Criminal Law Summary

Winter 2014
Intro
S 718 CCC = Purpose and principles of sentencing. This is the closest we get to purposes of criminal
law in the code
S 718 Purpose – the fundamental purpose of sentencing is to contribute, along with crime prevention
initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing
just sanctions that have one or more of the following objectives
(a) the denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims
and to the community

Limitations to CCC:
NO common law crimes
Constitutional limits

s 7 of Charter – right to life, liberty and security of the person

has had a big impact on criminal law
mostly from a procedural perspective. Eg. Right to have counsel at trial (if matter sufficiently
complex); right to have full disclosure of crown materials; right against having potentially exculpatory
evidence excluded (Seaboyer)
Also substantive limits – such as vaguness, overbreadth and uncertainty (p 26f of textbook)
1992 – R v Nova Scotia Pharmaceutical Society = prohibition on vagueness
But Spanking case – 2004 – shows limits of vagueness

R v Nova Scotia Pharmaceutical Society, [1992] 2 SCR 606 (p 26)

R. v. Nova Scotia Pharmaceutical Society (1992 SCC)
This case discusses vagueness
Vagueness of a law can be grounds for unconstitutionality under s. 7 or s. 1 (to be justifiable,
limits on Charter rights must be “prescribed by law”)
Fair notice to the citizen – has 2 aspects:
o1. Formal aspect of notice: acquaintance with the actual text of a statute
This concern has been more or less set aside by the common law maxim: “ignorance of the law is no
excuse” (s. 19 CCC: “Ignorance of the law by a person who commits an offence is not an excuse
for committing that offence.”)
Fair notice may not be considered to have been given when enactments are in somewhat general
terms, in a way that does not readily permit citizens to be aware of their substance
o2. Limitation of law enforcement discretion: a law must not be so devoid of precision in its content
that a conviction will automatically arise out of a decision to prosecute for the offence
Facts:

R. v. Heywood [1994] 3 SCR 761 SCC, Cory J) (p. 28)

This case discusses vagueness and overbreadth
Overbreadth and vagueness are different concepts:
 oThe meaning of a law may be unambiguous  therefore, the law will not be vague
But it still may be overly broad
oIf the meaning of a law is vague, it is therefore also overly broad because ambit of its
application is difficult to define
Both vagueness and overbreadth are the result of a lack of sufficient precision by a legislature in the
means used to accomplish an objective
oVagueness: the means to achieve the objective are not clearly defined
oOverbreadth: the means are too sweeping in relation to the objective
Analysis of overbreadth:
oLooks at the means chosen by the state in relation to its purpose
oAre those means necessary to achieve the state objective? If State, in pursuing a legitimate objective,
uses means which are broader than necessary to accomplish that objective, principles of fundamental
justice will be violated because the individual’s rights will have been limited for no reason
Facts: s 179(1) of the Criminal Code provided that it was an offence for a person witha past sexual violence
conviction to be “found loitering in or near a school ground, play ground, public park or bathing area”
Holding: “s 179(1)(b) is overly broad to an extent that it violates the right to liberty proclamed by s 7 of the
Charter for a number of reasons. . .” - geographic scope (includes parks that children won't be at); temporal
aspect (no process for review); number of persons it encompasses; prohibitions put in place and enforced
without notice

Spanking case (2004) shows the court's reluctance to strike a law on the basis of vagueness – this
doctrine is quite limited as a result.

Canadian Foundation for Children, Youth and the Law v Canada, [2004] 1 SCR 76 (p 29)
(the Spanking case)
This case discusses vagueness.
Facts: s. 43 CCC authorizes the use of force “by way of correction toward a pupil or child … if the force does
not exceed what is reasonable under the circumstances.” I.e. it is a defence to the charge of assault.
Issue: Is s. 43 CCC vague? Holding: No, with dissent.
Reasoning:
Majority (McLachlin C.J. + 6): provision is not vague
A law is unconstitutionally vague if it “does not provide an adequate basis for legal debate” and
“analysis”;
“does not sufficiently delineate any area of risk”'
or “is not intelligible”
oA law must set an intelligible standard for the citizens it governs and the officials who must enforce it
oA vague law prevents the citizen from realizing when he/she is entering an area of risk for criminal
sanction
oIt also makes it hard for police/judges to determine whether a crime has been committed  puts too
much discretion in the hands of police
The standard a law sets out can be determined by reference to its language (ex. reasonableness), social
consensus; CJ also considers Canada’s treaty obligations, expert evidence
oConcludes that s. 43 is not vague by circumscribing it very tightly -
oLaw sets out who has access to the defence – teachers and parents.
oLaw sets out what conduct is included less precisely = force “by way of correction” and “reasonable
under the circumstances” - is this too vague?
Law figures out what's “reasonable” all the time – in negligence, when deciding what are reasonable
ground an offence has been committed, etc
Social Science evidence tells us that it is wrong to spank children under 2 and over 12, and using
objects is bad too .... (further limitations at para 40, p 32)
 oSays it is not vague by limiting severely. Not sure where she gets the authority to do this – she says
it’s not vague by making it not vague  how could citizen/police have known this is what she would
do with it? The question is not can the law be made specific, but whether it is specific enough on its
face
She says that vagueness is not argued on the basis of whether a provision has been interpreted
consistently in the past, but whether it is capable of providing guidance in the future (but one would
think inability to interpret it consistently in the past is strong evidence that it can’t provide guidance in
the future)
Dissent (Arbour J. + 1): provision is vague
CJ restrictively interprets the defence of correctional force – this is inconsistent with the role of courts
vis-à-vis criminal law  it is neither the historic nor the proper role of courts to enlarge criminal
responsibility by limiting defences enacted by Parliament (in fact, it’s the opposite: to interpret criminal
offences restrictively)
oCourts are prohibited by s. 9 CCC from creating new common law offences
J. thinks that majority totally rewrites the law – interpret it before they assess its constitutional validity
to make it conform to the Constitution
The restrictions the majority puts on s. 43 have not emerged from existing case law – are far from self-
evident and would not have been anticipated by parents, teachers, police
Ratio: Courts can interpret provisions restrictively so that they are not found unconstitutionally vague.

Vagueness doctrine limited (Spanking case). New doctrine developed since: Arbitrariness, overbreadth
and gross disproportionality

Bedford relied instead on a more recent development – that a law cannot be arbitrary, overbroad or
grossly disproportionate.
Note also that this case is not based on liberty, but on security of the person why? (1) to avoid the
problem of the precedent of the prostitution reference and (2) because there were new developments in
the arbitrary, overbroad, grossly disproportionate doctrine and (3) the argument did not rest on the idea
that going to prison was too great a punishment, but instead on the idea that people engaged in sex
work couldn't take measures to protect themselves.
Homicide survey from StatsCan: 201 homicides linked to work, over that same period of time 99
homicides against prostitutes (could have argued right to life as well).
Note about the legislation: it was enacted in 1985 with the intention of controlling nuisance on the
street.

Bedford (excerpt)
Challenge to three provisions of criminal code
s 210 keeping or being found in a common bawdy house
s 212(1)(j) living off the avails
s 212(1)(c) communication for the purposes of solicitation
On the basis that they represent a violation of s 7 of the Charter – right to security of the person

Arbitrary: absence of a connection between purpose of the law and its effect. Eg Morgentaler; PHS
(safe injection site)
Overbroad: law that is so brad that it includes some conduct that bears no relation to its purpose –
Hayword
living off the avails = overbroad. Purpose is ot prevent exploitative relationships.
AG tried numerous times to say the purpose was more broad than that. The purpose was deccided by
 the trial judge. Purpose is a fact – note: with a different trial judge, may have had a different purpose
and ultimately a different outcome.
Gross disproportionality effects so grossly disproportionate that they cannot be rationally supported.
Purpose: understood to be to reduce neighbourhood disruption.
Two points to raise:
(1) Subjectivity: how you attribute value to neighbourhood disruption vs how you attribute value to
sex worker safety
(2)

History of CCC
Alan Mewett, “The Criminal Law, 1867-1867” (p 17)
During 19C, idea that criminal law should be codified was debated
1878 – English Draft Code
1892 – Bill Respecting Criminal Law (Canada)
1953 – Revised Code enacted – did not greatly alter the structure or substance of previous code. But
it did add s 8 (now s 9) saying no person shall be convicted “of an offence at common law”. . .
But Common law Defences are still ok

Amato v the Queen, [1982] 2 SCR 418 (p 18)

Issue: Do common law defences still apply in Canada, even though common law offences don’t?
Holding: Yes. And judges may develop them.
Reasoning (Estey J.):
It’s impossible to foresee all the various combinations of circumstances which may happen, although
they may constitute a justification or excuse for commission of a crime
So need to allow judges the leeway to develop the common law defences
Ratio: Common law defences are still available in Canada, and judges may further develop them when
appropriate.
Principle: Defence should have access to every Defene imaginable

Frey v Fedoruk, [1950] SCR 517 (p 20)

Facts: Frey was a peeping tom who was arrested and charged with acting in a way that constitutes a breach of
the peace. This was not codified and there was no precedent of such a crime. It was not a “known” offense.
Issue: Should judges declare acts to be crimes (ex. peeping tom)? Holding: No.
Reasoning (Cartwright J.):
If conduct (even violent or antisocial conduct that tends to create further violence as retribution) could
be treated as criminal even though it is not otherwise criminal, great uncertainty would result
oJudges should not declare acts criminal which haven’t already been declared criminal
Would give too much discretion to the judge to decide, according to his individual view, if an act was
a disturbance of the tranquillity of people (and as such tending to provoke physical reprisal).
Ratio: Judges will no longer declare acts to be criminal offences.
Casebook Commentary: This case decided to place the protection of the individual from the risk of oppression
above the protection of the state from the risk of disorder
F and F – v widely cited. Stands for principle that sufficient notice is necessary. Concerns re
uncertainty AND flexibility

Jobidon v. The Queen (1991 SCC) (p22)

 Facts: The accused fought the victim in a bar fight and then outside in the parking lot. The victim won in the
bar, but lost in the parking lot. Accused was acquitted of manslaughter at trial on basis that the victim consented
to the fight.
Issue: Does the common law still apply to interpret codified criminal offences? Holding: Yes, with dissent.
Reasoning:
Majority (Gonthier J.):
All criminal offences in Canada are now codified (s. 9); but that does not mean that the common
law no longer illuminates these definitions
oThe basic premises of our criminal law (the necessary conditions for criminal liability) are presently
left to the cml
s. 8 says that cml still applies to the extent that it is not inconsistent with the Criminal Code (defences)
The courts must therefore also be permitted to use pre-existing cml rules/principles to give meaning to
an existing defence (i.e. explain its boundaries, when it will/will not apply) as long as no explicit
statutory language has displaced the cml
In this case, the defence of consent to assault is not applicable
Dissent (Sopinka J.):
Criminal law is codified: judiciary is constrained by the wording of sections defining criminal
offences  is important that there be certainty in determining what conduct constitutes a
criminal offence
The effect of the majority’s approach is to create an offence where one does not exist under the CCC,
by the application of the cml to restrict the defence of consent to assault
Ratio: Judges can use the common law to interpret the codified offences and defences.
J: most important case. No assault with consent. Was there consent? Gonthier J says no. Can't consent
to assault causing serious, non-trivial bodily harm. Gets authority from s 8.3 – can give meaning to a
defense. (Consent is a defense). Can rely on common law to permit interpretation that can't consent to
non-trivial bodily harm .
Two things: can you read out consent? (1) that kind of consent is not valid VS. (2) that consent never
took place -> the difference is : does the judge get to decide what is a crime?
Sopinka J: Can't just TAKE OUT an element of the offence! Codification = certainty

Do we see any difference between this and the spanking case? Spanking=narrowed defense.
Jobidon=actually strikes an element of the defense.

Jobidon: (1) yes there is a limit of no new cmn law offenses, but limit is not as strong as you think ->
there is room for interpretation, esp b/c vagueness doctrime is limited. [discussion fo what has social
value. Have to know something about the context in order to decide what is valuable. (consider
criminalization fo HIV status here)] (2) only what is codified is criminal is a somewhat illusory concept

United Nurses of Alberta v AG alberta, [1992] 1 SCR 901 (p 25)

-why does it allow common law contempt of court?
United Nurses of Alberta v AG alberta, [1992] 1 SCR 901 (p 25)
Facts: Accused fined $400,000 for disobeying court directives to not go on strike. Found in contempt
of court. Contempt of Court not codified.
The rest: Constitutional challenge. Nurses argued it was a matter of fundamental justice that all
crimes be codified. Court said there was no authority supporting this statement.
Nurses argued crime of criminal contempt was too vague. Found to be not be vague.
Also found to be not arbitrary
Also, no problem re notice – nurses should have known they would have been in contempt of court.
Principles of Legality
Doctrine of Strict Construction -> interpretation that is most favourable to the accused?
What is the rationale?
Fairness to the accused
power imbalance
deter legislature?
Original purpose: to soften impact of death penalty.

Relevant in Paré for how to interpret first degree murder.

First degree murder: at the time it was defined as murder “while committing” an indecent assulat,
including kidnapping. In 1982 the definition replaced “indecent assault” with “sexual assault”.
R v Pare [1987] 2 SCR 618 (p 37)
Facts: Paré raped and murdered a 7 year old boy. First degree murder provisions at the time said it
st
was 1 degree if death happened “while committing” the indecent assault. He raped him, then
strangled him. Does this count as “while committing”?
Issue: how to interpret “while committing”
Reasons: Principle of strict construction says :where there is ambiguity, a statute ought to be
interpreted in favour of the accused. Strictest interpretation would say these acts had to be
simultaneous. This is true, but must also consider if this is consistent with purpose of legislation. Also
have to consider whether the application of this construction would have a result that was arbitrary or
irrational (in this case it would).
“the murder was temporally or causallly connected to the underlying offence”
The issue of this type of interpretation also comes in R v Prevost. How to interpret when a police
officer was “acting in the course of his duties”
R v Prevost (1988) ONCA (p 42)
Accused killed an on-duty police officer while officer on lunch break. First degree murder includes
killing a police officer “acting in the course of his duties”. ONCA said this officer was acting in the
course of his duties. (Applied Paré). Court said that the idea that the protection offered by the statute
would be withdrawn as soon as the officer sat down was “as offensive to common sense” as the
argument in Paré that murder and assault had to happen at precisely the same moment.
Point is: always subjectivity in interpretation.
Interpretation Act, which applies to all federal laws, says statutes should be given “such fair, large and
liberal construction and interpretation as best ensures the attainment of its objectives”. How does this
square with strict construction doctrine of crim law?
Bell Express Vu v rex [2002] 2 SCR 554 (p 43)
Iacobuccie addresses the issue of how strict and remedial construction should be reconciled
- para 28: strict const. Only where there is ambiguity

Note: Bedford is HUGE bc vagueness: shrinking. Strict construction: shrinking

Limits on criminal law: (1) failures of rationality (2) insufficient notice (3) harm? -> Malmo Levine
R. v. Malmo-Levine & R v Caine (2003 SCC)(p 57)
Facts: The Narcotics Control Act prohibits the possession of marijuana; although there is no minimum sentence
for this offence, imprisonment is possible.
Issues: 1. Is the harm principle a principle of fundamental justice under s. 7 of the Charter? 2. Is the prohibition
on possession of pot constitutional? Holding: 1. No, with dissent. 2. Yes, with dissent.
 Reasoning:
Majority (Gonthier & Binnie JJ. + 4):
The “harm principle” is the idea that people should not be subject to prohibitions on their
behaviour (enforced by the physical power of the State) unless that behaviour is harmful to
others (or presents a risk of harm to others) – harm to themselves is not sufficient
oSuggests that the only conditions under which an activity may be criminalized (or a person may be
imprisoned for an offence) is if that activity/offence poses a threat of harm to others
oBut the grounds for interfering with human liberty have long been recognized to be more
various than the single criterion of “harm to others”
The harm principle is not a principle of fundamental justice within the meaning of s. 7 of the
Charter – is too vague; “harm” doesn’t do any work – it is the moral conceptions underlying it
that inform our notions of what is harmful
The state may sometimes be justified in criminalizing conduct that is not harmful to others or is
harmful only to the accused (ex. seatbelt laws)
oFurthermore, in a society such as Canada, harm to oneself is often borne collectively (welfare state,
healthcare)
The protection of vulnerable groups from self-inflicted harms does not amount to legal moralism
oThe protection of chronic or underage users of pot is a valid criminal law objective
However, should people convicted under these offences be subject to imprisonment? Likely not,
although the majority says this can be dealt with under sentencing and appeals of inappropriate
sentences
Arbour J. in dissent (LeBel, Deschamps JJ. dissented separately):
s. 7 of the Charter requires not only some minimal mental element for offences punishable by
imprisonment  also requires that the prohibited act be harmful or pose a risk of harm to others
As the trial judge found that marijuana use poses little or no risk of harm to users or others, it cannot
be punishable by imprisonment
Ratio: The harm principle is not a principle of fundamental justice; Parliament may legislate criminal law in
order to protect people from themselves where it is necessary.

- court admitted there was no harm to recreational users, but said there was harm for chronic users.
Liberty argument under s 7 - “you can't throw me in prison without some sort of harm”
Court rejects harm principle as a principle of fundamental justice. Why not? Harm is hard to quantify.
No consensus that harm is vital.
If harm principle is subjective, can criminal law be based on moral consideration?
What is moral harm? Polygamy, cannibalism, euthanasia, homosexuality?
Malmo-levine- SCC said parl COULD criminalize. Difficult to distinguish harm to self (interesting
that court finds harm to be so amorphous here)
Role that harm is playing in malmo-levine and in Bedfor is different. IN Bedford, “there is no harm
here, so we should strike vs there is harm bc of criminal prov so we should strike
MalmoLevine founded on idea of lifestyle choce, ct in Bedford emphasized lack of choice and
vulnerabillity
In Bedford, could say it was the govt who was harming. Basically, difference is “When you
criminalize do no harm” vs “you can criminalize even w/o harm”
Note Arbour dissent in Malmo: para 257: majority notes that parl has power to protect vulnerable
groups. But govt can't throw vulnerable ppl in jail in the guise of protecting them

Use of harm principle in R v Labaye:

R v Labaye [2005] 3 SCR 728 (p 70)
Facts: L owns a swingers’ club. Charged with keeping a common bawdy-house for the practice of acts of
indecency (s. 210(1) CCC).
Issue: Were the acts committed in his establishment acts of indecency within the meaning of the CCC?
Holding: No.
Reasoning (McLachlin C.J.):
What types of harm, viewed objectively, suffice to found a conviction of keeping a common bawdy-
house for the purposes of acts of indecency?
Conduct which fulfils two requirements beyond a reasonable doubt is outlawed:
1.By its nature, the conduct at issue causes harm (or presents a significant risk of harm) to
individuals or society in a way that undermines (or threatens to undermine) a value reflected in
the Constitution (or similar fundamental laws): for example (list not closed),
A. Confronting members of public with conduct that significantly interferes with their autonomy/
liberty
oIdea is to protect public from being confronted with acts/material that reduce their quality of life
oThere must be a risk that public will be unwillingly exposed to the conduct/material or they will be
forced to change their usual conduct to avoid exposure
B. Predisposing others to anti-social behaviour
oDoes not have to be an explicit invitation to harm others; can be act/material that perpetuates negative
images of a certain group  encourages disrespect of that group
C. Physically or psychologically harming persons involved in the conduct
oConsent of the participant will be important consideration here
2. That the harm or risk of harm is of a degree that is incompatible with the proper functioning of society
Threshold is high – we live in a diverse society and must be prepared to be tolerant of conduct of
which we disapprove. Have to show real risks.
Has to be evaluated in light of contemporary Canadian standards
In this case, the swingers’ club does not satisfy the test – is not caught by CCC
Ratio: Conduct which is criminally indecent must by its nature threaten harm to the fundamental values of
Canadian society, to a degree which renders that harm incompatible with the good functioning of society

Prostitution Reference 2005 (p 85)

Issue Are the provisions against communicating for the purposes of prostitution and keeping a
common bawdy house contrary to the Charter?
“communication” provision violated s 2(b)?
“bawdy house” violates s 7? (liberty)
Holding
Yes, but saved by s 1; No.
Reasons (Dickson CJC)
 PFJ not designed to ensure optimal legislation
Concurrence (Lamer J)
oFair notice is given, and discretion is limited
oLiberty and security of the person so far are negative rights
oTo expand the scope of s 7 too much would infringe on the judiciary’s role as guardian of
the justice system, because it would bring s 7 into the policy field, which is not for the
judiciary
Dissent (Wilson J)
oProhibition is not proportionate because it prohibits all expressive activity conveying a
certain meaning
oDefinitional limits are desirable
oResistance to outright criminalization of sex is consequential because court cannot,
 therefore, treat prostitution as socially undesirable, since it’s not a crime
oCommunication provisions violate ss 7 and 2(b), and are not saved by s 1
Ratio

Prostitution reference and feminist perspectives:

if we insist on the harm principle, it becomes more difficult to recognize systemic harms
Harm principle and Hart and Devlin debates
Devlin: there is a moral harm
Hart: ppl should be able to do whatever they want if it si not harming anyone

Proof and Presumption of Innocence

Review of stages of criminal process:
used to be that you couldn't be detained w/o “reasonable reason to arrest”
now that standard has been lowered to “reasonable suspicion”
bail hearing – when police decide NOT to let people go. Who gets let out? People who can pay bail,
pay lawyers, with ties to the community
Judge's charge to the jury: jurys' job is to find facts and apply the facts to the law. A judge sets out the
law. Proof BEYOND a reasonable doubt.
Question: what does the crown have to prove beyond a reasonable doubt?

Woolmington v DPP, House of Lords [1925] AC 462 (p 279)
Facts: W’s wife left him. He went to where she was staying with a gun (which he had acquired from his
workplace and sawed off the barrels) and she ended up dying of a gunshot wound. His story is that he went to
scare her into coming back by threatening to commit suicide if she didn’t; the gun went off by accident and she
was killed. Crown obviously says W murdered her. Trial J. directed the jury that if the Crown had shown that
the wife died at W’s hands, the burden of proof lay upon W to show that he did not do so with any malice or it
was an accident.
Issue: Did the trial judge misdirect the jury? Holding: Yes, conviction quashed.
Reasoning (Viscount Sankey L.C.):
The statement of the law on which the trial J rested his directions is: when it has been proved that one
person’s death has been caused by another, there is an assumption that the act of the person causing the
death is murder. The onus is upon the accused to show that his act did not amount to murder.
The HoL interprets this solely to mean that if it is proved that the conscious act of the accused killed
the victim, and no other evidence appears in the case, he may be convicted
This statement of the law is not meant to ever lay the burden of proof on the accused: the
prosecution must prove the guilt of the accused, the accused must not prove his innocence
oIt is sufficient for the accused to raise a doubt as to his guilt – does not have to satisfy the court/
jury of his innocence
Ratio: Prosecution has the burden of proving beyond a reasonable doubt every element of every crime for
which they wish to obtain a conviction. The accused never has to prove their innocence; they merely have to
raise a reasonable doubt as to their guilt.

