells him REQUIREMENT
unreasonable search/seizure
oz. -D introduced to -In a s. 8 charter case, you need: only protects a reasonable State must demonstrate, when it
undercover cop who asks conducts a search, that it was
1) to prove state action expectation; assessment must
(persistently) for coke, cop authorized by a neutral third party.
be made whether publics
told D that he didnt screw (s.32 - applies to state or In Thompson Newspapers court
interest to be left alone must
around and that he needed state agents) found that it was NOT required to
give way to govt in order to
coke to answer to these 2) need a search or get a warrant because a regulatory
advance its goals, notably law
ppl and if not, these ppl seizure seizure, no criminal sanctions and
would come see D. Next day, 3) need it to be Finding: the disputed statute does not sometimes its too hard to get a
D sold cop 2 oz coke and unreasonable warrant based on the evidence.
embody the above requirements,
charged and convicted for To show an Hunter p144 also a classic example
therefore it is inconsistent w/ the
trafficking unreasonable search, you Charter of a regulatory search (NOT going
Reasons: Evidence falls short can do 1 of three things: after criminals) but because of the
of evidence required to First way to challenge NOTE 4 REQUIREMENT (FROM fairly unrestricted nature of
establish entrapment; under s. 8 - can challenge the BARRON): the neutral and impartial investigative powers, court found
law itself as being arbiter retains the discretion to not that search violated s. 8. *This case
amounts to no more than
unreasonable in allowing authorize the search is in opposition to Thompson
persistent solicitation by
informer/undercover officer. searches and seizures. Law 2. Second way to challenge under Newspapers.
applied generally, does it s.8 the action of the police Onus is on crown to prove
Informer violate s.8? wasnt authorized by law warrantless search was reasonable
importuned D, police Hunter p144 v. Southam (common law or statute) in the Regulatory searches (Thomson
simply had relationship Competition Bureau responsible first place. (Stillman p167)Entick Newspapers p148) Section in the Combines
Act requiring books and documents, whereas in Hunter The search must be reasonable
records as part of an they were actually taking Factors to consider to
investigation challenged. The documents during an intensive
determine if a search was reasonable
regulation and investigation search
1. Can it be inferred by the relevant
of competition is a regulatory
Education Act that the school authority is
law (federal, but not criminal Others (R. v. M (M.R.) SM p45 authorized to conduct searches in
law). Courts found that the Hunter Standards appropriate circumstances? In the school
Hunter Standards will be Relaxed for schools environment such a statutory authorization
relaxed in the context of
R. v. M.(R.)(1998 SCC) SM would be reasonable.
regulatory investigations, i.e.
dont need prior authorization p45Requirement for lawful search and 2. The search itself must be carried out in a
seizure in school setting Search reasonable manner. It should be conducted
and reasonable and probable
grounds. conducted by vice-principle (in RCMP in a sensitive manner and be minimally
presence) on grounds that he was told intrusive.
B. Why would they do this? by several students that the appellant 3. To determine whether the search was
Too hard to get to get was selling drugs on school property. - reasonable all the circumstances will have
evidence in advance so Search was reasonable: modified to be considered.
we cant make it too hard standard should apply to searches of The standard from M.(R.) will only be
for the state to students on school property conducted applied if agent acting for school is not a
investigate, plus the by teachers not acting as agents of the police officer
people generally being police, because orderly environment PENNEY argues that if you are going to
investigated are wealthy needed for learning. Search was bring in the police, then shouldnt the
companies and authorized by the provisions of Nova Charter apply? The student may now be
organizations there Scotia Education Act. - Vice-principal facing criminal charges and a criminal
seems to be some was not acting as an agent of the record so it would seem to make sense
implicit agreement to play Police; search would have occurred w/o that the search should be conducted in
by the rules state needs RCMP. - Reasonable expectation of accordance with the Charter.
to be able to investigate privacy was diminished, as a student in REASONABLE EXPECTATION OF PRIVACY
what they are doing, also a school, where teachers are (REP)
because there is less responsible for safe school General principles (Hunter, Lebeau p150
social stigma with environment - standard to be applied to & Lofthouse, Buhay SM p29 (has TEST)
regulatory infractions. searches by school authorities: Electronic Surveillance (Wong p152,
C. We make it harder to Duarte p156)
investigate criminal Exception to the Hunter rule, a search Plain View Doctrine (Buhay SM p29)
matters because those of a student by a teacher may not Sense-Enhancing Technologies
usually involve less require a warrant ahead of time (Tessling SM p35)
powerful people who Search or seizure, generally mean the
and it will not create the presumption
need more protection. same thing because of the inclusive word
that the search is prima facie
\ or in s.8. Requires a reasonable
expectation of privacy.
Thomson Newspapers Ltd. A warrant is not essential in REP test is a cost-benefit analysis:
order to conduct a search of a benefits or privacy (vis a vis the individual)
v. Canada
student by a school authority. vs. benefits of surveillance (vis a vis
(Director of
Investigations, The standard should NOT society).
be that a search by school When we say there was no REP, we forgo
Restrictive Trade
authorities is prima facie our ability to regulate law-enforcement in
unreasonable if no warrant is certain kinds of searches.
obtained. If there IS a REP, then we have the ability
(1990) p148
to regulate law-enforcements search
Finding: court held that the Standard of care expected
power of the director of of schools is sufficient to justify

investigations to demand the relaxed standard
production of documents The school authority must
under s.17 of Combines have reasonable grounds to
Investigation Act did not believe that school regulations
violate s.8 of Charter though have been breached and a search
it did amount to seizure under of the student would reveal this
the section. breach.
School authority is in the
Reasons: To require warrant best position to assess
for any power of investigation information given to them and
would, in these relate it to the situation existing in
circumstances, immunize their school, and decide whether
perpetrators from reasonable grounds exist.
discovery/prosecution. Power The basic principle that a
to search/take away
reasonable search must be based
documents is more intrusive
on reasonable and probable
than mere power to order
grounds should still apply, but
production of them. Dissent:
teachers are in a better position
Important to look past form of
to determine if reasonable
information gathering and
grounds exist.
look at the effect the
The following is a list of
gathering has on the
individual. Looked at criteria reasonable grounds, but it is not
from Hunter exhaustive: info received from a
student considered to be credible,
Concluded that info from more then one student,
these requirements not a teacher or principals
satisfied, s.17 violates observations, any combination,
s.8 etc. The compelling nature of the
WHY DID THE COURT information and the credibility of
RULE DIFFERENTLY THAN these or other sources must be
IN HUNTER? Difference in assessed by the school authority
the search power in the in the context of the
cases, because in this case circumstances existing at the
they were just demanding particular school.
Police suspect group of men had illegal Note: Ss 184.1 and 184.6lCode ISSUE: Does the FLIR image obtained of the
gambling ring in a hotel room. Police enacted in part in response to this case. accused house without a warrant violate the
would normally send in undercover, but note that it is a criminal offence to accused rights under s. 8 of the Charter?
at the time had lack of Chinese cops so intercept communications w/out warrant s. - Should the police have been granted a search
they used electronic surveillance. 184 warrant for the house based in part on the FLIR
Under part 6 of Criminal Code R. v. Buhay [2003] SCR 631 image, when they did not have a warrant to take
there are strict guidelines for such Section 8 violation: warrantless search the image in the first place?
surveillance, but there was a loophole of locker - Did the accused have a reasonable expectation
in it because it only covered private FACTS: police seize pot from a Winnipeg of privacy against the FLIR image taken by the
audio communications. So cops just locker in a bus terminal. Security guards police?
set up a camera (with no audio) to smell pot, open the locker and find it in the DECISION: No violation - the FLIR image did not
capture what was going on. locker. Call police, open locker for them, trigger s. 8 b/c the info generated by the image
ISSUE: In this case, is there a REP (no.2 defendant arrested. Defendant argues does not touch on a biographical core of the
above) when invitation has been violation of s.8. respondents personal information,
extended to public to come to a hotel ISSUES: Does the Charter apply to the External patterns of heat distribution on an
room? initial search of the locker by the security external surface is not information that the
DECISION: SCC Yes, there was REP. guards? respondent had a reasonable expectation of
When we rent a hotel room, even if we 1. Did the subsequent search and seizure privacy with. Note pg 38 factors.
invite strangers, we have a REP. But by the police violate the appellants rights REASONS: The nature of the information revealed
evidence admitted because its under s. 8 of the Charter. was characterized by the court as not disclosing
admission wouldnt bring the AOJ into 2. Did the appellant have a reasonable sensitive personal (lifestyle) information. In Plant,
disrepute. expectation of privacy in the rented looking at electrical bills is not a violation of s.8
REASONS: If you want to use locker? because there is no reasonable expectation of
something as invasive as electronic 3. Should the evidence be excluded under privacy. In this case they found that same thing,
surveillance, you must get a warrant s. 24(2)? no reasonable expectation of privacy. wHAT s. 8
based on reasonable and probable DECISION: find that the trial judge did not PROTECTS: s. 8 of the Charter should seek to
grounds. Finds that s. 8 violated err in finding that the appellant had a protect a biographical core of personal
because there was no warrant reasonable expectation of privacy in the information which individuals in a free and
(however, there was no CC provision locker he rented and the search violated democratic society would wishto maintain and
requiring one at the time) but allowing his s. 8 rights and should be excluded control from dissemination to the state. This
the tape wouldnt bring administration under s. 24(2) would include information which tends to reveal
into disrepute. Court asks: - Ratio: A search will be found to be intimate details of the lifestyle and personal
- Was there state action? YES unreasonable if the person has a choices of the individual.
(2) REP? YES subjective expectation of privacy which is Arrest and Detention
- Must consider if invasion of REP is objectively reasonable. The fact that there S. 8 (search and seizure), s. 9
reasonable under Hunter requirements may not have been sufficient grounds for a (arrest and imprisonment)
(warrant? Reasonable and probable search warrant does not make a RPG higher standard than that articulable
grounds?) warrantless search reasonable. Bad faith cause or reasonable suspicion
- If this is found to be unreasonable of police as well. People may decline unless officer places them
based on above, then the there is a Plain View Doctrine (Buhay under arrest or detention
violation of s.8. SM p29) also brought up argued that Police may not use any force unless they are
NOTE: s.487.01 now allows general by the time the police came along they placing someone under arrest or detention
warrant for any investigative technique were seizing something in plain view. If Arrest Powers:
that might constitute an unreasonable police see something that is clear and Criminal Code
S or S. obvious, they can seize it without violating s. 495 sets out arrest powers of a peace
Also - no REP in GF's apartment, even s. 8. SC rejects this because the police officer w/out a warrant - NOTE: officer must
if have key - R. v. Edwards 1996 didnt have authorization to have access to subjectively have reasonable and probable
p154 the pot in the first place. grounds on which to base the arrest. -Those
R. v. Duarte p156 (1990 SCC) State Agents? test is would the grounds must, in addition, be justifiable from
Reasonable expectation of privacy: exchange between the accused and the an objective point of view (R. v. Storrey
Depending on the case (i.e. R.v. taped conversation by informer informer have taken place, in the form and p165)
M) the standards may be more Accused was charged with trafficking manner in which it did take place, but for s. 495(2) States that a police officer will not
lax (i.e. in the case of regulatory narcotics. Evidence was obtained the intervention of the state or its agents? arrest a person w/out a warrant for less serious
principles) or more stringent (in through taped conversations by (Broyles) - security guards not state offences where public interest in establishing
the case of criminal informer. Trial judge excluded tapes as agents identity and securing attendance in court, as well
investigations). violation of s.8, Ont CA allowed them, Test for REP determined on the basis of as evidence of the offence, and preventing
19 accused appealed to SCC. the totality of the circumstances, repetition of the offence can be satisfied by
Lebeau v. Lofthouse 1988 - Appeal dismissed: evidence violated considering following factors: include, but issuing an appearance notice.
Ont.CA No expectation of s.8, but admissible under s.24(2) are not restricted to: S. 494 arrest powers of ANYONE without a
privacy: public washroom (good faith, reasonable belief of -the accuseds presence at the time of the warrant. Used the most by police as they have
Police had surveillance in a legality). search, inherent powers over liberties but only according
public washroom used by gay - S.178.111Code allowed police to -possession or control of the property or to specific powers by the statute and common law,
men for sexual encounters in the tape conversations provided they had place searched, which ordinary citizens do not have
public area of the washroom. consent of one party. Court said that -ownership of the property or place, s. 507 states that if the officer believes a case
Ont.CA found that there was no this allowed police to do indirectly what -historical use of the property or item, has been made by oath that will compel the
REP in the public area of the they could not do directly, by -ability to regulate access, accused to answer the charge, then the officer will
washroom, and moreso because dispensing police from requirement to -existence of a subjective expectation of issue a summons, unless there is evidence
D kneeled in cubicle and would seek a warrant for conducting privacy, and presented that discloses reasonable grounds to
be seen by outsiders. The fact participant surveillance. Police had -the objective reasonableness of the believe that it is necessary in the public interest to
that there were lookouts onus of proving they were justified in expectation issue an arrest warrant.
implies that these men didnt performing warrantless search R. v. Tessling [2004] 3 SCR 432 SM 1. The code has a preference for the procedure
think that they had a REP. according to Hunter. They did not p35 No expectation of privacy: FLIR that constitutes the least drastic interference w/
CASE ILLUSTRATES physical satisfy this onus, so the onus of technology the accuseds liberty.
characteristics of the place where proving the evidence should be Police use overhead Forward Looking Statutory Powers:
we are claiming a REP are going excluded then lies on accused. Re: Infra-Red (FLIR) technology to take SEARCH INCIDENT TO ARREST - Once
to be very important to courts admission of evidence, cites R. v. pictures of a home with a suspected you arrest someone, you are permitted as a
determination. REP in the stall, Collins. marijuana grow-op as it will pick up heat police officer to conduct a search incidental
not in the public area of the - Recording should be viewed as patterns emanating from a house. This is a to arrest. (Storrey,Cloutier
washroom because people are search and seizure in all circumstances passive technology because it doesnt v.Langlois,Stillman)
free to come and go. except where all parties to conversation show what is inside the home. But it does - can do this if:
R. v. Wong SCC There is an have expressly consented, therefore allow police to glean information about (a) lawfully arrested
expectation of privacy - standard of reasonableness applied in what is going on inside the home. Police (b) logical basis - some relationship
electronic surveillance of a hotel Hunter should be used to assess had a tip, and used this technology to get between reason for arrest and reason
room constitutionality of search. warrant. Turns out there was a grow-op for search
Do you need reasonable Decision: Appeal dismissed public a consented search. Stop itself allowed believe that his or her safety or that of others is at
and probable grounds to safety justifies the police action: under s.1. Cop does not suspect that he is risk, the officer may engage in a protective pat-
conduct search incidental Reasons: impaired; he had his papers in order. Cop down search of the detained individual. -Both the
to arrest? NO (1) Random stops fall within the scope should have let him go as there were no detention and the pat-down search must be
- Power to search incidental to of officer duties under statute of further causes for detention. However, conducted in a reasonable manner. -the
arrest, you can also search for common law: preservation of peace, notices gym bag with a brown baggie and investigative detention should be brief in duration
evidence relating to the offense prevention of crime, and protection of becomes suspicious. Has him open bag and does not impose an obligation on the
(as well as weapons or anything life and property where drugs are revealed. detained individual to answer questions posed by
to ensure safety or health) , can (2) Interference with liberty was Reasons: Police road checks should not the police. . If the officer provides reasonable
do pat down, check bags, reasonable and necessary for carrying be extended beyond the scope of traffic grounds to believe the search necessary, the
vehicle, basically the immediate out the duty; related to impaired driving related offences. According to Collins, search must also be conducted in a reasonable
vicinity (3) Driving is licensed activity subject admission of this real evidence would manner (Collins test)
(a) Restricted - no body cavity to regulation and control in the generally not affect trial fairness, but it R. v. Clayton, SCC, 2007, SM
searches except for the mouth, interest of safety would in this case for above reasons. Facts: Affirms Waterfield test, Police stop
and no body samples to be taken (4) Wide publicity of RIDE program Check stop does not constitute a general car with black guys after caller sees parking lot of
(b) Justified b/c a suspect has a reduces the psychological effect of warrant to search vehicles, drivers, or black guys and handguns. Black guys act
lessened REP, stopping innocent drivers (Court passengers; search and seizure of plain suspiciously under questioning and try to run for
(c) Also,keep in mind search acknowledges psych effects of random view evidence. it, and are stopped. Used waterfield test to
must meet objectives of stops on innocent drivers, but decides Investigative Detention Power: affirm presence of common law justification of
Discretion, Valid Purpose, and it is only a slight inconvenience). (Simpson, Mann initial and continuing detentions
Non-abusive fashion from R v. Hufsky (1988 SCC) Upheld *There are no detention powers set out in 1) Lawful Duty -met, because although the
Cloutier): power to randomly detain the Criminal Code absent reasonable and police had no specific statutory authority for the
Strip Searches Incident to Facts: Appellant stopped at road check probable grounds. Meaning of detention is initial stop, the police were clearly acting in the
Arrest: (Golden) under Highway Traffic Act and claimed same for ss. 8 and 9 course of their duty to investigate and prevent
In addition to RPG for the violation of s. 9. He was asked to R. v. Simpson (1993 ON CA) Failure crime when they stopped the car and detained its
arrest, you need RPG to justify a surrender license and insurance, to meet investigative requirements: occupants
strip search. Again, may be for claims violation of s. 8 as well. exclusion of evidence Accused emerged 2) Justifiable Use -both the initial and the
weapons or evidence. Absent Decision: Random stops/detentions fall from a suspected crack: house and drove continuing detentions of Clayton and Farmers
extenuating circumstances, you with the meaning of s. 9 according to away Police stopped him and asked him to car were justified based on the information the
must conduct the search at the Therens Test: remove a lump from his jacket which police had, the nature of the offence, and the
station where the person is Reasons: Detention was arbitrary (no turned out to be cocaine timing and location of the detention. -initial
afforded more privacy. criteria that govern exercise), but - Accused rights under ss. 9 and 8lCharter detention: -met, as police were justified in
R v. Golden (2001 SCC) justified, since: were violated, evidence should be stopping all vehicles emerging from the
Requirements of a reasonable 1) Driving is a licensed and regulated excluded: parking lot and would have been derelict in their
strip search -only constitutionally activity 1) Detention requires "articulable cause"; a duties had they sat by and watched vehicles
valid at common law where they 2) Controlled in the interest of safety hunch is never good enough leave-further detention and search: -facts of
are conducted as an incident to a and, 2) Suspicion of illegal activity in the house matching description of race, Clayton wearing
lawful arrest for the purpose of 3) Intrusion is proportionate to the was based on weak evidence gloves despite being a passenger and non-glove
discovering weapons in the purpose being served 3) Police did not know D and there was no weather, and evasive behaviour by Clayton to
detainees possession or *There was no unreasonable search or evidence that D was engaged in criminal remain in the car, gave rise to the reasonable
evidence related to the reason for seizure: requirement to produce a conduct suspicion that the Ds could be in possession of
the arrest. -In addition, the police license never qualifies as a search 4) Passing through a suspected location of the reported handguns and that, as a result, the
must establish reasonable and under s. 8 (no reasonable expectation illegal activity is not articulable cause lives of the police officers and of the public were
probable grounds justifying the of privacy according to Hunter v. Searches incident to Detention: at risk, justifying their continued detention.
