CL & THE CHARTER
Common law principles complied with, proceedings are stayed.
• the general ideas which have developed in the common
law world; reflected in legislation and case-law
• dimension of weight: some are stronger and more firmly
embedded than others
• can be overridden by legislation.
Constitutional principles
- guarantee of principles of fundamental justice in s 7
- principles of “universal application” so they do not readily permit
exceptions; Creighton at SDC 573
- can override legislative provisions to the contrary.
- Not all CL principles qualify as constitutional – only the most
important ones
-“the Constitution does not always guarantee the ‘ideal’”;
Creighton
CHARTER s 7 - the review of the legal means to achieving the
particular social objective
s 7: Everyone has the right to life, liberty and security of the person
and the right not to be deprived thereof except in accordance with
the principles of fundamental justice.
Applies to procedural matters
eg obligation of prosecution to make full disclosure of all relevant
material, whether or not it intends to use the material at trial:
Stinchcombe [1991] 3 SCR 326.
PROCEDURAL APPLICATION OF s7:
- Entrapment (formally abuse of process issue, but now a s7
issue)
- Officially-induced error of law
- Improper or oppressive prosecutions
- Double jeopardy
o where special pleas of autrefois acquit or
autrefois convict under s 607(1) are not
available
- Non-disclosure
- Lack of legal representation at trial
Applies to design of offences (ie conduct elements): must not be
arbitrary or vague
eg abortions cannot be subject to requirements for performance in
hospitals and for approval of committees applying vague standards
re “health”: Morgentaler [1988] 1 SCR 30.
-- must be rationally connected to the social end, and reasonably
clear & not vague. Otherwise it is unjust.
Applies to fault elements of offences (ie is the fault element
sufficient to the penal liability that is being held by the provision)
eg felony-murder unconstitutional: Vaillancourt [1987] 2 SCR 636;
Martineau [1990] 2 SCR 633
Remedies for Charter Breaches
- s 24(1) Anyone whose rights or freedoms, as guaranteed by
this Charter, have been infringed or denied may apply to a
court of competent jurisdiction to obtain such remedy as the
court considers appropriate and just in the circumstances.
o eg Where legislation is held unconstitutional,
 declaration of invalidity can be made: eg
Morgentaler [1988] 1 SCR 30
 declaration that particular provisions are
inoperative may be made: eg Logan –
• ‘ought to know’ is
unconstitutional to offences
requiring a special mens rea
requirement; Logan
o eg officials may be ordered to take action to observe
constitutional standards: eg Stinchcombe order for
disclosure – i.e. have material disclosed to the
Defence by the Prosecution and if ordered and not
 Per SCC: prosecution has obligation to
make full disclosure of all relevant
material, whether or not it intends to use
the material at trial
• Subject only to exceptions re
e.g. matters covered by
privilege; concerns re safety of
witnesses
Exclusion of Evidence
Grant, 2009 [SCC]
“[71]…When faced with an application for exclusion under s.
24(2), a court must assess and balance the effect of admitting the
evidence on society’s confidence in the justice system having
regard to:
 (1) the seriousness of the Charter-infringing state conduct
(admission may send the message the justice system condones
serious state misconduct),
 (2) the impact of the breach on the Charter-protected interests
of the accused (admission may send the message that
individual rights count for little), and
 (3) society’s interest in the adjudication of the case on its
merits.
The court’s role on a s. 24(2) application is to balance each of these
lines of inquiry to determine whether, considering all the
circumstances, admission of the evidence would bring the
administration of justice into disrepute.”
GRANT & TYPES OF EVIDENCE
Statements by accused:
[98] “…the centrality of the protected interests affected will in
most cases favour exclusion of statements taken in breach of the
Charter, while the third factor, obtaining a decision on the merits,
may be attenuated by lack of reliability. This…explains why such
statements tend to be excluded under s. 24(2).”