Defense: it was an accident! Problems with judges instructions: law will presume intention of malice if
death by voluntary act. “this has been the law of this country for all time since we had law”. Lord
Sankey says: this came from a textbook, but it was a misunderstanding.
IMPT: Accused NEVER has to satisfy a burden of proof, ONLY the crown.
“One golden thread”
Even if accused raised defence, Pros STILL has to prove defense doesn't aply
the curative proviso – what does this mean. In the past whenever ct hearing criminal appeal can refuse
to hear the appeal where, even if they thought something was wrong, “no substantial wrong or
miscarriage of justice has occurred”
◦686(1)(b)(iii) – most frequently cited provision

R v Oakes, [1986] 1 SCR 103 (p 284)

Facts: David Edwin Oakes was found with 8 g of Hasish and some cash. Judge applied s 8 of
Narcotics Control Act to find that he was guilty of trafficking. Oakes appealed.
Issue: Constitutionality of s 8 of Narcotics Control Act, which creates a presumption of possession for
the purposes of trafficking
s 11(d) of the Charter: Any person charged with an offence has the right... (d) to be presumed innocent
until proven guilty according to law in a fair and public hearing by an independent and impartial
tribunal
Holding: s 8 violates the Charter
Reasons: presumption of innocence is a “hallowed principle lying at the very heart of criminal law”.
Protected by s 7 as well – right to liberty.
NO doubt whatsoever that s 8 of NCA violates s 11(d) of the Charter. Question then becomes if the
limit is reasonable under s 1 of Charter. Test: 1 – prescribed by law = no problem. 1-Objective must
be of sufficient importance 3- rationally connected, impaire as little as possible, be proportional in
effects (compared to objective). Finding: s 8 was not rationally connected to the objected of “curbing
drug trafficking by facilitating the conviction of drug traffickers” - too broad and overinclusive

About the reverse onus of proof – shifted to accused

charged with possession with intent to traffick
possession of ANY amount falls on him to show on BALANCE OF PROB (never beyond a
reasonable doubt, even where accused has burden)
why would this violate presumption of evidence?
He could be convicted even if jury not convinced beyond reasonable doubt
court says: there is no rational connection between curbing trafficking and this provision. It is
overinclusive.
Note: S 7 includes w/i it some ind of proportionality analysis also

R v Whyte, [1988] 2 SCR 3 (p 289

“The real concern is not whether the accused must disprove an element or prove an excuse, but that an
accused may be convicted while a reasonable doubt exists”

R v Keegstra, [1990] 2 SCR 697 (p 290)

Facts: K was a high school professor who told his students that Jewish people are sadistic, money-loving,
power-hungry child-killers who have an international conspiracy.
Issue: Is the prohibition on hate speech so broad as to violate s. 2(b) of the Charter in a way that is not saved by
s. 1? Holding: Yes it violates s. 2(b), but it is saved by s. 1 (with dissent).
Reasoning:
Dickson C.J. for the majority:
• Hate propaganda is harmful to target group members and threatens a harmonious society
• The mens rea of this offence (s. 319(2)) requires that it be ‘wilful’ promotion of hatred
• Mens rea requires more than mere negligence or recklessness, therefore reduces scope of the section
 [because we don’t want to catch instances  la Buzzanga]
• Risk of hatred caused by hate propaganda is very real therefore do not need proof of actual hatred to justify
its prohibition under s. 1
• Finds that reverse onus (i.e. making the accused prove that their statements are “true” as a defence rather
than making the Crown have to prove they are false beyond a reasonable doubt) infringes presumption of
innocence (s. 11(d)) but that it’s justified under s. 1
• Wilful promotion of hatred is hostile to Parliament’s aims [you’ve got to prove what you’re saying is
actually true, has historical truth, etc]
McLachlin J. + 2 in dissent:
• Found s. 319(2) infringed freedom of expression and was not justified under s.1 because it prohibits all
public speech that is hateful
• Creates a chilling effect on people who would like to express themselves
• Not clear that it provides an effective way of curbing hatemongers; may actually promote their cause by
garnering media attention and making them martyrs
Reverse onus not justified, doesn’t buy argument that it would be difficult/impossible to get a conviction
otherwise, says burden should be on state because it has superior resources.
Ratio: It is valid for Parliament to prohibit hate speech in a broad manner because it negatively affects the
targeted groups.

Defense: statements are true. Problem: he can be convicted even if reasonable doubt that statements are
true. = whittling down of Sankey statement. S 319 CCC. But limited eg of reversal of burden of proof?
What is proof beyond a reasonable doubt? What has to be proved? Ans=all elements of the offense.
What doesn't need ot be proved? Ans: all relevant facts.
Eg one element is identity. That has to be proven. A fact might be presence at the scene of the crim,
motive, presence of fibers from clothing on body – each of the do not have to be proven beyond a
reasonable doubt, only identity has to be proven beyond a reasonable doubt.

R v Lifchus, [1997] 2 SCR 320 (p 292)

Definition of 'reasonable doubt
- reasonable doubt is not to be used in the 'ordinary, everyday' sense of the word
can't say “just doesn't seem like that kind of guy”

R v Starr, [2000] 2 SCR 144 (p 294)

“Trial judge told the jury that the phrase 'reasonable doubt' had no special connotation and did not
require proof of an absolute certainty. The Supreme Court held this was an error”

Actus Reus
Traditionally, this is where a criminal law course begins. Idea that there are two parts: actus reus and
mens rea – the act is not wrong unless the mind is wrong too.

What is included in valid definition of criminal wrong doing?

- some form of prohibited conduct=actus reus
(1) physically voluntary (2) act or omission (3) sometimes in certain prescribed circumstances (4)
sometimes causing certain consequences (p 301)

Contemporaneity (p 302)
relationshipbetween mens rea and actus reus – must coincide
Fowler v Padget, 1798: “It is a principle of natural justice, and of our law, that actus non facit reum
nisi mens sit rea. The intent and the act must concur to constitute the crime.”
-overly strict interpretation of this doctrine could lead to absurdity, so interpretation tends to be
flexible.

Fagan v. Commissioner of Metropolitan Police (1969 England Court of Appeal) (p. 302)
Facts: F got pulled over; policeman asked him to pull up closer to the curb than he had. F accidentally drove
onto the officer’s foot and then refused to get off for a while, turning off the car – finally turned the car back on
and got off the cop’s foot.
Issue: Did the prosecutor prove the facts which in law amount to an assault? Holding: Yes, with dissent.
Reasoning:
Majority (James J.):
 The problem:
◦ The initial mounting of the foot cannot be an assault, because it was an accident  no mens rea
◦ The subsequent harmful intent is not accompanied by any harmful action by F  no actus reus
◦ So the actus reus and the mens rea at no point coincide in time
◦ The actus reus of the offence of assault cannot be constituted by an omission (failing to get off
cop’s foot)  must be a positive action
 Court gets around this by saying that it is not necessary that mens rea should be present at the
inception of the actus reus  it can be superimposed upon an existing act
◦ i.e. the act of driving onto the officer’s foot was continuing, and F developed the requisite mens rea
while it was continuing
◦ However, the subsequent inception of mens rea cannot convert an act which has been completed
without mens rea into an assault (i.e. cannot accidentally drive onto the officer’s foot and then get
off when he asks you to, and be secretly happy about having done it, and then be charged with a
crime)
Dissent (Bridge J.):
After F drove onto officer’s foot, he did absolutely nothing which could constitute the actus reus of
the crime
Bridge J reluctantly dissents and quashes F’s conviction for assault.
Ratio: Mens rea does not have to be present at the inception of the actus reus; it is sufficient for the requirement
of contemporaneity that mens rea be developed while the actus reus continues.
Notes: IN Fagan the defence claimed no assault was committed. How could he claim that? - lack of
contemporeneity. When he rolled onto the foot, it was not intentional. When he had intent he did not
commit an act, but an omission. S 265(1) on assault doesn't appear to include assault by admission.
Judges get around this with two proposals: “Continuing action” hypothesis or construing omission as
being in violation of a duty to act. - we see the court being concerned about the possibility of a general
duty to act in Miller.

R v Miller, Court of Appeal, England, 1982 (p 305)

Facts: M was squatting. Lit a cigarette and fell asleep. He woke up, saw that his mattress had caught on fire,
and didn’t do anything about it. He just moved to another room and fell back asleep. Charged with arson.
Issue: Were the mens rea and the actus reus sufficiently contemporaneous to satisfy the constitution of the
offence of arson? Holding: Yes.
Reasoning (May L.J.):
 Reconsideration of Fagan:
◦ Justice and good sense required that F not be permitted to escape liability simply because the last
thing that happened in the relevant story was an omission on his part
◦ There was a substantial element of adoption by F, at the later stage, of what he had done before
 ◦ F’s conduct can and should have been looked at as a whole  the whole contained both actus
reus and mens rea which were sufficiently coincident to render F guilty of assault
◦ Do not have to resort to the artificial reasoning of the Fagan court
 An unintentional act followed by an intentional omission to rectify that act or its consequences
can be regarded on the whole as an intentional act
 In this case, M’s failure to extinguish the fire had a substantial element in it of adoption of what he had
unintentionally done earlier (i.e. set the fire)
Ratio: An unintentional act followed by an intentional omission to rectify the act can be an intentional act.
Commentary: Appeal to HoL dismissed. Lord Diplock said that a failure to act can give rise to criminal
liability
S 434 re Arson: damage to property by every person who intentionally OR RECKLESSLY causes
damage by fire.
Again the two theories of continuing act vs duty to act are discussed – court sees him as having a duty
to act based on the fact that he had started the fire, even though it was unintentional. Court prefers duty
to act analysis by says it doesn't matter because the result is the same.
Q: how to reconcile language of recklessness and mens rea? -> will discuss this at length later in the
course

Duty theory vs continuous act theory

R v Cooper [1993] 1 SCR 146 (p 307)
Facts: C was highly intoxicated; got angry with his girlfriend, grabbed her by the throat and shook her. Blacked
out and strangled her to death.
Issue: Did the culpable state of mind sufficiently coincide with the culpable act to constitute the crime of
murder? Holding: Yes, with dissent.
Reasoning:
Majority (Cory J.):
 Not always necessary for the guilty act and the intent to be completely concurrent (ex. Fagan)
 Agreement with James J. in Fagan that an act (actus reus) which may be innocent or no more than
careless at first can become criminal at a later stage when the accused acquires knowledge of the nature
of the act and still refuses to change his course of action
 C was aware, before he blacked out, of the strangulation. He simultaneously intended to do her bodily
harm, and knew it was likely to cause her death.
◦ It is sufficient that the intent and the act of strangulation coincided at some point
◦ Not necessary that the requisite intent continue throughout the entire two minutes required to cause
the death of the victim
Dissent (Lamer C.J.): The intention to cause bodily harm by no means leads to the conclusion that the accused
knew that the bodily harm was likely to cause death  this aspect is essential to the finding of guilt of murder
(would be enough for manslaughter, though)
Ratio: It is not necessary that the mens rea continue throughout the entire actus reus.

S 229 CCC, Murder: must intend death, or intend bodily harm and be reckless about death.
R v Cooper he passed out during strangulation. Ct says he need not be aware of what he was doing at
the moment she actually died, just during the time he was causing the bodily harm which he knew was
likely to cause death.
Dissent: have to sure that he had awareness of likelihood to cause death while conscious.
Q: How subjective is the requirement of “knows”. -> jury has to decide this. Did he know, despite him
saying he didn't?

R v Williams, [2003] 2 SCR 134 (p 309)

 HIV status – see R v Mabior?
Facts: He learned that he was HIV+ while he was in a relationship and did not disclose to his partner.
He also did not start using condoms.
S 265(2) definition of assault applies to all assaults, including sexual assault – applying force without
consent [265(3)].
Could say William's partner was consenting to the sex. Case law [R v Ceurrier] has interpreted fraud
as including failure to disclose information that creates a significant risk of serious bodily harm [we
will discuss this more in Mabior]
But in this case, he was charged with AGGRAVATED sexual assault, which as a higher punishment,
for endangering the life of another during a sexual assault. (she contracted HIV).
The difficulty was that she may have contracted HIV before he became aware, and they couldn't show
that by having unprotected sex while she was already HIV+ would have endangered her life [he was
still guilty of sexual assault, just not aggravated]
Note: notice reversal of burden of proof in absence of knowledge, benefit of the doubt has to go to the
accused
Note also: s 9 forbids new common law offence, but courts have interpreted fraud in a way that creates
a new offense?
Williams – learned that he was HIV+ while in a relationship. He did not disclose nor did he start using
condoms.
S 265(2) – this applies to all assault inc. Sexual assault
s 265(3) – force w/o consent, fraud
Could say William's partner was consenting
Case law: has interpreted fraud as including a failure to disclose something that creates a risk of
serious bodily harm.
◦What this is is a bit of an open question “serious”-judicial interpretation
Point of Williams was not about consent – this is Cuerrier. Point of Williams is that he was charged with
AGGRAVVATED sexual assault
has a higher punishments endangering life during sexual assault difficulty: she may have contracted
HIV before he became aware, may have happened before
can't show that by having unprotected sex when she was already HIV+ would have endangered her
life [he was still guilty of sexual assault, just maybe not aggravated]
note about reversal of burden of proof: in absence of knowledge, benefit of doubt has to go to the
accused

Thornton: duty at common law doesn't have to come from criminal cases, could come from civil. 1457,
for eg

VOLUNTARINESS
different from mens rea, which requires intent for the result of the actions. Voluntariness has to do with
moving one's body of own free will.
Oliver Wendall Holmes quote (p 311)
R v Larsonneur, England CofA, 1933 (p 311)
Now seen as a case that improperly ignored the voluntariness aspect.
Facts: A French citizen who was in England, was told she had to leave England, went to Ireland, was
deported from Ireland back to England (in England against her will), arrested in England for violating
the removal order.
Most of the time, the actus reus will be in the crim code provisions.
Notion of “duties” appears to be interpreted quite broadly – troubling from perspective of there should
be no common law offences.

Kilbride v Lake, 1962, New Zealand Supreme Court (p 312)

A man parked his car and went inside. When he came back out he had a ticket for not having a
“'warrant of fitness” displayed. He claimed that it had been displayed when he parked his car, and that
he didn't know how or why it had disappeared, but it had done so between when he last saw the car
and when he got the ticket. He claimed there was no mens rea. The prosecution said this was an
offense that didn't need mens rea.

Court said, this isn't about mens rea at all, but voluntariness. “He must be shown to be responsible for
the physical ingredient of the crime or offence” (p 313)
“It is a cardinal principle that, altogether apart from the mental element of intention or knowledge of
the circumstances, a person cannot be made criminally responsible for an act or omission unless it was
done or omitted in circumstances where there was some other courses open to him. IF this condition is
absent, any act or omission must be involuntary, or unconscious, or unrelated to the forbidden event in
any causal sense regarded by the law as involving responsibility” (p 314)
Found that the actus reus had not been proved.

R v King, [1962] SCR 746 (p 315)

Impaired driving – dentist drugs. Claimed he didn't hear the nurse tell him not to drive. No
voluntariness.

R. v. Ruzic (2001 SCC, LeBel J.) (p 315)

Criminal responsibility should only be ascribed to acts that result from the choice of a conscious mind
and an autonomous will; should attach only to people who knew what they were doing and willed it
The element of voluntariness overlaps both with actus reus and mens rea
It is a basic principle that absence of volition in respect of the act involved is always a defence to a
crime
Principle of voluntariness has constitutional status – it would infringe s. 7 of the Charter to
convict an accused who was not acting voluntarily  a fundamental aspect of the actus reus
would be absent
The treatment of criminal offenders as rational, autonomous and choosing agents is a fundamental
organizing principle of our criminal law
Cannot punish a person whose actions were involuntary in the physical OR the mental sense (i.e.
if the accused did not have any realistic choice)

ACTION, OMISSIONS, AND STATUS (p 316)

In defining actus reus have to define as precisely as possible the conduct that is prohibited.
Action
Most offences require proof of some positive act. This is the norm. And is no problem, though there is
sometimes a problem in defining the action.
Inaction Omissions
criminal law had deep discomfort to criminalize omissions. The starting point is that this is not ok. But
there have been some exceptions. In general, the idea is the law will only find someone criminally
liable for an omission when that person was subject to a legal duty to act.

Criminal Code has a few “specific omission offences”

S 50 everyone commits an offence who....(b) knowing that a person is about to commit high
treason does not, with all reasonable dispatch, inform a justice of the peace or other peace
officer thereof or make other reasonable efforts to prevent that person from committing
high treason or treason.
S 129 omitting to assist a public officer in the execution of his duty
S 252(1) hit and run
duty to report treason, duty to assist a peace officer attempting to arrest a person, and duty to stop you
vehicle, identify yourself and render assistance after an accident.

There are also “General omission offenses”

S 180  (1) Every one who commits a common nuisance and thereby
 (a) endangers the lives, safety or health of the public, or
 (b) causes physical injury to any person,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding two
years.
(2) For the purposes of this section, every one commits a common nuisance who does an
unlawful act or fails to discharge a legal duty and thereby
 (a) endangers the lives, safety, health, property or comfort of the public; or
 (b) obstructs the public in the exercise or enjoyment of any right that is common to
all the subjects of Her Majesty in Canada.
219  (1) Every one is criminally negligent who
 (a) in doing anything, or
 (b) in omitting to do anything that it is his duty to do,
shows wanton or reckless disregard for the lives or safety of other persons.
 Definition of “duty”
(2) For the purposes of this section, “duty” means a duty imposed by law.
This definition of negligence applies to crimi negl causing death or bodily harm (s 220 and
221)
Federally legislated duties: s 215, 216, 217, 217.1 = provide necessaries of life to children and
dependents, only perform surgery if you are doctor and have the skills, prevent bodily harm

215 (1) Every one is under a legal duty

 (a) as a parent, foster parent, guardian or head of a family, to provide necessaries of
life for a child under the age of sixteen years;
 (b) to provide necessaries of life to their spouse or common-law partner; and
 (c) to provide necessaries of life to a person under his charge if that person
 (i) is unable, by reason of detention, age, illness, mental disorder or other
cause, to withdraw himself from that charge, and
 (ii) is unable to provide himself with necessaries of life.
216 Every one who undertakes to administer surgical or medical treatment to another person or
to do any other lawful act that may endanger the life of another person is, except in cases of
 necessity, under a legal duty to have and to use reasonable knowledge, skill and care in so
doing.
217 Every one who undertakes to do an act is under a legal duty to do it if an omission to do the
act is or may be dangerous to life.
217.1 Every one who undertakes, or has the authority, to direct how another person does work or
performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that
person, or any other person, arising from that work or task.

R v Brown, ONCA (1997) 166 CCC (3d) 183 (p 319)

Facts: Geriner and Browne were drug dealers. They were stopped by police. Greiner (victim)
swallowed a bag of crack to avoid detection. After they were released, she tried to vomit up the back
but failed. A few hours later she was shaking and unresponsive. Browne called a taxi to take her to the
hospital (did not call 911). She was pronounced dead on arrival. TJ said that not calling 911 showed a
“wanton and reckless disregard” for her life, contrary to s 219.1.
Issue: Did he have a duty to take her to the hospital?
Argument: The prosecutor claimed that Browne had made an undertaking as per s 217 to take care of
her, and therefore this duty applied.
Reasons: The duty does not flow from the relationship, but from the undertaking. The consequence of
a guilty finding for criminal negligence is very high, and so the requirement for the undertaking
should also be high – higher than a civil standard, for eg. This is to avoid the problem of “rendering
individuals who breach civil standards of care susceptible to imprisonment”.” The TJ found that the
relationship between the two gave rise to an implicit undertaking. CA says this is wrong. There was no
undertaking, and he did nothing wrong.
Provincial duties may also be included – this creates an interesting division of powers issue.
th
R v Thornton, ONCA (1991), 3 CR (4 ) 381 (p 323)
Facts: T had AIDS, and was aware. Also knew it is transmitted via blood. Donated blood to the Red Cross
knowing he could infect people this way. Charged with committing a common nuisance under s. 180 of the
CCC: “every one commits a common nuisance who does an unlawful act or fails to discharge a legal duty and
thereby a) endangers the lives, safety, health, property, or comfort of the public.”
Issue: Under s. 180 of the CCC, can a legal duty arise from the common law? Holding: Yes.
Reasoning (Galligan J.A.):
 T attacked his first-instance conviction on the basis that although his conduct may be morally
reprehensible, it did not constitute an offence known to the law
 CCC does not make it an offence to knowingly donate contaminated blood – nor does any other
statute  so T is not guilty of any “unlawful act” (i.e. doing it is not prohibited)
◦ Did he then fail to discharge a legal duty? No statute specifically imposes a legal duty to refrain
from donating contaminated blood
 So the issue is this: can a legal duty be one that arises at common law? J. decides yes.
 J. reasons by analogy to the treatment of “duty imposed by law” (in the CCC definition of criminal
negligence), which has been decided to include duties imposed by the common law
◦ While the words “legal duty” are not the same as “duty imposed by law” they mean the same thing
 so therefore, the meaning given to “duty imposed by law” should be given to “legal duty.” So a
legal duty includes one which arises at common law.
 So is there a duty at common law to refrain from donating contaminated blood to a blood bank? Yes.
General duty to refrain from actions that would cause foreseeable harm to others.
 Doesn’t matter that this act didn’t cause any harm because Red Cross caught that it was contaminated
◦ There was a risk it would cause people harm (general public, Red Cross workers) because their
 screening process is not perfect
 T had sufficient knowledge of the possible consequences of his action  had mens rea too
Ratio: An omission to do what one has a legal duty, under the common law, to do, can give rise to criminal
liability.
Commentary (Casebook):
Disagreement with this decision. As a matter of principle, it seems that criminal liability for common
nuisance should be limited to instances where Parliament has created a statutory duty
Only this conclusion is consistent with the abolition of common law crimes and the principle of
legality

Status
Punishes neither an act nor an omission. Punish a state of being rather than what an individual did or
didn't do.
These are rare. Some say that possession offences, bawdy house offences are basically this, but there is
also an argument that there are acts involved. Vagrancy maybe, before it was struck in 1994.
Parliament considered creating an offence of being a member of criminal or terrorist organization, but
instead drafted provisions of “participating” in such groups – see s 83.18, s 467.11

CIRCUMSTANCES (p 333)
Common for something to be required to take place in the context of certain circumstances. Eg
operating motor vehicle while impaired. Abduction in violation of valid custody order – must prove
custody order validity

CONSEQUENCES AND CAUSATION (p 337)

Some offences rely only on act. Others require a specific outcome, such as causing bodily death or
harm.
Usually where an outcome is required, the difficulty is not in interpreting what was meant by whatever
outcome is articulated. Usually the difficulty is in causation. Two elements: factual cause and legal
cause
R v Winning, (1973), 12 CCC (2d) 449 (p 338)
Facts: W applied for credit with Eaton’s and made at least 2 false statement on the application.
Eaton’s did not rely on the application for anything but name and address, which were true on W’s
application. Eaton’s relied on its own investigation to determine whether or not to give credit
Issue Is W guilty of obtaining credit on false pretences? Holding No
Reasons (Gale CJO): The credit was not given in reliance of the false pretences, so it therefore was
not obtained on the false pretences
Ratio: Where a crime requires a result, the result must be caused by the actus reus for liability.