strip search in addition to Southam Test) R. v. Mann (2004 SCC) Failure to Waterfield Test for Common Law Police Powers
reasonable and probable grounds Random Roving Stops: meet investigative requirements: exclusion (Mann Dedman and Clayton
justifying the arrest. -Strip R v. Ladouceur (1990 SCC) of evidence Police were looking for a Step 1 -Lawful Duty Interference falls w/in
searches conducted in the field Police power to drive around and select suspect, described as a 21 year old the general scope of a duty imposed by
could only be justified where who to stop aboriginal male. Near the scene of reported statute/common law for the police officer,
there is a demonstrated Facts: Driver stopped randomly and crime, police stopped A, asked him which is to protect life and property -
necessity and urgency to search was found to be driving with a questions, conducted pat-down search and were the police clearly acting in the
for weapons or objects that could suspended license. Challenged found illegal substances in his pockets. A course of their duty to investigate and
be used to threaten the safety of Highway Traffic Act under s. 9 of the was arrested for the offence of possession prevent crime? (Clayton)
the accused, the arresting Charter. for the purpose of trafficking marijuana. Step 2 -Justifiable use- The search must
officers or other individuals. Decision: Appeal dismissed police - SCC: evidence should be excluded be conducted in a manner justified by law.-
Relevant factors - see p170 - may stop motorists randomly but only because police had no reasonable reason requires consideration of: -a) necessity:
Police strip searches require a to inquire about driving related to go beyond pat down search whether an invasion of individual rights
high degree of justification offences, can check 1 ) Officers had reasonable grounds to is necessary in order for the peace
DETENTION POWERS: licence/registration, sobriety, and detain, as A matched the description of the officers to perform their duty, and -b)
Fixed point stops (Dedman, mechanical fitness only. suspect, near crime scene reasonableness: whether such invasion is
Hufsky)RIDE PROGRAM Reasons: Random stops are arbitrary in 2) There were reasonable grounds for a reasonable in light of the public purposes
Random, roving stops violation of s. 9, but are saved because: protective search of A; logical possibility served by effective control of criminal
(permitted so long as the purpose - They are rationally connected to that A was the suspect. acts on the one hand and on the other
of the stop is to investigate highway safety; 3) However, search into the A s pocket was respect for the liberty and fundamental
driving-related offenses) - Degree of intrusion is minor stops an unreasonable violation of the A's dignity of individuals. NOTE -the
(Ladouceur) are authorized by statute and are reasonable expectation of privacy. necessity and reasonableness must be
Give police this power proportional to the ends served. Ratio: To avoid violation of ss. 8 and 9 of assessed against all of the
because of concern mostly over Limitations: the Charter, the police must follow this circumstances, most notably the extent
drunk driving, but for other R v. Mellenthin (1992 SCC) procedure regarding the detention of an to which the interference with individual
traffic-related offences as well limitation to random roving stops: must individual: liberty is necessary to perform the
(i.e. vehicle fitness, insurance, be related to a driving offence, affirms -1) Detention for investigative purposes officers duty, the importance of the
licenses etc) Ladoceur, can only do more if RPG, - police officers may detain an individual performance of the duty to the public
Even though these stops or if drugs/alcohol/weapons in plain for good, the liberty interfered with, and the
technically violate s.9, they are view investigative purposes if there are nature and extent of that interference
upheld under s.1 out of concern Facts: Accused stopped during a reasonable grounds to suspect in all the (Mann)
for safety on highways. random traffic spot check - police circumstances that the individual is Charter Remedies
R v. Dedman 1985 SCC) officer asks what was in a gym bag, connected to a particular crime and that S.24: (1) Anyone whose rights or freedoms,
Can use Waterfield Test to opening reveals drugs. Claimed his s. 8 such a detention is necessary. (Penney as guaranteed by this Charter, have been infringed
show that fixed stops are a valid rights violated. says "reasonable suspicion" ok) -the high or denied may apply to a court of competent
exercise of police power Facts: Decision: SC says no RPGs to search crime nature of a neighbourhood is not by jurisdiction to obtain such remedy as the court
stopped under RIDE program and the bag. Evidence excluded. Also, itself a basis for detaining individuals. considers appropriate and just in the
refused to provide a breath Mellenthin was not informed of his matching description is though. circumstances
sample. Challenged legality right to refuse to have his bag -2) Search incident to Detention - where a Kinds of remedies you could apply for under this
of stop and detention. searched. No voluntary consent, so not police officer has reasonable grounds to section:
a court order for Crown to Seriousness of the Charter-infringing breach on the protected interests of the strengthening or attenuating the self-incriminatory
comply if you havent received all state conduct accused from whom a statement is character of the evidence.
of your evidence. 1. Would the admission of the evidence obtained in breach of the Charter. iv. third inquiry - since evidence in this category is
a witness may be recalled bring the Administration of Justice into eg. individual informed of choice to real or physical, there is usually less concern
you can ask for costs to be Disrepute by sending message that speak, but compliance with s. as to the reliability of the evidence, and thus, the
awarded (i.e. if there is an courts condone deviation? 10b technically defective at public interest in having a trial adjudicated on its
adjournment because of wrongful 2. How bad was it? either the informational or merits will usually favour admission of the
Crown action, defense can ask 1. Flagrant or slight implementational stage derivative evidence.
that their costs be awarded 1. deliberate violation, or pattern of also, statement made spontaneously e. General rule =where reliable evidence is
during that time). abuse, tends to support exclusion after, or would have been made regardless discovered as a result of a good faith infringement
Can ask for a more lenient 2. Reasonable or unreasonable of, a breach that did not greatly undermine the accuseds
sentence. 3. Understandable or in good faith iv. The third inquiry focusses on the protected interests, admission favored.
If crown was really bad, they 3. Good Faith (doesn't include public interest in having the case tried f. Caveat =On the other hand, deliberate and
may be ordered to pay the costs negligence or blindness) fairly on its merits. This may lead to egregious police conduct that severely impacted
of the defendant. 1. Must have acted reasonably consideration of the reliability of the the accuseds protected interests may result in
A stay of proceedings 2. Requires more than intention evidence. exclusion, notwithstanding that the evidence may
equivalent of an 3. Looks at the amount of training b. Bodily Evidence be reliable.
acquittal * only received by the officer and the level of i. evidence taken from the body of the R. v. Grant-
granted when the knowledge of Charter requirements accused, such as DNA evidence and Facts: The defendant, Grant, was stopped and
Crowns behaviour is 1. Police are required to have received breath samples. questioned by the police on the grounds that he
especially bad and it is adequate training, therefore ignorance ii. Plucking a hair from the suspects head was acting suspiciously. While being questioned
clear and obvious. i.e. is not a defense may not be intrusive, and the accuseds by the police Grant admitted to having a handgun
the Crown has made it 4. Exigency - Here the court will also privacy interest in the evidence may be in his possession. He was then arrested and
impossible for you to considers any need to act without relatively slight. charged with possession of a restricted weapon.
get a proper defense. certainty due to urgent situation iii. a body cavity or strip search may be Grant appealed on the grounds that he was
Impact of the breach on the Charter- intrusive, demeaning and objectionable. detained and questioned in violation of the
Assuming that we protected interests of the accused iv. first inquiry - fact-specification Charter.
have a violation not 1. Calls for an evaluation of the extent determination Issues: 2) Should the evidence be admitted in this
saved under s. 1 you can to which the breach actually v. second inquiry requires the court case?
seek a remedy under s. undermined the interests protected by to examine the degree to which the search Decision:2) The evidence should be admitted even
24(1)and (2) exclusion of the right infringed. and seizure intruded upon the privacy, though it was obtained in violation to the charter
evidence. 1. fleeting or profoundly intrusive? bodily integrity and human dignity of the Ratio: See above
S. 1 is rarely relevant to s.8 2. s. 7 right to silence accused. Reason: In balancing all of the relevant issues, the
(but can be relevant to s. 9 and s. 3. S. 8 Search and Seizure - What high intrusion = the forcible taking of court found that the police in this case acted
10). level of privacy was expected? blood samples or dental impressions (as in reasonably, and that the public interest
S. 24(2) - Where, in 4. S. 9 Arrest and Detention To what Stillman outweighed any effect on the perception of the
proceedings under subsection degree was the liberty of the accused low intrusion= relatively innocuous administration of justice. weighing the factors,
(1), a court concludes that limited? procedures such as fingerprinting or iris- admission of the gun is favored. -first inquiry -
evidence was obtained in a 5. s. 10b - right to counsel recognition technology, or breath sample police conduct was not in bad faith, egregious, or
manner that infringed or denied 2. Not generally directed at the evidence deliberate - admitting the evidence would not
any rights or freedoms accuseds interest in avoiding a vi. third inquiry favours admission - greatly undermine public confidence in the rule of
guaranteed by this Charter, the conviction evidence obtained from the accuseds law-second inquiry - interests of accused include
evidence shall be excluded if it is Societys interest in the adjudication body is generally reliable, liberty interest (s. 9) and right to counsel (s. 10b) -
established that, having regard to of the case on its merits. c. Non-bodily Physical impact of the infringement of Mr. Grants rights
all the circumstances, the 1. Would the truth-seeking function of Evidence under ss. 9 and 10(b) of the Charter was
admission of it in the the criminal trial process be better i. first inquiry - fact-specification significant.-third inquiry - gun is
proceedings would bring the served by the admission or exclusion determination reliable and thus valuable evidence
administration of justice into of the evidence? ii. second inquiry - breach most often Trial Process
disrepute. 2. How important is the evidence? associated with non-bodily physical Wrongful Convictions
If you want evidence excluded 1. Reliability evidence is the s. 8 protection against Causes:
under s. 24(2) you must: 2. Required for trial unreasonable search and seizure The scope of the problem
Establish standing, must show 3. Seriousness of the offence Privacy is the principal interest involved No. 1 Reason Police Misconduct and Tunnel
on BOP that your clients rights 1. May be a relevant factor, however in such cases. Vision
were violated (not in the Can cut both ways illegal search of house more serious than Accomplice and Jailhouse informant testimony
abstract), 1. Public has a heightened interest in a place of business or automobile Leading Cause Eyewitness testimony (often
Obtained in a manner There punishing offender an unjustified strip search or body cavity completely genuine).
has to be a causal ("but for") or 2. Offender faces a more serious search is demeaning to the suspects Forensic evidence
temporal (no but for, but obtained sentence human dignity and will be viewed as False confessions
in same transaction) relationship 3. Grant seems to suggest the extremely serious on that account Prosecutorial misconduct
between the violation the right conflicting lines of reason cancel each Ineffective assistance of counsel
and the obtaining of evidence. other out iii. third inquiry - Reliability issues not Judicial error and bias
Allow temporal to send message 4. Discoverability generally be related to the Charter breach, Racism
to cops to behave 1. Would the cops have admission favored Lack of Post-conviction remedies we dont have
Disrepute (R. v. Grant discovered the evidence d. Derivative Evidence an independent investigative body, what we have
SM The admission of the regardless of the breach? i. physical evidence discovered as a result is still associated with the Crown.
evidence into the proceedings 1. Only one of the many factors to be of an unlawfully obtained statement The death penalty
would bring the administration of considered therefore not determinative. ii. first inquiry - depends on the factual Prosecution and Defense:
justice into disrepute. NEW If yes, it would weigh in favour of circumstances of the breach: the more Crown Counsel (Boucher p219)
TEST: GRANT! (Collins, admitting evidence serious the state conduct, the more the Boucher v. The Queen (Supreme
Stillman p167, Buhay Application to three kinds of admission of the evidence derived from it Court of Canada (1954)) - Case deals
SM p29, Mann SM p52, evidence: tends to undermine public confidence in with the role of the Crown counsel in a criminal
Obranski, Elias SMp21 a. Statements by the Accused the rule of law. trial
formed old test) i. presume exclusion of statements iii. second inquiry - in many cases the It cannot be over-emphasized that the purpose of
The New Admission of obtained in breach of the Charter. Charter right breached is the s. 10(b) right a criminal prosecution is not to obtain a
Evidence Rule aka, ii. first inquiry focusses on whether to counsel, which protects the accuseds conviction; it is to lay before a jury what the
The s. 24(2) Analysis admission of the evidence would harm interest in making an informed choice Crown considers to be credible evidence
When faced with an application the repute of justice by associating the whether or not to speak to authorities. The relevant to what is alleged to be a crime
for exclusion under s. 24(2), a courts with illegal police conduct. relevant consideration at this stage will be Ratio: The role of prosecutor excludes any notion
court must assess and balance iii. second inquiry the extent to which the Charter breach of winning or losing; his function is a matter of
the effect of admitting the right violated by unlawfully obtained impinged upon that interest in a free and public duty than which in civil life there can be
evidence on societys long-term statements is often the right to counsel informed choice. none charged with greater personal responsibility
confidence in the justice system under s. 10(b) discoverability of the derivative evidence Disclosure Stinchcombe
having regard to the following particular circumstances may may also be important as a factor - Prosecutor should make timely disclosure to the
three lines of inquiry: attenuate the impact of a Charter accused or defense counsel of all relevant facts
and known witnesses, whether information. Doesnt need to (This is the ONLY ground recognized by Selecting the Jury:
tending to show guilt or provide clearly irrelevant material the SCC). See factors 3 ways to exclude people:
innocence, or that would affect Plea Bargaining: 2. Parliament has outlined in Hall: (1) Challenging the array: (Cr. C. s. 629)
the punishment of the accused. 1. Most cases resolved at this stage reproduction of s. 515 strength of (Kent
- Although there are no changes without going to trial. prosecutions case, gravity offense, R. v. Kent et al (Manitoba Court of Appeal
to the Criminal Code, section 7 2. Ok for defence counsel to advise to circumstances of offense, potential for a (1986)) Accused has no right to demand
of the Charter now includes a plea bargain for lesser offence, if have lengthy term of imprisonment. Court also members of their racial/ethnic group on a jury
broad right to disclosure by order informed consent noted in Hall that you can detain someone Facts: Member of a Native band is challenging the
of the SCC Defense Counsel: for their own protection. racial composition of a jury. Only one of those
R. v. Stinchcombe (SCC - Duties of Defence Counsel MOST IMPORTANT TO KEEP IN who identified themselves as Indian sat on the jury
1991) - Case imposed a 1. When Defending an accused person, MIND we dont need the tertiary Reasoning: It is implicit in the reasoning, that if
concrete obligation on the Crown the lawyers duty is to protect the client ground if we can make our case based there had been deliberate exclusion of persons of
to disclose its case. This same as far as possible from being convicted on the either of the first two a particular race or origin, that would be contrary
requirement is NOT imposed on except by a court of competent grounds. So by definition in any case to the Bill of Rights and would require the
the defense. jurisdiction and upon legal evidence where we rely on the tertiary dismissal of the array. Accused has no right to
Issue: The appeal raises the sufficient to support a conviction of the ground, we have already established demand that members of his race be included on
issue of the Crowns obligation to offence. that they dont meet the first two criteria. the jury, just as discriminatory to require certain
make disclosure to the defence 2. Admissions made by the accused to Therefore the threat to public argument numbers of people be from certain races
Facts: Crown decided not to call the lawyer may impose strict limitations should NOT come up in the tertiary Decision: Sinclair has not been deprived of a
a witness that gave favourable on the conduct of the defence and the argument because it would have jury of his peers, and thus has not been deprived
testimony to the accused, and accused should be aware of this already been successful in the of any Charter rights
would not produce the 1. EG when the accused admits guilt, second step. So the third step Challenges to the poll:
statements made in an interview. lawyer cant allow perjury seems to center on the reaction - Judicial exclusion (Cr. C. ss. 632,
The judge at trial and appeal a) Tend to have even more limited of the public. The strength of the 633) maybe you know the accused or the judge,
refused the application by resources than the Crown. case and the seriousness of the also hardship
defence for disclosure b) There are limitations placed on offense seem to be overriding (2) Peremptory challenges:
Reasoning: Requires Crown to defense if you are certain that your factors here. (Cr. C. s. 634) (Pizzacalla,
turn over everything in its client is guilty. I.e. if your client intends PROBLEMS: strength of the case is
possession that is not (1) clearly on committing perjury, you cant be a tough at this point and you could
Under s 634, both the prosecutor and defence
irrelevant or (2) anything that is party to it. You cant actively mislead contaminate the jury pool if they see that
counsel can make peremptory challenges of 4-20
privileged the court. Basically, everything you do someone was denied bail because of the
jurors depending on the seriousness of the crime
- Clearly irrelevant to make to attack the Crowns case is fair game. strength of the prosecutions case.