Bodily evidence:
[110] “…evidence obtained from the accused’s body is generally
reliable, and the risk of error inherent in depriving the trier of fact
of the evidence may well tip the balance in favour of admission.
[111] “…it may be ventured in general that where an intrusion on
bodily integrity is deliberately inflicted and the impact on the
accused’s privacy, bodily integrity and dignity is high, bodily
evidence will be excluded… On the other hand, where the violation
is less egregious and the intrusion is less severe…reliable evidence
obtained from the accused’s body may be admitted.”
Non-bodily physical evidence:
[113] “Privacy is the principal interest involved in such cases. The
jurisprudence offers guidance in evaluating the extent to which the
accused’s reasonable expectation of privacy was infringed.”
ACTS & OMISSIONS
LIABILITY FOR OMISSIONS:
General principle of no criminal liability for omissions
- principle implicit but not stated in the Code
- no 'good Samaritan' principle in Code or common law
Exceptions
• Legal duty to act recognised by criminal law
• Per Coyne (SDC at 280): “The ‘duty imposed by law’
may be a duty arising by virtue of either the common law
or by statute.”
• Breach of duty:
a. Specific offences of omission in breach of duty eg:
failure to stop at scene of accident with intent to escape liability, s
252(1);
failure to provide necessaries of life in breach of a legal duty, s
215(2)
b. Offences where omission in breach of duty is expressly
identified as alternative mode
- causing death (s 220) and causing bodily harm (s 221) by
criminal negligence
- with criminal negligence defined to include showing ‘wanton
or reckless disregard for the lives or safety of other persons’ in
doing or ‘in omitting to anything that it is his duty to do’ (s
219) – SEE CRIM NEGLIGENCE BELOW
c. Offences where common law recognises liability for omission
in breach of duty
GENERAL DUTIES TO ACT
REQ 1: Is there a duty?
REQ 2: Is there a breach of that duty
Browne: ‘Im going to take you to the hospital” HELD: convicted.
Moore: Cyclist went through red light, refused to identify himself
to police. Charged with Obstruction. HELD: refusal of ID causes
major inconvenience and obstruction to police, :. Considerations of
public interest justify conviction. (dist. Rice v Connoly – no legal
duty to assist – b/c that was mere suspicion of an offence)
Thornton: (donation of blood by person knowing HIV+. Convicted
of common nuisance – s180 – ‘does an unlawful act, or fails to
discharge legal duty + endangers life) HELD: breach s216 – who
undertakes to do any other lawful act that may endanger the life, is
under a duty to take r/care in doing so.
Beardsley: (how decided under current Cdn law)
Statutory duties
1) Duty to provide necessaries of life, s 215
• (a) to children under 16
• (b) to spouses or common law partners
• (c) to persons ‘under his charge’ who are unable to
withdraw from the charge and unable to provide
necessaries for themselves
2) Duty of persons undertaking acts dangerous to life, s216
3) Duty to perform undertakings to do acts if omission may be
dangerous to life, s 217
4) Duty of persons directing work of others to take reasonable
steps to prevent bodily harm, s 217.1
Common law duties
Duty of persons causally responsible for dangerous situations
to counteract danger, Miller SDC 269-271
BURDEN OF PROOF
Oakes [1986] 1 SCR 103
Drugs legislation provided that, where possession was proved on a
charge of possession for the purpose of trafficking, onus lay on
accused to establish that trafficking was not the purpose of the
possession
Held by SCC:
- provision violated s 11(d): constitutional guarantee applies to
all elements of offence
- could not be saved by s 1 because no rational connection
between the proved fact (possession) and the presumed fact
(purpose of trafficking
OAKES TEST for s 1
(1) the objective must be of sufficient importance to warrant
overriding the constitutional right or freedom;
(2) the means of achieving this objective must be “reasonable and
demonstrably justified”, which requires that:
(a) there must be a rational connection to the attainment of the
objective,
(b) there must be the minimally necessary impairment of the
constitutional right or freedom and
(c) the adverse social consequences of this impairment must not
outweigh the benefits
EXTENSIONS OF OAKES DOCTRINE
• Later cases apply s 11(d) to defences as well as elements of
offences
Eg Presumption of sanity: Chaulk [1990] 3 SCR 1303
LIMITATIONS OF OAKES DOCTRINE (1)
1) Chaulk [1990] 3 SCR 1303
Reversal of onus for mental disorder defence upheld under s1
• Objective is to relieve prosecution of
difficulties re disproving insanity and ensure guilty persons
are convicted
• Reversal of evidentiary burden would not
have achieved objective as effectively
• Per Lamer CJ: “…Parliament may not
have chosen the absolutely least intrusive means of meeting
its objective, but it has chosen from a range of means which
impair s.11(d) as little as is reasonably possible.”