Smithers v the Queen, [1978] 1 SCR 506 (p 339)

Facts: S got in a fight with C after a hockey game.There was some question of provocation, etc. S
kicked C in the stomach when C was down. Within 5 minutes C stopped breathing. Cause of death
was determined to be aspiration of vomit
Issue Did S cause C’s death? Holding Yes. Guilty of manslaughter
Reasons (Dickson J)
 Defence of provocation only available for murder
 S submits trial judge minimized issue of causation in jury instructions
 Manslaughter only requires assault and person dying
  Causation is factual, has nothing to do with intention, foresight or risk
 Crown has the burden to prove causation beyond a reasonable doubt
 There is evidence the kick was at least a cause of death outside the de minimis range  that is
all the Crown is required to establish
 It is no defence to manslaughter that death was not anticipated or death would not ordinarily
result from the act
 Must take the assault victim as you find him  R v Blaue liability for manslaughter where the
victim could have been saved with a blood transfusion but refused it for religious reasons
 Thin skull rule applies in criminal law
Ratio Causation must be more than de minimis. Liability for everything more.
Note: Smithers is black, and was subject to racial insults from C during the game.
Factual question: whether death was caused by the kick
“contributing cause beyond de minimis”
malfunctioning epiglottis?
Stress may not have been caused by the kick
court said:
1. it is the jury's job to decide causation (not TJ's job as trier of law)
2. standard of causation was a 'contributing cause beyond de minimis'
3. notion of thin skull rule applies equally in crim law as in civil law -> ct applied thin skill rule in JW
stabbing case too

R v Cribbin, (1994), 89 CCC (3d) 67 (ONCA) (p 344)

Facts: C severely beat the victim and left him unconscious at the side of the road. The victim drowned
in his own bood. C challenges Smithers causation for constitutionality
Issue Is the de minimis causation too remote to attach criminal liability? Holding No.
Reasons (Arbour JA)
 C claims the Smithers test is so low as to infringe upon s 7 (contrary to fundamental justice)
 Fault element of manslaughter requires objective foreseeability of bodily harm “which is
neither trivial nor transitory, in the context of a dangerous act, such that the most trivial
assault, not dangerous in itself and not likely to cause injury would not give rise to a
conviction for manslaughter if it did somehow cause death (R v Creighton)
 C’s argument
◦ Causation involves moral judgement as to blameworthiness, fundamental justice requires
that the rule triggering criminal responsibility be commensurate with the moral
blameworthiness of the conduct that it prohibits  de minimis is too remote to attach
criminal liability
◦ Definition is too vague
 Vagueness can be dismissed  standard of precision is to “provides guidance to legal debate”,
this does
 Is the deminis test too remote? Actus reus is the same for manslaughter and murder 
difference is the degree of fault: subjective foresight for murder, objective foreseeability of
serious bodily harm for manslaughter
 Causation is a principle of fundamental justice like mens rea  morally innocent shouldn’t be
punished
 causation rarely an issue for murder, comes up more often in manslaughter
 Fault element articulated in Creighton removes any danger that de minimis is so broad as to
 punish the morally innocent
 Causation and fault element must be proven by Crown beyond a reasonable doubt
Ratio Smithers test accords with fundamental justice.
Manslaughter case – can get 25 years- life in prison for this conviction
He argues that Smithers test violates s 7 of charter
filed. Why? Centres around moral responsibility. If intention to cause harm + causation is there,
fundamental principles are satisfied
Is there a higher standard of causation for murder?

Intervening acts:
Pagett v The Queen (1983), 76 Cr App R 279 (p 349)
Facts: P shot at police officers. Used a woman as a human shield. Cops killed the woman shooting
back at P
Issue Did P cause the woman’s death? Holding Yes.
Reasons (Lord Goff)
 P didn't have to fire the shot himself, causation could be established using regular tests
 Novus actus interveniens must be voluntary – “Free, deliberate and informed”
 Don’t count as novus actus
◦ Reasonable act performed for the purpose of self preservation is not a novus actus Int (i.e.
police officers shooting to save themselves)
◦ Attempt to escape the consequences of the accused act
◦ Maybe: act done in the execution of a legal duty
Ratio Act must be voluntary to break the chain of causation
Human shield. Tries to claim he didn't cause woman's death, police officer did. Police were acting for
self defence, therefore their act could be attributed to him. Legal duty can't be an intervening act
when does an intervening act so overwhelm the chain of causation? Reid v Stratton has egs.
R v SR(J), )2008), 237 CCC (3d) 305 (ONCA)(p 351)
Facts:SR and B were in a gun fight on Yonge Street. B shot at SR and missed him, hit Jane Creba who
died
Issue Did SR cause JC’s death? Holding Yes.
Reasons
 In a car race where a bystander is hit and killed, both drivers are liable for the death – “there is
one danger. Each driver bears equal responsibility for its continued life span subject to
withdrawal or an intervening event” (R v Menzes)
◦ Caveat: if one party withdraws and the other is aware and doesn’t slow down, not liability
for the withdrawing party
 each shooter induced the other to engage in a gun fight on a crowded street. “but for” the
decision to engage in a gun fight on a crowded street and the resulting exchange of bullets, Ms
Creba would not have been killed
Ratio Liability for everyone involved in the faulty event that caused death.

R v Blaue, 1975. England CA (p 351)

D stabbed a women with a knife, penetrating her lung. She refused to have a blood transfusion at
hospital and died. She would not have died with the transfusion. D charged with murder. Judge told
jury “they might think that they had little option but to find that the stab wounds were still an
operative or substantial cause of death”. D convicted of manslaughter. Appealed, appeal dismissed.
Reasons: Must take victims as you find them, including religions beliefs that make them more
vulnerable.

R v Reid & Stratton, (2003), 180 CCC (3d) 151 (NSCA (p 352)
Facts: Everyone was drunk. R & S got in a fight with M. S put M in a sleeper hold and R kicked him.
M went unconscious. The kids immediately began an attempt at resuscitation. M was pronounced
dead on arrival. Cause of death was aspiration of stomach contents induced by resuscitation
Issue Does the resuscitation break the chain of causation? Holding Yes.
Reasons (Saunders JA)
 Trial judge was not clear enough when instructing jury on intervening events
The resuscitation broke the chain of causation
Different from subsequent surgical intervention causing death (usually won’t break the
chain) – rescue attempt was by young bystanders who were drunk
Sleeper hold likely didn’t kill M, had they left him he would probably have come to
Judge should give jury examples of intervening acts (beaten unconscious in building,
earthquake causes building to collapse resulting in death)
better instructions would have been:
oWas the act a significant contributing cause of death
oWere there any intervening causes resulting in the death? Are you satisfied beyond
a reasonable doubt that the actions are so connected to the death that they can be said
to have had a significant causal effect which continued up to the time of death,
without having been interrupted by some other act or event?
Ratio Judge must be clear on intervening act. Actus reus must continue to have causal effect until
death.

R v Harbottle [1993] 3 SCR 306 (p 358)

Facts: H and R forcibly confined EB and brutally sexually assaulted her. H restrained her while R
strangled her. H charged with first degree murder pursuant to s 214(5) – automatic first degree murder
when committed during sexual assault or forcible confinement
Issue Did H cause EB’s death? Holding Yes.
Reasons (Cory J)
 First, there was ample evidence upon which the jury could have found the murder was planned
and premeditated by H and R
 however, if the charge re forcible confinement was incorrect, there must be a new trial
 must determine meaning of the words “when death is caused by that person” as per s 214(5)
[now s 231(5)]
 Wording of the section is broad enough to include both perpetrators and those who assist in the
murder and come within the purview of substantial cause test
 Impossible to distinguish between the two in blameworthiness
 Good to keep in mind the purpose of the offence: primarily for sentencing. Highest moral
blameworthiness possible
 He suggests a restrictive substantial cause test be applied to s 230(5).
◦ Test takes into account: consequences of a conviction, present wording of the section, aim
to protect society from the most heinous murders
 ◦ Accused may be convicted if Crown establishes accused’s act was a “substantial and
integral cause of the death”
◦ Accused must play a very active role: “essential, substantial and integral part”
◦ Higher than Smithers
◦ Accused can be the substantial cause of death without physically causing it
 Therefore, the t Test for causation under 214(5) [230(5)] is:
oAccused guilty of underlying crime of domination
oAccused was guilty of the murder of the victim
oParticipated in the murder such that he was the substantial cause
oNo intervening act
oCrimes of domination and murder were part of the same transaction
Ratio Liability for those who did not physically kill but still “substantially caused” the death. (appeal
dismissed)
“substantial and integral cause of death”
higher threshhold of legal causation (p 363)
seems to apply to first degree murer only
question of causation is a bit of ablack box
standard for causation remains smithers standard
R v Nette [2001] 3 SCR 488 (p 363)
Facts: L was robbed and hog tied. Some time in the next 2 days before she was found, she fell from
her bed to the floor and died, N was seen robbing the house during the time, charged with first degree
murder per 231(5) – murder while unlawfully confining
Issue What is the standard of causation?
Holding Smithers test. Can be reformulated as “substantial cause”
Reasons (Arbour J)
 Standard of causation expresses whether the fault is sufficient to base criminal responsibility
 Civil causation is of limited assistance
 Difference between first and second degree is essentially a sentencing distinction
 “Substantial cause” is particular to the language found in 231(5), as found in Harbottle –
establishes level of increased participation before accused can be convicted of first degree
murder
 Only one standard of causation for manslaughter or murder (all homicide offences)
 Need to distinguish between causation and the words used to explain it
 Smithers test is still applicable to all forms of homicide
 “Not insignificant” can be rephrased as “significant contributing cause”
 Important to afford trial judge flexibility when describing test for causation
 Cause must be more than de minimis, “more than a trivial cause”
 L’Heureux-Dubé in dissent held that “significant cause” is a higher standard than “not
insignificant cause”
Ratio Confirms Smithers, but says it is possible to rephrase “not insignificant cause” as “significant
cause.”

Smithers: contributing cause beyond de minimus

Nette CofA: tries to get rid of the latin. “contributing cause not trivial or insignificant”
majority in nette: double negatives are confusing.. “significant contributing cause”
minority in nette: disagress that these are equal. Says majority's standard is a higher standard.
Nette: (1) refines smithers test (2) says whether smithers standard applies in Murder 1 and Murder 2

R v Mabior (excerpt)

R v Maybin (excerpt)
Bar fight. Bouncer intervenes. Can Maybin be held responsible?
Two competing ways to get there: Reasonably foreseeable that bouncer would intervene. If RF, can
say Maybin caused it. Would meet Smithers test. “But for” test too broad bc it doesn't allow you to
answer if it was appropriate to attribute causation to accused. Same thing for intervening act, if it
wasn't fully independent, if it was contingent on what Maybin did, it would not be an intervening act.
If he was acting independently, then it would be an intervening act, but if not acting independently,
then Maybin still responsible.

What does it add? Doesn't change the test, but it adds some meat to the idea of intervening act.

MENS REA
Another element of the offence that must be proven.
May be subjective or objective.
S 433 is eg of subjective: Arson. “intentionally or recklessly” causes a fire.
S 229 (murder) - “means to cause death” or “means to cause harm and is reckless about dealth”
 remember in Cribbons it was said that the mental element here was subjective and HIGHER
than that of manslaughter
 mens ra is objective likelihood of death -> have to intend unlawful act, but NOT the
consequences of death
 point: there isn't ONE mental element that governs the whole thing
Each element of the actus reus may come with its own mental element
sometimes mental element is well described in the offence. EG s 436 arson by negligence, “departure
from what a reasonable person would do” = objective mens rea

R v Buzzanga and Durocher, ONCA 1979 (p 427)

Facts: B&D published an inflammatory pamphlet saying, essentially, that the French minority in Essex County
should be exterminated. They were charged with wilfully promoting hatred against francophones. Ironically,
B&D are francophone; they published the pamphlet in order to stir up the French minority to act to protect
themselves and their culture.
Issue: What does wilfully mean?
Reasoning (Martin J.A.):
 The word wilfully does not have a fixed meaning; but in this case, it means with the intention of
promoting hatred (and does not include recklessness)
 No mental element is expressly mentioned in the section on the wilful promotion of hatred
◦ But mens rea is nonetheless required; the inclusion of an offence in the CCC must be taken to
import mens rea in the absence of a clear intention to dispense with it
◦ The general mens rea which is required (and suffices for most crimes where no mental
 element is mentioned in the definition of the crime), is either the intentional or reckless
bringing about of the result that the law, in creating the offence, seeks to prevent
 But not this crime: the use of the word “wilfully” indicates Parliament’s intent to limit the offence to
the intentional promotion of hatred
 So. Is a consequence intended if it is not desired?
◦ Some hold that a consequence is not intended unless it is desired
▪ Foresight of the certainty of the consequence is not synonymous of the intention to produce it
◦ Others say that it is not important if the actor desired the relevant consequence; they say that it is
whether the actor decided to bring it about (even though it may have been distasteful to him)
▪ The intent to produce a consequence is presumed from foresight of the certain result arising
from one’s conduct
 Generally, a person who foresees that a consequence is (substantially) certain to result from their
act (which they may do in order to achieve some other purpose) intends that consequence
 But not in this case: an intention to create uproar is not the same as an intention to promote hatred – it’s
an error to equate them  need a new trial
Ratio: Wilfully means different things. But generally, someone does something wilfully when they act a
certain way and can foresee that some consequences will certainly arise from that act. Those
consequences were wilfully brought about.
Trial judge: concerned with whether handing out pamphlets was intentional. This was a mistake bc he
didn't look if the spreading of the hate was intentional.
R v Tennant and Naccarato, (1975), 23 CCC (2d) 80 (ONCA)  CB 427
Ratio
“Where liability is imposed on a subjective basis, what a reasonable man ought to have anticipated is
merely evidence from which a conclusion may be drawn that the accused anticipated the same
consequences. On the other hand, where the test is objective, what a reasonable man should have
anticipated constitutes the basis of reality”

First case: Steane

R v Steane [1947] 1 KB 997 (UKCA) (p 429)
Facts: S was a British subject who was trapped in Germany at the start of WWII. The Germans
tortured him and threatened his family so that he would read the news on German radio. S was
charged with “doing acts likely to assist the enemy with intent to assist the enemy”
Issue Did S have the specific intent required? Holding No.
Reasons (Lord Goddard CJ)
 Where a particular intent is part of a crime, the Crown must prove its existence BARD
 Intention comes before any consideration of duress, because duress is a defence
 “It is impossible to say that where an act was done by a person in subjection to the power of
others, especially if that other be a brutal enemy, an inference that he intended the natural
consequences of his act must be drawn merely from the fact he did it. The guilty intent cannot
be presumed and must be proved.”
 Where the intent is innocent or circumstances show the act was done in subjection to the
power of the enemy, the presumption is unavailable.
Ratio Specific intent must be proven BARD.
He was under duress. Duress is usually a defence. Here, it is argued that b/c he was threatened he didn't
have the intent. Ct compares this situation to being a prisoner of war = he didn't desire to assist the
enemy.
 Look at the mens rea in the context of the offence and w/ the purpose of the offence.
 rd
Hibbert: knew the victim, called his friend to teh lobby and wached while 3 party shot friend.
 #1 start with language of offense. Purpose of his action: to save himself from harm
 #2: look at purpose of provision. Differences between duress as defence and defence meaning
lack of mens rea: duress as defense means you did the thing, but we forgive you. Duress as no
mens rea=you did not do the thing bbc you did not have the mens rea
 CCC: if it doesn't state what the mens rea is, the ct will interpret a mens rea based on the
purpose of each offence.
Practically: how do you prove a person's intention? This is where common sense inference is. A person
can be understood to have intended the natural consequences of their actions (r v Byzzanga and
Durocher) -> under normal circumstances, where ppl say these things, common sense inference that
they intend the natural consequences of the act. But you don't HAVE to make that finding, you just
CAN.

R v Hibbert SCC 1995 (p 432)

Facts: Victim was H’s friend. H went with the killer to the vic’s apartment building; H called the vic down to
the lobby. The killer then shot the vic. H is claiming duress.
Issue: Can the mens rea for party liability under the CCC be negated by duress?
Holding: Yes, but not in this case.
Reasoning (Lamer C.J.C.):
 Duress provides a defence in one of two ways: 1. As an excuse or 2. By negating mens rea
 A person who carries out the actus reus of an offence in response to a threat of death or bodily harm
will not necessarily lack the mens rea for the criminal act
 Whether they lack the mens rea or possess the mens rea will depend on what the mental element of the
offence in question is, and the particular facts of the case
◦ However, situations where duress operates to negate mens rea will be exceptional because the
types of mental states that are capable of being negated by duress are not often found in the
definitions of criminal offences in the Code
 In general, a person who performs an action in response to a threat will know what they are
doing, and will be aware of the probable consequences of their actions (knowledge standard of
mens rea)
 Whether or not he or she desires the occurrence of the consequences will depends on circumstances
 In s. 21(1)(b), “purpose” does not mean desire; it means intention  the accused does not have to
actively desire the commission of the offence
◦ So this mens rea is not actually susceptible of being negated by duress
 Duress can only negate mens rea when the mental state specified in the offence is such that the
presence of coercion logically can have an effect on its existence
 Under duress, there is also a requirement that there be no alternate safe avenue of escape:
◦ Compliance with the law must be “demonstrably impossible”
◦ Duress can only be invoked if there is no legal way out of the situation of duress
◦ If the accused could have escaped without undue danger, the decision to commit an offence
becomes a voluntary one
◦ Whether a safe avenue of escape exists should be assessed on an objective basis, one that
takes into account the particular circumstances and human frailties of the accused
Ratio: Duress can only “negate” the mens rea of an offence if the mental state required for the offence is
defined in such a way that the presence of coercion can logically affect it.
Hibbert's purpose was to aid and abett, even if his desire was not for his friend to be killed.

R v Théroux [1993] 2 SCR 5 (p 442)

 Facts: T was convicted of fraud for accepting deposits from investors in a building project having told
them that he had purchased deposit insurance when he in fact had not
Issue Did T have the requisite MR for fraud? Holding Yes.
Reasons (McLachlin J)
 AR has a mental element – voluntariness
 Typically, MR is concerned with the consequences of the prohibited act
 MR = with the facts as the accused believed them to be, did he subjectively appreciate the
consequences or their possibility?
 Subjective awareness of the consequences can often be presumed from the act (common sense
inference)
 Prohibited AR in fraud is deceit, falsehood, prohibited consequence is depriving someone of
what is theirs, or putting it at risk
 MR is subjective awareness of deceit that would lead to deprivation or risk
 Test for fraud
◦ AR
▪ Act of deceit or falsehood
▪ Deprivation caused by the deceit, or placing assets at risk
◦ MR
▪ Subjective knowledge of the deceit
▪ Subjective knowledge of possibility of deprivation or risk
Ratio: MR is based on the facts as the accused believed them, must have subjectively appreciated the
AR’s consequences.

R v Sansregret [1985] 1 SCR 570  CB 447

Facts:S physically assaulted his girlfriend and she consented to sex to stop the beatings twice. After
the first time she made a complaint of sexual assault, but dropped the charges at the request of his
parole officer. S is charged with sexual assault, because he was wilfully blind to the fact that her
consent was vitiated by duress
Issue Can S be fixed with knowledge of a defect in consent by his wilful blindness of it?
Holding Yes.
Reasons (McIntyre J)
 Recklessness – aware conduct could bring a prohibited consequence, and persists despite the
risk; “sees the risk and takes the chance”
 Wilful blindness is like recklessness
 Different than Pappajohn, which held that honesty of belief will support mistake of fact even
where that belief is unreasonable
 Wilful blindness will bring a presumption of knowledge
 Arises where a person has become aware of a need for inquiry and does not because he doesn’t
want to know the truth
 Culpability is justified by deliberately failing to inquire when he knows there is a reason to
inquire.
Ratio Wilful blindness will bring a presumption of knowledge.
Court accepts “honest and mistaken belief in consent” She claimed he had no reason to believe she
consented, especially b/c she had previously charged him w/ sexual assault. Ct says he was willfully
blind. Normally: knowledge of absence of consent is one of the elements of the offence.
R v Briscoe 2010 SCC 13 (p 448)
 Facts: Courtepatte, a 13-year-old girl, and a young friend were lured into a car on the false promise of being taken to a
party. Briscoe drove the group (Laboucan and three youths) to a secluded golf course. Laboucan had said earlier in the day
that he would like to find someone to kill and Courtepatte was chosen as the victim. On their arrival, Briscoe opened the
trunk and, at Laboucan's request, handed him some pliers. Briscoe stayed behind at the car as the others went onto the golf
course under the guise of seeking the party. Briscoe rejoined the group around the time that one of the youths hit
Courtepatte from behind with a wrench. For a moment, Briscoe held on to Courtepatte and angrily told her to be quiet or
shut up. Briscoe then stood by and watched as Courtepatte was brutally raped and murdered. All five persons involved
were charged with kidnapping, aggravated assault and first degree murder and the two adults, Briscoe and Laboucan, were
jointly tried by a judge alone. Briscoe was acquitted. The trial judge found that the actus reus for being a party to the
offences was proven, but not the mens rea because Briscoe did not have the requisite knowledge that Laboucan intended to
commit the crimes. The Court of Appeal overturned the acquittals and ordered a new trial, holding that the trial judge erred
in law by failing to consider wilful blindness.
Issues:
What is required to make a finding of willful blindness?
Was the accused party to the sexual assault and murder?
Holding: Appeal Dismissed. Need new trial, as “the evidence cried out for an analysis on wilful blindness” (p. 449)
Reasoning:
Charron J, writing for the court, rejected the argument brought forward by the appellant that willful blindness was but a
heightened form of recklessness. Willful blindness is best understood as "deliberate ignorance" as it connotes "an actual
process of suppression a suspicion". From the statements made to police by Briscoe—e.g. "whatever you guys wanna do
just do it. Don’t do it around me. I don’t want to see nothing…"—it is clear that there was a deliberate suppression of
questioning and a strong suspicion that someone was to be killed.
Ratio:
Willful blindness is an active process of suppressing a suspicion.
Willful blindness substitutes for actual knowledge when knowledge is a required component of the mens rea of the
offence.

R. v. ADH 2013 SCC 28 (MC)

Facts: Woman gave birth unexpectedly in Wal-Mart bathroom. Not knowing what to do, and thinking
the child was dead, she left it in the toilet in the bathroom. Others in the store found the child, it wasn't
dead.
Charged under s 218 of criminal code – child abandonment. “The provision prohibits abandoning or
exposing a child under the age of 10 years so that the child’s life is (or is likely to be) endangered, or
its health is (or is likely to be) permanently injured.”
Issue: is the mental element subjective or objective? [subjective]
Reasons: the text of the offence does not expressly set out obvious fault element. There is a
presumption that the legislature intended subjective fault. The words in the text, “abandon, wilfull,
expose” suggest subjective fault. Usually if it is objective fault the text says so. Here it does not.
Rothstein and Moldaver dissenting:

Objective Standards of Fault

R v Tutton and Tutton, [1989] 1 SCR 1392 (p450)
Facts: Accused are parents who believe in faith healing and didn’t bring their child to the hospital
Issue Are T+T guilty of criminal negligence causing death even though they were not subjectively
aware of their negligence?
Holding the appeal was decided on different grounds, and the court was split on this matter
Reasons (McIntyre J with LHD)
Criminal negligence implies an objective standard, considering the accused’s actions, not his mental
state. This is justified because criminal negligence is a “different” sort of crime and doesn’t need the
same subjective mens rea.
 There is no difference between omissions and commissions. Punishment for mindless action, not state
of mind. Actions that are wanton or reckless are negligent
Test: proof of conduct “which reveals a marked and significant departure from the standard which
could be expected of a reasonably prudent person in the circumstances”

Lamer J (Concurring)  a “generous allowance” must be made for the accused’s particular factors:
youth, mental development, education [note: insertion of subjectivity?]
Wilson J (dissenting with Dickson and La Forest)  Crown must prove subjective awareness of the
risk or departure
Ratio (split)Criminal negligence test is proof of “marked and significant departure from the standard
which could be expected of a reasonably prudent person in the circumstances” (3 of the judges, 3 said
subjective)
Question: the judges were split – what is the take-away here?