- Have the ability to insert racial prejudice in the
the point that if there is any When you are actively misleading the Reverse Onuses (Cr. C. s. 515(6),
jury selection process.
uncertainty as to whether it is court that you know is unreliable and Charter, s. 11(e)):
R. v. Pizzacalla p252 (Ontario Court of
relevant, it should be turned over. false, you cant do that. Key question is who bears the burden of
- Relevance anything that might Appeal (1992)) Jury must be
USA v. Burns and Rafay, SCC proof?
bear on the ability of the defense impartial, representative, and competent
2001 - when fugitives are sought to 1. Indictable offense while at large in
to make a full answer in defense. Facts: Appellant convicted on indictment in which
be tried for murder by a death penalty another indictable offense If youve
- Privilege means you own a he was alleged to have committed sexual assault.
retentionist state, however similar in demonstrated in the past that you have
privilege, and that evidence is Crown used 23 stand asides, 20 of which were to
other respects to our own legal system, done this, less likely that you are going to
inadmissible in court. Most prevent men from being on the jury. This resulted
this history weighs powerfully in the get bail. That is why burden is on you to
relevant in criminal cases is in the whole jury being composed of women
balance against extradition without prove this.
informer privilege (i.e. relying Decision: Appeal allowed, new trial
assurances. (2) Criminal organization
on an informant to obtain a Bail: ordered
offense (charged with) broad definition of Reasons: Based on the jury selection process, not
warrant). Crown can claim - S. 11(e) of the Charter this
privilege and must tell the the fact that the jury was composed of all women.
provides that those charged (3) Terrorism and national
defense that they are doing so, Selection process of Crown using stand asides to
with an offence have the right security offences
but not disclose the information defeat defenses challenges was not right, just so
not to be denied reasonable (4) Indictable offense and not ordinarily a
in violation of the privilege. One all women could be present on jury. An apparent
bail without just cause resident of Canada you are a flight risk
exception to informer attempt by the prosecution to change the
- S. 515(10) Criminal Code (5) Offense based on failure to attend court
privilege is when the very guilt composition of the jury so as to exclude
Generally, Onus on Crown to and comply with conditions of release
or innocence of the accused is at representatives as occurred in this case, in itself
show why bail should be (6) Serious drug trafficking offenses
stake. undermines the impartiality of a jury
denied (Pearson) in that case SCC addressed
- If Crown fails to disclose then (3)Challenges for cause: (Cr. C. s. 638)
Bail can be denied on 3 whether reverse onus for drug traffickers
defense can challenge it and the (Hubbert, Parks Williams
Grounds s. 515(10): complied with 11(e). Tend to deny bail
judge will decide if the Under s. 638, the prosecutor and the accused
Primary - Demonstration that in drug trafficking because its very
information is relevant and not are entitled to any number of challenges for cause.
the person is not likely to show lucrative and likely to go back to it.
privileged. The most common of which is the challenge for
up for their trial. consider past Also because its lucrative, they have cause that a juror is not indifferent between the
-Evidence obtained by the Crown history of not showing up, if resources and connections to get out of Queen and the accused.
is not property of the Crown, it is you are extremely wealthy you the country. DISSENT in Pearson
property of the public to ensure Tough to select 12 jurors who have not heard of
could flee to a country with no argued that there is a stereotype of wealthy the case in an age where dissemination of
that justice is done extradition (not a likely drug traffickers that isnt very accurate. information is so quick
- Much court time can be saved if grounds), connection to the They tend to be street level addicts and Once challenge for cause has begun, the party
all evidence is revealed by the community (is important) i.e. dealers.
Crown including increases in making the challenge may call the proposed juror
job, family, assets, etc (7) S. 469 offences (i.e. as a witness without calling for evidence to
guilty pleas, withdrawal of Secondary protection of the murder) Bray, Pugsley, establish a prima facie case
charges, etc public. If a case can be made that the Sanchez just murder and the rest are You have to demonstrate to the judge that there
- Anything less than complete person will not adhere to terms of bail crimes against the state (i.e. treason, is a realistic potential that the jury pool as a whole
disclosure by the Crown falls and possibly re-offend then bail is often alarming the Queen, political crimes). will be biased and not impartial based on
short of decency and fair play denied. Court will look at: seriousness There is some suggestion that the reverse something that cant be remedied by proper
- This obligation is not absolute, of the offense (but not always! onus for murder violates s. 11(e). instruction etc Can do this on the
and is in the discretion of the Someone charged with murder may Juries: basis of pre-trial publicity and
Crown with regards to NOT actually be a significant risk to the S. 11(f) of the Charter allows any racial bias.
withholding information and the public i.e. domestic violence which is a person charged with an offence to have the The Trial
timing of the release of situational crime); a past criminal benefit of jury if the maximum punishment Quantum and Burden of Proof
information. For example, the record is going to be key especially if for the offence is imprisonment for five Burden of Proof: Who has the
Crown has to respect the rules of those crimes were committed while on years, or a more sever punishment responsibility? General rule is the Crown has this
privilege, and to protect the bail (kiss of death); 90% plus cases are tried by judge alone Quantum of Proof: What level of proof is
identity of informers Tertiary (note development - Why do we have juries? required? Beyond a Reasonable Doubt (BRD) or
-Discretion must also
Morales Hall 1. They connect the community to the Balance of Probabilities (BP)
be exercised with
1. The judge can deny bail for any other justice system: i.e. public education Persuasive Burden: Who has the Burden?
respect to the
just cause including, the need to 2. Rights to jury trials (Cr. C. s. 473, Usually the Crown, otherwise Reverse
relevance of maintain confidence of the Charter, s. 11(f)) but only for a Persuasive Burden
administration of system of justice. small subset of offenses.
Evidentiary Burden: ex. person selling minerals had behaviour that is the product of a free will (b) Or when inaction is viewed as action by the
Who has the Burden to persuasive burden to show had lawful and controlled body, unhindered by courts (fagan & r. v. miller)
Raise an Issue? If not auth. (Laba) external constraints should attract the (c) Omitting to do a legal duty
the Crown then Exceptions, only if the existence penalty of criminal liability. (ruzic 1. usually statute
Reverse Evidential of the substituted fact leads inexorably Requires sufficient degree of conscious 2. use common law if not statute- arguable since
Burden (AOR). This is to the conclusion that the essential choice and control of action SCC in thornton avoided issue
the case in regards to element exists, with no other Involuntary conduct In Canada statutory obligations sometimes
defences. reasonable possibilities, will the o Reflexive action (instinct), criminalize inaction
The burden on the statutory presumption be accident Eg. s. 252(1) Failing to stop after an accident
crown to prove the guilt of an constitutionally valid. (Whyte) o Automatism (see (Hit and Run)
accused beyond a reasonable permissive presumptions don't automatism below) - S. 126 Disobeying a Statute
doubt is one of the most infringe (Downey) Accused engages in a series (Catch all)
important safeguards in the Once a violation is demonstrated, the of complex acts without (a) Can be used to criminalize inaction when it is
criminal justice system courts will consider the provision in the actual awareness, Eg. sleep contrary to a statutory provision
Presumptions may light of s. 1 to determine if the walking or dissociation (b) Any provision creating an offence for failure to
be: FROM OAKES infringement is justifiable act can be used w/ s. 126
permissive or S. 1 The Canadian Charter of Rights ex. involuntary - man killed step-parents - s. 180 see thornton Below
mandatory and Freedoms guarantees the rights while sleepwalking (ruzic
irrebuttable or and freedoms set out in it subject only o Includes morally involuntariness (ruzic
rebuttable to such reasonable limits prescribed by Does not require awareness of
rebuttable, three law as can be demonstrably justified in consequences R. v. thornton
potential ways the a free and democratic society. - HIV positive and donated blood
presumed fact can be In their analysis the court will consider - Charged w/ s. 180(1) common nuisance
rebutted: the criteria set out in Oakes (the Absolute Liability endangering public
First, the accused may be Oakes test) Some offences do not require mens rea (a) "endanger" doesn't require actual
required merely to raise a (1) There must be a pressing and Actus Reus is sufficient for a conviction injury/damage, and includes even slight risks
reasonable doubt as to its substantial objective Photo Radar may be an example - Court found him guilty on the grounds that he
existence. (2) The means must be proportional Absolute Liability + Possible Jail Time = failed to live up to the duties of civil legal duty.
Secondly, the accused may (a) The means must be rationally violation of s. 7 of Charter (a) legal duty PROBABLY includes common law
have an evidentiary burden to connected to the objective Contemporaneity duties (OCA in thornton, and SCC in R. v.
adduce sufficient evidence to (b) There must be minimal impairment It is a principle of natural justice, and of Cuerrier)
bring into question the truth of of rights our law that actus non facit reum nisi mens Legal Duties PROBABLY include Common Law
the presumed fact. (c) There must be proportionality sit rea. The intent and the act must concur ex. Under the common law anyone carrying such
Thirdly, the accused may between the infringement and objective [in time] to constitute the crime. (Must a dangerous weapon as a rifle is under the duty to
have a legal or persuasive Where a provision fails as it did in coincide in time) (Fowler v. Padget, take such precaution in its use as, in the
burden to prove on a balance of Oakes, an appropriate constitutional fagan, cooper) circumstances, would be observed by a
probabilities the non-existence of remedy will be applied - when faced with contemporaneity, argue reasonably careful man. (R. v. Coyne, 1958)
the presumed fact. Reverse onus placed on drug continuing transaction - analysis of ex. a parent is under a legal duty at
presumptions of law or fact possession amounting to trafficking omission stuff should be reserved to common law to take reasonable steps to
o Burden of Proof was overturned in Oakes where statute creates duty (from Pare) protect his or her child from illegal violence
Presumption of Reverse onus placed on Care and Sometimes there is a fuzziness used by the other parent or by a third person
innocence is a principle of Control offences was upheld in Whyte o Fagan v. Commissioner of towards the child which the parent foresees
fundamental justice Reverse onus placed on Living on the Metropolitan Police or ought to foresee. R v. Popen, 1981
Burden falls on the Crown to Avails of Prostitution was upheld in Act driving the car onto the cops foot, ex. moore - implied duty to provide one's
demonstrate the requirements Downey preceded the mens rea component, i.e. name/address before arrest, failing which you are
(Burden of Proof) for conviction Quantum of Proof (Lifchus) failure to remove the car guilty of obstruction of justice (moore
beyond a reasonable doubt For Criminal Cases Beyond a Court viewed the action and failure to Common Nuisance
(Quantum of Proof) Reasonable Doubt (BRD) move the car as a single continuous action 180. (1) Every one who commits a common
(woolmington B. Does not require absolute certainty R. v. Miller nuisance and thereby (a) endangers the lives,
Conversely, the accused is not (Lifchus), but falls much closer to AC R. v. miller accidentally set mattress safety or health of the public, or (b) causes
expected to prove his innocence, than BOP (Starr) on fire but did nothing to stop fire from physical injury to any person, is guilty of an
must only demonstrate a C. Requires more than probably consuming house indictable offence and liable to imprisonment for a
reasonable doubt for acquittal guilty, i.e. higher than BOP, if this is An unintentional act followed by an term not exceeding two years
Under the Constitution the best the jury can agree upon then intentional omission to rectify that act Definition
Burden of proof is they must acquit or its consequences can be regarded (2) For the purposes of this section, every one
now codified within s. D. based on reason and common in toto as an intentional act commits a common nuisance who does an
11(d) of the Charter sense, not sympathy/prejudice o R. v. Cooper (only Canadian case of unlawful act or fails to discharge a legal duty and
S. 11 Any person charged with E. "In short if, based upon the evidence the three) thereby (a) endangers the lives, safety, health,
an offence has the right (d) to before the court, you are sure that the SCC - It was sufficient that the intent property or comfort of the public; or (b) obstructs
be presumed innocent until accused committed the offence you and the act of strangulation coincided at the public in the exercise or enjoyment of any
proven guilty according to law in should convict since this demonstrates some point. It was not requisite that the right that is common to all the subjects of Her
a fair and public hearing by an that you are satisfied of his guilt intent continue throughout the entire two Majesty in Canada.
independent and impartial beyond a reasonable doubt." minutes required to cause the death of the 215. (1) Every one is under a legal duty (a) as
tribunal; (Lifchus) victim." a parent, foster parent, guardian or head of a
Any criminal offence that Conduct or Actus Reus (Guilty Act) Action, Inaction, & Status family, to provide necessaries of life for a child
imposes a persuasive reverse Sometimes referred to as the act Action - the verb in the sentence under the age of sixteen years; (b) to provide
onus (BOP) (allows accused to requirement Inaction (or Omission) necessaries of life to their spouse or common-law
be convicted despite RD) violates There is no guilty act w/out a guilty if you see failure to act, identify partner; and (c) to provide necessaries of life to a
s. 11(d) of the Charter mind presumption that it is not generally person under his charge if that person (i) is
(Oakes) (2) Three Requirements for Actus Reus criminally culpable. Then talk about unable, by reason of detention, age, illness,
includes mandatory 1. Subject2. Voluntary (ruzic 3. exceptions, give examples, mention mental disorder or other cause, to withdraw
presumptions, even if evidential Prohibited Act4. Circumstances (ONLY possibility that duty could be derived from himself from that charge, and (ii) is unable to
burdens ("in the absence of when explicitly required in statute) common law but SCC in thornton provide himself with necessaries of life.
evidence to the contrary") sic 5. consequences/causation deliberately avoided the issue, find an 126. (1) Every one who, without lawful excuse,
(Downey) Voluntariness example from CC that sets out duty, find an contravenes an Act of Parliament by wilfully doing
ex. s.8 NCA possession For any offence, the actus reus is not offence provision in CC anything that it forbids or by wilfully omitting to do
presumed for trafficking, and satisfied unless the defendant acted Eg. Failing to stop a blind man from anything that it requires to be done is, unless a
accused must 'establish" that it voluntarily walking off a cliff punishment is expressly provided by law, guilty of
wasn't for trafficking (Oakes) Criminal liability cannot be attributed As a default, is not criminal (for policy an indictable offence and liable to imprisonment
ex. if drunk behind to a person unless that person is reasons) for a term not exceeding two years.
responsible for his or her acts - Exceptions S. 216 - Every one who undertakes to
wheel of care, deemed
to have care and (a) Where Good Samaritan laws have administer surgical or medical treatment to
It is a principle of fundamental been enacted, (Quebec) another person or to do any other lawful act that
control of vehicle
justice that only voluntary conduct - may endanger the life of another person is, except
in cases of necessity, under a that cause might have been prevented event, without being spent or without ordinary negligence is insufficient same
legal duty to have and to use by resorting to proper means being in the eyes of the law sufficiently standard is applied to all skill levels -
reasonable knowledge, skill and o If you stab someone and they bleed interrupted by some other act or event. Causation Requirements
care in so doing. out because the ambulance ran out of (nette o But for test
S. 219 Criminal gas on the way to the hospital, you still o Court in nette reworded the finding If he had been given access to
Negligence (1) Every one is caused his death of Smithers medical attention he would have
criminally negligent who (a) S. 225 - Where a person causes to a De minimus = not trivial or lived
in doing anything, or(b) in human being a bodily injury that is of insignificant = significant Legal causation
omitting to do anything that it itself of a dangerous nature and from The current rule is: A Significant cause of death?