2) Wholesale Travel Group Inc [1991] 3 SCR
Reversal of onus acceptable for ‘regulatory offences’ (re strict
liability)
- Reversal of onus for defence of due diligence for Competition
Act offence of misleading advertising upheld under s1
- Per Cory J: This is a regulatory offence and reversal is
justified for such offences
- “Quite simply, the enforcement of regulatory offences would
be rendered virtually impossible if the Crown were required to
prove negligence beyond a reasonable doubt…Only the
accused will be in a position to bring forward evidence
relevant to the question of due diligence.”
PRINCIPLES OF CRIMINAL CULPABILITY
FAULT PRINCIPLE
The most fundamental of all principles of criminal culpability is the
principle that there should be no penal liability without fault:G –
i.e. accused must be blameworthy for what occurred
At a minimum, the FP means that the standard of conduct
prescribed by the law must have been reasonably within reach,
- i.e. there must have been capacity to conform to the
law and also a fair opportunity to exercise that capacity
- Both a common law and a constitutional principle (PFJ which s7
requires to be observed when the right to liberty has been taken
away)
Principle of fundamental justice that criminal liability requires
fault:
Sault Ste Marie, Dickson J at SDC 377: “absolute liability…
violates fundamental principles of penal liability”
FAULT: SUBORDINATE PRINCIPLES
VOLUNTARINESS PRINCIPLE
- requires that the conduct have been under the mental control
of the actor, so that the person could have acted differently
and can be blamed for not having done so.
o a common law principle
o and a constitutional principle (Daviault)
COGNITIVE CAPACITY PRINCIPLE
- requires there to have been the capacity to appreciate what
was being done and why it was wrong, so that the person not
only could have acted differently but also should have done
so.
o a common law principle
o and a constitutional principle (Creighton)
- underlies the recognition that objective tests must generally be
adaptable for cases where the person was incapable of
meeting the regular standard (Creighton)
--NB* Creighton – for objective mens rea, there is a uniform test.
Don’t adapt it to the frailties of the accused. This is subject to the
cognitive capacity principle. The objective test has to adapted to
the cognitive capacity of the accused. Thus this is an exception to
the view that objective test is uniform in regards to offences
involving negligence, for example. Not too many ppl will get the
benefit of the exception – only ppl with really low IQ’s/ ppl who
don’t know the standard that they have to live up to.
MORAL VOLUNTARINESS PRINCIPLE
- demands special excusing defences (like duress) for situations
where punishment would be unjust because any normal
person would have felt driven to act as the accused did.
o a common law principle (Perka)
o and a constitutional principle (Ruzic) – used to
strike down legislative defence to duress.
Ruzic: Getting rid of the rigid time frames
associated with the defences.