R v Waite [1989] 1 SCR 1436 (p 454)

Accused was driving at high speeds and killed four people on the side of a highway taking part in a
church hay ride. Jury instructions re dangerous driving vs criminal negligence. Judge said crim negl
had a subjective element. SCC said no, as they explained in Tutton, it was objective. Even Wilson
agreed, saying “Although I believe there is a subjective element. . .[it is not as high as the TJ
suggested]. the mental element in criminal negligence is the minimal intent of awareness of the
prohibited risk or wilful blindness to the result”

R v Gingrich and MacLean, (1991), 65 CCC (3d) 188 (455)

Facts G+M were convicted of criminal negligence [s 219] in operating a motor vehicle when a truck’s
breaks failed and caused a fatal accident. G was the driver and M was the owner.
Issue Is the standard objective for criminal negligence? [yes]
Reasons (Finlayson JA)
 MR for criminal negligence in operating a motor vehicle is objective
 “the crime is negligence, there is no need to import subjective test”
Ratio: Objective test for MR in criminal negligence
Note: this seems really contested….
Now a word on dangerous driving causing death vs crim negl
R v Hundal [1993] 1 SCR 867 (p 456)
Facts: H drove a dumptruck through an intersection and hit a car, because he thought he couldn’t stop
in time and would hit another car. He was charged with dangerous driving causing death. [s 249]
Issue Is H guilty because he violated the objective standard? [yes]
Reasons (Cory J)
 To insist on a subjective MR for driving offences would deny reality: driving decisions are
automatic and with little conscious thought
 Objective test should be applied in the context of the events surrounding the incident (not in
a vacuum)
 Personal factors need not be taken into account, and are not taken into account by the
licensing requirement
LaForest: adds that he agrees with this result because the offence is different than crim negl. He still
thinks crim negl should have subjective test
Ratio: MR for driving offences is objective. Still not sure if SCC has endorsed objective standard for
 criminal negligence.

Another offence with an objective test? Manslaughter

R v Creighton [1993] 3 SCR 3 (p 457)
Issue Is the MR for manslaughter objective? [yes]
Reasons (Lamer CJC)
 There must be some special mental element for homicide to be treated as murder
 PFJ require some (limited number) of offences to have a subjective MR because of their stigma
 Stigma for manslaughter is less than murder
 De Sousa on unlawfully causing bodily harm – MR based on objective foreseeability of risk of
bodily harm, combined with MR of the predicate unlawful act, satisfies s 7
 Unlawful act manslaughter falls into the category of offences that requires a mental element, but
it’s ok for the mental element to be objective foresight of death
 If the accused can be held to the reasonable person standard, he should be
 C had more knowledge than the average person about the situation, so the reasonable person in
his case should be fixed with that knowledge
Concurrence (McLachlin J)
 Common law offence of manslaughter is not unconstitutional
 Standard should be the reasonable person in all cases, and it should not be altered like the
Chief Justice would for C-taking account of his special knowledge of drugs
 Most important feature of manslaughter stigma is that it isn’t murder stigma
 When combined with the thin skull rule, the objective foreseeability of death becomes the
objective foreseeability of bodily harm because the only difference is a victim who reacted
badly to the bodily harm
 Accused must be capable of appreciating the risk if he put his mind to it
Ratio: MR for unlawful act manslaughter = objective foreseeability of bodily harm which is neither
trivial nor transitory
LaForest – says he has problems with objective foreseeability, but is persuaded by McL.
 Of course you can look at what a person did, these will be considerd “contextual factors”.
Illiteracy could be a contextual factor, for eg.

R v Beatty, [2008] 1 SCR 49 (p471)

Facts: B suffered a split second lapse in consciousness which caused his car to swerve and kill people
in the oncoming car. There was no other element of negligence
Issue Is B guilty of dangerous driving causing death (s 249(4)) for this moment of negligence? [no]
Reasons (Charron J)
 Penal negligence is aimed at punishing blameworthy conduct
 Modified objective test is appropriate for establishing penal negligence
◦ Marked departure
◦ Reasonable person in the position of the accused must be aware of the risks arising from
conduct
 Short of incapacity, personal traits are not relevant, but the reasonable person must be in the
context of the accused
 Dangerous driving is concerned with the manner of driving, not the consequence
 Proof of subjective MR helps, but is not essential
 A momentary lapse of attention is not a “marked departure” from the reasonable person
standard.
Ratio: The test for penal negligence is “marked departure” from the reasonable person standard,
contextualized to the case.
 Court has sympathy when the road curves and hte person doesn't. Trying to get around the
problem of : what if you had a heart attack while driving? And then had to go to prison??
 Crim nelg has to entail some sort of moral blameworthiness

R. v. Roy 2012 SCC 26 (my courses)

Facts: Accused and friend were driving a motor home from a saw mill to a highway. Driving on a
back road. Poor visibility from road onto highway – complicated by fog. Tractor trailer travelling on
highway collided with them, killed friend/passenger of the accused. Charged with dangerous driving
causing death (s 249)
Issue: Did the trial judge apply the correct standard of fault?
Reasons: Dangerous driving causing death. Two parts: conduct – operating vehicle in a manner
causing death, and fault – marked departure from reasonable standard of care
Trial judge made an error because he inferred from the fact that the appellant had committed a
dangerous act that he had violated a reasonable standard of care.
Importance of fault: this is a serious criminal offence. Must have fault. Must be “marked” departure
from reasonableness, not just a simple departure (matter of degree)
Mental state matters – part of PFJ
Actus Reus: must have a meaningful inquiry into the manner of the driving – was it dangerous?
Mens Rea: Modified objective standard. =reasonable person placed in the accused’s circumstances.
In this case, the driving was not unreasonable – the conditions were bad, anyone else could have made
the same mistake.
- Beatty's reasonable person affirmed

ABSOLUTE AND STRICT LIABILITY

 Did the people who owned Pierce Fishery do anything wrong? Not deliberately. They weren't
deliberately ordering undersized lobsters (as far as we know).
 Ritchie J upholds conviction – cites famous cmn law case
Beaver v The Queen [1975] SCR 531 (p 378)
Facts: Beaver was charged on two counts under the Opium and Narcotic Drug Act: for having a drug in his
possession, and for selling what either was/was represented to be a drug (both have a mandatory prison
sentence). Beaver said he thought the heroin he sold the undercover cop (as heroin) was icing sugar.
Issue: Is Beaver’s lack of knowledge relevant? Holding: Only for the possession charge, with dissent.
Reasons (Cartwright J)
 There is little similarity between a statute forbidding unsound meat and one making possession
and trafficking crimes
 Absolute liability only where Parliament expressly provides for it
 Conviction for possession quashed
 B still ‘held out the drug’ as heroin to the undercover cop, which counts as the MR for
trafficking, so that conviction is affirmed
Fauteux J. for the dissent:
 The object of the Act is to prevent the harm caused to society by an uncontrolled traffic in drugs, by
rigidly controlling possession of drugs
 On the plain, literal, and grammatical meaning of the words of the statute, there is an absolute
prohibition to be in possession of drugs, whether you know they are drugs or not
◦ It’s severe, but it is manifestly the intent of Parliament
 ◦ The enforcement of the Act’s provisions may in exceptional cases lead to injustice
Ratio: Absolute liability only where expressly stated in the legislation (NB pre-Charter)
 Trafficking and possession
 he claimed that he thought it was lactose, not herion. convicted of trafficking, not possession
 Under the provision: 4(1)(f) -> if someone is trying to sell any substance as a drug (whether it is
a drug or not)
R v Pierce Fisheries Ltd [1971] SCR 5 (p 384)
Facts: Accused brought in 50-60,000 lbs. of lobster; had 26 undersized lobsters in the whole lot. Did not know
they had them. Was acquitted on the charge of fishing undersized lobster. Appeal.
Issue: Is the accused liable for violating the regulation? Holding: Yes, with dissent.
Reasoning:
Ritchie J. for the majority:
This regulation should be understood in accordance with its language – no need for mens rea
Accused had undersized lobster; accused is guilty.
Cartwright C.J. for the dissent:
There can be no possession without knowledge of the character of the forbidden substance
The accused had no knowledge, factually or inferentially, that any of the lobsters were undersize
This leads to a finding of not guilty
Ratio: Not all offences require mens rea.
- distinguished from Beaver because no stigma associated with violation of regulation (unlike criminal
charge or possession of narcotic charge)
- fishers didn't even know they had the fish – this doesn't seem fair.
- aim is deterrence (effective?)
R v Wholesale Travel Group Inc [1991]3 SCR 154 (p 385)
Facts: The accused corporation was charged with false advertising under the Competition Act. It is a strict liability offence
– accused can exonerate themselves with proof of due diligence on a balance of probabilities.
Issue: Does the offence violate s. 7 or s. 11(d) of the Charter?
Holding: No, with dissent.
Reasoning:
Lamer C.J for the majority on s. 7: no violation
The accused argued that a conviction for false advertising creates enough stigma (of dishonesty) that it requires a
mens rea component in order to be proportional
Vaillancourt: the principles of fundamental justice dictate that negligence is the minimum fault requirement where an
accused faces possible imprisonment upon conviction (except for certain offences such as murder – higher fault
requirement)
o The standard here is negligence
Cory J. for the majority on s. 11(d): no violation
There are reasons for ascribing a different content to the presumption of innocence in a regulatory context
o If the Crown were required to disprove due diligence beyond a reasonable doubt, it would be impossible to
convict for regulatory offences – lack of enforcement
o This would prevent the government from implementing public policy through regulation
o Only accused will be in a position to bring forward evidence relevant to the question of due diligence
No violation of s. 11(d)
Lamer C.J. for the dissent on s. 11(d): yes violation
Because the accused needs to prove due diligence on a balance of probabilities in order to exonerate themselves, a
court that is not convinced on a balance of probabilities must convict
But it is possible a court may not be convinced on a balance of probabilities that the accused was duly diligent but still
has a reasonable doubt as to whether the accused was actually negligent
o This court has to convict despite a reasonable doubt as to the guilt of the accused
 o This violates the presumption of innocence
Cannot be saved under s. 1
Ratio: Minimum fault requirement for penalty of imprisonment is negligence; in strict liability offences, negligence is the
standard. Accused bears burden of having to prove his due diligence in order to exonerate himself

 The essential distinction between regulatory offences and true criminal offences is the removal of the
requirement of mens rea from the former
◦ Acts/actions are criminal when they constitute conduct that is, in itself, abhorrent to the values of
human society (so it must be prohibited)
▪ Directed to punishing past harm; is value-oriented
◦ Some conduct is prohibited not because it is inherently wrongful, but because it is in the
public interest to regulate the activity in this way
▪ Directed to preventing future harm; is results-oriented
▪ Not the same degree of moral blameworthiness as true crimes
▪ Regulatory legislation is the primary means used by the government to implement public
policy – regulation is essential for our protection and wellbeing as individuals and as a society
 Sault Ste. Marie not only affirmed the distinction between regulatory and criminal offences, but it
subdivided regulatory offences into categories of strict and absolute liability: recognized strict
liability as a middle ground between full mens rea and absolute liability
◦ Where the offence is one of strict liability, the Crown doesn’t have to prove either mens rea or
negligence – only have to prove beyond a reasonable doubt commission of the prohibited act
◦ However, it is open to the defendant to avoid liability by proving on a balance of probabilities that
all due care was taken
◦ The hallmark of the strict liability offence is the defence of due diligence available to accused
Decent amount of jurisprudence out there on what counts as a “regulatory” offence -> generally = less
moral blameworthiness

Introduction of strict liability offences:

 open question whether PFJ is triggered by something short of imprisonment, but there can be no
strict/absolute liability + detention
R v City of Sault Ste Marie [1978] 2 SCR 1299 (p 388)
Facts: City was charged with illegal dumping in a river.
Issue: Is the offence strict liability or absolute liability? Holding: Strict.
Reasoning (Dickson J.):
 There has been a tendency in past cases to see only two kinds of offences: full mens rea or absolute
liability
◦ It is time for the courts to seek a middle position which still fulfils the goals of public welfare
offences without punishing the entirely blameless
◦ This middle position is an offence which does not require full mens rea; but the accused can
exonerate himself by proving he was not negligent
◦ In this middle-position offence, the prosecution does not have to prove mens rea (almost
impossible in regulatory offences), only actus reus (beyond a reasonable doubt); the accused has to
come forward with proof (on a balance of probabilities) of due diligence
 There are three categories of offences now:
◦ 1. True Criminal Offences (full mens rea): in order to obtain conviction, prosecution must prove
beyond a reasonable doubt that the accused committed the culpable act AND that the accused
possessed some positive blameworthy state of mind such as intent, knowledge, or recklessness.
◦ 2. Strict Liability: no necessity for the prosecution to prove mens rea. They have to prove actus
reus, beyond a reasonable doubt.
▪ It is open to the accused to avoid liability by proving that he took all reasonable care – that he
 exercised due diligence
▪ This involves consideration of what a reasonable man would have done in the circumstances
◦ 3. Absolute Liability: The prosecution has to prove actus reus beyond a reasonable doubt. It is not
open to the accused to exculpate himself by showing that he was free of fault.
 Offences of absolute liability are those for which the Legislature has made clear that guilt follow proof
of the proscribed act alone
◦ The overall regulatory pattern, the subject matter of the legislation, the importance of the penalty,
and the precision of the language used will all be primary considerations in determining
whether the offence falls into the absolute-liability category
Ratio: There now exists a third type of offence – strict liability.

Reference Re Section 94(2) of the BC Motor Vehicle Act [1985] 2 SCR 486 (p 395)
Facts: s. 94(2) of the BC Motor Vehicle Act creates an absolute liability offence – if a person is driving with a
suspended license, they are liable to a minimum prison sentence of 7 days, regardless of whether or not they
knew their license was suspended.
Issue: Is this legislation constitutional? Holding: No.
Reasoning (Lamer J.):
 A law that has the potential to convict a person who hasn’t done anything wrong offends the principles
of fundamental justice
◦ If imprisonment as available as a penalty, the law violates the person’s s. 7 rights
 Absolute liability and imprisonment cannot be combined – even if the imprisonment is only
possible and not mandatory  is still a violation of s. 7.
◦ N.B. even probation (without imprisonment) would violate s. 7
Ratio: An absolute liability offence cannot give rise to a possible prison sentence because it would thereby
violate s. 7 of the Charter.
 What is the difference between regulating and punishing?
 BC Motor Vehicle Act Ref: absolute offence.
 One of the most famous SCC cases. Most famous bc of Charter s 7 analysis
 psychological stress can invoke security of the person
R v 1260448 Ontario Inc (cob William Cameron Trucking); R v Transport Robert (1973) Ltée (2003)
180 CCC (3d) 254 (ONCA) (p 401)
Facts: s. 84.1(1) of Ontario’s Highway Traffic Act provides that an owner and operator of a commercial vehicle
are guilty of an offence when a wheel comes detached from the motor vehicle while it is on the highway;
provides that due diligence is not a defence; imposes a fine as a penalty.
Issue: Can the legislature create an absolute liability offence that imposes a high fine on the convicted? [yes]
Reasoning (The Court):
 The accused argue that this provision violates s. 7 (security of the person) and s. 11(d) (presumption of
innocence).
 It does not violate s. 11(d): this section of the Charter only prohibits the reversal of the burden of proof
of a fact that is an element of the offence
◦ This section does not say anything about the elimination of an element (such as mens rea)
 It does not violate s. 7 by removing a due diligence offence – the stigma attached to conviction and the
mental stress imposed by the fine are not so extreme as to engage s. 7 rights
Ratio: An absolute liability offence is constitutional if its penalty is a high fine (unaccompanied by
imprisonment).
 Eg of absolute liability offence.
 Wheel detached from vehicle on highway
 fines are really high
  yes, this is stressful, but not stressful enough to invoke s 7
R v Wholesale Travel Group Inc [1991] 3 SCR 154 (p 406)
Facts: The accused corporation was charged with false advertising under the Competition Act. It is a strict
liability offence – accused can exonerate themselves with proof of due diligence on a balance of probabilities.
Issue: Does the offence violate s. 7 or s. 11(d) of the Charter? Holding: No, with dissent.
Reasoning:
Lamer C.J for the majority on s. 7: no violation
 The accused argued that a conviction for false advertising creates enough stigma (of dishonesty) that it
requires a mens rea component in order to be proportional
 Vaillancourt: the principles of fundamental justice dictate that negligence is the minimum fault
requirement where an accused faces possible imprisonment upon conviction (except for certain
offences such as murder – higher fault requirement)
◦ The standard here is negligence
Cory J. for the majority on s. 11(d): no violation
 There are reasons for ascribing a different content to the presumption of innocence in a regulatory
context
◦ If the Crown were required to disprove due diligence beyond a reasonable doubt, it would be
impossible to convict for regulatory offences – lack of enforcement
◦ This would prevent the government from implementing public policy through regulation
◦ Only accused will be in a position to bring forward evidence relevant to the question of due
diligence
 No violation of s. 11(d)
Lamer C.J. for the dissent on s. 11(d): yes violation
 Because the accused needs to prove due diligence on a balance of probabilities in order to exonerate
themselves, a court that is not convinced on a balance of probabilities must convict
 But it is possible a court may not be convinced on a balance of probabilities that the accused was duly
diligent but still has a reasonable doubt as to whether the accused was actually negligent
◦ This court has to convict despite a reasonable doubt as to the guilt of the accused
◦ This violates the presumption of innocence
 Cannot be saved under s. 1
Ratio: Minimum fault requirement for penalty of imprisonment is negligence; in strict liability offences,
negligence is the standard. Accused bears burden of having to prove his due diligence in order to exonerate
himself.
Commentary: In R. v. Ellis-Don Ltd., OCA accepted the argument based on Lamer C.J.’s reasoning that strict
liability offences violate the presumption of innocence by forcing the accused to raise more than a reasonable
doubt as to their due diligence (they have to prove it on a balance of probabilities). This holding was overturned
on appeal to the SCC.
 Permitted to have standing bc provision could apply
 violation of competition act – wrongly advertising travel packages as wholesale when it was
retail
 2 major questions:
 1. is standard of ** negl constitutional?
◦ Judges were unanimous on this point. Negligence is ok, due diligence is possible, stigma
attached is not so high
◦ In this case, s 373(2) didn't allow due diligence defence. So in THIS case, this part was
unconstitutional
 2. reversal of onus of due diligence

Recap: Basic elements of offence

  Actus Reus
 Mens Rea
 Identity
 In particular circumstances?
 With particular consequences?
 Causation

HOMICIDE
s 222 is the starting point. Culpable murder, manslaughter or infanticide (-> diminishes punishment for
women who kill infants)
s 222(5)=defn of culpable harm -> typically relied on for manslaughter.
Manslaughter=very broad.
 Fault requirement for manslaughter fr Creighton: objective. “by means of unlawful act” (mens
rea has to be proved for the unlawful act)
 Creighton also said illegal offence can't be an absolute liability offence (b/c no mens rea)
s 222 is elevated to murder in particular circumstances -> s 229
s 231 -> murder elevated to first degree murder
222. (1) A person commits homicide when, directly or indirectly, by any means, he causes the
death of a human being.
(2) Homicide is culpable or not culpable.
(3) Homicide that is not culpable is not an offence.
(4) Culpable homicide is murder or manslaughter or infanticide.
(5) A person commits culpable homicide when he causes the death of a human being,
 (a) by means of an unlawful act;
 (b) by criminal negligence;
 (c) by causing that human being, by threats or fear of violence or by deception, to do
anything that causes his death; or
 (d) by wilfully frightening that human being, in the case of a child or sick person.
(6) Notwithstanding anything in this section, a person does not commit homicide within the
meaning of this Act by reason only that he causes the death of a human being by procuring, by
false evidence, the conviction and death of that human being by sentence of the law.

229. Culpable homicide is murder

 (a) where the person who causes the death of a human being
 (i) means to cause his death, or
 (ii) means to cause him bodily harm that he knows is likely to cause his death, and is
reckless whether death ensues or not;
 (b) where a person, meaning to cause death to a human being or meaning to cause him bodily
harm that he knows is likely to cause his death, and being reckless whether death ensues or
not, by accident or mistake causes death to another human being, notwithstanding that he does
not mean to cause death or bodily harm to that human being; or
 (c) where a person, for an unlawful object, does anything that he knows or ought to know is
likely to cause death, and thereby causes death to a human being, notwithstanding that he
desires to effect his object without causing death or bodily harm to any human being.

Manslaughter
-culpable homicide. S 222(5). Usually caused by unlawful act (typically assault), or criminal
negligence

Second Degree Murder

s 229(s): Intentional or Reckless Killing – what does it mean to cause bodily harm that is likely to
cause death? -Simpson case
R v Simpson (1981) ONCA (p 684)
Facts: S attacked and tried to kill two women in one night.
Issue: Were the trial judge’s instructions to the jury right? Holding: No.
Reasoning (Martin J.A.):
 The trial judge, in paraphrasing s. 229(a)(ii), did not say that the culpable state of mind was that the
accused meant to cause bodily harm that he knew was likely to cause death (which is the right
construction)
◦ Rather he said that the culpable state of mind was that the accused means to cause bodily harm that
he knows or ought to know is likely to cause death
 Liability under this section is subjective – to use “ought to know” makes the liability objective
Ratio: Murder is a subjective-intent crime: have to show the accused did know that the bodily harm he was
occasioning the victim was likely to cause death, not that he should have known.
 Simpson: “ought to have known”? - NO. Test must be a subjective one.
R v Cooper [1993] 1 SCR 146 (p 686)
Facts: C was highly intoxicated; got angry with his girlfriend, grabbed her by the throat and shook her. Blacked
out and strangled her to death.
Issue: What is the culpable state of mind necessary for a conviction under s. 229(a)(ii)?
Reasoning (Cory J.):
 The nature of the intent required to secure a conviction under s. 229(a)(ii) is: the intent to cause bodily
harm of such a grave and serious nature that the accused knew that it was likely to result in the death of
the victim
 The aspect of recklessness is almost an afterthought
 One who cases bodily harm that he knows is likely to cause death must, of necessity, be reckless as to
whether death ensues or not
 N.B. It is not enough that the accused simply foresees the danger of death; the accused must foresee a
likelihood of death flowing from the bodily harm that he is occasioning the victim
 So the Crown has to prove two mental elements to secure a conviction of second-degree murder:
◦ 1. Subjective intent to cause bodily harm
◦ 2. Subjective knowledge that the bodily harm is of such a nature that it is likely to result in
death
In this case, it is open to the jury to infer that by seizing the victim by the neck, Cooper intended to cause her
bodily harm that he knew was likely to cause her death (because he knew breathing is essential to life and
therefore that strangulation would likely kill her)
Ratio: The intent required for second-degree murder is intent to cause bodily harm and knowledge that the
harm is severe enough to likely result in death.
 Contemporaneity of mens rea + actus reus -> not enough to foresee possibility of death, must be
likely to cause death-penalty
S 229(b): Transferred Intent
s 229 (b) where a person, meaning to cause death to a human being or meaning to cause him bodily
harm that he knows is likely to cause his death, and being reckless whether death ensues or not, by
accident or mistake causes death to another human being, notwithstanding that he does not mean to
cause death or bodily harm to that human being; or
s 230= felony murder. Elevated manslaughter to murder where it took place in the context of certain
crimes AND intent to cause bodily harm.