is his duty to do, shows which death results, he causes the significant contributing cause Failure to provide med treat. was
wanton or reckless disregard death of that human being Court may have effectively changed a significant cause
for the lives or safety of other notwithstanding that the immediate the requirements for Legal Causation Absolute & Strict Liability
persons. cause of death is proper or improper significant may imply a higher Regulatory Offences vs Criminal
Status treatment that is applied in good faith legal standard than de minimus, only Offence
Generally, you cannot o If you stab someone and they die time will tell Is it Criminal or Regulatory?
criminalize status because the wrong blood type was o Upheld as Constitutional under s. 7 1) Is it provincial leg? All offences
Some offences have transfused in the hospital, you still in cribbin passed by the provinces can be
attempted to restrict caused his death Criminal Offences categorized as regulatory offences or
certain status type S. 226 - Where a person causes to a First Degree Murder public welfare offences
activities or some specific human being a bodily injury that results Best not thought of as a separate o note that regulatory offences can be
state of affairs, Most have in death, he causes the death of that offence, is a sentencing provision strict, absolute, or subjective fault
been repealed human being notwithstanding that the Consider all murders as a second degree 2) Is it from the CCC? Federal
Vagrancy (void in effect of the bodily injury is only to murder first offences can be either regulatory or
Heywood) accelerate his death from a disease or Factual and Legal causation, criminal
Keeper, inmate, or disorder arising from some other All homicides have the same level of o if from the CCC/drug act (probably),
being found in a gaming cause. causation except 1st degree (see below) presume subjective mens rea
o If you stab someone who was about intent is subjective foresight of death
(s. 202) or bawdy house 3) If may be regulatory or criminal,
to die from cancer, you still caused (nette consider all the theories:
(s. 210) their death Once second degree murder proven,
Living off the avails of o malum in se v. malum prohibitum
Causation consider if 1st degree Cory J- Wholesale
prostitution (s. 212) Tests for Causation 1st degree murder requires all second
Nude in a public place (s. traditional analysis of absolute
There are two tests for causation, both degree murder causal requirements, plus vs. criminal - some activities are
174) must be satisfied acts must form an essential, substantial
Possession offences s. inherently wrong and prohibited
Factual Causation and integral part of the killing (Nettie,
4(3) - need a measure of for the public good.
o onus on crown to prove BRD Harbottle)
control on the part of the licensing theory (Cory J - Wholesale)
o The but for test usually direct physical contribution
person deemed to be in certain areas of activity such as
o but for the relevant act, would the Also apply the mens rea requirements
constructive possession - economic activity where you are
consequences have followed? Life sentence, w/ 25 year minimum before
terrence figuratively agreeing to be subject
o Most follow a logical sequence, parole
Participation or contribution to to a certain form of regulation in
therefore the test is reasonably simple Hypothetical
a terrorist organization exchange for a privilege to do that
o Basically, if the act contributed in any Manslaughter - Requirements
(s.83.18) activity
way, the but for test is satisfied, and for manslaughter
Participation or contribution to a factual causation is established Vulnerability (Cory J - Wholesale)
o S. 234 - Manslaughter is culpable we pass regulations to protect
criminal organization o Q for trier of fact (smithers) homicide that is not murder
(s.467.11) Legal Causation vulnerable groups, such as workers,
o Manslaughter requires some form of consumers, environment
Circumstances o onus on crown to prove BRD assault (unlawful act) causing death
Many offences require a o How significant was the relevant o Two elements, Assault and Causation criminal standard may be too harsh
circumstance under which the act in producing the consequences? o Assault Requirements for these things, so don't impose the
offence was committed o Significant contributing cause same stigma
265(1) application of force w/out
Definition sections, look to s.2 beyond de minimus standard (dont just consent regulations to protect public interests
say the de minimus standard) in health, convenience, safety and
voluntariness is always required, not an
In these cases Circumstance (nette reworded smithers general welfare of public
issue here
forms another required This is a low standard - death may be Jobidon? Penalty
component of Actus Reus unexpected and physical reactions we can look to the penalty imposed and decide
Assault is not present where there is
An example is sexual unforeseen, but still responsible whether the legislation is criminal or regulatory
assault where assault (smithers 4) Interpret what the offence requires:
Consent can only exist where there is no
of a sexual nature ex. met - stomach kick caused serious harm o if no mention of absolute liability or subjective
(circumstance) is epiglottis to malfunction which fault, PRESUME strict
Consent is vitiated where Non-Trivial
committed caused death (smithers For Absolute liability - Legislation
Bodily Harm is intended and caused
- ex. of CCC provisions o Thin skull principle must send a clear and obvious
o NTBH - bodily harm (s. 2) means any
that identity relevant The mere fact that the victim hurt or injury to a person that interferes signal if this is the case. (beaver
circumstances that suffered from some frailty is with the health or comfort of the person
form part of the actus not sufficient to negate a ex. "automatically and without notice" (pontes
and that is more than merely transient or
reus criminal act trifling in nature;
Consequences and o Remoteness - Court in Causation Requirements Other considerations:
causation smithers recognized the role of Legal cause and but for test Regulatory offences are
Examples remoteness. satisfied? generally structured differently
o Assault causing Multiple Causes But for test Both can carry strict penalties
bodily harm Acts of accused don't have to be Legal causation including prison
o Criminal negligence medical cause of death (cribbin Regulatory if it is a regulation
consider ss. 224-226 of conduct in the interests of
causing death Acts don't have to be the most Criminal Negligence Causing
o Any murder requires immediate and severe factor in death, Death health, convenience, safety, and
demonstration of as long as is a supervening cause the general welfare of the public
Two elements, Negligence and (ex. undersized lobsters - pierce
causation ex. two beat man to death, one only Causation
Ss. 224-226 establish punched him once (cribbin fisheries)
Negligence Requirements Regulatory if it is a public welfare
causation rules for homicide Intervening cause - whether an o S. 219 (b)(1) Was there an act or an
S. 224 Where a person by an act or series of acts (in exceptional offence (ex. dumping prohibition - city
omission? of sault ste. marie
act or omission does any thing cases an omission or series of Omission must be combined w/ a legal Regulatory if it is passed by one
that results in the death of a omissions) consciously performed by duty
human being he causes the death the accused is or are so connected with o S. 215 (d) legal duty defined of the provinces
of that human being the event that it or they must be Criminal if its in the Criminal
o Was the duty satisfied? Code, (probably the Drugs Act too)
notwithstanding that death from regarded as having a sufficiently
o S.219 wanton disregard DLSOP Criminal if there is a mandatory
substantial causal effect which
gross negligence (marked departure) prison sentence
subsisted up to the happening of the
For Criminal Offences provision also violates human s. 7 Intent high degree of fault subjective b. Do not confuse with motive and desire, also
there is a presumption rights (wholesale travel (vaillancourt If someone intentionally doesnt matter if accused didnt think was
of full mens rea (beaver Reverse Onus and s. 11(d) does the act, high degree of fault immoral (theroux
of the Charter Knowledge Not lower than intent i. ex. doesnt matter that he didnt want his friend
For Regulatory Offences there is 11. Any person charged with subjective to die - hibbert
a presumption of limited fault an offence has the right Recklessness knows likely and does it
c. Can prove the intention with either of two
requirement (d) to be presumed innocent anyways high degree - close to intent -
things: (hibbert)
Absolute Liability v. until proven guilty according subjective mens rea
Strict Liability v. to law in a fair and public Criminal Negligence lowest level i. Either a desire to bring about certain
Subjective Fault hearing by an independent - objective/statutory s. 219 very close circumstances, or
This distinction and impartial tribunal; to recklessness ss. 220 and 221 ii. knowledge that the circumstances are
applies to regulatory Due diligence reverse onus is substantially certain to result
offences supported in most regulatory offences Subjective States of Fault d. Wilfulness = intention generally (buzzanga and
Absolute Liability = because otherwise it would be too hard Motive or Desire durocher
no fault requirement, for the crown to prove BRD, and also - Not an essential element i. Either conscious purpose or foresaw
conduct is the only not enough stigma in the offence Mens Rea consequences
requirement (wholesale travel - Ulterior purpose for action ii. If person knew consequences were certain or
- no defence of DD - - that which precedes and substantially certain the intended the
pontes p628 p393 induces the exercise of the consequences
Strict Liability = crown must will lewis e. Recklessness can in some cases
demonstrate conduct, but then Fault or Mens Rea (a) distinct from intent (the exercise of a be sufficient
defendant can use the Defence of Definitions free will to use particular means to f. Where either intentionally or willfully are
Due Diligence Where Actus Reus is concerned with produce a particular result)
used, presumption is either desire or certain belief
- If you can show that you have conduct, Mens Rea is concerned with - desire - (step down from motive) - a wish
fault or hope to bring some consequence into g. Even where accused is forced to commit a
done everything that can be
reasonably expected then DDD o For criminal offences both must be effect crime they can intend the consequences
will succeed present to establish guilt - Highest or most subjective mental state (hibbert)
Subjective Fault = onus It is the component that makes the act - Relevant in three cases Knowledge (theroux, Duong)
is on the crown to demonstrate blame-worthy or morally wrong (a) Statutory exceptions eg.
terrorist activity
Triggers presumption that fault is
both fault and conduct BRD
Different than the voluntary required
1. 83.01(1)(b)(i)(a): in whole or in
- look for words like wilfully, with component of conduct part for a political, religious or ideological if leg says knowing - presume
intent, without excuse, Knowledge of a prohibition is not purpose, objective or cause, and certain belief needed, unless some other standard
knowingly, etc. (Pierce) required - see ignorance of the law (b) In support of a defence given - may be believing in a possibility (ex.
Strict Liability is o Also, knowledge that act is wrong or (self-defence, necessity, theroux)- consider wilful blindness, below
presumed in all regulatory immoral is not required duress) Common for possession based
offences (city of sault ste. Concerns a subjective appreciation (c) Evidence of intent, or to offences
marie) that the consequences would follow prove a disputed issue at
available if: The fault requirement can be found in trial (ex. lewis Eg. Cannot possess something unless
the accused reasonably the written statute and the relevant a. Lewis - Dickson on motive - following you are aware of its nature (buzzanga and
believed in a mistaken set of case law propositions: durocher
facts which, if true, would render Often more than one fault component i. (1) As evidence, motive is always Knowledge is based on Belief as
the act or omission innocent, or required relevant and hence evidence of motive is opposed to truth
if he took all reasonable steps to o Eg. Sexual Assault admissible. If you stab a manikin believing it to be
avoid the particular event. requires knowledge of ii. (2) Motive is no part of the crime and is a human you will satisfy the mens rea requirement
Absolute Liability assault, and knowledge (or legally irrelevant to criminal responsibility.
of knowledge
Conduct is the only req. recklessness) of non- It is not an essential element of the Ex. Fraud s. 380 (theroux
Strict Liability consent prosecution's case as a matter of law.
Why have it?Two Theories iii. (3) Proved absence of motive is always the actus reus of the offence of
Onus is on Accused to
fraud will be established by proof
demonstrate due diligence(This Moral Approach an important fact in favour of the accused of:
is the Presumption) Based on liberal theory of and ordinarily worthy of note in a charge to
independent actors with choice, 1. the prohibited act, be it
Subjective Fault the jury.
Crown must show both conduct deserve punishment if choose wrong iv. (4) Conversely, proved presence of an act of deceit, a falsehood or
and fault Mens Rea addresses this at the source motive may be an important factual some other fraudulent means; and
Constitutional Considerations by focusing on states of mind ingredient in the Crown's case, notably on 2. deprivation caused by
Absolute Liability and Has some limitations, especially in the issues of identity and intention, when the prohibited act, which may
S. 7 of the Charter hard cases the evidence is purely circumstantial. consist in actual loss or the
S. 7. Everyone has the right to Eg. Copyright v. (5) Motive is therefore always a question placing of the victims pecuniary
life, liberty and security of the infringement of fact and evidence and the necessity of interests at risk. b.
person and the right not to be Economic Approach (prices referring to motive in the charge to the jury Correspondingly, the mens rea of
deprived thereof except in (tort/regulatory law) and falls within the general duty of the trial fraud is established by proof of: i.
accordance with the principles of sanctions (criminal law)) judge "to not only outline the theories of 1. subjective knowledge of the
fundamental justice. Where two values conflict, society the prosecution and defence but to give prohibited act (certainty); and
Where there is potential jail places a lower price on the one that is the jury matters of evidence essential in
time, there can be no liability to be deterred arriving at a just conclusion." 2. subjective knowledge
w/out fault (Motor Veh. Ref.) Valueless activities are generally vi. (6) Each case will turn on its own that the prohibited act could have
Mere possibility of qualified as criminal activity unique set of circumstances. The issue of (awareness of possibility) as a
imprisonment will trigger liberty A sanction is imposed in proportion to motive is always a matter of degree. consequence the deprivation of
component of s. 7 the expected negative value of the Purpose / Intention / Willfulness another (which deprivation may
Where there is no possibility of crime Highest forms of subjective consist in knowledge that the
imprisonment (even if fine is not Cannot be equal because of the mens rea victims pecuniary interests are
paid), the liberty component is probability of detection (1) Purpose put at risk).
not triggered (pontes Still not sufficient because we do not a. Generally synonymous with Intent, ex. party to an offence - s.
1. Liability without fault is have perfect info to determine except does not include desire (hibbert 23(1)
possible where no risk of jail time appropriate penalty b. S. 21(1)(b) act for the purpose of
Punishments other than jail time Leads to upward bias which can lead aiding a criminal
will not likely trigger s. 7 to a deterrence of lawful activity Recklessness
c. It is not necessary to desire the
(william cameron trucking Mens Rea allows us to conduct lawful
Exception - activity without fear of disproportionate consequences, it is sufficient that the Note: two different levels:
consequences for accidental defendant knew that the consequences Possibility or Probability o
corporations cannot
avail itself of infringements were substantially certain Reckless = possibility
protection offered by Subjective /Objective (2) Intention or Willfulness (PRESUME unless otherwise
s. 7(Irwin Toy), unless the Distinction: a. They are synonymous stated) PRESUME if provision
(Docherty) silent on mens rea
o Likely = probability , murderer told him he was wanted for standard in the case of (1) Actus Reus - Negligence constitutes a marked
ex. s. 229aii cooper - murder - didnt have specific negligence departure (or gross negligence) from the standard
For murder, knowledge but was WB and guilty Criminal Negligence of the reasonable person
recklessness exists under s. 23 of accessory 219. (1) Every one is criminally (2) Mens Rea - Objective foresight of risk of NTBH
where there is after the fact (Duong) negligent who via standard of a reasonable person in the same
subjective knowledge
that death is likely -
ex. zWB accused broke into (a) in doing anything, or circumstances - no need to foresee death in crim
house and terrorized ex -gf, then she let (b) in omitting to do anything that it is his negl causing death
him sleep with her (Duong) duty to do, shows wanton or reckless Personal characteristics - Not shifted
o [recklessness] is disregard for the lives or safety of other up or down based on personal limitations or
found in the attitude Interpretation persons. experiences or skills
of one who, aware that Causing Death by Criminal Standard lowers only if the defendant
there is danger that If criminal, presume Negligence is incapable of appreciating the nature, quality and
his conduct could bring subjective fault -beaver 220. Every person who by criminal consequences of act (creighton p462)
about the result Some subjective elements are relevant
prohibited by the If silent - presume negligence causes death to another person
Such as: info at time, other factors
is guilty of an indictable offence and liable
criminal law, recklessness (awareness of possibility) beyond their control
(a) where a firearm is used in the
nevertheless persists, Look for mens rea words: (3) Trier of fact must still be convinced BRD that
commission of the offence, to
despite the risk. It is, In a criminal case this negligence occurred (Hundal)
in other words, the imprisonment for life and to a minimum
means recklessness is the default (4) Marked Departure (creighton p462)
conduct of one who theroux p438 punishment of imprisonment for a term of
Constitutional Considerations
sees the risk and who for the purpose of(Intent), four years; and
The SCC has indicated that some
takes the chance. knowingly(Knowledge), (b) in any other case, to imprisonment for offences require a minimum of subjective mens
sansregret p444 intentionally(Intent), life. rea due to their serious nature
willfully(Intent) Any lower standard would trigger s. 7
o Lower level of Causing Bodily Harm by Criminal
subjective mens rea of the Charter
than knowledge, do not
if there are words then the Negligence Examples: Murder (vaillancourt p709),
221. Every one who by criminal negligence
confuse with negligence appropriate fault requirement is applied Attempted Murder, War Crimes, and Crimes
causes bodily harm to another person is
o Risk = takes a deliberate and to the applicable conduct requirement Against Humanity
guilty of an indictable offence and liable to
unjustified risk They all require desire or imprisonment for a term not exceeding ten ex. s. 21(2) - Common intention - the
(buzzanga p430 and years.
certain belief Duong phrase ought to have known in s. 21(2) is of no
durocher p418)
NOTE: maybe modified to
dangerous, force and effect when applied to the crimes of
careless, criminal Consider medical treatment provision murder or attempted murder (R. v. logan)
substantial and unjustified risk
(hamilton sp88), but not clear
negligence - presume S. 216 - Every one who undertakes to Other crimes are very unlikely to
objective, and marked administer surgical or medical treatment to
if applies beyond secondary trigger s. 7 in the same way; Durham, (careless
departure unless crim negl, another person or to do any other lawful storage of firearms s. 86(2) Finlay), (wilfully
liability (i.e. counselling), act that may endanger the life of another
which is marked and set fire to certain things s. 434(a)) Peters,
bring it up and decide - probably person is, except in cases of necessity,
substantial departure. (dangerous driving s. 249) Hundal,
doesnt apply because Fish uses under a legal duty to have and to use
Also, if objective look at (manslaughter requries only reasonable
unjustified risk in the next reasonable knowledge, skill and care in so
capacity and foreseeability of BH s. 222(5)(a))
sentence to clarify, maybe a typo doing.
circumstances creighton p462, (unlawfully causing
not intended to change the law.
wilful blindness bodily harm s. 269) DeSouza
Willful Blindness Parent/guardian duty Participation
relevant only when
(sansregret Duong) Parties v. non-parties
recklessness not sufficient 215. (1) Every one is under a legal duty (a)
Do no apply WB (1) A party to an offence is charged with the same
Proving Subjective Fault as a parent, foster parent, guardian or head
where recklessness is sufficient!