--Conduct is morally involuntary if no other options are available
to the accused. Necessity is recognised as a defence (CL)
Proportionality Principle
Insists that the fault required for an offence should be proportionate
to its gravity, as measured by the penal liability (+stigma) that will
follow conviction: the more severe the sanctions that a person
will face, the worse should be the culpability required for
conviction
CL Principle & constitutional principle but of uncertain weight &
application
- Creighton per McLachlin J: “the moral fault of the accused must
be commensurate with the gravity of the offence and its penalty”
i.e. the more severe the sanctions that a person will
face, the worse should be the culpability required for
conviction
SEE MARTINEAU re CHARTER
PROPORTIONALITY: SUBORDINATE PRINCIPLES
SYMMETRY PRINCIPLE
- requires that a corresponding element of fault be
established for each conduct element of an offence.
o a common law principle (Pappajohn) but
relatively weak
o no general application as a constitutional
principle because it clashes with the “predicate
offence” principle (DeSousa, Creighton), e.g.
assault occasioning bodily harm
 e.g. each AR requires a MR, i.e. AR1
– MR1, AR2 – MR2, AR3 –MR3.
SUBJECTIVITY PRINCIPLE
- requires that liability be imposed only on a person who
has freely chosen to engage in the relevant conduct,
having appreciated the consequences or risks of that
choice.
o accused must have had the intention to commit
the offence or displayed recklessness (in the
sense of awareness of the risk) of its
commission
o a common law principle (Sault Ste. Marie,
Pappajohn)
o but a constitutional principle only re group of
especially serious offences (Vaillancourt,
Martineau)
- Generally, objective mens rea is constitutionally
acceptable (Hundal, Creighton) + strict liability for
regulatory offences (Sault Ste. Marie, Wholesale Travel)
CRIMINAL NEGLIGENCE PRINCIPLE
- requires that, where serious offences are based on
objective negligence, there should be a “marked
departure” from the standards of the reasonable person.
- a common law principle and a constitutional principle
(Hundal, Creighton, JF)
- applied only to offences which are based wholly on
negligence
- not applied to offences in which elements of subjective
fault and negligence are mixed.
ELEMENTS OF OFFENCES
THE MENTAL ELEMENT IN THE ACTUS REUS
VOLUNTARINESS:
Daviault, Cory J: “the actus reus requires that the prohibited act be
performed voluntarily as a willed act.” – judged subjectively
- required by CL & Consti
- often described as the mental element in the actus reus
MENS REA
1) PRESUMPTION OF MENS REA (applies only to true crimes,
not regulatory offences)
Prue SCC 1979, Laskin CJ at SDC 720-721: [T]he inclusion of an
offence in the Criminal Code by that very fact must be taken to
import mens rea, ie presumption of mens rea
Sault Ste Marie convicted for polluting water; provincial offence of
regulatory kind :. No presumption of MR + no express words
importing MR. HWR it is a strict liability offence, so reverse onus
to prove lack of fault.
2) MR requires INTENTION or RECKLESSNESS.
- wilfully = intentionally: Buzzanga endorsed in Chatrand
Doctrine of WB: “the rule is that if a party has his suspicion
aroused but then deliberately omits to make further inquiries b/c
he wishes to remain in ignorance, he is deemed to have
knowledge”: Currie (leading case re forged cheques);
- APPLICABLE TO: (a) s.354 receiving (have to know
property is stolen) OR (b) s.268 uttering a forged document
(have to know that it’s forged)
NB*HWR see Sansregret WB
3) Sansregret as per McIntyre J: re WB vs Recklessness
WB= arises where a person who has become aware of the need
for some inquiry declines to make the inquiry b/c he does not
want to know the truth
Reck= involves knowledge of a danger or risk and persistence in
a course of conduct which creates a risk that the prohibited result
will occur
THUS: if intention/knowledge required – WB will do (orthodox);
if recklessness required but not present, WB will do (Sansregret)
ELEMENTS OF WB (Sansregret)
1) No awareness of risk of committing actus reus (ie no
recklessness) –> if he was aware of the risk, it would be
recklessness
2) but awareness of need for inquiry b/c of the facts present at
the time
3) deliberate failure to inquire
a. NOT WB in traditional sense
FORMS OF MENS REA
Subjective Mens Rea
• Conduct is advertent: Intention, knowledge, recklessness
(advertently running a risk, you know there’s a risk, and you
go ahead and take that risk: re recklessness)
• Focus on blameworthiness of positive states of mind
The “subjectivity “ principle:
Liability be imposed only on a person who has freely chosen to
engage in the relevant conduct, having appreciated the
consequences/risks of that choice:
Sault Ste Marie SCC 1978, Dickson J at SDC 376: “Where the
offence is criminal, the Crown must establish a mental element,
namely, that the accused who committed the prohibited act did so
intentionally or recklessly, with knowledge of the facts
constituting the offence, or with wilful blindness toward them.