R v Fontaine MBCA 2002 (p 690)

Facts: Accused intent on committing suicide. During high speed chase, he drove his car into a parked
semi-trailer in the oncoming lane. Three individuals in the car with the accused One passenger killed.
Charge: one count of first degree murder, 2 counts of attempted murder, 1 count of crim negl causing
death and 1 count of crim negl causing bodily harm
Issue: If he intended to harm himself, does that satisfy s 229(b)?
Reasoning (Steel J.A.):
 Murder is a crime of specific intent; by virtue of s. 229(b) of the Criminal Code, a person will be
deemed to have that specific intent when, intending to kill one person, he mistakenly kills another
 The question here is whether the accused in this case, intending to kill himself, can have that intent
transferred to the other people he killed instead
 Some cases have interpreted “cause death to any human being” as including oneself as a human being
◦ This could result in a person being convicted of murder for trying to commit suicide
◦ But suicide is no longer a crime in the CCC
 Suicide differs conceptually from murder – murder is the intentional killing of “another”
◦ Suicide is not seen as a morally blameworthy act any longer – it is rather an act of desperation
◦ People who try to commit suicide do not need punishment and stigma, they need treatment
 To equate the mens rea for suicide with that for murder would offend the principle that people should
only be subject to the penalty/stigma of criminal liability when they act in a morally blameworthy way
Ratio: The intent to commit suicide cannot be “transferred” to the accidental killing of others in order to
convict the accused of second-degree murder.

S 229(c): Unlawful Object

(c) where a person, for an unlawful object, does anything that he knows or ought to know is likely to
cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his
object without causing death or bodily harm to any human being.
R v JSR 2008 ONCA (p 695)
Facts SR and B were in a gun fight on Yonge Street. B shot at SR and missed him, hit Jane Creba who
died
Issue: Did SR cause JC’s death? [yes]
Should JSR be committed on a charge of murder or manslaughter?
Reasons
 In a car race where a bystander is hit and killed, both drivers are liable for the death – “there is
one danger. Each driver bears equal responsibility for its continued life span subject to
withdrawal or an intervening event” (R v Menzes)
◦ Caveat: if one party withdraws and the other is aware and doesn’t slow down, not liability
for the withdrawing party
 each shooter induced the other to engage in a gun fight on a crowded street. “but for” the
decision to engage in a gun fight on a crowded street and the resulting exchange of bullets, Ms
Creba would not have been killed
 From R v Meiler: “The actus reus requirement is tah tthe offender “does anything. . . and
thereby causes the death of a human being. . .”. And the mens rea requires an act to bring about
some other unlawful act. As well as knowing that the acts are likely to cause death (regardless
of desire to cause death)
  The facts of this case satisfy 229(c)
 JSR challenged the constitutionality of 229(c) and failed
Ratio Liability for everyone involved in the faulty event that caused death.
Charter Considerations:
 subjective mens rea required for murder convictions
Vaillancourt v The Queen [1987] 2 SCR 636 (p 703)
Challenging constitutional validity of 213(d) alone and in combination with 21(2) [now 230-Murder
inn Commission of Offences]
Facts: s 213 (now 230) (felony murder) makes it murder when death is caused in the commission or
attempt to commit a list of crimes, if (d) he uses a weapon or has it upon his person. V was an
accomplice to a robbery, and thought his partner’s gun was unloaded. The partner shot a client at the
pool hall, and has never been found. V is charged with felony murder.
Issue Is s 230(d) valid? Holding No. It must be severed.
Reasons (Lamer J)
 V argued that PFJ requires subjected MR for ANY conviction... Lamer thinks this is a bit too
broad, but the only provision in question is 213(d)
 Must be some special MR before homicide is murder  subjective foresight of death
 It would be possible for a conviction under s 213 despite the jury having a reasonable doubt as
to whether the accused ought to have known that death was likely to ensue (objective mens
rea)-> this indicates a prima facie violation of s 7 and 11(d)
 Fails s 1 at minimal impairment
Ratio: s 230(d) is not valid [has now been repealed – the rest of it is fine]
 Argument that he had no subjective foresight as to death ensuring.
 Q: Was he sufficiently morally blameworthy in this case for mmurder?
 Lamer: In this case branding someone a murderer where there is not even objective foresight of
death
◦ 230(d) does not even require objective foreseeability that death was likely, not just possible
◦ violates s 7
Ultimately Martineau went even further – Ct struck down 213 (now 230(a)) -> Lamer finishing the
work of Vaillancourt
R v Martineau, [1990] 2 SCR 633 (p 710)
Facts: Deceased was deliberately shot by M’s accomplice during a robbery M only thought was going
to be a b&e. M convicted under s 213(a) (now 230)
Issue: Is s 213(a) valid? Holding: No.
Reasons (Lamer CJC)
 Section removes Crown burden to prove subjective foresight of death
It violates the PFK that punishment be proportionate to moral blameworthiness
Stigma and punishment for murder must be reserved for those who have intent
Section fails Oakes test on minimal impairment
Flexible sentencing scheme for manslaughter is more appropriate
L’Heureux-Dubé (dissenting) – subjective MR is not required by any PFJ, too much
concern for stigma, misplaced compassion, criminals can fuck themselves
Sopinka J concurring: says 213(a) doesn't even require objective foreseeability, and is
therefore not const'l (more narrow)
Ratio: Conviction of murder requires proof of subjective foresight of death (confirmed in R v Sit) –
230(a) is invalid (but hasn't been repealed – see CCC)

R v Sit [1991] 3 SCR 124 (p 714)

Lamer CJC: Confirms Martineau and clarifies the ratio: proof of subjective foreseight of death is
necessary in order to sustain a conviction for murder.
Both 213 (a) and 213(c) are constitutionally invalid.
Parl response to Sit and Martineau=impose mandatory sentences on manslaughter
R v Morrisey [2000] 2 SCR 90 – court upheld constitutionality of mandataory min sentenceing for 4
year min sentence for criminal negligence.

First degree murder – s 231(2): “Planned and Deliberate”

R v More SCC 1963 (p 716)
Facts: M was distressed about his financial affairs and planned to kill himself and his wife. He led
psychiatric evidence attempting to raise a reasonable doubt about it being planned and deliberate.
Means it must be both planned, and deliberate. Also has to be more than intentional.
Ratio
Deliberate means “considered, not impulsive”

R v Widdifield (1961) ONSC (p 717)

Authoritative pronouncement on the expression “planned and deliberate”
Ratio
Planned
 Calculated scheme or design
 Carefully thought out
 Nature and consequences have been carefully weighed
 May be very simple
 Time involved in developing the plan is important, not the time between the plan and the act
Deliberate
 Considered, not impulsive, slow in deciding, cautious
 Took time to weigh advantages and disadvantages

R v Ngaard SCC 1989 (p 717)

The planned and deliberate part can be for an assault that is likely to cause death (and does cause
death)

S 231(4): Murder of a Police Officer

R v Collins 1989 ONCA (p 718)
Facts: Accused killed a police officer on duty and in uniform. Challenged the constitutional validity of
s 214(4)(a) [now 231(4)(a)] because first degree murder should involve planning and deliberation.
Accused argued that the stricter sentence and higher stigma associated with first degree murder meant
he should have a higher moral blameworthiness than second degree murder.
Issue Can C be convicted of first degree murder without proof of planning and deliberation? [yes]
Reasons (Goodman JA)
 Vaillancourt – PFJ require at least objective foreseeability of death for murder conviction
 Stigma argument is much less relevant here
First degree murder is just a classification, after murder has been established
There is no distinction in intent between first and second degree murder
Killing cops requires greater moral deterrent
Crown must prove BARD that the accused had subjective knowledge the victim was an
on duty police officer, or the accused was reckless as to whether the victim was such a
person so acting
Charter is not offended because accused must have subjective knowledge that it is an on
duty cop, not objective knowledge
Ratio Killing a cop is first degree murder; s 231(4)(a) is constitutionally valid

S 231(5): “While Committing”

- see also R v Paré – contemporaneity of the acts
R v Russell [2001] 2 SCR 804 (p 724)
Facts: Charged with first degree murder because he murdered someone while his girlfriend was
forcibly confined in another room
Issue: Do the victims of the crimes in 231(5) need to be the same as the victim to qualify the murder
as first degree? [no]
Reasons (McLachlin CJC)
 Provision does not state the victims must be the same
Other similar provisions don’t have a same victim requirement
Principle: where murder committed by someone already abusing his power by illegally
dominating another, it should be treated exceptionally seriously
Killing must be closely connected, temporally and causally, to the enumerated offence
Ratio 231(5) does not have a same victim requirement

S 231(5) was challenged under teh Charter – Murder in the first degree when the death occurred during
a hijacking, sexual assault, or kidnapping
R v Arkell [1990] 2 SCR 695 (p 728)
Facts: A killed the victim while sexually assaulting her. Claimed s 231(5) was arbbitrary and
irrational and therefore offends s 7. -> back to the “Classifications” argument of Martinea.
Issue Is s 231(5) contrary to the Charter? [no]
Reasons (Lamer CJC)
 Classification of murder is for sentencing, and does not create two substantive offences
Offences in the section are those of unlawful domination
“when we reach the stage of classifying murders as either first or second degree, we are
dealing with individuals who have committed the most serious crime in our Criminal
Code, and who have been proven to have done so with the highest level of moral
culpability, that of subjective foresight.”
s 214(5) offences are all organized around unlawful domination of others.
The distinction is neither arbitrary or irrational, and there is a clear connection between
the moral blameworthiness of the offender and the stricter sentence

R v Luxton [1990] 2 SCR 711 (p 730)

Facts: L forced a taxi driver to drive him to a field where he murdered her. Forcible confinement +
death, convicted of first degree murder
Issue: Is the sentencing requirement for murder constitutional? [yes]
Reasons (Lamer CJC)
 There is some sensitivity in sentencing because convicts of first degree murder can apply
to the Chief Justice of the province for a reduction in the non-eligibility for parole, after 15
years
Dangerous offender is OK because it fits with the moral turpitude of the offence, and
protects the public (citing LaForest in Lyons)
The sentencing provision is not arbitrary  narrowly defined; organizing principle
(illegal domination); specifically defined conditions under which it applies
Cruel and unusual requires gross disproportionality that outrages the standards of decency
(these are murderers we are talking about, here)
Ratio
 Court doesn't have the same concern between elevating from 2nd to 1st degree murder as it does
elevating from manslaughter to murder

SEXUAL ASSAULT
History and contexts:
 SA is chronically under reported and under convicted relative to other offences.
 STATSCAN social survey on victimization – relationship with perp, disability, drug use and
alcohol, mising curfews (higher rates of police not investigating in these circumstances)
 fewer charges, except for aggravated sexual assault
 conviction rates lower than for any other charge -> interesting that this doesn't apply to rates
involving HIV disclosure
Old laws supporting the problem:
 doctrine of recent complaint – cmn law doctrine=unless a complainant “raised a human cry” she
was less credible (rule of evidence)
 corroboration requirement
 previous sexual conduct was relevant in 2 ways:
◦ people who were sexually active were considered less worthy of belief
◦ more likely to have consent bc has consented in the past
 Marriage = implicit consent, and this is irrebutable (still the case in more than 50 countries btw,
and was the case in England and Wales until 1991)
1983:
 redefined the crime from rape to sexual assault
 not designed to diminish significance of what takes place. Designed to recognize that assault
occurs even without penetration.
Sexual Assault
 s 265 – assault=applies force without consent
 s 265(2) – includes sexual assault. 3 elements (1) touching (2) lack of consent (3) of a sexual
nature
 but how to tell if touching is of a “sexual nature”? -> McIntyre J – if sexual integrity has been
violated
◦ Chase: look at body parts touched, nature of contact, words
R v V – was this sexual in nature? Myths and stereotypes – anything to do with genitals=sexual
Consent
  s 265(3) will tell you about when there is no consent
 1992 (after Pappajohn case)
 s 273.1 (1992) – consent more explicitly
 no defn of consent previous to 1992
◦
R v Chase, SCC [1987] 2 SCR 293 (p 632)
Facts: C grabbed the complainant by the shoulders and grabbed her breasts
Reasons (McIntyre J)
 Sexual assault is any assault where the victim’s sexual integrity is violated
 Test for sexual nature: “viewed in the light of all the circumstances, is the sexual or carnal
content of the assault visible to a reasonable observer”
 Factors
◦ Part of body touched
◦ Nature of contact
◦ Situation in which it occurred
◦ Words or gestures accompanying the act
◦ Intent of person committing act
Ratio Defines “sexual”

Pappajohn v the Queen [1980] 2 SCR 120 (p 633)

Facts: P and the complainant got drunk at lunch and went to his house. Later, she ran out naked with
her arms tied behind her back. P claimed mistaken belief in consent
Issue Can an honest mistake of fact be exculpatory even if it is unreasonable? [yes]
Reasons (McIntyre J)
Defence of mistaken belief in consent must bear an air of reality, there was none here
There must be some evidence beyond mere assertion of the belief by counsel
Belief does not need to be reasonable, adopts Dickson J’s reasoning on this aspect
Dissent (Dickson J)
 Intention or recklessness must be proven for all the elements, including absence of consent
Mistake is a defence because it negates MR
Defence must meat the air of reality test
Reasonableness of the belief is not conclusive
Circumstantial evidence in the case supports an honest but mistaken belief in consent
Ratio: Honest mistaken belief negates MR of sexual assault. Belief does not need to be reasonable.
 He argues 2 things.
 (1) yes there was consent (evidence was that her clothes were folded and in a different room,
and there were “only” three scratches)
◦ In 1980, these would have been considered factors to deciding consent. This is a difficulty
of extending criminal law methods to sexual assault.
 (2) If she didn't consent then he had an honest belief that she consented
 Majority said all of the elements having mistaken belief in consent are the same elements you
woudl show to prove consent to. All judges argue that these things can be used as evidence of
consent.
 Interesting: crown says 'nothing in assault provision requiring that assaultor knows that there is
no consent.
 ◦ Court says NO, legis doesn't put the word “intentionally” or “wilfully” next to everything,
but Court will read it in unless there is a reason not to.
 There would have to be intention or recklessness re consent. Assuming that there has to be
intention,
 What about the claim: well, even if there was no consent, what if I had an honest, mistaken
belief in consent? Court says this is ok. W/o it you would be convicting a morally innocent
person.
 Note: Sansregret talks about “honest but wilfully blind” (not reasonable standdard, still lneed
subjective knowledge, but maybe rom after Creighton for some objective factors)

Consent and mistake of fact

 See Reddick v the Queen [1991] 1 SCR 1086 re “air of reality”
R v Bulmer, [1987] 1 SCR 782 = “statement of the accused alleging a mistaken belief will be a factor
but will not by itself be decisive, and even in its total absence, other circumstances might dictate the
putting of the defence”

 Really, central problem in law of evidence.

 Triers of fact are asked to comce up with some kind of proof.
 No witnesses beyond complainant and accused
 logic and human experience -> application of law of stereotypes?
 How believed they find the complainant and the accused is what it all comes down to
 trial gets turned into an adjudication of what it means to hang your shirt up
 Pappajohn “token resistence”
 Pappajohn – what facts might be relevant for showing lack of consent. But it's not known for
the actus reus, but rather the mens rea.
 Most sexual assault cases focus on mens rea rather than actus reus. -honest, mistaken belief in
consent
◦ does such a denfece exist? Does the D need to be reasonable? When should that D be put to
a jury?
Osolin v The Queen 1993] 4 SCR 595 (p 640)
Facts: s 265(4) was introduced after Pappajohn, provided that when mistaken belief in consent is
alleged, the defence must meet an air of reality.
Issue: Does s 265(4) offend s 11(d)? [no]
Reasons (Cory J)
 Defence for which there is no evidentiary foundation should not be put to the jury
 Mere assertion by the accused is not enough
 Does not create a statutory presumption, only a tactical evidentiary burden
 Crown must still prove elements of the offence BARD
 It is possible for the jury to accept parts of both parties’ stories in accepting a defence of honest
mistake
 Requirement that the testimonies must be the same could lead accused to lie
 A trial judge must instruct the jury only on those defences for which there is a real factual basis
◦ Only if there is “an adequate and evidentiary foundation for the defence”
 No requirement that there be evidence independent of the accused in order to have the defence put to
the jury (cf. McIntyre in Pappajohn) – just need evidence beyond mere assertion of mistaken belief
 Dissent (Cory J.): It is not possible for the defence of mistaken belief in consent to have an “air of
reality” when the complainant and the accused have given diametrically opposed versions of the facts
 ◦ Only arises when the accused and the complainant tell essentially same story and interpret it
differently
◦ Majority (McLachlin J.): It is still possible for the defence of mistaken belief in consent to have an
air of reality when the victim and the accused tell divergent stories concerning consent
Ratio: Mistake of fact must have an air of reality. Mere assertion by accused is not enough
Akhavan on Osolin:
An air of reality to a defence means there is an adequate and evidentiary foundation for the defence
For mistake of fact to have an air of reality in the context of sexual assault:
oWe do not need the accused’s testimony to have corroboration from outside sources
oBut the court is still split as to whether there can be an air of reality when the victim and the
accused tell two totally opposite stories

Sansregret v The Queen [1985] 1 SCR 570 (p 642)

Facts: The accused twice broke into his ex-girlfriend’s house and threatened her with weapons; sexual
intercourse took place both times. After the first time, she called the police and stated she was raped; they
called the ex-bf’s probation officer and therefore the vic chose not to pursue the charges. The second time, he
threatened her with a knife, hit her, told he would have killed her if he found her with someone else; she tried
to calm him down by talking to him and finally engaging in sex with him.
Issue: Is the defence of mistaken belief in consent (mistake of fact) available? Holding: No.
Reasoning (McIntyre J.):
 The trial judge found that the accused honestly believed the victim was consenting; so on the basis of
Pappajohn, she felt as though she had to acquit
 Not so. The accused was wilfully blind to whether or not the victim consented – he knew she had
charged him with rape in similar circumstances  he should have done more to ascertain her
consent
◦ As the accused was deliberately ignorant, the law will presume knowledge (of lack of
consent)
 This is not a retreat from the holding in Pappajohn that the honest belief in consent doesn’t have to be
reasonable to afford the accused a defence
◦ An accused who forms an honest although unreasonable belief in consent will still benefit from
the defence of mistake of fact
 But where an accused blinds himself to the existing facts, he can’t then use mistake of fact as a
defence
Ratio: If an accused is wilfully blind as to the consent of the victim, he will not benefit from the defence of
mistake of fact.
 Willfull blindness – no “reasonablee” person would believe consent, vs we don't beleve that
YOU believed consent.
 Pappjohn limited contexts in which honest but mistaken belief in consent may be applied,
“must have an air of reality” - and the air of reality can't come from teh accused's testimony.
 Osolin said it could come from the accused's testimony but...

seaboyer prompted 1992 amendments

 SCC struck down early attempt at legis reform, no evidence of past sexual history except in
limited circumstances

R v Seaboyer [1991] 2 SCR 577 (p 645)

Facts: s 276 stated that complainant’s previous sexual activity with anyone other than the accused
could only be introduced if it rebutted evidence of sexual activity adduced by the Crown, it
established the identity of the actual rapist, it was evidence of sex that took place on the same
occasion
Issue: Does s 276 violate ss 7 and 11(d) ? Holding Yes. It is not saved by s 1.
Reasons
McLachlin J. + 6 for the majority:
The goals of the legislation (the avoidance of unprobative and misleading evidence, the encouraging
of reporting sexual assault, protection of security/privacy of witnesses) are admirable and not to be
questioned  but these provisions overshoot the mark
They exclude evidence which may be relevant to the defence, and whose probative value is not
outweighed by the potential prejudice to the trial process
oMay be relevant to the defence of mistaken belief in consent, especially
L’Heureux-Dubé + 1 for the dissent:
Sexual assault is vastly underreported; these measures are not too extreme in light of their goals.
Ratio: The rights of the accused must be balanced with those of the victim/society in enacting rape shield
legislation.
NB: law in response (Bill C-49) to Seaboyer is constitutional (R v Darrach)
 All of Seaboyer is hypothetical,esp when past sexual hisstory might be relevant.
 Identity and masks, threesomes
 One of the reasons McL says it might be impt is bc of availability of defence of honest and
mistaken belief
 2nd part of Seaboyer – restricting honest but mistaken belief in consent. S 273.1 – volutary
agreement to sex act in question
Boyle and MacCrimmon, “Tthte Constitutionality of Bill C-49: Analyzing Sexual Assault as if
Equality Really mattered” (p 652)
Taking “reasonable steps” to determine consent – does this go to mens rea or is it like “self defense”?
Confusing
 “those men who are most dangerous to women and children. . . those who genuinely women ato be
in a perpetual state of consent. . . are labelled as morally innocent by a rule which insists on subjective
mistaken belief . .”

R v Cornejo (2003), 188 CCC (3d) 206 (ONCA) (p 655)

Facts: C was drunk and alleges that by lifting her pelvis for C to take off her panties when she was
passed out drunk, the complainant consented to sex. Trial judge allowed jury to consider “honest but
mistaken belief” defense.
Issue: Was this defense available? Does C’s defence of honest mistake have an air of reality? [No]
Reasons (Abella J)
Movements of the pelvis were not sufficient evidentiary basis to give the defence to the jury
 giant leap of imagination on the part of C
Complainant told C on many occasions she didn’t want to have sex with him, including that
night
Circumstances cried out for reasonable steps to ascertain consent (she did not invite him
over, she did not answer the door, she asked “what the hell are you doing here?”, she said not
to kiss her, she was passed out drunk)
Reasonable steps must be taken before engaging in intercourse
Ratio: Reasonable steps must be taken if consent is ambiguous.
 Decision in Cornejo was based on s 273(2)(b), but some say if could have been s 273 (1)
 pp 657 – purpose of these provisions laid out: to ensure that there is clarity on the part of the
prticipants to the conset of the other partner to sexual activity. Replaces assumptions
traditionally and inappropriately associated with passsivity and silence.
Q: what are reasonable steps? SCC hs never defined reasonable steps. The obligation to take steps is
fluid. Btu what IS clear, is if there was a no, then you really have ot make sure she has changed her
mind, no lapse of time, no silence, no equivocal conduct to be relied on.