Its redundant
Inferences from of a family, to provide necessaries of life crime as the perpetrator (ss. 21 & 22)
conduct (buzzanga and for a child under the age of sixteen years; (2) A non-party is charged with a separate offence
Proxy for
durocher) (b) to provide necessaries of life to their (such as ss. 23, 23.1 & 463
knowledge - Only relevant accessory after the fact)
o Since people are usually able to spouse or common-law partner; and (c) to
when offence requires knowledge (3) Can be convicted as party even if principal
foresee the consequences of their acts, provide necessaries of life to a person
Used as a substitute for cant be convicted - s 23.1
if a person does an act likely to under his charge if that person (i) is
knowledge but satisfies (4) 23.1 For greater certainty,
produce certain consequences it is, in unable, by reason of detention, age,
requirements for near sections 21 to 23 apply in respect of an
general reasonable to assume that the illness, mental disorder or other cause, to
certain belief accused notwithstanding the fact that the person
accused also foresaw the probable withdraw himself from that charge, and (ii)
where the Crown
consequences of his act, and if he, is unable to provide himself with whom the accused aids or abets, counsels or
proves the existence of a fact procures or receives, comforts or assists cannot
nevertheless, acted so as to produce necessaries of life.
in issue and knowledge of that be convicted of the offence.
those consequences, that he intended.Consider other sections in the inaction
fact is a component of the Principals
section above, ex. 126 (breach of statute)
fault requirement of the crime
charged, wilful blindness as to
Reasonable Person and 180 (common nuisance) S. 21 Aiding or Abetting
Parties to an offence,
(tennant The standard
the existence of that fact is S. 21 (1) Anyone is a party to an offence who,
o Where liability is imposed on a There are three levels Actually commits it;
sufficient to establish a
subjective basis, what a reasonable
culpable state of mind
man ought to have anticipated is
Lowest negligence(1) not Does or omits to do anything for the purpose of
(Duong) aiding any person to commit it; or
merely evidence from which a applied to criminal law
Actual suspicion, combined with Abets any person in committing it.
conclusion may be drawn that the Negligence
S. 21 is usually brought up where more than one
a conscious decision not to make Middle negligence(2) applied
accused anticipated the same person is involved in the committing of a
inquiries which could confirm in most criminal cases involving
consequences. crime H(LI)
that suspicion, is equated in the negligence Circumstances - an offence must have been
Objective States of Fault
Marked departure
eyes of the criminal law with
actual knowledge. (Duong, also
Fairly rare, s. 219
(Hundal, creighton
(Criminal Negligence) is one Act
example Highest negligence(3) criminal Anyone who satisfies (a), (b), or (c) can
Look for negligence
Not clear what level of suspicion be charged with the offence itself (thatcher
wanton or reckless Marked and substantial
is required - Dont have to show
disregard departure (JL) This means that someone committing a
that inquiry would have provided Standard (circumstances) crime through the agency of another (b or c) is
knowledge, just that the inquiry creighton seen as a principal party in the same way as the
was not made Same standard for everyone actual perpetrator (a)
ex. WB- accused
Tutton and Tutton
-what would reasonable person
In thatcher the SCC ruled that a jury
helped alleged murderer hide, do in the circumstances
applied an objective (creighton can rule on both a) and b) or c), prosecution does
knew of murder and alleged
not need to choose one or the Did the accused intend to degree of participation in crime
3) ulterior intention or desire (purpose) that the
other help or knew that their actions would Kirkness
Even if you cant prove person assisted escape as a consequence of
assist? (Desire or near certain belief) (a) factors
the conduct alleged.
(a), (b) or (c) can be sufficient for
conviction of the same crime
purpose is synonymous with ex. unclear if saying stop it ex. accused was present during
Did the actions of the intent (hibbert youll kill her good enough to murder, and helped wash clothes - Camponi
accused have the effect of accused need not be absolve liability for murder after no exception for spouses
encouraging the principals? accused facilitated rape and robbery
must be evidence of
convictable s. 23.1
Defence -Duress does not of victim (kirkness Can be guilty under s. 23 even if
encouragement -dunlop and S. 22 Counselling the principal offender is not convictable - s. 23.1
negate a s. 21 offence, although
sylvester p511 common law duress may provide a Commission of an Accessory after murder falls under
Aiding and abetting are separate defence (hibbert p951 p426) Offence s. 240 w/ a stiffer penalty
effectively the same thing defence of abandonment 22. (1) Where a person
Can be convicted for available, see common counsels another person to sentencing provisions - s. 463,
intention below (Kirkness be a party to an offence and generally half principal but not always
an omission (Kulkacki,
Common Intention that other person is Inchoate Offences Inchoate
dunlop and sylvester
S. 21(2) Where two or more persons afterwards a party to that (incomplete) offences: where the
and Sylvester (only
form an intention in common to carry offence, the person who substantive offences are not
SCC case), Popen, Nixon)
out an unlawful purpose and to assist counselled is a party to that offence, completed.
ex. if had authority to Three types in Canadian law:
each other therein and any one of them notwithstanding that the offence was
control/stop crime, or if had a in carrying out the common purpose committed in a way different from that
statutory duty to act commits an offence each of them who Attempt
which was counselled.
kulbacki - mere knew or ought to have known that the Incitement (counseling)
presence while girl sped car commission of the offence would be a Idem Conspiracy
probable consequence of carrying out (2) Every one who counsels another These offences recognize criminal liability for
dunlop and the common purpose is a party to that person to be a party to an offence is a culpable conduct, and fault that lies between
sylvester - passive offence. party to every offence that the other innocent behaviour and the successful completion
acquiescence at the scene of the commits in consequence of the of a substantive offence.
crime is not enough to constitute Result - If two parties plan counselling that the person who
aiding or abetting to commit an offence in Rational: criminality does not lie solely in the
counselled knew or ought to have known
conjunction and actually commit was likely to be committed in consequence completion of an offence. There is demonstrable
however presence may
the offence, both are equally and sufficient harm, once the commission of a
be evidence that the trier of fact of the counselling.
culpable regardless of who criminal offence has been set in motion to, to
can use to decide aiding/abetting
have to draw a line actually committed the offence Definition of counsel sanction the commencement of the offence as
Act requirement (3) For the purposes of this Act, criminal conduct on its own.
between mere presence and counsel includes procure, solicit or Attempt
anything that we can characterize form a common intention...
(a) Common intention need not be pre- incite. A person who tries to commit a
as offering implicit
encouragement or assistance planned, it can arise just prior to or at 1. Also known as inciting an offence that is criminal offence but does not succeed can
the time of the commission (Kirkness committed, if the offence wasnt nevertheless be found guilty of attempting the
Popen - acquiescing commited then see Incitement, below offence if his or her conduct falls within the terms
silently with knowledge other No actual assistance is 2. Act - Counsel - includes procure, solicit, of s.24:
parent is hurting child required - incite 24. (1) Every one who, having an intent to commit
consequential offences - an offence, does or omits to do anything for the
Nixon - if purpose in
look at the particular offence
3. Fault
purpose of carrying out the intention is guilty of
omitting was to facilitate - ex. 1. 1) intention to counsel
committed 2. 2) knew or ought to have known was an attempt to commit the offence whether or not it
senior officer in jail watching (a) s. 21(2) is reserved for where likely - was possible under the circumstances to commit
beating there has been a break in time between
1. subjective = knowledge the offence.
Innocent Agency: two offences, and a consequential
2. objective standard except in the case of Question of law
the person who causes a crime to offence occurs after but as a (2) The question whether an act or omission by a
consequence of the planned offence murder; subjective standard. As
be committed by means of the act person who has an intent to commit an offence is
(Kirkness long as the conseq was not foreseeable,
of an innocent agent is or is not mere preparation to commit the offence,
the A cannot be convicted.
considered to be a principal party Must be common intention accused need not be convictable s. 23.1 and too remote to constitute an attempt to commit
under (b) or (c) states that even the offence, is a question of law.
to carry out an unlawful purpose see also incitement section below, and
where not the person who
actually carried out the act, you Two essential fault note distinction from incitement = s. 24 is the general provision, although
can still be guilty of (b) or (c) if elements (Kirkness incitement (oral), abetting (physical) specific provisions also exist (ex. s 71 -
you aided or encouraged that Accessory after the fact -camponi dueling, 265(1)b assault)
1). common intention to
person in committing the crime p530, Duong Act
carry out unlawful purpose
(passport forgery) berryman o Must go beyond mere preparation Cline
2) The commission of the 23. (1) An accessory after the fact to an
offence has to be probable (reckless). offence is one who knowing that a person o the distinction between preparation and attempt
Consequential and the accused must know or ought to has been a party to the offence receives is essentially a qualitative one, involving the
offences - party liability follows have known of the probability comforts or assists that person for the relationship between the nature and quality of the
where crime committed is of the Knew or ought to have purpose of enabling that person to escape. act in question and the nature of the complete
same type as the one which the known this implies an objective Does not fall under s. 21, but forms a offence, although consideration must necessarily
accused has assisted standard separate offence be given, in making that qualitative distinction, to
(kirkness) (a) For stigma offences, a subjectiveAct (Camponi) the relative proximity of the act in question to what
standard is applied (just read-down 1) conduct on the part of the accused would have been the completed offence, in terms of
offence must be similar ought to have know) (Logan time, location and acts under the control of the
which had the effect of receiving,
and must be sufficiently accused remaining to be accomplished. (Deutsch
contemporaneous with the (b) leave ought to for manslaughter - comforting or assisting a person
contemplated offence objective awareness of risk of NTBH 2) circumstances that such person ex. if A had intent to induce women to be employed
(Kirkness (Davy) had been a party to the offence for intercourse, holding out of financial rewards in
Where several people with respect to which the interview could be sufficient actus reus
accused need not be accessoryship is alleged. (Deutsch
participated in a murder, it is
convictable s. 23.1
irrelevant who actually inflicted Fault (Camponi o More from Cline evaluated on a case by
the mortal blow, all are parties Defence - Intention can be1) intention with respect to the case basis
and can be charged w/ the same abandoned prior to offence conduct alleged Evidence of similar acts done by the accused
offence (H)(LI) - consider (kirkness 2) knowledge by the accused of the before the offence with which he is charged, and
causation as principal first, then issue is quality of circumstance that the person was also afterwards if such acts are not too remote in
as aider/abetter withdrawal, and D held to a party to the offence with respect time, is admissible to establish a pattern of
Fault (hibbert) different standard depending on to which the accessoryship is conduct from which the Court may properly find
alleged. mens rea.
Same penalty as attempt (half
not essential that the actus reus
be a crime or a tort or even a
Also called counseling a of actual offence)
(ii) two or more of its representatives engage
in conduct, whether by act or omission, such
crime that isnt committed Conspiracy
moral wrong or social mischief. that, if it had been the conduct of only one
Criminal Code., s. 464: A conspiracy exists when two
when the preparation to commit S. 464 representative, that representative would
or more people agree to commit a criminal
a crime is in fact fully complete (a) everyone who counsels another have been a party to the offence; and
offence and the offence of conspiracy is
and ended, the next step done by person to commit an indictable offence complete upon their agreement. S. 465 (b) the senior officer who is responsible for the
the accused for the purpose and is, if the offence is not committed, CCC aspect of the organizations activities that is
with the intention of committing a guilty of an indictable offence and liable If unilateral conspiracy, see relevant to the offence departs or the senior
specific crime constitutes an to the same punishment to which a incitement officers, collectively, depart markedly from the
actus reus sufficient in law to person who attempts to commit that Again, applies to any criminal standard of care that, in the circumstances, could
establish a criminal attempt to offence is liable; and code offence reasonably be expected to prevent a
commit that crime. Act (Dungey, dynar dery representative of the organization from being a
(b) everyone who counsels another smp82)
person to commit an offence party to the offence.
agreement -must have a
o Depends on how obvious mens punishable on summary conviction is, meeting of at least two minds Concerns a corporation being a party
rea is - where the accuseds if the offence is not committed, guilty of must be an underlying offence to an negligence type offence
intention is otherwise proved, an offence punishable on summary before the elements of the attempt offence (a) - acting within the scope of their
acts which on their face are conviction. can be considered. (dynar p586 p586) authority
equivocal, may, nonetheless, be offence need not be legally or (b) marked departure must be more than
Can be applied to any Criminal Code
sufficiently proximate to factually impossible (dynar p586 p586) simple negligence or lack of due
constitute an attempt. Where, requires at least two ppl, diligence
1. ex. unilateral conspiracy (Dery SM
however, there is no extrinsic although all conspirators need o does not require actual knowledge
evidence of the intent with which A. Act
not be identified or convictable
(Dynar p586)
aggregate approach, corporation can
accuseds acts were done, acts of I. Section 22(3) of the Code states that be a party even if no single officer satisfies
the accused, which on their face counselling includes soliciting, Cant attempt to marked departure as long as the total
are equivocal, may be insufficient procuring, and inciting. This form of conspire (Dery Sp82) equals a marked departure
to show that the acts were done participation requires not only (a) ex. no consp - two Strict liability offence
with the intent to commit the completion of an offence, but discussed possibility of 22.2 In respect of an offence that
crime that the accused is alleged completion that is a consequence of requires the prosecution to prove
stealing liquor, but didnt
the inciters action.
to have attempted to commit, and agree and didnt take steps fault other than negligence
hence insufficient to establish the 1. Counselling: advise or recommend to complete (dery smp82) an organization is a party to the
offence of attempt. (Sorrell p546) 2. Procuring: investigate encourage or Fault Requirements (dynar) offence if, with the intent at least
Fault persuade Intention to agree in part to benefit the organization,
o intent to commit offence (mere 3. Soliciting: Entreat or urge At least two ppl must agree (a) one of its senior officers
recklessness appears to be 4. Inciting: Urge, stir up, or stimulate pretending not to agree isnt (a) Acting within the scope of their
insufficient) i. deliberate encouragement or active authority, is a party to the offence;
agreement (Dynar p586) (b) police
inducement of the commission of a (b) having the mental state required to be
o For attempted murder there informant cant be one of the two
criminal offence. -Hamilton SM p89
must be subjective foresight of (Dynar p586) a party to the offence and acting within the scope
the materials or statements
the fact that the death of the Intention to put common of their authority, directs the work of other
made or transmitted by the
victim was likely to ensue. (Ancio design into effect - requires representatives of the organization so that they do
accused must actively induce
p543, Logan p545) or advocate - and not merely knolwedge of terms of agreement the act or make the omission specified in the
describe - the commission of (dynar p586 p547) offence; or
Defences o an offence - Hamilton SM p89 More than one person must (c) knowing that a representative of the
Impossibility - whether or not it II. Does not require agreement as intend (Undercover cops dont count) organization is or is about to be a party to the
was possible only a defense conspiracy does, can be unilateral Defence of Impossibility? Only offence, does not take all reasonable measures to
where the offence is imaginary (Dery SM p82) relevant when two people conspire to stop them from being a party to the offence.