R v Ewanchuk [1999] 1 SCR 330 (p 659)

Facts: E sexually assaulted the complainant in the back of his van in the context of a job interview.
Complainant said no but did not show her fear, which E claims supports honest mistake. Trial judge
said consent was implied
Issue: Is consent objective, can it be implied? HoldingNo. No.
Reasons (Major J)
 AR of sexual assault
◦ Touching (objective)
◦ Sexual nature of contact (objective)
◦ Absence of consent (subjective) – based on complainant’s state of mind
 MR of sexual assault – crime of general intent
◦ Intent to touch
◦ Knowledge of, wilful blindness to, or recklessness toward, lack of consent
▪ No just when complainant says no, but when accused knew that the complainant was
essentially not saying yes
▪ Silence, passivity, ambiguous conduct are not consent
▪ When a person says no, the other person must wait for an unequivocal yes to start again
 Trial judge misdirected himself when he considered the complainant’s actions, and not her
subjective state of mind, when determining consent
 Consent must be freely given to be legally effective – consent given under fear or duress is
ineffective
 Have to examine the choice the complainant believed she was facing: there can be no consent if the
complainant believed she was choosing between permitting herself to be touched sexually or
risked being subject to the application of force
◦ If she thought she had only two choices – to comply or be harmed – the law will deem an absence
of consent and the third component of actus reus of sexual assault is fulfilled
 The complainant’s fear need not be reasonable, nor communicated to the accused
 Complainant’s fear vitiated her consent (s 265(3)(b))
 Defence of mistake of fact (mistaken belief in consent) removes culpability for those who honestly but
mistakenly believed that they had consent to touch the complainant  is a denial of mens rea
 To succeed, the evidence must show that the accused believed that the complainant communicated
consent to engage in the sexual activity in question
◦ It is not a defence for the accused to say that the complainant wanted the accused to touch her but
expressly didn’t say so
◦ The complainant has to have said “YES” either through her WORDS or her ACTIONS
 Silence, passivity, or ambiguous conduct do not constitute consent in law
 And once a woman says no, the other person will have to obtain a clear yes (by either words or
actions) in order to continue
◦ Continuing sexual contact after someone has said no is reckless conduct which is not
excusable
Application To This Case
 Accused knew complainant had said no – he never re-established consent before continuing physical
contact
 There is no air of reality to the defence of honest but mistaken belief in consent
L’Heureux-Dubé J. + 1, concurring:
 One of the Court of Appeal judges basically suggested that the complainant was more likely to say yes
 because she was of questionable moral character (McClung J.A., “bonnet and crinolines”)
 These kinds of comments help reinforce myths that under such circumstances that the complainant is
less worthy of belief or more likely to consent to sexual activity
◦ Is patently not a reasonable line of logic
 Complainants should be able to rely on an impartial judiciary, unbiased by assumptions about women
and sexuality
Ratio: To succeed on the defence of mistake of fact, the accused must show that they believed that the
complainant communicated consent to engage in the sexual activity in question.
 Ewanchuk=what consent really means. Upheld the idea from Pappajohn that honest but
mistaken belief had to be permitted
 274.1 – Mjor J relied on this
 Para 46: in order to have “moral innocence” -> accused must believe that she communicated
consent. The accused's speculation about what was going on in the victim's mindwas NOT a
defence. Accused's speculation about what was going on in victim's mind is NOT a defence.
This is not based on honest but mistaken belief, but instead based on defn of dissent.
◦ Actus Reus (1) touching (voluntary, objectiv) (2) sexual nature (objective) (3) absence of
consent (subjective, from perspective of complainant)
 issue of capacity to consent – mental disability and sexuality.
 Credibility: no real way to judge this.
 Basic features of the procedure entrench myths and steretotypes.
 For every element of actus reus, there will bea corresponding mens rea. : intention to touch,
knew, was reckless or wilfully blind to lack of consent
◦ before 1994 would have been more easy to say accused consented in her min
◦ transforming voluntary agreement to communication
◦ why have to prove consent? - basic principle that every constituent elemenet of actus reus
must be proved beyond a resonable doubt
remember: this definition of consent applies to ordinary assaults as well
Consent in JA and Mabior:
 McL relies on s 273.1(2)(e), lack of agreement
 McL says: removing sexism from sexual assault means we HAVE to take a demanding
approach to consent.
R. v. J.A. [2011] 2 SCR 440 (MC)
Can't give consent before the act – if rendered unconscious can't consent to anything happening while
unconscious

R v Mabior, 2012 SCC 47

Facts: Mabior's house was a party house. He has sex with 9 different women, some with condoms,
some without. Never disclosed he had HIV.
Issue: What is the “serious risk of bodily harm” that would vitiate consent in the context of non-
disclosure of HIV status?
If there is low viral count and condom protection, the standard is not met.
Issue is how to interpret “fraud”. This is done through contextual statutory interpretation. Refer to
(1) Purposes of Crim Law
(2) Common Law and statutory history
(3) Charter values, esp equality, autonomy, liberty, privacy and human dignity
(4) experience of other cmn law jurisdictions
Correct test is realistic possibility of transmission (not “high”likelihood and not “any” likelihood –
somewhere in between)

DEFENCES
 Variety of sources. Some were in cmn law, then codified
 For each D, consider where it comes from
 Provocation: why first? It reminds us that what is in crim law is a product of history
 Some D's are considered to have derived from mens rea (really a negation of mens rea)
◦ mistake of fact is a
◦ mental disorders
 Some D's don't really touch any elements of the offence. Eg. Hibbert and duress – that is NOT a
mens rea issue, that is a pure defence issue.
◦ Broader circumstances that might excuse the behaviour
◦ SD, necessity, duress
 but the theory of who deserves responsibility is more or less the same.
 Often categorized as excuses or justifications
◦ eg excuse is provocation; eg justification is self defence
◦ typically necessity and SD are considered justifications
◦ R v Perka talks about this disctinction. Justification is not conceived as a “concession to
human weakness”

Provocation
Partial defence to the offence of murder only. Will reduce murder to manslaughter, but no acquittals
 s 232
 must be an air of reality to it to be left tothe jury (R v Thibert)
 historically applied to three situations:
◦ “chance medly or sudden falling out” between men
◦ “discovery of a husband of his wife in the act of committing adultery”
◦ “the discovery by a father of someone committing sodomy on his son”
 Virtually unchanged since 1892. “heat of passion” caused by sudden provocation
 requires (1) wrongful act or insult (2) not provoked by the accused (3) suddenness (objective)
(4) passion (subjective)
 Burden is on accused to raise the D, but then on crown to prove beyond a reasonable doubt
 Weird, controversial defence. Basically an excuse for angry male violence
 Idea of loss of control not based in science, but based in history
 Need to interpret provocation with Charter values.... interesting or troubling?

Isabel Grant, Dorothy Chunn, Christine Boyle, The Law of Homicide (p 738)
If provocation as a defence is a compassionate response to human frailty, why is rage the privileged
emotion?

Benjamin L Berger, “emotions and the veil of voluntarism: the loss of judgment in the Canadian
Criminal Defences” (p 739)
Jeremy Horder, Provocation and Responsibility (p 740)

Interpreting and Applying the Provisions

 What words or acts are capable of constituting provocation?
 What is meand by “sudden”
 How is “ordinary person” conceived?
R v Hill [1968] 1 SCR 313 (p 742)
Facts: A sixteen-year-old boy killed his “Big Brother”, allegedly because the man was making advances on
him. Crown's theory was that this was a romantic relationships and a falling out. Accused claimed he struck the
victim to “defend” himself; and then the victim told H he was going to kill him, so H killed him first. The trial
judge, in instructing the jury on the first step of the provocation test, did not say that the jury should consider
whether an ordinary person of the age and sex of H would be deprived of their self-control by the wrongful
act/insult.
Issue: Was it incumbent on the trial judge to personalize the first step of the test?
Holding: The first step of the test is meant to be personalized, yes; but Dickson J. will not complicate the task
of trial judges by making them say it – it is intrinsically personalized.
Reasoning (Dickson C.J.C.):
The defence of provocation acknowledges that human beings are subject to uncontrollable outbursts
of anger/passion which may lead them to violence  law will lessen the severity of criminal liability in
those instances
The Requirements for the Defence of Provocation
 1. The provoking wrongful act or insult must be of such a nature that it would deprive the
ordinary person of the power of self-control (objective arm of the test)
◦ The ordinary person has a normal temperament and level of self-control: this person is not
exceptionally excitable or drunk
◦ The jury is permitted to ascribe to the ordinary person any general characteristics relevant to the
provocation in question
◦ Age, sex, race  all are “ordinary” features which may be considered. The central criterion is the
relevance of the particular feature to the provocation in question
 2. The accused must actually have been so provoked (subjective arm of the test)
◦ It may be that the ordinary person would be provoked, but the accused was not  need to assess
what actually occurred in the mind of the accused
◦ Can take into account the mental state of accused, his/her psychological circumstances, tendencies,
etc
 3. Accused must have acted on the provocation “on the sudden” and before there was time for his
or her passion to cool (subsumed under subjective arm of test - #2)
Ratio: The objective first step of the provocation test can take into account personal characteristics of the
accused relevant to the provocation in question.
 232 para 2 “ordinary person” deprived of self control
◦ subjective mens rea to be defended with an obective defence?
 Who is the reasonable person? What gets taken into account?
◦ Age
◦ NOT drunkeness
◦ NOT especially excitable
◦ some characteristics like race if the problem was a racial slur
R v Thibert [1996] 1 SCR 37
Facts: T’s wife wanted a divorce. She was having an affair with the deceased and was leaving T for him. T
wanted to talk to his wife, but his wife refused. He brought a gun to her (and the deceased’s) place of work. T’s
wife still refused to talk to him alone – the deceased came outside the building to bring her back in. Started to
taunt T to shoot him – so T did.
Issue: Should the trial judge have left the defence of provocation with the jury? Holding: Yes, with dissent.
Reasoning:
Majority (Cory J.):
In order for judge to leave it to the jury, there must be some evidence to suggest that they might find a
particular act was provocative.
The Requirements for the Defence of Provocation
 1. Wrongful act or insult of such a nature that it is sufficient to deprive an ordinary person of the power
of self control (objective standard)
◦ “insult” = an act, or the action, of attacking or assailing; injuriously contemptuous speech or
behaviour; scornful utterance or action intended to wound self-respect; affront, indignity
◦ In considering the effect of the wrongful act/insult on the reasonable person, it is proper to consider
the background relationship between the deceased and the accused (lower courts have been doing
this, SCC says they are right to do so)
◦ Reformulation of this branch of the test: the wrongful act or insult must be one which could,
in light of the past history of the relationship between the accused and the deceased, deprive
an ordinary person, of the same age, and sex, and sharing with the accused such other factors
as would give the act or insult in question a special significance, of the power of self-control.
 2. The accused must act upon that insult on the sudden, and before there was time for his passion to
cool (subjective standard)
◦ Sudden” = the wrongful act must strike upon a mind unprepared for it
◦ The background relationship is important here too

 “Legal right” in s. 232(3) means a right which is sanctioned by law, not something which a person may
do without incurring legal liability (i.e. it does not mean something not-illegal); the words or act put
forward as provocation do not have to be prohibited by law for the defence to succeed
 In this case, there was an air of reality to the provocation defence – the trial judge should have left it
with the jury  new trial ordered
 Dissent: disagreed on disposition on the facts, not with the law: marital breakup is not a provocation –
the defendant knew about his wife’s affair; she was not obliged to talk to her ex-husband if she didn’t
want to
Ratio: The “objective” branch of the test for provocation is pretty subjective now.
 What background can be considered?
 Since Hill, courts have given more weight to these things
R v. Tran 2010 SCC 58 (MC)

 Integeated more contemporary norms like equality

 making attempt at preventing provocation from ... “explicilty a response to the critique that
provocation is giving “homicidal male anger” a free pass
 clearly and blatantly acts as a cipher for values
 what does it mean when the criminal law says it is going to “deter” certain behaviours? Does it
mean really prevent? Or more so “stand against”?

Is Provocation a defence that vitiates or compromises the intent for murder? Or is it a “free-standing”
excuse?
R v Campbell ONCA 1977 (p 760)
  Provocation reduces murder to manslaughter notwithstanding the existence of an intent to kill\
 The defence of provocation exists with respect to a charge of murder even though all the elements
of the definition of murder have been established
 Provocation allows for human frailty – intentional killing is less heinous when the person is out of
control than when the person is in full possession of their faculties
 There may be cases where the conduct of the victim provokes in the accused a state of excitement,
anger, or disturbance so extreme that he might not contemplate the consequences of his acts or
intend to bring about those consequences
◦ Provocation in this respect does not operate as a defence, but rather as a relevant item of
evidence on the issue of intent
 N.B. You cannot use provocation for attempted murder, only for completed murder

R v Cameron ONCA 1992 (p 762)

Appellant argued that s 232 re provocation was contrary to the Charter because it introduced an
objective element into mens rea and Charter says you can't be conviced of murder without subjective
mens rea.
Doherty JA says: Statutory defence of provocation does not generally negative the mens rea for murder – it
partially excuses homicides committed with the mens rea necessary to establish murder by reducing the charge
to manslaughter
(never mind... we were only supposed to read until 760???
R v Parent [2001] 1 SCR 761 (p 763)

“Culture” and Provocation

R v Nahar BCCA 2004 (p 766)
Facts: N stabbed and killed his wife Mrs N because she smoked, drank, socialized with men, and was
generally not a good Sikh in his opinion
Issue Was there an air of reality to provocation? Holding No.
Reasons (Lowry JA)
 Provocation is a wrongful act or an insult that is of such nature as to be sufficient to deprive
an ordinary person of the power of self control
 The ordinary person must have experienced the same series of insults as experienced by the
accused, as well as age, sex, and any other factors that would give the wrongful act or insult
special significance to the accused.
 Factors can include cultural background
 Even considering this, the ordinary person would not have been provoked here.
Ratio: Ordinary person can consider accused’s cultural background.

R v Humaid ONCA 2006 p 770

Facts: H killed his wife because he either wanted out of the marriage or he thought she was cheating
on him
Reasons (Doherty JA)
 It is not enough to lead evidence that Muslims, or any other group, have certain religious or
cultural beliefs that could affect the gravity of the provocative conduct in issue and that the
accused is a member of that group – extent to which any one Muslim would act depends on
 many factors
 Must avoid stereotyping – verdicts that rely on stereotyping are no less offensive because they
benefit the accused
 “The alleged beliefs which give the insult added gravity are premised on the notion that
women are inferior to men and that violence against women is in some circumstances
accepted, if not encouraged. These beliefs are antithetical to fundamental Canadian values,
including gender equality.”
 The ordinary person cannot be fixed with “beliefs that are irreconcilable with fundamental
Canadian values.”
Ratio The ordinary person cannot be fixed with “beliefs that are irreconcilable with fundamental
Canadian values.”

R. v. Mayuran 2012 SCC 31 (MC)

New immigrant living with her husband's family. Killed her sister-in-law. Ssaid she had been teased
about her lack of education.

MENTAL DISORDER
 16(1)
 how is it understood? To negate mens rea
 if there were a mental disorder that woudl negate voluntariness, it would negate actus reus
 burden of proof is based on the party that raised the issue
 sentencing: 672.54

Unfitness to Stand Trial: s 2 CCC – definitions. Means unable to conduct a defence, unable to (a)
understand the nature or object of the proceedings (b) understand the possible consequences (c)
communicate with counsel

Mental Disorder
 16(1) No person is criminally responsible of an act committed or an omission made while
suffering from a mental disorder that rendered the person incapable of appreciating the nature
and quality of the act or knowing that it was wrong
 16(2) presumption of sanity
 16(3) party seeking to raise insanity must do so on a BOP
 Crown can raise evidence of insanity if accused brings it up, or post-verdict independently
(Swain)
 Mental disorder includes mental and physical problems: mental disease, psychoses, minor
forms of mental disorder, disorders of the development of the personality (psychopathic
personality), hardening of the arteries, psychomotor epilepsy (Cooper)
 Appreciate the nature and quality of the act (Cooper)
◦ Cognition, emotional and intellectual awareness of the significance of the conduct
◦ Perceive the consequences, impacts, and results of an act
◦ The “legally relevant time” is the time when the act was committed
◦ Lacking remorse is not sufficient to invoke the defence (Kjeldson)
◦ Failure to appreciate legal consequences cannot ground the defence (Abbey)
 Knowing that it was wrong
◦ Wrong must mean contrary to the ordinary moral standards of reasonable men and women
 (Chaulk)
◦ Must know the particular act in question was morally wrong (Oommen)
 Consequence
◦ Accused must be discharged unless the Review Board/court finds him to be a significant
public threat (Winko)
 Unfit to stand trial
◦ Test: on account of a mental disorder, accused cannot (s 2)
▪ Understand the nature or object of the proceedings
▪ Understand the possible consequences of the proceedings
▪ Communicate with counsel
◦ Different from the s 16 defence – much lower threshold when considering fitness to stand
trial (Whittle)
R v Whittle [1994] 2 SCR 914 (p 778)
Reasons (Sopinka J)
 Section 16 means those suffering a disease of the mind are sick as opposed to blameworthy,
should be treated rather than punished, and should be exempted from criminal liability
 Not exempted from being tried
 Fitness to stand trial is predicated on the existence of a mental disorder and focuses on the
ability to instruct counsel and conduct a defence
◦ Requires limited cognitive capacity to understand the process and communicate with
counsel
 Provided the accused possesses this limited capacity, it is not a prerequisite that he or she be
capable of exercising analytical reasoning in making a choice to accept the advice of counsel
or in coming to a decision that best serves her interests.
Ratio: Defence of mental disorder available to those who are nonetheless fit to stand trial.
 Distinguishing NCR from fitness to stand trial.
 Threshold very low
R v Swain [1991] 1 SCR 922 (p 780)
Issue When is the Crown allowed to raise mental disorder?
Holding Only after the accused leads evidence of it, or after guilt is determined.
Reasons (Lamer CJC)
 Crown raising evidence of mental disorder against the accused’s wishes interferes with his
ability to conduct his defence
 Crown can bring evidence of mental disorder after the accused’s own evidence puts his mental
capacity into question
 Reasons to let the Crown raise evidence  (1) so the system does not label people who are not
responsible due to mental disorder as criminals (unfair to accused, threatens integrity of justice
system), (2) to protect the public from dangerous people who require hospitalization
 Crown can also independently raise the issue of insanity after the accused is already found
guilty
 Wilson J (dissenting) – Crown should not be allowed to raise evidence of insanity
independently. It infringes autonomy of mentally disabled, a group who has been historically
marginalized and discriminated against
Ratio Crown can raise evidence of mental disorder after the accused brings it into question, or after
guilt is determined.
  Why would the crown raise this defence? -> when they think public safety deserves it. Seeking
the sentence
 More likely to get a guilty verdict. Why is this? Related to evidence law
 Can't introduce evidence on character of the accused. Mental disorder=character of the accused.
 Role of the prosecuter is to do justice, act ethically
 in Swain, court talks about reasons why crown might want to raise the D but says it can't do it
until after a finding of guilt
 Lots of ways criminal law is not uniform across the country
R v Chaulk and Morrisette [1990] 2 SCR 1303 (p 782)
Issue Does the s 16(4) presumption of sanity violate s 11(d) of the Charter?
Holding Yes, but it is saved under s 1.
Reasons (Lamer CJC)
 “Fact” of insanity precludes a verdict of guilty
 The presumption in 16(4) allows a factor which is essential for guilt to be presumed, rather
than proven by the Crown BARD
 It also requires an accused to disprove it (or prove insanity) on a BOP
 The accused can be convicted despite the existence of reasonable doubt WRT an essential
element of guilt – violation of 11(d)
 The limit on 11(d) passes proportionality and minimal impairment, and passes s 1. It would be
an unworkable burden on the crown to force them to prove sanity BARD.
 McLachlin J (concurring) – there is no violation to 11(d) because sanity is not an element of
guilt, but rather a precondition to criminal liability
◦ conceiving of it narrowly in terms of elements offences is wrong. S 16 refers to capacity
for crim resp, not state of mind. Insanity can be raised even when elements of the offence
are not in issue.
◦ Proving guilt is not the same thing as proving sanity
 Wilson J (dissenting) – the violation cannot be justified by s 1, it should just be an evidentiary
burden. There is no evidence there is a real social problem being addressed by s 16 – there
aren't loads of “sane” people getting away with murder by pleading that they were “insane”.
So no “pressing and substantial concern” under s 1
 Elements of D:
◦ Accused has to have “mental disorder” (as per DSM?)
▪ defin in crim law not the same as dsm. So what is a mental disorder or a disease of the
mind?
◦ Appreciate the nature and the quality of the act
◦ Incapable of knowing what is wrong
 Burdens of proof: the person who raised it->reversal of burden
◦ normally crown must prove absence of D
◦ Does this violate a presumption of innocence? Yes. Why? -> Chaulk
◦ McL says it doesn't raise 11(d) bc not an element of the D
◦ Chaulk=it can be a denial of mens rea or it can act as a excemption (this is impt decision for
how D is treated)
◦ emphasis of therapeutic value in alternative regime -> at odds with the usual punitive
appproach those 3 judges take.
Consequences of Mental disorder as defence
Winko v BC (FPI) [1999] 2 SCR 625 (p 785)
Historically, if found NCR, could be held at the pleasure of the LG. First Charter Challenge was
Chaulk Then Swain, struck down the provision for automatic, indefinite detention of an NCR accused
as violation of s 7. In response to Swain, sweeping legis changes. Now, mentally ill offenders must
receive treatment. No longer only two options: conviction or acquittal, now NCR means being
diverted into a special stream. Twin goals of protecting public and treating mentally ill offender fairly
and appropriately. Court or Review Board decides if NCR be discharged absolutely, discharged on
conditions, or detained. Can only order treatment if NCR consents, or if board determines that it is
reasonable and necessary. Review board hearings must happen every 12 months.
Holding: new regime does not violate s 7. I protects society and the accused.
 Winko case upheld D in relation to Charter challenge that the system violates s 7 = approval of
the systemic
 You can't be in treatment for longer than the offence in question's maximum

Mental Disorder or disease of the mind

R v Simpson ONCA 1977 (p 788)
Issue: Is a personality disorder a “disease of the mind” as per s 16 CCC
Reasons (Martin JA)
 Determining the accused suffers from a disease of the mind is a question of law for the judge,
though it is sometimes ok for judges to ask a medical expert directly if the accused suffers
from a 'disease of the mind' (if such is not at issue
 Personality disorders or psychopathic personality are capable of constituting a disease of the
mind (this has been the subject of considerable controvery)
 Concept is capable of evolving with medical knowledge
 Existence of a disease of the mind alone does not constitute insanity, only if the disease of the
mind has such a severe effect that the accused is incapable of appreciating the nature and
quality of the act or that it is wrong.
Ratio: No liability if the accused is incapable of appreciating the nature and quality of the act or that it
is wrong.
 What is a mental disorder or disease of the mind? -> Simpson
 Limits: not self-induced (ct assigns moral responsibility if self-induced). ie.e not intoxication
◦ Not transitory. Qestion: “is there a danger of reaimance? If yes=mental disorder, if no=no
◦ How to decide? Might rely on experts. Non-insant automatism=acquittal
 what does it mean to appreciate the nature and quality fo the act? -> Cooper
Cooper v The Queen [1980] 1 SCR 1149 (p 789)
Reasons (Dickson J)
 R v Kemp rejected the idea that when considering a disease of the mind, the law should
distinguish between mental and physical diseases
 “Any mental disorder which has manifested itself in violence and is prone to recur is a disease
of the mind” (Denning in Bratty)
 Includes mental disease, psychoses, minor forms of mental disorder, disorders of the
development of the personality (psychopathic personality), hardening of the arteries,
psychomotor epilepsy
 Trial judge can permit a psychiatrist to be asked directly if something is a disease of the mind,
but the answer is not conclusive
 No reason to give a narrow or limited interpretation to disease of the mind
  Disease of the mind embraces any illness, disorder or abnormal condition which impairs the
human mind and its functioning, excluding however, self induced states caused by alcohol or
drugs, as well as transitory mental states such as hysteria or concussion
 To support a defence of mental disorder, the disease of the mind must be severe enough to
render the accused incapable of appreciating the nature and quality of the act or that it is
wrong.
Re Appreciating the nature and the quality of the act:
 UK uses “knows the nature and quality of his act”, s 16 uses “appreciating the nature and
quality of an act or omission” - these are different. One thing to know what choking is, another
to appreciate that choking may result in death.
 True test is if the person was able to appreciate not only the nature of the act, but the
consequences that would flow from it?
 Intellectual and emotional understanding

R v Barnier and Kjeldsen v The Queen (p 794):

To be capable of “appreciating” the nature and quality of his acts, an accused person must have the
capacity to know what he is doing..”

R v Simpson: This does not extend to someone who has an appreciation of the nature and
consequences of the act, but who lacks the necessary feeling (no remorse or guilt), even if the lack of
remorse or guilt stems from a “disease of the mind”

R v Abbey [1982] 2 SCR 24 (p 794)

Facts: Abbey bought cocaine in Peru and brought it back to Canada. Knew what he was doing and
knew it was wrong, but suffered from a delusion where he believed it was impossible for him to be
caught or punished. Also that he had already “astro-travelled” to Canada, and was imply allowing his
body to catch up. Also that he had to go through with it due to external powers, and “irresistable
impulse”
Reasons (Dickson J): “consequences” in Cooper means the physical consequences of the act, not the
legal consequences of getting caught. The accused knew his actions were “wrong” (as per the
definition in Schwartz of “wrong according to law”). R v Borg established that there is no defence of
an irresistable impulse, so that D is out.
Ratio: Inability to appreciate penal sanctions is no defence
 Abbey=hypomania made him believe someone was looking otu for him. Believed he had astro-
travelled. But ct said he had the mens rea Two parts:
◦ appreciation and knowledge (thought he was protected from punishment but knew he was
transporting cocaine and knew that was wrong)
◦ ??
 When court talks about natural consequences, they don't mean going to jail
Knowing that the act is wrong
R v Chaulk and Morrissette [1990] 3 SCR 1303 (p 797)
Facts: C&M entered a home in Winnipeg, plundered it for valuables, stabbed and bludgeoned its sole
occupant to death. They believed they had the power to rule the world and killing was necessary.
Knew the law of Canada existed, but believed themselves above it, it was irrelevant to them. Trial
judge directed the jury to consider whether they knew the consequences, and whether they knew the
act was wrong, i.e. legally wrong. Appellants claim what should matter is if they knew it was morally
wrong.
Reasons: Lamer CJ Meaning of the term “wrong” was determined by Scwartz v The Queen. Martland
J said “wrong” means wrong in the law of the land. Dickson J dissented in Schwartz, said 'wrong'
could mean legally or morally wrong. Said the two were not so different, it had to be an objective
'socity' standard of morally wrong, which often lines up with legally wrong. Lamer says Schwartz
should be overturned, and this is the right meaning of 'wrong'.
The incapacity to make moral judgements must be causally linked toa disease of the mind; if the
presenece ofa serious mental disorder is not established, criminal responsibility cannot be avoided.
Second, “moral wrong' is not personal morals, but wareness of what society views as wrong.
 Natural consequences vs normative consequences vs legal consequences
 McL (dissent) doesn't want to excuse someone with a different moral code, as long as they
recognize it is illegal
R v Oommen [1994] 2 SCR 507 (p 803)
Facts: accused killed victim while she was sleeping. Convicted of manslaughter. Paranoid delusional
psychosis. Convinced she was part of a conspiracy to kill him, so he killed her first. Expert evidence
was that his delusions did not prevent him knowing right from wrong, but instead he believed that he
was justified.
Issue: What is meant by knowing the act is wrong? Distinguishing right from wrong, generally, or
being capable understanding that the specific act was wrong? [the latter]
Reasons: on the night in question, his delusions did not prevent him distinguishing right from wrong,
generally, but did prevent him from understanding that it was wrong to kill the victim, bc he thought it
was justified. The wording of s 16 implies an understanding that accused should be able to apply
understanding of right and wrong to the specific act.
New trial ordered.
R. v. Bouchard-Lebrun 2011 SCC 58 (MC)
Facts: Accused took ecstasy and became psychotic. Brutally assaulted two individuals as a result.
Issue: can he raise s 16 defence?
Reasoning Lebel J: start with legal concept “disease of hte mind” as defined in Cooper, includes the
words “excluding, however, self-induced states caused by alcohol or drugs”. Determination of disease
of the mind is a legal one, not one for medical experts to make. Contextual, case-by-case approach
should be taken. Low likelihood of future danger since he is not dependent on drugs and can refrain
from using them in future. S 16 is meant to be there for people who really have a mental disorder
“inherently in their psychological makeup” not people who self-induced a psychotic state with drugs.
D has failed to show this was not the case here. Conviction of aggravated assault upheld.
 NCR is a form of exculpation. It is an extremely blunt instrument. No mitigation here.
◦ Doesn't this or that factor mitigate moral blameworthiness? Sure, but this is often dealt with
in sentencing

INTOXICATION
 focus on having or not having intention
 NCR: focus on if someone was capable or not, not whether they did it or not
 two reason for excluding intoxication:
◦ it is temporary (talked about this re mental disorder) -> but alcoholism may not be
temporary. But m ost cases of intoxication are
◦ ??
 Ben Berger-mental disorder and the instability of blame
  non-insane automatism, etc
 narrowing of D is based on policy reasons
 If mental D negates mens rea, shouldn't intoxication be the same?
 Why is it a D and not just a part of mens rea or actus reus?
 Difference D's operate to negate mens rea at cmn law
 when reading Daviault-substance of this case is really in Bernard case + Wilson's dissent
 Four possibilities:
◦ intoxication for specific-intent offene like murder
◦ extreme intoxication for general intent offence as per Daviault (but not assault or intent to
violate bodily integrity)
◦ extreme intoxication under 33.1
◦ involuntary intoxication

 Canute charge on drunkenness (approved in Daley)

o Drunken intent is still intent
o When considering intent, you should take into account his consumption of alcohol or drugs
along with other factors on intent
 Common law defence
o Only available for crimes of specific intent (Beard, George)
o Daviault exception
 If accused proves on a BOP that he was so drunk that he was in a state of non-insane
automatism, he will be found not to have had the requisite MR
 Only available in extreme cases
o Daviault does not apply where: (s 33.1)
 By reason of self-induced intoxication, lacks the general intent or voluntariness
required to comment the offence; AND
 Departs from the standard of care set out in s.33.1(2) (i.e., the accused, while in a
state of self- intoxication rendering him/her unaware of, or incapable of consciously
controlling, his/her behaviour, voluntarily or involuntarily interferes with, or
threatens to interfere with, another person’s bodily integrity).
o Daviault exception still applies to
 Property offences
 Specific intent offences
 Self-induced intoxication
o Substituted for MR of the general intent crime if the accused was too drunk to draw the
common sense inference (Bernard)
o Test (Chaulk)
 Accused voluntarily consumed a substance
 He knew or ought to have known it was an intoxicant
 The risk of becoming intoxicated was or should have been within his contemplation
 Specific Intent Crimes
o Murder 1/2
o Attempt, Conspiracy, Incitement
o Theft
o Fraud
 General Intent Crimes
o Assault (incl sexual)
 o Manslaughter
o Arson
o Negligence
839-878
Common law defence of intoxication (historical development):
DDP v Beard [1920] AC 479 (p 839)
Reasons
 19th C voluntary drunkenness was no defence, rather an aggravation
 Crimes of specific intent can have their MR negated by drunkenness if he was so drunk he was
incapable of forming the specific intent (eg. Could be manslaughter instead of murder)
 Insanity, whether produced by drunkenness or otherwise, is a defence
 Evidence of drunkenness should be taken into consideration with other facts to determine
intent
 Drunkenness cannot rebut the common sense presumption that a man intends the natural
conseuquences of his acts
Ratio Drunkenness is a defence to crimes of specific intent
Capacity or Intent
 there is a difference between incapacity to form intent and absence of intent
 Young v The Queen - “If you have any doubt at all on that evidence-any reasonable doubt as to
his capacity to form intent to do these things because of drunkenness, then you give him th
benefit of that doubt”
Robinson, [1996] 1 SCR 683 (p 842)
1. A MacAskill charge which only refers to capacity is no good
2. A Canute-type charge which only asks the jury to consider whether the evidence of the intoxication
impacted on whether the accused had the requisite specific intent is preferred
3. In some cases it might be best to charge the jury to consider both whether the capacity to form
intent was missing AND whether intent was actually formed
4. something about a two-step charge...

R v Daley [2007] 3 SCR 523 (p 843)

Facts: D murdered his common law wife while he was drunk
Issue Did he have the requisite MR? Holding Yes.
Reasons (Bastarache J)
 Canute charge on drunkenness: ask what the specific intent of the charge is, then ask whether
the accused had the intent required, taking into account the consumption of alcohol and drugs
or other factors
 MacKinlay charge makes an explicit difference between capacity to have intent and actual
intent. Jury should be asked if there was a reasonable doubt that the accused had the capacity
to form the intent. Then, if they are convinced of this, they must consider whether accused had
the intent (as in Canute)
 Canute altered by Seymour : judges can instruct juries about the common sense inference, but
when there is evidence of drunkenness there must be a direct link drawn between the effect of
intoxication and the common sense inference
 Common sense inference cannot be drawn if the jury has a reasonable doubt about intention
 Trial judge must instruct on the link between foreseeability and intoxication, but it need not be
 expressly charged as such
 A separate charge on capacity, like in MacKinlay, is not necessary, but the judge can charge on
capacity if there has been expert evidence concerning it, or if the accused specifically requests
it
 Two step charge confuses the jury – should use a one step Canute type charge
 Fish J (dissenting) – it was an error that the judge made no mention at all of the possibility of
intoxication negating MR
Ratio Intent can consider intoxication.

Intoxication and specific intent

R v George [1960] SCR 871
Facts: G got drunk and beat up and robbed an old man.
Issue: Can intoxication negate MR for theft? For common assault? Holding Yes. No.
Reasons (Ritchie J): Theft is a specific intent crime. G violently manhandled the old man and knew
he was hitting him. Voluntary drunkenness cannot be a defence for common assault because there was
no permanent or temporary insanity, and G clearly knew he was hitting a man.
Ratio Drunkenness is only a defence for specific intent crimes, not general intent.

Bernard v The Queen [1988] 2 SCR 833 (p 853)

Facts: B beat up and raped a woman. Said to police he raped her because he was drunk and when he
realized what he was doing he stopped.
Issue:
McIntyre J: Distinction btwn specific and general intent has long been recognized. This is not a legal
fiction. Drunkenness may only be a defence to specific intent crimes.
Wilson J : sexual assault is a crime of violence. No need for a special intent beyond intentional
application of force.
Dickson CJC (dissent): distinction between specific and general intent offences is bogus
 Distinction between specific intent and general intent
 For McIntyre J, sp intent can use intox as a D, for general intent, not. What is the logic?
◦ Some kinds of intent are more complex
◦ substitution of intent to get drunk for intent to assault so no requirement to prove intent in
the mens rea
◦ McIntyre in Bernard says that is ok bc still have a guilty mind.
◦ Denying availability of this D gives limited set of facts – can't say someone was flailing bc
drunk, just flailing
 Wison J in Bernard says I am not willing to make this substitution. Specific intent can always
raise intox. General intent only in cases of extreme intox
◦ She believes maybe there is this distinction and maybe it is possible to be drunk enough to
not be guilty of general intent
 Dickson and Lamer in Bernard: Distinction between general and specific intent is incoherent.
◦ They think it should always be admissible as long as there is an air of reality.
◦ They say there may be good policy reasons for this distinction, but such purposes are for
parl, not the courts

Extreme intoxication and general intent

R v Daviault [1994] 2 SCR 63 (p 862)
Facts: D raped a handicapped woman when he was drunk. He claims to have no recollection, and the
amount of liquor he drank (8 beers and a 40 of brandy) would kill any normal person who is not an
old alcoholic like D
Issue Does extreme drunkenness negate MR for the general intent crime of sexual assault?
Holding Yes.
Reasons (Cory J)
 Charter requires that there must be an exception to the general rule drunkenness does not
provide a defence to general intent crimes when the level of drunkenness is so extreme that
the accused’s actions were not voluntary
 Substituted MR to get drunk cannot establish the MR for sexual assault
 Link must exist between minimal mental element and prohibited act
 Violation to 11(d) can be saved under s 1
 The defence is still only available to those whose drunkenness is so severe they enter a state
akin to insane automatism
 Extreme intoxication should be established on a BOP (by accused)
 Sopinka J (dissenting) – the Leary rule precluding a defence of voluntary intoxication should
be maintained even in cases such as this
Ratio: Extreme intoxication can negate MR for crimes of general intent.
 Adopts Wilson J's approch in Bernard. Ct says: previous rule in Bernard violates s 7 morally
innocent shouldnt' be convicted
 also removes Mens rea
 Accused as to be the one to establish intox on balance probability
◦ Wilson J in B would have left it to crown
 11(d) issue re reversal of burden of proof: yes it is an infringement but it is justified under s 1
◦ When a particular measure is “justified” under s 1
▪ It is constitutionally viewed as sa godo thing
▪ no s 1 excuses – no apology, only approval
 Warwick: but it is a common law D. How can ct create a D that violates 11(d) and then justify
itself?
◦ Everyone was expecting a legis response, maybe making it an offence to get drunk and
dangerous?
 S 33(1) – no D of self-induced intox where accused's behav departs markedly from standard of
reaosnable behaviour
◦ very messy
◦ specific intent always recourse to D of intoxic
◦ for general intent, if re violations of bodily integrity as per 33.1(3) – no D of intox
◦ for other general intent – daviault applies “air of realiyt” and “extreme intox|
 breaking and entering – subject ot Daviault
◦ extreme intox

self-induced Intoxication
R v Chaulk NSCA 2007 (p 871)
Facts: C was drunk and assaulted Mr M and a girl. He claims that he took a pill someone gave him
that he thought was a caffeine pill, but was clearly something else because it made him go crazy
Issue Was C’s intoxication self induced, thereby not providing a defence? Holding No.
Reasons (Bateman JA)
 Section 33.1 says it is no defence if the accused’s intoxication was self induced
 Self-induced intoxication where the accused intended to be intoxicated knowing or having
reasonable grounds to know the subject was dangerous, and being reckless as to the result
 The accused need not contemplate the extent of intoxication, nor must he intend a certain
level of intoxication
 Test for self induced intoxication
◦ Accused voluntarily consumed a substance
◦ He knew or ought to have known it was an intoxicant
◦ The risk of becoming intoxicated was or should have been within his contemplation.
Ratio: Test for self induced intoxication.
 Involuntary intoxication is always available as a d
◦ why? If you have intent when voluntary, why not when involuntary?

NECESSITY
Only an excuse, not a justification
Results in an aquittal
contextual objective standard (since Lavallée)
recognized as a D in cdn law since 1984. Courts were initially reluctant to accept.
1975-Morgentaler - “masks for anarchy”
◦from foreclosure case – appropriate example of anarchy?
◦Slipper slope argument
◦discussion around anarchy there was to illustrate ct's concern w/ subjectivity of “necessity” - stealing
bread to eat?
◦There is a D of nec that has been recognized by Perka
◦Why wasn't the D accepted in Morgentaler?
◦Pegging notion of necessity to voluntariness – any form of civil disobedience could not be covered
by necessity
Perka, Latimer:
 Reasonable belief imminent peril and danger (modified objective standard)
 No legal way out or safe avenue of escape (modified obj stnd)
 Proportionality btwn harm inflicted and harmm avoided (objectively assessed)
 Perka – ostensibly about a boat (don't worry abotu claim of fabrication)
◦ whether D of necessity was available in thsi kind of case
◦ but really it was about cases like morgentler wehere law is unjust
 Ruzic held that where someone has no choice to behave in a certain way...
◦ “can't blow up a city in order to avoid breaking a finger”
◦ centred around voluntariness, doesn't matter if doing illegal activity before (perka)
Goals and principles of necessity:
 Perka: moral involuntariness vs physical involuntariness
 moral involt explained as “bsence of legal way out”
 iff than physical inovolunt but kind of an analogy to physical involuntarilydepends on how we
as society conceive of meaningful choiice
Q: is it ever possible for homicide to ever be proportionate? (likely not
Morgentaler v the Queen, [1976] 1 SCR 616 (p 880)
Facts: Morgentaler provided an abortion in his clinic for a woman who he believed could not receive
one in a hospital. Said he was worried she would “do something foolish” if he didn't help her.
Dickson J on necessity: There is no basis for it in common law. (eg Dudly – seaman ate child to
survive, Holmes – sailors threw other passengers over to lighten sinking lifeboat, etc) When
discussed. Examples are often given of situations of necessity, but “no clear principle can be
detected”. Not allowed to steal food if starving. Concerns: slippery slope. R v Bourne often discussed
s eg of necessity. Dickson J says: this case was uniqe. It was an abortion case where the mother's
health or life was actually at risk. Judge didn't actually say anything about neccessity. At the time
therapuetic abortions were not mentioned in the legislation (probably should have been, and are now).

Dickson J says if there is a D of necessity, jury must find “that the accused in good faith considered
the situation so emergent that failure to terminate the pregnancy immediately could endanger life or
health” and that compliance with the law was not reasonably possible. This case fails on both tests

Laskin J, dissenting: Focused much more on the facts of the case. The difficulty the woman would
have had in finding an abortion, the negative impact on her health. Says the QCCA's requirement of
neccecssity is too strict. Says jury should have been allowed to decide.

R v Morgentaler et al, ONCA (1985) 22 CCC (3d) 353 (p 883)

Facts: accused with conspiracy to procure a miscarriage. Contrary to s 251(1) and 423(1)(d). He was
acquitted at trial. Crown said jury shouldn't have been left to decide on necessity. ONCA agreed, new
trial.
Reasons: there was no attempt to follow the law, instead there was a deliberate attempt to avoid the
law. Dissatisfaction with the law is not a basis for the defence of necessity.

Perka v The Queen, [1984] 2 SCR 232 (p 884)

Facts: ship with marijuana headed from Colombia to Alaska hit rough seas, had engine trouble, and
landed on the West coast of Vancouver Island. Charged with importing and possession of a narcotic.
Accused claimed necessity for landing on the island.
Reasons:
Dickson J on necessity: The concept is as ill defined now as it was when I talked about it Morgentaler
in 1976. But that doesn't mean it doesn't exist.
Distinction between excuse and justification.
Some of the American jurisprudence suggests necessity is a justification, that involves weighing if the
harm of not breaking the law is outweighed by the good of breaking the law. Dickson J disagrees.
Says “no system of positive law can recognize any principle which would entitle a person to violate
the law because on his view the law conflicted with some higher social value”. Also, this would
require second-guessing the legislature (never good). Dickson J is against necessity as a justification.
But necessity as an excuse – could be ok.
Action has to be unavoidable – this is why he focused on the imminent peril in Morgentaler. This is
also consistent with second requirement – that there be no legal alternative. If there was an option that
was legal, that means that a choice was made and it was no longer an involuntary action.
Even if both of these steps have been met, there is a third element – that of proportionality. “No
rational criminal justice system, no matter how humane or liberal, could excuse the infliction of a
greater harm to allow the actor to avert a lesser evil” (p 886)
 The question is never whether what the accused did was wrongful, but instead was it voluntary.
Therefore involvement in criminal activity does not mean you can't have defence of necessity.

Three part test

(1) imminent peril (2) no legal way out (3) proportionality of response
The TJ was correct to instruct the jury re necessity (though was incorrect in the way he instructed
them)
Wilson J, concurring: She thinks the door should be left open to justification, not just excuse
Necessity as a justification was adopted in the English case R A (Children) (Conjoined Twins:O
Surgical Separation).
Note: Dickson also said that if it was reasonably foreseeable that the situation would arise and you
could avoid it, that wasn't really necessity (speaks to true involuntariness of it)

Latimer v The Queen [2001] 1 SCR 3

Facts: father killed his 12 year old daughter with cerebral palsy.
Issues: (1) was TJ right to remove necessity as a defence? (2) was trial unfair bc TJ led jury to believe
they would have input on sentencing? (3) does the imposition of the mandatory minimum sentence
constitute “cruel and unusual” punishment
Judicial History: TJ said necessity not available Also said mandatory 10 year minimum no good, gave
1 yr minimum. CofA said 10 year sentence was necessary
Reasons
Requirements for necessity, set out in Perka: true involuntariness. The defence “must be strictly
controlled and scrupulously limited” (p 894). For two of the three requirements, a modified objective
test is best (imminent peril and no reasonable alt)-approach in Hibbert instructive. Third element must
be objective test, or would violate fundamental principles of crim law.
The question is whether jury should have considered necessity – this means there had to be an air of
reality.
1. requirement for imminent peril or danger. This comes from Morgentaler and Perka. This was not
met in this case. Tracy was in ongoing pain, the upcoming surgery was maybe going to alleviate that
pain. No air of reality to it. In fact her health might have improved if they hadn't rejected feeding tube.
This is a modified objective standard.
2. no reasonable legal alternative. From Perka – was there a legal way out? No air of reality to this.
“He had at least one reasonable legal alternative: he could have struggled on, with what was
unquestionably a difficult situation, by helping Tracy to live and by minimizing her pain as much as
possible” (p 897, para 39). This may have been a difficult path, but it was a reasonable legal
alternative he knew of and rejected, so no air of reality. This is a modified objective standard.
3. proportionality. This can be hard to judge. The two harms must, at a minimum, be of comparable
gravity. Objective standard – this involves determining and reflecting society's values as to what is
appropriate. Also constitutional considerations. Hard to imagine that homicide is ever proportional.
Probably not allowed in England. Courts split in USA. Assuming it is available, still need to respect
life, dignity and equality of all involved. That was not done here.
Comments that may need to be made:
It is very easy for non-disabled people to have a very narrow idea of what it means to have a good
qualify of life, but it is actually a very narrow conception, and should not be imposed on people living
outside that narrow idea. It is possible for people with disabilities, even people in Tracy's situation, to
enjoy life, and to want to live despite living with pain and ongoing struggles. It sounds extreme to have
a dislocated hip, but this is very common for people with CP. Inappropriate for her to be described as
having 4 month intelligence level – many people with CP have much higher intelligence than
recognized due to communication difficulties. Clear she could communicate – with facial expressions,
etc. Could be that she would have developed more sophisticated method with time and assistance, but
even if not, doesn't mean she wasn't intelligent, and even if not intelligent, doesn't mean she doesn't
have the right to live as full a life as is possible for her. She shouldn't be limited by her parents narrow
view of what is “mutilation” and what is a good life.