(dynar p586 p547) III. distinction from abetting = commit an imaginary crime (dynar Applies to all offences other than those
o not defences - Legal incitement (oral), abetting p586 p547) requiring negligence (subjective fault crimes)
Impossibility = Factual (physical) No aggregate element, one officer must
Corporate Liability
Impossibility in Canada, both are B. Fault have required fault elements
s. 2: organization means (a) a public
different from imaginary crimes I. an accompanying intent or conscious
body, body corporate, society, company, Must be acting within scope
o ex. factually impossible - disregard of the substantial and
unjustified risk (i.e. recklessness) firm, partnership, trade union or Must intend to benefit the corporation
accused thought he was
laundering drug money, but it inherent in the counselling: that is, it municipality, or (b) an association of Three types
was set up by the govt (dynar must be shown that the accused either persons that (i) is created for a common Officer is actor
- Result intended that the offence counselled be purpose, (ii) has an operational structure, Officer acts through representatives
o Generally carries half of the committed, or knowingly counselled and (iii) holds itself out to the public as an Officer allows representative to commit
penalty that the completed the commission of the offence while association of persons; offence
offence would bring aware of the unjustified risk that the representative, in respect of an vicarious liability = acts and fault of one person
51 offence counselled was in fact likely to organization, means a director, partner, are attributed to another - normally disfavored
o sentencing s. 463 (general) and be committed as a result of the employee, member, agent or contractor of under criminal law, as such a crime may be said
239 (attempted murder) accuseds conduct. (Hamilton Sp91) to offend the principles of fundamental
the organization;
Incitement justice under s. 7 - however, a statute that
Two types: Do not have to initiate the senior officer means a representative
transaction, can start with party alleged who plays an important role in the applies to only corporations may be immune
Incitement of an to have been incited (Gonzague) establishment of an organizations policies from s. 7 challenge since corporations are
not protected under s. 7
offence that is actually committed
(counselling - s. 22: where the
Awareness of a possibility
or is responsible for managing an
important aspect of the organizations Ignorance
inciter, in effect, causes the that the crime will be committed and S. 19 ignorance is not an
activities and, in the case of a body
commission of the offence not justified in taking the risk 1. This
corporate, includes a director, its chief excuse
gives protection to those who teach
through another person, see
potentially unlawful skills to people for executive officer and its chief financial Reason: we expect people to
participation above) learn the basic rules of society
a lawful and valuable purpose ie. officer;
Defendant is a party (Jorgensen p621)
Teachers 22.1 In respect of an offence
to the offence
Incitement of an
ex. no intention to induce that requires the o Encourage knowledge of the law, if we
bomb-making or burglary- D attached prosecution to prove dont, then there is an incentive to remain
offence that is not committed (s. instructions on bomb-making and ignorant
negligence, an organization
464: an offence of inchoate burglary to a credit card generator - he
liability is a party to the offence if Due diligence in trying to figure
hadnt read the instructions
Defendant is a non- (a) Acting within the scope of their out law not a defence
(Hamilton Sp91)
party authority (Jorgensen p621)
Cant attempt to incite
(i) one of its representatives is a party Exceptions
to the offence, or
Colour of right if explicitly o If you dont know that the Until 1983, a husband (d) Complainant communicates a non-
stated in provision: ex. ss. specific content is prohibited, could not be convicted of raping consent
322 Theft, 429(2), 72(2) then mistake of law his wife (e) Complainant communicates a desire to
Forcible entry (howson o If you dont actually know Was also difficult to obtain cease sexual conduct
p615) o Accused charged what content is on the tapes, Sexual nature (Chase p638)
with theft for towing a car, then mistake of facts
Past sexual history was sexual integrity of the victim must be
there was no statutory right Officially induced error
for the towing company to (Jorgensen p621, Levis, sp98) admissible violated
keep the car. o Colour of Various factors will be objective test: Viewed in the light of
right applied, Howson taken into consideration in the course all the circumstances, is the sexual or carnal
honestly believed he had of this assessment, including the Doctrine of recent context of the assault visible to a reasonable
the authority, therefore efforts made by the accused to obtain complaint, if not immediately observer
could not be applied o information, the clarity or obscurity of made, then adverse assumption The part of the body touched, the
Onus is on the crown to the law, the position and role of the Corroboration required nature of the contact, the situation in which it
show that there was no official who gave the information or crown to produce evidence beyond occurred, the words and gestures accompanying
colour of right 54 opinion, and the clarity, definitiveness testimony the act, and all other
Sometimes when one and reasonableness of the information circumstances surrounding the conduct, including
Sexual assault was
provision requires or opinion. It is not sufficient in such created in 1983, most restrictions threats which may or may not be accompanied by
knowledge of breaching cases to conduct a purely subjective
were eliminated force, will be relevant
another - ex Probation analysis of the reasonableness of the
information. This aspect of the question
Violation (Docherty) Darrach upheld the - The intent or purpose of the
o Care and control of a current evidence exclusion laws s. person committing the act, to the
must be considered from the
motor vehicle while perspective of a reasonable person in a 276 (see CAN)- Darach extent that this may appear from
impaired situation similar to that of the accused. Elements Section 265(1) the evidence, may also be a factor
o Willful Breach of a term (Levis sp98) and (2) in considering whether the
of probation (keep the Six Requirements If have weapon, or conduct is sexual. If the motive of
peace and be of good c) Must be a question of law, or injury, use 272 or 273, resp. the accused is sexual gratification,
behaviour) mixed fact and law otherwise use 265 to the extent that this may appear
o Court said willfully d) Must be consideration of from the evidence, it may be a
meant there must be legal consequences, aware - (Voluntary) touching factor in determining whether the
knowledge that his actions
were a breach of his
of possibility that their
actions might be unlawful
Without consent conduct is sexual. It must be
probation, this basically (ewanchuk emphasized, however, that the
e) Require accused to obtain
existence of such a motive is
circumvents s. 19 advice from an appropriate Jurisprudence
o Was still guilty of official Consent is simply one of many factors to be
care and f) general, therefore, determined subjectively from considered, the importance of
control, but got government officials who are the point of view of the which will vary depending on the
away with involved in the complainant at the time circumstances.
breach of administration of the law in assault occurred ex. grabbing breasts and saying you
parole, law then question will be considered If crown can prove want it (Chase
removed wilfully appropriate officials. BRD that the complainant did No requirement of
impossible to gain (jorgensen p621) penetration
not consent in their own
knowledge of law relying on a court Fault
mind, then no consent
because not
judgement for others
insufficent (Chez Pierre)
doesnt matter if 1) Intention to touch
conduct reasonable, or if consent This should be easy
(jorgensen p621
g) Advice received must communicated 2) Without consent
mistake of fact, ex. be reasonable if the complainants testimony (pappajohn, sansregret, ewanchuk
property h) if an appropriate is the only source of direct evidence as to knowing of, or being reckless
Mistake of law vs Mistake official is consulted, the advice her state of mind, credibility must still be or wilfully blind (not necessary to
of Fact obtained will be presumed to be assessed by the trial judge, or jury, in light discuss since recklessness is sufficient)
reasonable unless it appears on of all the evidence. It is open to the to a lack of consent on the part of the
o If you honestly believed accused to claim that the complainants person touched. (ewanchuk
its face to be utterly
you had satisfied the legal
unreasonable. words and actions, before and during the ex. WB - accused broke into
requirements then this is a
i) Advice must also be incident, raise a reasonable doubt against victims house (Ex gf), she had sex
mistake of fact and is a
erroneous her assertion that she, in her mind, did not with him because she was afraid
component of mens rea
j) Must rely on the advice want the sexual touching to take place. (sansregret)
A mistake of law is given Consent can be vitiated where Belief of consent must relate to
where you dont k) ex the advice was there is intent to cause NTBH and NTBH actual communication
obtained before the actions in caused - unclear if applies in SA but lower Can be through words or conduct
think the law
question were commenced and courts say yes! (Jobidon) Implied consent is not adequate
prohibits what you Awareness of the possibility the
by showing that the questions Legislation
are doing posed to the official were S. 265(3) no consent when consent has not been given
o License suspension specifically tailored to the compl. submits/doesnt resist because Mistaken Belief Defence
(Prue and Baril (ignore), accuseds situation. (aApplication of force to compl. or 3rd party applies (Oslin)
MacDougall, pontes p628 If all are satisfied then D (b) Threats or fear of above appl of Where the D honestly
p393) is acquitted force. believed that valid consent had been
When charged under Does not apply to (c) Fraud given, cannot convict (ewanchuk
CCC, If you didnt actually advice from lawyers, or reliance (d) Exercise of the accused believed that the
know your license was on judgments (only public Authority complainant effectively said yes through
suspended youll be
officials?) S. 273.1(1) consent is her words and/or actions.
acquitted, mistake of fact the voluntary agreement of the silence, passivity, inertness is not
(Prue) sufficient
Sexual Assault and Assault in complainant to engage in sexual
When charged under
Provincial Statute, mistake General activity ex. Continuing sexual contact
of law, no defence There are a bunch of S. 273.1(2) no consent after someone has said No is, at a
(MacDougall) elements that do not apply to when minimum, reckless conduct which is not
SCC has said that both other offences (a) Consent is given by someone excusable. ewanchuk
cannot be correct, probably Effects women and other than the complainant - (Beware of mistakes of law, for example,
mistake of law (pontes children disproportionately (b) Complainant is incapable of even if D believed consent had been given,
p628 p393) History consenting if that consent would not have been valid
Obscenity (c) Induced through trust, power under one of the statutes, then this is a
(Jorgensen p621) or authority
mistake of law and conviction (5) A person commits Unlawful object - (Definitely) Recklessness (possibility of
is still possible) culpable homicide when (tennant and naccarato and death) is the bare minimum standard
D must provide an he causes the death of a Naccarato, vasil First degree Murder
AOR to substantiate their claim human being, the unlawful object An enhanced sentencing
to mistaken belief (pappajohn (a) by means of an unlawful contemplated by Parliament mechanism
p639, Osolin) act; in that section is that which, Must show the requirements for
AOR - Must go (b) by criminal negligence; if prosecuted fully, would second degree murder, then show the
beyond a mere assertion by the (c) by causing that human amount to an indictable additional requirements for first degree
D, need more support, (Osolin) being, by threats or fear of offence requiring mens rea murder
consider Ds testimony and violence or by deception, to do (vasil p705) Requirements
surrounding evidence: anything that causes his death; or ought to have known likely no Must satisfy criteria for Murder from s.
ex. clothes neatly (d) by wilfully frightening longer of effect, unconstitutional 229 and?or s. 230
folded, no damage, present in the that human being, in the case of a (Martineau p721) Must satisfy the criteria
house for hours, no physical child or sick person. Where accused knows death is for one of the categories of First
injuries (pappajohn Second-degree murder s. 229 likely (probable), can still convict Degree Murder set out in s. 231
Can use any evidence 229. Culpable homicide is Very rare, only when no intent to All types require the additional Causal
given before the court - but murder cause bodily harm, but there is requirement of substantial and integral cause
consider s. 276 for (a) where the person who an awareness the death is likely (nette p343, see causation above)
evidence of complainants sexual causes the death of a Consider section 230 There are several different types of
history - upheld as constitutional human being 59 first degree murder
in darrach (i) means to cause his 230. Culpable homicide is murder Use to be capital murder, was
Mistaken Belief death, or where a person causes abolished in 1976, first degree murder was
Defence is invalid when (ii) means to cause him bodily the death of a human established (capital murder carried the possibility
(s. 273.2) harm that he knows is likely to cause being while committing of capital punishment)
Mistaken his death, and is reckless whether or attempting to commit First-degree murder still carries the
belief arises due to death ensues or not; high treason or treason most severe (other than US) sentence in the
self-induced (b) where a person, meaning to or an offence mentioned western world, 25 years w/out the possibility of
intoxication, or willful cause death to a human being or in section 52 parole s. 231(2) - Murder is first degree murder
blindness meaning to cause him bodily harm that (sabotage), 75 (piratical acts), 76 when it is planned and deliberate
note: no point he knows is likely to cause his death, (hijacking an aircraft), 144 or Interpretation (more Widdifield)
discussing WB, since it and being reckless whether death subsection 145(1) or sections 1. planned has natural meaning
equates recklessness ensues or not, by accident or mistake 146 to of calculated scheme or design which
Or the accused causes death to another human being, 148 (escape or rescue from has been carefully thought out, and
did not take notwithstanding that he does not mean prison or lawful custody), section the nature and consequences of which
reasonable steps to to cause death or bodily harm to that 270 (assaulting a peace officer), have been considered and weighed.
ascertain whether human being; or section 271 (sexual assault), 272 Can be a simple plan (Widdifield p724)
consent had actually (c) where a person, for an (sexual assault with a weapon, 2. deliberate means considered,
been given unlawful object, does anything that he threats to a third party or not impulsive (More), slow in deciding,
Also consider - knows or ought to know is likely to causing cautious (Widdifield p724)
trier of fact is to cause death, and thereby causes death bodily harm), 273 (aggravated Attempt to make the
review evidence and to a human being, notwithstanding that sexual assault), 279 (kidnapping distinction between planned and
consider the presence he desires to effect his object without and forcible confinement), 279.1 impulsive murder
or absence of causing death or bodily harm to any (hostage taking), 343 (robbery), Recklessness is sufficient, ex.
reasonable grounds human being. 348 (breaking and entering) or group beat man to death with bats, but
for the belief - s. 229a(ii) 433 or 434 (arson), whether or didnt intend to kill him (Nygaard)
265(4) Fault (simpson not 1. Awareness that a planned
3) (There is NO cooper the person means to cause death beating was likely to result in death is
fault element for (a) subjective intent to cause bodily to any human being and whether sufficient to satisfy the requirements
sexual nature!! harm; or not he knows that death is for first degree murder 60 s. 231 (4)
ewanchuk (b) subjective knowledge that the likely to be caused to any human Murder is first degree murder when it
Homicide bodily harm is of such a nature that it is being, if is murder of a police officer and others
CCC s. 222 likely to result in death. (a) he means to cause bodily Does not require planning or
Homicide Act and fault concurrent harm for the purpose of deliberation
222. (1) A person (cooper p791 p694) (i) facilitating the Must show that accused (Collins
commits homicide Must concur in time - ex. commission of the offence, or
had knowledge of identity
when, directly or accused began strangling before (ii) facilitating his flight
of victim as one of the listed ppl
indirectly, by any passing out (cooper p791 p694) after committing or attempting to
and that such person was acting in
means, he causes the Not strict or precise - If death commit the offence, and the death ensues the course of his duties or
death of a human results from a series of wrongful acts from the bodily harm; was reckless as to such
being. that are part of a single transaction (b) he administers a stupefying or identity and acts of the victim
Kinds of homicide then it must be established that the overpowering thing for a purpose Includes a police officer,
(2) Homicide is requisite intent coincided at some point mentioned in paragraph (a), and the death constable, sheriff, warden, jailer,
culpable or not with the wrongful acts. (cooper p791 ensues therefrom; or other prison workers
culpable. p694) p694 (c) he wilfully stops, by any means, the s. 231(5) While committing or
Non-culpable homicide Must occur during the same breath of a human being for a purpose attempting to commit
(3) Homicide that is transaction (Pare) mentioned in paragraph (a), and the
not culpable is not S. 229 (b) death ensues therefrom. 1. while committing or attempting to
an offence. Transferred intent Charter considerations (Vaillancourt commit requires the killing to be
closely connected, temporally and
Culpable homicide (fontaine p698) p709, martineau p717, Sit)
causally with an enumated offence
(4) Culpable homicide If you kill someone other Any murder or stigma offences
is murder or than who you intended to kill, you still which allows for a conviction in the 2. one continuous transaction Russell
manslaughter or satisfy the intent requirement absence of subjective fault (not aware of Sexual assault, hijacking an
infanticide. Cant intend to kill yourself the possibility of death) is of no force or aircraft, kidnapping, forcible
Idem and kill someone else by mistake effect (vaillancourt p709) confinement, hostage taking
(fontaine - (Maybe) As a minimum the Charter Forcible confinement can
S. 229 requires knowledge of the probability of exist almost anywhere there is a
death robbery
Some Courts of
7, it must be shown that 61 Police officer has a right to issue of whether there was a
the accused made a marked detain etc, wont constitute murder
Appeal have found
that a Robbery could
departure from the usual provocation As normally applied,
standard Victim (provoker) cannot have provocation does not detract from
therefore result in a
charge of first degree ex. injecting drug been incited to provoke by accused the mens rea required to establish
murder, not in Alberta S. (creighton Criminal negligence s. Cant induce the victim to murder. (cameron p772)
231(6) (6.2) 222(5)(b) provoke How it works
(a) 6 Criminal Defined in s. 219 Provocation must be sudden Crown must first show murder
harassment Doing anything, or not doing History is only relevant as it To bring up defense, the accused must
(b) 6.01 Terrorist Activity something they have a duty to gives colour to the reaction only establish an air of reality (thibert
1. Penney says pure Requires a marked and The test (Hill - must meet AOR p760)
politics, substantial departure from the threshold to be put to jury o This is decided by the judge
(c) 6. 1Use of explosives standard A. 1. Would an ordinary Once AoR is established,
in association with criminal Provocation person be deprived of self- Crown must show accused was not
organization provoked BRD
232. (1) Culpable homicide that control?