Many people with very similar disabilities live happy lives, and are very independent. Many still
struggle to communicate – even with technological assistance, it can be very hard to get the hardware,
software, and trainers to be able to make use of it, and that help is not available to most people.

The Latimers obviously needed more support than they were getting – failure of social network,
welfare state.
R v Kerr, [2004] 2 SCR 371 (p 899)
Accused inmate in a prison. Prison under control of prison gangs. He was threatened by a leader of a
nd
gang. Reasonably believed he was in danger. He stabbed and killed the other guy. Charged with 2
degree murder (acquitted on self defence) btu also charged with having a weapon. SCC decided case
on other grounds, but Arbour and Lebel would have found that D of necessity applied bc he probably
had no legal way out. Binnie said “the argument that violent self-help in breach of the peace is
justified as 'necessity' has been rejected since medieval times as inimical to public order and should
st
not be given credence in 21 century alberta” (p 899)
Necessity has been discussed internationally since 9/11 re government's justification for using torture.

Necessity and codification

DURESS
Classic case: committing a crime with a gun to your head
s 17 of criminal code – very restrictive Defence. Requires threats of immediate death or bodilly harm
made by a person who is present when crimei was committed. Also excludes may offences including
murder and arson.
Ruzic found that the requirement that the person threatening be present was a violation of s 7. The
exclusion of certain offences has not bee challenged.
Also common law defence – which SCC has applied to parties of crimes, not principal offenders.
Modified objective standard (like necessity)

s 17
 first requirement: threats of death or bodily harm against the accused or a third party.
 second requirement: subjective belief that threats will be carried out
 no requirement for a safe avenue of escape or proportionality between the harm threatened and
the harm caused by the accused

restrictions on offences: long list of offences excluded. Also: association and conspiracy excluded. So
basically, if you “voluntarily” join a gang, can't later claim duress if a member of that gang threatens
you. ONCA has even held that those who voluntarily associate with criminal orgs dono't have access to
common law defece of duress. -> this could be a violation of s 7?

Common law Defence

  s 17 has been read down to apply only to principal offenders. Common law defence applies to
aiders and abetters.
 Same juridical basis as necesssity.
 Requires proportionality.
◦ First requirement: reasonable belief in threats of death or bodily harm. Modified objective
standard of belief, not subjective as under s 17.
◦ second requirement: reasonable belief in no legal way out or safe avenue of escape.
◦ Third requirement: proportionality between harm inflicted and harm avoided.

Question: seems to me there is a tension between this idea of morally involuntary and morally
blameworthy – is this as clear cut as the court implies? How can it be morally involuntary and STILL
morally blameworthy?

Question: what is the logic of s 17? Why did the legislature want to restrict duress in this way? Why is
duress so different from self defence? Why is it an excuse and not a justification?

R v Carker, 1967 – tried to argue that common law duress still available. Court said no, common law
defence had been exhaustively covered by s 17

Clas notes:
 Hibbert – duress as a more specific version of necessity
 s 17 – very narrow
 it's a concession to human frailty.
 Even as early as 1977 – cts trying to find ways to get around it
 s 7 – cmn law defences still exist
◦ Carker 1967 – s 7 has replaced cmn law D
◦ Paquette – one thing court doesn’t' do: give principled reason at all. All about stat intention,
not moral involuntariness
 Even when D of duress is unavailable, it is open to TJ to say bc of duress there was no mens rea
(Hébert) – intention to mislead
◦ distinction from Hibbert
Duress and Necessity: very similar req
 reasonable belief in death/bodily harm
 reasonable belief no safe avenue of escape
 proportionality

Ruzic: not an excluded offence

 but not a gun to the head situation
 2 difficulties: (1) immediacy (2) threat to mother and not her
 punishing moral involuntary actions would violate s 7 Charter, parts of legis struck down.
 Major surgery to s 17
Lavallee
 notion that threat has to be immediate, only recognizes a particular type of behaviour
 perceiving of imminence of attack: a woman in an abusive relationship as a bettter sense of
when a threat is present – just bc the person is walking away doesn't mean the threat is gone
Ryan case:
 one aspect of s 17 that was very broad was a subjective belief that threat would be carried out
  Ryan narrowed that to “reasonable” belief. They did this bc differences btwn s 17 and cmn law
were confusing.
 (side note: Bernie Getz case in SD materials – this is like a George Zimmerman/Trayvon Martin
case. Concerned 4 youths who approached a man in the subway and asked for $5. he shot them.
He perceived threat. Law requires a reasonable threat. Defences are supposed to reflect a
society view of what is excusable.)
 Read para 81-84 of Ryan. Talks about similarities between stat and cmn law defence. Only diff
is parties vs principals and excluded offences.

Paquette v the Queen [1977] 2 SCR 189 (p 904)

Facts: Simard and Clermont robbed a store and killed someone. C got Paquette to give them a ride –
threatened to shoot him if he didn't. They also threatened him with future harm if he didn't drive them
away from the store afterwards. They pled guilty to their charges. Paquette said he was under duress
and was acquitted. (he was charged under s 21(2) – what is this?) The Crown appealed and said duress
wasn't available under s 17.
Issue: is duress an available defence? [no]
Reasons:”In my opinion, the application of s 17 is limited to cases in which the person seeking to rely
upon it has himself committed an offence.” The section uses the words “a person who commits an
offence” and not “a person who is party to an offence”. “The appellant in the present case, did not
himself commit the offence of robbery or of murder. . .”

why would they narrow it in this way

s 21: parties to an offence

21. (1) Every one is a party to an offence who

 (a) actually commits it;
 (b) does or omits to do anything for the purpose of aiding any person to commit it; or
 (c) abets any person in committing it.

Marginal note:Common intention

(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to
assist each other therein and any one of them, in carrying out the common purpose, commits an
offence, each of them who knew or ought to have known that the commission of the offence would be a
probable consequence of carrying out the common purpose is a party to that offence.

R v Mena (1987) 34 CCC (3d) 304 (p 907)

Paquette said s 17 doesn't apply to an accused under s 21(2). .Mena says it also doesn't apply to s
21(1)9B) or (c)

How do we decide what is committing the offence and what is aiding?

In Mena – example of robbery where one person disables alarm and one carries money – what is in the
offence of robbery?
Also, what if disabling the alarm is itself an offence?
Hébert v The Queen [1989] 1 SCR 233, (p 909)
Facts: QC notary convicted of perjury. Claimed that gang members were present in court and
threatened him.
... issue of intent to mislead vs intent to lie so obviously the court would be able to tell

R v Hibbert [1995] 2 SCR 973 (p 909)

Facts: H called his friend to come downstairs where his friend was then shot
reasons
1. Duress will rarely negate mens rea. Parties still know what they are doing and intend to do them,
even if they don't want to do them.
If it exculpates you after the fact, it does so based on this notion of moral involuntariness.

R v Ruzik 2001 SCC (p 917)

Facts: R lived in Belgrade during the Yugoslavian war. She was approached by a member of one of the militias,
who began to harass her. He told her he would kill her mother (who lived in Belgrade) if she did not carry some
drugs to Toronto for him. She carried the drugs to Toronto and got caught in Canada. She is claiming duress.
Issues: 1. Is the principle of moral voluntariness a principle of fundamental justice under s. 7 of the Charter? 2.
Is the requirement of the imminence of the threat to the defence of duress unconstitutional?
Holdings: 1. & 2. Yes.
Reasoning (LeBel J.):
Is the Principle of Moral Voluntariness a Principle of Fundamental Justice? Yes.
 The principle of physical voluntariness is a constitutional requirement for criminal liability – it would
infringe s. 7 of the Charter to convict an accused who was not acting physically voluntarily (is a
fundamental element of the actus reus which would be missing)
◦ Punishing a person whose actions are involuntary in the physical sense is unjust because it conflicts
with the assumption that people are autonomous and freely choosing agents
 It is similarly unjust to penalize an individual who acts in a morally involuntary fashion
◦ A person acts in a morally involuntary fashion when, faced with perilous circumstances, she
is deprived of a realistic choice to break the law
◦ Her will was constrained by an external force, and so her acts cannot be attributed to her
 Conclusion: although moral involuntariness does not negate the actus reus or mens rea of an
offence, it is a principle which deserves protection under s. 7
◦ It is a principle of fundamental justice that only voluntary conduct (both physically and
morally) attract the penalty and stigma of criminal liability
 Duress, like necessity, involves the concern that morally involuntary conduct not be subject to criminal
liability  so duress operates to excuse the blameworthy conduct once it has been committed
Do the Immediacy/Presence Requirements in s. 17 Infringe the Principle of Involuntariness? Yes.
 A threat that is too far removed in time/space casts doubt on the seriousness of the threat and on claims
of an absence of a safe avenue of escape
◦ The test for the safe avenue of escape requirement: whether the accused failed to avail himself of
some opportunity to escape or render the threat ineffective
 Immediacy/presence requirements clearly preclude threats of future harm and impose obstacles to a
person claiming protection of s. 17 in a hostage or third-party situation
◦ But these may constrain moral voluntariness just as much as a present/imminent threat
 The requirement of proximity is unconstitutional
Ratio: The principle of moral voluntariness is a principle of fundamental justice protected by s. 7 of the
Charter. The requirements for imminence of the threat/presence of the attacker in s. 17 violate this principle and
are unconstitutional.
 Commentary: What is the constitutional status of the exclusions from s. 17 now that this decision has been
made? Do they maybe violate the principle of moral voluntariness required for criminal liability?

Duress and excluded offences:

Law Reform Commission Report
Martha Shaffer, “Coerced into Crim: battered women and the defence of duress” (p 928)

Self Defence
Pre-2012, s 34 (in text)
Justifications vs excuses
931-975

Post 2012 (Kent Roach)

s 34(1) – one defence for SD of self or others. (1) believe of reasonable grounds that force (or threat of
force) is being used against them or another (2) act is committed for the purpose of defending or
protecting (3) the act committed is reasonable in the circumstances.
First requirement: reasonable response to force
 old laws referred to assault or unlawful assault. New laws simpler with just “Force”
◦ new defn of force is consistent with approach taken in Petel
◦ Also consistent with Lavallee
▪ no legal requirement to wait for imminent attack from deceased
 must have reasonable belief in the force (sese Reillly)
◦ knowledge of previous violence also relevant factor in considering reasonableness(Pintar)
 The protection of others – this is new from the old code. Now good samaritans can act, but only
if reasonable
Second requirement: Subjective purpose of defending oneself or others

Third req: Acts done in SD must be reasonable in the circumstances under s 34(1)(c)
 a bit more open ended than the old law which required proportional response
 should continue to use contextual objective standard, as under old law. -> Lavallee
 Note: Lavallee principles are not limited to battered women, and not all battered women will be
able to apply SD. (Nelson-intelligence, Kagan-Asperger's, McConnell-rison inmate-p 973)
 one characteristic NOT to be considered is intoxication (Reilly)
Retreat: when should it be used first?
 Controversial. Lavallee said you don't have to retreat from your own home.
Proportionality:
 not specifically considered, which is consistent with cmn law
 but do have to consider factors like, are there other options? Cinous – ct said can't use SD bc
there were other options
R v Pintar 1996 ONCA (p 931)

R v Bogue, 1996 ONCA (p 933)

Facts: B’s boyfriend M was beating on her. The neighbours came up to see what was happening and
found B on the floor and M beating her; they left to call the police. When the police got there B had
stabbed M, claiming self defence
Issue Is self defence an available excuse? Holding Yes.
Reasons (Howland JA)
 34(1) is for when the force is not intended to be deadly
 34(2) is for intentional killing – no
◦ Reasonable apprehension of death or grievous bodily harm (objective)
◦ Reasonable belief the accused cannot preserve himself otherwise (subjective-objective) –
can be a mistaken belief
 34(2) realizes sober reflection is impossible where life is in the balance
 Must consider accused’s state of mind
Ratio: Must consider 34(2) from the accused’s point of view, compare it to reasonable person

R v Pawliuk BCCA 2001 p937

 Facts: accused (Pawliuk) shot the deceased (Preyser), co-accused was charged as a party. Accused claimed self-
defense, that he was scared and accidentally shot the deceased. Both accused and co-accused were convicted.
 Issue: the trial judge instructed the jury on s.34(2) and not on s.34(1). This is a problem because if he pulled the
gun reasonably fearing death or grievous bodily harm (34.1), he was entitled to an acquittal.
 Court finds: trial judge was right not to leave s.34(1) with the jury. What differentiates the provisions is whether
the accused reasonably apprehended his own death or grievous bodily harm, if so then he is entitled to the more
favorable provision of s.34(2). 34(1) does not apply because he had the reasonable apprehension that the
deceased was going to kill him. The court orders a new trial.

Differentiating s. 34(1) and s. 34(2) – intention (Baxter):

 R v Baxter ONCA – the difference lies in whether the accused intended to cause death or grievous bodily harm
(34.2). Someone who accidentally kills or causes grievous bodily harm to his assailant without intending to do so
does not fall within s.34(2) because he did not apprehend death or grievous bodily harm, or did not believe the
only way to defend himself was by killing his assailant or causing him bodily harm  so this person would be
covered by s.34(1). This is also the case in R v Pintar, 1996: distinction between subsections lies primarily in the
accused’s perception of what is happening to him when he acts against the victim – reasonable apprehension of
death/GBH
What if intention is not so clear:
 Baxter -> Martin JA concluded that the trial judge should instruct the jury to first consider s.34(1) and then
proceed to s.34(2) if the jury is satisfied that the accused intended to cause death or grievous bodily harm
BUT in Pawliuk court shifts away from Baxter intention model:
Problem with focusing on intention to differentiate per Moldaver:
 In R v Pintar, ONCA, 1996: Moldaver J states that focusing on intention means that individuals who are potentially
less morally blameworthy because they did not intend to kill are disadvantaged because they are precluded from
relying on s.34(2)
 He argues that s.34(2) puts a premium on a higher degree of moral blameworthiness
 This means that an accused person who provokes an assault and then intentionally kills their assailant are in a better
position then those who provoke an assault and kill unintentionally
 He argues that s.34(2) should not be limited to intentional acts, but include intentional acts
R v Pinter: reasonable apprehension not intention differentiates the provisions – current test
 In Pintar, Ritchie J supported Moldaver’s view but rather than focusing on intention, he focused on reasonable
apprehension of the attack upon him: the subsection can only afford protection that reasonably believe they cannot
preserve themselves otherwise
 After Pintar, If the accused does not reasonably believe that he is under threat of death or grievous bodily harm he
may rely on s.34 (1), but only if he did not intend to cause death or grievous bodily harm. If, in response to the attack
upon him, he must in turn be under a reasonable apprehension of death or grievous bodily harm he is limited to s.34
(2) and thus he must in turn be under a reasonable apprehension od death or grievous bodily harm from his attacker
before it can be said his response is justified
 o Pintar is the current state of the law: upheld by R v Trombley SCC 1999, “An accused may resort to the self-
defense provisions in s.34(2) whether or not he or she intends to cause death or grievous bodily harm”
o Baxter intent model overturned –
 Ratio: An accused may resort to the self-defense provisions in s. 34(2) whether or not he intends to cause death or
grievous bodily harm to his assailant in the attempt to protect himself. S. 34(2) can apply where there is no intention;
but where there is intent he can only make use of s.34(2).

R v Cinous 2002 SCC (p 946)

 Facts: Accused believe that the deceased was going to kill him, acting suspiciously in the course of a theft and he
suspected deceased to have stolen his revolver; shot him in the back of the head; claims self-defense
 Issue: McLachlin and Bastarche: trial judge made errors but do not overturn the conviction and order a new trial.
This is because the three conditions of self-defense we not met on the facts, and therefore defence lacks the “air
of reality” required to leave defence of self defense with the jury.
 MCL describes “air of reality” test – it must be considered for each of the three constitutive elements of the
defense: 1. Existence of unlawful assault, 2. Reasonable apprehension of a risk of death/GBH; 3. Reasonable
belief that it was not possible to preserve oneself without killing adversary.
 Subjective and objective components must be satisfied: Subjective -> accused’s perception of the situation;
Objective -> accused’s belief must be reasonable on the basis of the situation he perceives
 Must ask about the subjective perceptions of the accused, then to ask if those perceptions were objectively
reasonable in the circumstances; the whole defense must have an air of reality, not just parts of it
 Analysis of the case: accused testified that he heard rumours that the victim planned to kill him; claimed to have
received specific warning from a friend; suspicious gestures/whispering/wearing latex gloves/placing hand under
coat as if armed; accused says he felt trapped, that he would be killed
 Applying air of reality test to each constitutive element: Q: could the jury reasonable conclude that the
accused reasonably believed he was about to be attacked; NOT should the jury reasonably conclude this –
 1. Existence of unlawful attack - open to the jury to believe that the accused interpreted these various gestures to
indicate the deceased was going to kill him; jury could reasonably conclude he believed he was going to be
attacked; 2. Reasonable apprehension of death – yes, jury could infer he feared deadly attack; 3. Reasonable
belief in absence of alternative to killing – subjective: accused believed that he had to kill at time of shooting; jury
can decide on credibility of this claim; objective – was this belief reasonable, however? The requirement is that
the belief that he had no other option but to kill be objectively reasonable –
 Objective component must also have an air of reality: why not call the police? Wait inside service station? Flee
the van? So is it reasonable that he thought he had no other course of action but to kill? Was this truly a last
resort?
 Court holds: inferences required for third element has no evidential foundation; defense lacks air of reality;
should not have been put to the jury
 Binnie J: “the only way the defence could succeed is if the jury climbed into the skin of the respondent and
accepted as reasonable a sociopathic view of appropriate dispute resolution” – so just not reasonable/objectively
 Ratio: each of the three elements in s.34(2) has a subjective and objective component that must be met – air
of reality - for defense to go forward

Constitutive elements for s. 34(1):

 In R v Kong, 2006, SCC endorsed Alberta CA summary of elements of defense in s.34(1) which each have
subjective and objective components:
 1. An unlawful assault, 1. The assault was not provoked, 2. Lack of intent to kill or cause grievous bodily harm, 4.
The force used be no more than is necessary for self-defense
 objective for #4: “jury is to look to the circumstances to consider what a reasonable person in the accused’s
situation might do given the threatening attack and the force necessary to defend himself against that apprehended
attack.”

R v Lavallee [1990] 1 SCR 852 (p 955)

 L kills the man she is living with single shot to the head as he walked out after an argument threatening to kill her;
L subject to domestic violence over extended periods; acquitted of murder
 Manitoba Court of Appeal reversed and ordered new trial on grounds that expert testimony on battered women
 should not have been submitted in relation to self-defense plea
 SCC overturns MCA/acquits: expert evidence on psychological effect of battering on wives and common law
partners is relevant and necessary; mental state of appellant cannot be appreciated without it. Woman who comes
before police, judge, and jury claiming battery may still be condemned by popular myths about domestic violence
-> expert testimony is needed to combat stereotypes.
 Court still scrutinizes two elements of the defense under s. 34(2): a) temporal connection; between apprehension
of death or GBH and the act – man was walking out of the room, and b) magnitude of force used by the accused –
was there no alternative to preserving herself but shooting him?
 Consider subjective/objective standard to these elements: 1) look at accused state of mind, 2) was the
apprehension reasonable, belief based on reasonable and probable grounds?
 ***Court: “It strains credulity to imagine what the “ordinary man” would do in the position of a battered
spouse…men do not typically find themselves in that situation.” Definition of what is reasonable must be
adapted to circumstances foreign to hypothetical reasonable man –
 A) Reasonable apprehension of Death: courts usual stance is that it is inherently unreasonable to apprehend
death or GBH unless the physical assault is actually in progress; expert testimony can cast off this assumption;
“Walker Cycle Theory of Violence”/battered women syndrome – mental state of accused must be understood in
terms of cumulative effects of extended violence; battered women react to predictable cycles not isolated violent
encounters; can anticipate nature and extent beforehand; can predict what situation is novel; waiting could for act
to commence could be deadly
 B) Alternatives to preserve herself without killing: why didn’t she leave? Question doesn’t go to alternative to
killing but popular myths about battered women and why they stay; consider psychological barriers - learned
helplessness, environmental factors – children, financial reliance, fear of retaliation by man; feeling incapable of
escape –
 Ratio: rejects rule that apprehended danger must be imminent. Also, expert testimony is valuable in
adjusting reasonability analysis in certain circumstances. Jury can still decide on reasonability even after
hearing expert testimony.

R v Pétel 1994 1 SCR 2 (p 963)

 Facts: P convicted of second-degree murder for killing man living with her, her daughter and granddaughter; P
claims man threatened her frequently and beat her daughter in this time; P consumed some drugs and killed man
after thinking he was lunging at her
 Convicted because jury did not find reasonable apprehension of death/harm on that particular night
 Court overturns conviction/new trial ordered: Lamer CJC – “The existence of an assault must not be made a
kind of prerequisite for the exercise of self-defense;” Must look at accused’s state of mind – did she reasonably
believe she was being unlawfully assaulted?
 Trial judge’s questions led jury to focus on victim’s acts rather the victim’s state of mind
 Precedent: Lavallee – doesn’t have to be imminent danger; Importance of failing to relate the earlier threats to
elements of self-defense can’t be underestimated; atmosphere of terror that prevailed
 Typical reasonable person construction would not have accounted for these circumstances

Isabel Grant, “The Syndromization of Women's Experiences”

 “Battered women syndrome” risks casting gender oppression as a psychiatric disorder
 Victim seen as abnormal actor, does not fit with reasonability standards, must be explained by expert
 “Learned helplessness”: woman is portrayed as helpless and choiceless
 Woman who kills her batterer should not be seen as abnormal; there may be no other way out
 Remaining in abusive relationship does not mean abandoning the right to defend oneself

R v Malott, [1998] 2SCR 123(p 968)

 Facts: M physically, psychologically, sexually abused by common law spouse Paul M; two children together; M
informed police but police told PM (he was a drug informant); they separated and PM got a girlfriend; M went with
PM to get prescription drugs – shot PM and then drove to his girlfriend’s and shot and stabbed her with knife;
girlfriend survived
 Jury found guilty of attempted murder of gf, and second degree murder of PM; jury recommendation that M get
minimum sentence because of battered woman syndrome
 ONCA; dismissed appeal
 SCC dismissed, held conviction of second-degree murder: Major J – restates importance of expert testimony in
countering stereotypes in battered woman cases; and finds that trial judge adequately instructed jury on how evidence
on battered woman syndrome relates to law of self-defense
 L’Heureux-Dubé concurring: crucial implication of admitting expert testimony is recognizing that law and society
have treated battered women/women unfairly; accepted stereotypes interfere with judges and juries ability to assess
fairly
o Battered woman syndrome NOT a legal defence, doesn’t get you automatic acquittal; rather it is a psychiatric
explanation of woman’s mental state informing reasonability
o It is not the modification of objective test for subjective factors; but informing objective test
o Finds trial judge jury charge adequate, not perfect, but won’t overturn on imperfection