1. Penney says pure Need only establish a
otherwise would be murder may be I. Subjectivised objective
reduced to manslaughter if the person standard reasonable doubt
(d) 6.2 Intimidation
who committed it did so in the heat of a. Normal temperament Critiques
Charter challenges
passion caused by sudden and level of self-control (hill) Homosexual panic - seems to
All have failed provocation. b. We expect a minimum favor overreactions that we more
SCC has said that the What is provocation standard for everyone typically associate with men.
minimum standard is (2) A wrongful act or an insult that is of c. not exceptionally Violence against women -
recklessness, but because First such a nature as to be sufficient to excitable, pugnacious (Hill men have used this defence to defend
degree murder does not require a deprive an ordinary person of the d. Transitory states like action against women
reduced component of mens rea, power of self-control is provocation for drunkenness not considered (hill Cultural Background
the recklessness standard is met Defense is probably in effect
the purposes of this section if the e. Constitutionality sound
Minimum 25 year because of the minimum sentence for
accused acted on it on the sudden and because provocation is only brought up
punishment is not grossly murder
before there was time for his passion to after all the elements of Murder are already
disproportionate, challenge on
cool. proven, it does not violate s. 7 of the Defences of Mental Disorder and
these grounds have also failed
For the purposes of this section, the Charter for applying an objective standard Automatism
231(5)(b) - Arkell
questions (cameron p772) Basically there are three
p737, 231(5)(e) Luxton p738
(a) whether a particular f. Personalization branches, unfit to stand trial (ss. 2 &
Manslaughter 222(5), 234,
wrongful act or insult amounted to i. Non-idiosyncratic personal 672.22), Not Criminally Responsible (s.
creighton p462
provocation, and characteristics (hill p750) 16) by reason of mental disorder, and
If a culpable
(b) whether the accused was ii. attributes of accused that we non-mental disorder automatism
homicide is not murder
deprived of the power of self-control by can ascribe to a group, ex. Same age, sex, 63
or infanticide then it is
the provocation that he alleges he race Unfitness to stand Trial
manslaughter, s. 234
received, are questions of fact, but no iii. Consider factors having a s. 2 unfit to stand trial means unable
222(5) A person commits
one shall be deemed to have given special significance to accused (thibert on account of mental disorder to
culpable homicide
provocation to another by doing p760) conduct a defence at any stage of the
when he causes the
anything that he had a legal right to do, Race may be relevant in certain proceedings before a verdict is
death of a human
or by doing anything that the accused situations (Hill p757) rendered or to instruct counsel to do
incited him to do in order to provide the iv. Background history - consider so, and, in particular, unable on account
(a) by means of an unlawful
accused with an excuse for causing background of relationship, including of mental disorder to
death or bodily harm to any human earlier insults which culminated in the final o (a) understand the nature or object of the
(b) by criminal negligence;
being. provocation (Thibert p762) proceedings,
(c) by causing that human
being, by threats or fear Culpable homicide that otherwise note: rejection in context of o (b) understand the possible consequences of
the proceedings, or
of violence or by would be murder is not necessarily romantic relationship alone not basis
o communicate with counsel;
deception, to do manslaughter by reason only that it for defence (Thibert)
anything that causes was committed by a person who was B. 2. Was accused provoked? S. 672.22 accused is presumed fit
his death; or being arrested illegally, but the fact that (thibert until otherwise proven otherwise on BOP
(d) by willfully frightening the illegality of the arrest was known to I. subjective S. 672.23
that human being, in the accused may be evidence of a. can take into account mental o (1) Accused, crown, and court all have the power
provocation for the purpose of this section. state and psychological temperament - to raise issue
the case of a child or
Manslaughter has no Hill o (2) Onus falls on party raising the issue
sick person.
minimum, could be found b. take into consideration o (3) Issue can be raised before or during trial
While culpable
homicide is not the same guilty and get an absolute background and history of relationship s. 672.32(1) Where accused is
as manslaughter, if you discharge (Thibert p763) found to be unfit, the crown may try again at a
commit culpable Restrictions (thibert later date if the accused becomes fit
homicide, manslaughter Can only be made out C. 3. Did the accused act on the Consequences - mental health board,
will be found as a for murder charges, not other provocation on the sudden and panel, may get committed for life
minimum offences like attempted before there was time for his or Interpretation (Whittle p781)
Two forms in murder (Campbell her passion to cool?
need operating mind (same as for
Canada, ss. 222(5) Provocation must be made by Relationship to fault (campbell p770,
voluntary confessions rule)- must possess a
(creighton the victim cameron p772, parent p774)
Actually there are cant be by a 3rd party
limited degree of cognitive ability to understand
what he or she is saying and to comprehend that
four, last two are Cannot be provoked by Defense of
the evidence may be used against him
redundant something done with legal Provocation may be relevant
not a prerequisite that accused be
Unlawful Act s. right in showing that the accused
capable of exercising analytical reasoning in
222(5)(a) Legal right only includes did not have the required
Mens Rea (campbell making a choice to accept the advice of counsel or
Must be either a action that is protected by law, and
Eg. Reaction is so in coming to a decision that best serves her
criminal or regulatory does not include activity that is not
impulsive that they did not interests
offence, and must be explicitly prohibited
Very minimal standard
inherently dangerous Positive legal rights only know death was likely
Very Different from the standards set
Where the There is a legal right to self- This would be applied
out in s. 16
unlawful act is strict defense, therefore where SD is being before defence is raised and
Can be NCR but still fit to stand trial
liability offence, under s. exercised by the deceased, the defense specifically addresses the
of provocation wont fly
Can be unfit but still Consequences (Winko 1. ex. accused thought probabilities. trial judge must first
criminally responsible that he was protected from the examine:
Court has three law (Abbey the psychiatric or
Not Criminally
options where Defence is 2. ex. irrestible impulse psychological evidence and
Responsible, s. 16
raised, conviction (if not sufficient (Abbey inquire into the foundation and
16. (1) No person is criminally defence fails), or acquittal 3. ex. satisfied - accused nature of the expert opinion.
responsible for an act committed or Review Board (if the thought he was god and victim all other available
or an omission made while defence succeeds and was satan - Landry p814 evidence, if any.
suffering from a mental disorder accused found to be 2. b) knowing that the act
that rendered the person: dangerous) is wrong TJ shouldnt weigh evidence -
incapable of appreciating the Review Board (RB) 1. Wrong means wrong leave for jury fontaine Relevant factors are not
nature and quality of the act or 1. Where accused is according to law and ordinary a closed category and may, by way of example,
omission or of knowing that it NCR they are referred to a moral standards (Chaulk include: pp872-874
was wrong. review board 2. Boils down to whether the the severity of the triggering stimulus,
Presumption 2. RB has the power accused was impaired in a way that corroborating evidence of bystanders,
(2) Every person is to keep accused in a prevented him from making a rational corroborating medical history of
presumed not to secure institution, release decision automatistic-like dissociative states,
suffer from a the accused on conditions, 3. Must be able to know right from whether there is evidence
mental disorder so or release the accused wrong in an abstract sense (i.e. killing is of a motive for the crime, and
unconditionally wrong). But must also be able to apply that
as to be exempt whether the alleged
3. Other than knowledge in a rational way to the specific
from criminal trigger of the automatism is
unconditional release the killing that took place (Oomen, p809)
responsibility by 1. ex. satisfied - accused was also the victim of the
Review Board must find
virtue of subsection convinced deceased was about to kill him, automatistic violence.
that the accused is
(1), until the dangerous to society and that the only 65 way out was to kill the no single factor is meant
contrary is proved 4. RB must employ the least deceased (Oomen p812) to be determinative.
on the balance of intrusive method that is not contrary to2. ex. satisfied - accused thought 2) If proper evidentiary
probabilities. public safety he was god and victim was satan - Landry
foundation established, TJ must
Burden of proof 5. Decisions by the Review p814
next determine whether to leave
(3) The burden of proof Board must be reviewed at least every Automatism
mental disorder or non-mental
that an accused 12 months
A state of impaired disorder automatism with the trier
was suffering from 6. There can be no
consciousness, rather than of fact (Stone
a mental disorder presumption of dangerousness
unconsciousness, in which an Comes down to Q of is the condition a
What is a Mental Disorder?
so as to be exempt individual, though capable of action, mental disorder?
from criminal (1) Judge decides - it is not a medical has no voluntary control over that presume MD
responsibility is on or scientific opinion, but we rely on action (Stone p864) Holistic Approach (Stone p877)
the party that raises experts as to nature of the Available whenever there is o No single Factor is conclusive
the issue. accuseds mental state, illness, evidence of unconsciousness o Were the factors Internal or External?
Procedure condition, etc. (simpson throughout the commission of the compare with a normal persons reaction to the
a. ex. MD -personality crime (rabey p817) stimulus p877
Crown can only disorder or psychopathic Where automatism is shown, use this theory in case of psychological blow
personality (simpson the accused acted involuntarily and automatism 879
raise issue of MD when;
(2) Can be any illness, disorder, therefore does not have the required actus contextual objective test -take in the
or abnormal condition of the reus circumstances p880
The trier of fact human mind that impairs the
has found the Falls into two branches - Stone Internal, where the cause of the automatism is
human mind and its p864 internal to the D, this serves as evidence of MD
accused otherwise functioning (cooper)
guilty Non-mental Disorder Often permanent, or at least non-
(3) Excludes self-induced states transient in nature
When the Automatism leads to a full acquittal
caused by alcohol or drugs as
Defence raises issues well as transitory mental states Mental Disorder Automatism
of capacity in regards such as hysteria or same as MD, NCR External, where the cause of the
to intent concussion, or non MD Automatism flowchart (stone p837) automatism is external to the D,
at any other -automatism (cooper this serves as evidence of non-MD
1) assess whether a proper automatism
time, will violate Ds The Two Branches of s. 16 foundation for a defence of automatism
s. 7 rights Often transient, ex. Concussion,
Burden falls on If either is satisfied then has been established. extreme stress, etc.
accused is NCR is the equivalent of satisfying
party alleging MD, the evidentiary burden for this defence. limited to things ppl would find
proof is based on a Applied to the accused The mere assertion of extremely shocking p878 ex. Stone -
BOP, and must at the time of the act (cooper involuntariness will not suffice. shock of wife insults wasnt extraordinary
overcome a
presumption that the Accused doesnt have to Question of mixed law and fact, (Stone) o Continuing Danger
decided by the Judge any condition which is likely to present a
accused does not have a normal (or any)
Large presumption that it recurring danger to the public should be treated
suffer from MD emotional response
stems from a disease of the mind (stone as a disease of the mind.
(simpson There are two
distinct branches p837)
presumption was 1. a) appreciating the nature presumed voluntary - so qual - absence of danger not
upheld as and quality of the act, and burden on defence to prove determinative of no MD
constitutional (chaulk 1. Was the accused involuntariness BOP the more frequent the trigger, the greater the
p800 and Morrissette unable fully to appreciate not reverse onus justified under s. risk to society, more likely MD
p785) only the nature of the act but 1 o Policy Factors
Issues of law the natural consequences that defence must make automatism easily feigned
addressed by Judge would flow from it?(cooper an assertion of if unclear whether MD or non MD, presume
Is there an Air of p791 p694 p694) involuntariness and call MD
Reality? 2. Requires the accused expert psychiatric or concerns based on facts, ex.
Would the condition appreciate that they are doing psychological evidence parks p834 was clearly
amount to a MD if proved? a certain act, but must also confirming that assertion. sleepwalking (hard to fake), acquit
Issues of fact perceive the consequences, trial judge must consider greater level of
addressed by Jury impact and results of that act decide if there is evidence awareness, ex. motive, Stones
Was the accused 3. Do not need to upon which a properly claim suspicious because came from
appreciate the penal instructed jury could find angry wife (stone p837)
capable of appreciating the
consequences attached, or that the accused acted o ex. MD automatism - only cause
nature and quality? Or
Did the accused know that they are applicable to him involuntarily on a balance of was wifes words, continuing
(Abbey danger existed Stone
it was wrong?

Types of
Murder requires element an assault or any other
awareness of the probability interference or threat of interference by a
Recognition that human beings can be
person with the bodily integrity of another compelled by circumstance to commit a criminal
o Anything from of death, specific intent
offence, but in those circumstances we would
the first step Robbery Specific intent person.
view these actions to be justified or excused
o Motive, or lack B&E with intent to
thereof commit a specific intent Amendment was passed in the Duress is Necessity compelled by
o Expert testimony another party
offence specific intent wake of the SCC decision in
o Corroborating evidence (eye- Self-Defence is similar
For the exam you will be told daviault
witnesses, documented history, Requirements (perka latimer
whether general or Self-induced intoxication
etc.) cannot be a defence to show a lack
specific Imminent peril or danger
Onus (stone p837) of the general intent or
Cant argue that you were 1. Uses a modified objective standard, same
o D must show air of Reality of involuntariness where the offence is age, same sex, education, experience
too drunk to know you were
Automatism an interference or threat of only consider non-idiosyncratic
o Evidentiary D must prove to drunk
interference with the bodily integrity characteristics
Judge that automatism was not Intoxication can sometimes of another(s. 33.1(3)) and the
be a consideration in general would this person reasonably have
due to a MD Balance of accused departed markedly from the thought they were in imminent peril?
Probabilities intent offences (see EI below) standard of care in sub s. (2) 2. disaster must be imminent, or harm unavoidable
o Legal D must also prove to Otherwise, in general intent Marked departure when and near. It is not enough that the peril is
the Decider of Facts that he was offences we ignore the fact that accused voluntarily consumed an foreseeable or likely; it must be on the verge of
disassociative Balance of the accused was intoxicated, intoxicating substance transpiring and virtually certain to occur (latimer
Probabilities as a matter of law we deem the Very broad, not really a marked p933)
Who decides what? defendant to have been sober departure
Judge Jury
Is there a Mental Disorder?
Only applies to self induced
intoxication, if you are
objective, so doesnt apply to will probably be interpreted flexibly in order to
satisfy the requirements of s. 7 of the
Internal v. external, unknowingly intoxicated and do
stigma offences - counter argue the
standard is absolute, not objective Charter
cont. danger not have the required mens rea You dont have to wait until the last absolute
Air of reality? you will be acquitted for both doesnt apply to specific intent moment, ex lost hiker ex.
general or specific offences 3. note Wilsons dissent in perka p927 - imminent
There must be some
(2) Extreme Intoxication risk/emergency not required necessarily
evidence support the claim
If Judge did not find MD, then
There is now a new defence Summary No reasonable legal alternative (perka
of extreme intoxication (daviault In any case where an accused p927)
address the question of whether
1. drunkenness akin to is charged with a general intent offence 1. Again, there is a modified objective standard
there was automatism? (see above)
automatism - such an extreme degree involving violence, the defence of extreme
Jury will never be of intoxication that they were in a state intoxication is NOT valid by s. 33.1 2. If a reasonable person (same age, sex, etc.)
instructed on both s. 16 and reasonableness, not perfection
akin to automatism or insanity that
automatism DEFENCES
might expect to raise a reasonable
cant use intoxication as a reasonable person is not a criminal, no special
(1) Intoxication defence to an element of the offence that treatment for members of criminal groups
doubt as to their ability to form the
The conventional defence includes intoxication - Penno p911 (perka p927)
minimal mental element required for a
(bernard p901) daviault p912 applies to Proportionality -must be proportionality
general intent offence
For specific intent everything else between the harm inflicted and the harm
2. We can negative mens rea avoided.
offences, Intoxication is However, s. 33.1 may not
and possibly actus reus in cases of
considered among other survive a constitutional challenge, remains
extreme intoxication
evidence to be seen 1. Plain objective standard
Applies even in cases of
If accused was too 2. If by committing offence, you would cause more
self-induced intoxication
intoxicated to have required Justifications & Excuses harm than if you hadnt, the defence of necessity
Applies a reverse onus on
mens rea, then must acquit will fail
the defendant, BOP Defences that can be invoked
For all other
offences, requiring general Relies on expert evidence, by the accused Application
corroborating evidence etc. CC, s. 8(3)
intent, it is not a defence Basics
This is actually 8(3) Every rule and principle of the
been very hard to prove common law that renders any If it is another person threatening you,
Specific v. General Intent duress
Self-induced Intoxication - circumstance a justification or excuse for

Generally, we do not When defence not an act or a defence to a charge continues If it is another person beating you, self-
consider intoxication for General available in force and applies in respect of
33.1 (1) It is not a defence to an proceedings for an offence under this Act If it is due to the environment,
Intent offences
offence referred to in subsection (3) or any other Act of Parliament except in so necessity
Courts still struggle
that the accused, by reason of self- far as they are altered by or are Importation of Narcotics - perka p927
to make this distinction
induced intoxication, lacked the general inconsistent with this Act or any other Act Second step, would it have been
Specific Intent require
intent or the voluntariness required to of Parliament. reasonable to dump the drugs
crown to prove a more
commit the offence, where the accused Proof If it was, then you should have,
sophisticated intent than General
departed markedly from the standard of D has only evidentiary burden, necessity fails
care as described in subsection (2). Is it ever reasonable to dump drugs
general intent i.e. must raise AOR
offences - can presume mens rea No reverse onus on Defendant, (Theyd hunt you down)?
from actus reus (bernard p901) Criminal fault by reason of intoxication Crown must disprove BRD This is not the standard applied,
General Intent (2) For the purposes of this section, a Justification v. Excuse (perka reasonable people are not drug smugglers,
Specific Intent person departs markedly from the p927) we dont look at what a reasonable criminal
Assault applying standard of reasonable care generally Justification is a defence that would do
force without consent, simple, recognized in Canadian society and is morally justifies a crime Abortion Morgentaler p921
general intent thereby criminally at fault where the 1. Eg. Self-defence No air of reality to necessity of doctors
Sexual Assault person, while in a state of self-induced Excuse only legally
intoxication that renders the person providing abortions
general intent because its justifies a crime There was a reasonable legal
assault, but has many unaware of, or incapable of consciously 1. Eg. Breaking into a cabin
controlling, their behaviour, voluntarily to avoid dying alternative
characteristics of a specific
or involuntarily interferes or threatens Penney says this distinction is Murder latimer p933
intent offence
Manslaughter to interfere with the bodilyintegrity of arbitrary In UK, murder is eligible to necessity
general intent offence another person. Both Justification and Excuse (Re A(Children)
B&E General intent have same legal significance Contrary to Dudley and Stevens
Application Necessity
B&E with intent to None of the three requirements were
(3) This section applies in respect of an Most other defences are
commit a general intent offence present
offence under this Act or any other Act variations of necessity
general intent
of Parliament that includes as an
is it ever NOT a 2. doesnt require that there is a Applies where death or 1. battered women
reasonable alternative to reasonable legal alternative (mena grievous bodily harm are not 1. women in a situation, particularly under a
murder? p949) intended history of abuse, do not necessarily have to wait
note: Re A Children - 4. Cannot be a part of a conspiracy, eg.
i. Unlawful assault s. 265
until an assault by their partner is imminent before
gang member etc. they defend themselves. (lavallee p993/malott
operation to separate i. Does not require actual force, only p1012)
conjoined infant twins may
5. Requires immediacy and presence in threat of force
be rare case where 70
the statute, but this has been rendered ii. People are not often charged with 1. victim of ongoing violence (accused) may be
killing justified
unconstitutional (Carker, ruzic p958 this type of assault, but it is able to reasonably sense the onset of
Engaged in criminal p958) relevant for self-defence
activity does not disentitle violence
iii. If the accused reasonably
the defendant 1. note: only unconstitutional when perceived that they were about to 2. women are in disadvantaged situation if they
elements are not present and the be assaulted they satisfy the wait for guy to attack them, thus if you require
Duress accused is morally involuntary - thus if requirements for SD (petel p1002) imminence, you are condemning women to death
the facts line up, use these elements iv. Reasonable apprehension of by instalment
Two important
6. if stuck w/ s. 17, could make charter unlawful assault 2. Where evidence exists that an accused is in a
categories 1. S. 17 CCC 2. arg that unfair to convict when in v. Does not apply in consensual fights battering relationship, expert testimony can assist
Common Law defence morally involuntary position, also (paice sp108) the jury in determining whether the accused had a
vi. Consent is vitiated where NTBH is
doesnt negate fault, arbitrary (may work for
both intended and caused
reasonable apprehension of death when she acted
but excuses (hibbert p951 robbery/assault) by explaining the heightened sensitivity of a
Common Law Defence (Jobidon) battered woman to her partners acts. The issue is
p426) vii. Applied to SD, if the accused
Requirements not what an outsider would have perceived but
Cant use to negate Use if have principal consented, then NTBH must be what the accused reasonable perceived, given her
intended and caused by the situation and experience. (lavallee p993)
fault elements in s. 21(1)b offender, or when s. 17
or 21(2), but may be used to violates charter (ruzic
ii. No Provocation 3. Prior evidence of abuse is relevant to accused
excuse conduct through p958)??
i. If accused provoked the fight or reasonable belief in the existence of the assault,
operation of common law No safe avenue of escape
assault they are disentitled to the and the reasonable apprehension of danger and
duress (hibbert p951 p429) Modified objective standard defence of SD the belief that there is no alternative but to kill.
S. 17 (hibbert p951 p951 p426) ii. note that provocation not always (petel p1002 p1002)
S. 17 Did the accused reasonably made out in a consensual fight
A person who commits an perceive that there was no Reasonable belief that there is no
iii. Not intended to cause grievous
offence under compulsion by safe alternative (look at alternative
bodily harm
threats of immediate death or personal circumstances - ex. 1. No proportionality requirement, but is built
i. Therefore, if you are otherwise guilty
bodily harm from a person who is his perceptions of the into reasonable requirements
of murder, SD s. 34(1) cannot be
present when the offence is surrounding facts) 2. Excessive force does not disentitle
applied - GO TO s. 34(2) if this
committed is excused for 3. Air of Reality must be established
committing the offence if the ex. D didnt have authorities isnt present
1. 34(1) will not apply to murder 4. Judge does not question credibility, only
person believes that the threats to go to (ruzic p958) trier of fact
because it requires an intent to
will be carried out and if the
person is not a party to a Third parties included - i.e. cause death 5. if can go to authorities, you should, even if
ii. Intend even if the victim dies, SD a criminal (cinuous p986)
conspiracy or association threat to 3rd parties, ex. mom -
can still apply if accused did not Do not have to intend to cause death
whereby the person is subject to (ruzic p958)
intend - doesn matter if victim or grievous bodily harm
compulsion, but this section Proportionality/excluded
died No provocation exclusion, unlike s.
does not apply where the offence offences - arguably no excluded
offences iv. Proportionality 34(1)
that is committed is high treason
i. Accused must believe the force they
or treason, murder, piracy, Similar requirement as
used to defend themselves was Reasonable Requirements
attempted murder, sexual necessity
assault, sexual assault with a Not entirely clear, no Accused is allowed to make mistakes
ii. Reasonable person must also
weapon, threats to a third party explicitly excluded offences Modified version of the objective
believe the force to be required
or causing bodily harm, As long as the threat of (kong sp102) standard, person history, experience,
aggravated sexual assault, harm to ones self is great enough iii. You are expected to use a minimal capacities etc.
forcible abduction, hostage it can possibly be used to excuse amount of force Reasonable person cannot be
taking, robbery, assault with a murder 1. Though we do not expect perfection intoxicated
weapon or causing bodily harm, Never available to or exactitude
aggravated assault, unlawfully
perpetrators (paquette p946) 72 Battered Woman Syndrome
causing bodily harm, arson or an
offence under sections 280 to 283 no immediacy required iv. Not required to retreat
(ruzic p958) S. 34(2) There is not an independent discreet
(abduction and detention of defence known as Battered Woman
32(2) Every one who is unlawfully
young persons). Cant be used to negate s. assaulted and who causes death Syndrome
Requirements 21(1)b or 21(2), but can be used to or grievous bodily harm in
1. Applies only if the defendant is excuse conduct under the repelling the assault is justified if 73
the perpetrator common law defence of duress (a) he causes it under reasonable
(hibbert p951 p429) What is accepted is that women in a
1. If D is a party the common law apprehension of death or grievous bodily
harm from the violence with which the particular situation do not necessarily have
defence applies (paquette
assault was originally made or with which to wait until an assault from their spouse is
p946) Self-Defence
the assailant pursues his purposes; and imminent before defending themselves
2. Cannot be one of excluded Where successful, leads to (Lavalle, Mallet)
offences treason, murder,
a full acquittal (b) he believes, on reasonable grounds, Context is important
piracy(?), sexual assault, hostage
We are only dealing with that he cannot otherwise preserve himself Accused may be able to reasonably
taking, robbery, assault with a
weapon, arson two forms of self-defence 34(1) from death or grievous bodily harm. infer the onset of violence
&34(2) Also, the reasonable person standard
1. Limitations of s. 17 may not no common law Requirements can be based on women
survive a Charter challenge. S. 34(1) Hasnt been particularly successful
3. Distinct from common law in
Applies when accused caused -TRANSFERRED SMR:
34. (1) Every one who is unlawfully
that: grievous bodily harm, or s. 34(1) -s.229(b): Codified CL doctrine of
assaulted without having provoked the
doesnt apply transferred intent
assault is justified in repelling force by
1. Requires belief in threat of Requires unlawful assault (or -Can be transferred by accident or
force if the force he uses is not
death or bodily harm on the part intended to cause death or grievous apprehension of) mistake regardless of absence of intent (R v
of the defendant - common law bodily harm and is no more than is 1. Where consent, same process as s. 34(1) Droste)
has an objective standard necessary to enable him to defend -NOTE: Cannot apply to instances in
Requires a reasonable which D intended to kill himself but
himself. apprehension of grievous bodily instead killed another, absent moral
harm blameworthiness (R v Fontaine)
-CL PRESUMPTIONS OF MR: -Violations of s.7 Sault ste Marie says subjective mens rea In cases where parliament implements the term
-NOTE: SC reluctant almost never upheld under s.1 does not apply to administrative and wilful there may be an intention to elevate the
to constitutionalize -Substitutions of elements for essential regulatory offences. mens rea requirement. Though wilful can mean
SMR for all but most elements are also almost never Subjective mens rea can be inferred from reckless or intent, it is context dependent
serious crimes, accepted under s.11(d) the act Theroux Buzzanga [remember that wilful also modifies
instead relies on CL -R v Vaillancourt: Preferred INTENT-consciously choosing to carry out either a consequence or conduct] you decide
presumptions in constitutional principle of SMR but an act/ Act with purpose of accomplishing Conduct Intentional or
favour of SMR (such recognized most are OMR OR knowing that a consequence is reckless act or
as in R v Sault Ste -SMR only required under s.7 for substantially certain and persisting omission [dont
Marie) murder (Martineau) & attempted murder nonetheless (Buzzanga) analyze if there
-CL presumption (R v Logan) The subjective presumption of mens rea is
towards subjective -SUBSTITUTIONS: SCC can change when parliament includes consequences]
existed prior to hesitant to allow MR substitutions mention of it intends to with the .
Charter (R v Prue -Only if substitution would prove purpose of with intent of, wilfuly
1979) beyond reasonable doubt required (Buzzanga) Circumstance Knowledge of
-Courts would read element was present (R v Whyte) Wilfully is context dependent, can be intent s the
knowing into Ex. Martineau: SCC HELD: Cannot or recklessness circumstance
statute, required substitute MR of constructive murder Wilfully might be used to modify a or being
explicit intent (s.230a) (intended to cause bodily harm consequence or conduct reckless
otherwise (Beaver) for purpose of facilitating serious May be used to by legislature to elevate (Theroux) or
-MR must offence) for essential MR of murder mens rea so that its greater than just willfully blind
be established required under s.7 Charter (proof of recklessness to its existence
regarding ALL subjective knowledge victim likely to Live question after Briscoe if Wilful (Briscoe).
elements of AR die) Blindness can substitute for intent where it Consequence Must intend or
-Sault Ste Marie: -INTENT, PURPOSE OR WILFULNESS: is explicitly required by the statute s be reckless or
Where offence is -HIGHEST LEVEL OF SMR: D must act Subjective mens rea has nothing to do with willfully as to
criminal, Crown must with intent/purpose to achieve whether a person thinks what theyre the
establish MR: That D prohibited AR or to wilfully pursue such doings is right or wrong good innocent consequence
committed AR did so result motive doesnt negate intent Theroux
intentionally or Ex. s.229(a)(i): Murder: means to IF TALKING ABOUT INTENTION, MAKE A
recklessly, with cause....death DISTINCTION BETWEEN MOTIVE AND STATUTORY LANGUAGE PREVAILS/ if statutory
knowledge of facts of -LOWER FORMS OF SMR: CITE LEWIS (A and co-accused convicted language seems to intend a lower standard of
offence or with wilful Knowledge & recklessness on murdering co-accuseds daughter by mens rea then common law. Beaver says that
blindness toward -Usually mailing an explosive.) needs to be clear
them. Mere satisfies for most crimes KNOWLEDGE- knowing that a intent, purpose means to etc : ELEVATE
negligence not -NOTE: More peripheral circumstance exists or doesnt, includes MENS REA, wilful =ambiguous, sometimes intent
enough Causation Smithers Standard not wilfully choosing not to confirm suspicion and reckless, sometimes just intent. IF WE SEE
-Recklessness insignificant beyond de minimus in (wilful blindness) WILFUL, WE NEED TO MAKE A DECISION
requires proof D Nette becomes significant and Beaver gives definition of knowledge
subjectively aware of contributing factor for homicide and is actual awareness that a particular OBJECTIVE MENS REA
prohibited risk (R v used for other crimes Moquin (about circumstance exists or does not exist. Negligence; duty; reasonableness [Tutton];
Sansregret) assault)...dissent in Nette says it Knowledge of the character of the dangerousness [Beatty]; unlawfully [DeSousa}.
-CONSTITUTIONAL elevates the standard but majority says circumstance These necessarily import an objective MR
REQUIREMENTS OF MR: just makes it easier for jury to (Briscoe): defines WILFUL BLINDNESS as Unlawfully objective MR. There is a predicate
-ELEMENTS: understand [SEE CHART] when a person is aware of a need for offence.
Creighton: I would use the Nette approach inquiry but making a deliberate choice not Use standard AR/MR analysis but full AR/MR
Considerations in because the court said its the same to make the inquiry because he does not analysis for predicate offence goes under AR
determining standard and was used after in Moquin, wish to know the truth and would rather circumstances and objective dangerousness/risk
constitutional and its the standard I assume court remain ignorant. [NOT CLEAR AFTER of body harm becomes MR circumstances
requirements: would use in future BRISCOE IF STATUTE SAYS INTENT (DeSousa; Creighton).
1. Stigma of offence & available Causation- Higher Standard for First WHETHER WILFUL BLINDNESS IS Objective dangerousness at minimum that a
penalties requiring MR & Degree murder : Substantive and ACCEPTABLE] reasonable person would realize that As action
reflecting particular nature of integral cause of death (Harbottle) Briscoe- says WILFULLY BLIND= would subject another person to the risk of some
crime [SEE CHART] KNOWLEDGElive q about intent harm that is more than trivial or transitory in
-Martineau & Logan: Indicate Canadian courts use moral Briscoe court charged Briscoe under nature.
murder/attempted will require blameworthiness in addition to factual aiding and abetting which statutorily Step 6: Defences
SMR blameworthiness in murder cases JSR requires intent, even though the court **May be more than one possible defence. Argue
-NOTE: New terrorism laws are Look to words that signal objectivity: focused on the fact that Briscoe had the all of them.
diluting SMR (s.83.19) NEGLIGENCE, DUTY, UNLAWFUL, requisite knowledge and wilful blindness. Mistake of fact (different for subjective and
-Need only know of REASONABLE, DANGEROUS, No express mention of whether knowledge objective MR offences) must raise an air of
activities, not of actual attack When a statute is silent start with the and intent can be equated, but the fact that reality. Cinous (AOR) Best to consider under MR.
2. Whether punishment presumption that mens rea is the court proceeded in charging Briscoe Kundeus, Pappajohn, Ewanchuck.
proportionate to moral subjective (Beaver, Sault Ste Marie) under the statute, even though they didnt Provocation Partial defence applicable only to
blameworthiness of offender: This can be altered by parliaments expressly deal with his intent, suggests murder; D raises an AOR at which point Crown
-s.12 Charter: Prohibits grossly specific wording in the statute that the court might believe that knowledge must establish BRD that D wasnt provoked. Hill,
disproportionate punishment (R v Buzzanga is sufficient for intent and therefore that Thiebert, Neily, Daniels, Tran
Smith) Some offences explicitly state mental Wilful Blindness is sufficient for intent. Mental Disorder Person relying on s. 16 must
-Could also violate s.7 (R v element but others are silent Therefore, where intent is required by prove on BOP (can be Crown or A) Cooper, Swain,
Malmo-Levine) If theres language in the statute, use it statute, one might infer that wilful Chaulk
3. Notion those causing harm to interpret blindness is enough because of it being Non-insane Automatism D must prove on BOP.
intentionally must be punished If statute has intentionally altered equated to knowledge and knowledge with Rabey, Parks, Stone
more severely starting presumption, this must be intent Necessity - A must raise an AOR on every element
-Note distinction clear and unambiguous Beaver RECKLESSNESS- foreseeing that risk of then the burden shifts to the Crown to disprove
between murder and Subjective mens rea consequence occurring but choosing to defence BRD. Perka, Latimer, Ungar Cinous (AOR)
manslaughter * Subjective mens rea is often satisfied proceed regardless Sansreget Duress - A must raise an AOR on every element
-ISSUE: Constitutional by lower forms of MR such as You can be reckless to the circumstances then the burden shifts to the Crown to disprove
requirement of SMR under s.7 recklessness, without needing to go to as well. Recklessness is the minimum so defence BRD. Hibbert, Ruzic
Charter leaves Parliament fewer higher forms (ie if you meet its the easiest to prove
options than CL presumption recklessness, you dont need to go to Step 7: Charter Issue:
-Overcoming CL presumption by intent) unless statute requires it (Theroux): subjective foresight of the 11 D charter issue is raised when there is a chance
Parliament only requires explicit Beaver says subjective mens rea consequences and a decision to proceed of conviction with the existence of reasonable
statement presumed for True Crimes regardless. In most cases doubt. Look for a mandatory statutory
RECKLESSNESS is enough to satisfy presumption, or reverse onus provision Oakes
subjective mens rea. OR
When a law has the potential to -NOTE: Distinction not necessarily -Consumption of that which D ought know (3): This applies to all offences that include
convict a morally innocent based on criminal law principles, but on has intoxicating effect (prescriptions etc) assault, interference with bodily integrity, or the
person, offends the principles of policy concern will not suffice for involuntary intoxication threat thereof [ie. Daviault still available in some
fundamental justice and, if -By making defence available to under s.33.1 (R v Chaulk) general intent situations]
imprisonment, it violates a specific intent offences, ensures D will -EXTREME INTOXICATION & GENER