Mere negligence is excluded from the concept of the mental
element required for conviction” – supported in Buzzanga by
Martin JA
• With respect to true/classic crimes, we ought to require a
subjective state of mind b/c if you’re just negligent, you
wouldn't be so much at fault to be convicted of a serious
crime. Runs along the same lines as the proportionality
principle
NB* all drug offences require SUBJ MR, imported from CC:
Beaver
Objective Mens Rea
• Conduct may be inadvertent (NOT FOCUSING THE MIND):
negligence, criminal negligence
• Focus on comparison between conduct of an accused and that
of an ‘ordinary’ or ‘reasonable’ person placed in a similar
situation.
– It is objective because you are comparing the
accused’s state of mind with a hypothetical person.
Their inadvertence is culpable. E.g. criminal
negligence manslaughter
“Criminal Negligence Principle”
Hundal SCC 1993, Cory J at SDC 533: “the mens rea or element
of fault can be satisfied by proof of negligence whereby the
conduct of the accused is measured on the basis of an objective
standard...” – re DANGEROUS DRIVING: s.249(1)
- Ie inadvertent criminal negligence: has to be a high degree of
negligence because of the proportionality principle.
There ought to be more than just civil liability.
NB* BUT the negligence must constitute a ‘marked departure’
from the standard of the r/person: Creighton
Relationship of Mens Rea to Actus Reus
“Symmetry Principle”
Have to have a mens rea for each and every element of the offence
Pappajohn [SCC] per Dickson J: “the mental element must be
proved with respect to all circumstances and consequences that
form part of the actus reus”
NB*- weak principle at CL & no general application as a
constitutional principle; weak b/c clashes with predicate offence
EXCEPTION FOR COMPUND OFFENCES:
DeSousa SCC 1992, Sopinka J at SDC 566: ‘the mental element
of an offence attaches only to the underlying offence and not to
the aggravating circumstances.’
FORMS OF MR & THE CHARTER
Subjective (intention or recklessness) and complete mens rea
required for some offences by Charter s 7:
1) Murder: Vaillancourt; Martineau
2) Attempted Murder: Logan
3) Crimes against humanity & war crimes: Finta
4) Theft (dicta): Vaillancourt
Objective MR suffices for some offences:
1) Dangerous Driving: Hundal
a. Requires marked departure from standard of
reasonable person: Hundal; Creighton (re crim
neg, not civil neg)
Partial MR suffices for compound offences:
1) Unlawfully causing bodily harm (s.269): DeSousa
2) Manslaughter by unlawful act (s.222(5)(a)): Creighton
NB* at CL, symmetry principle is limited by predicate
offence principle re compound offences: DeSousa
CLASSIFICATION OF OFFENCES
Sault Ste Marie SCC 1978:
• Generally if its in the CODE = mens rea offence
• If it’s a provincial offence, generally it will be held to be a
strict liability offence
• If it’s a federal offence not in the CODE, then it could be
either.
1) True Crimes: Offences that require some positive state of mind
(mens rea) as an element of the crime. These offences are usually
implied by the use of language within the charge such as
"knowingly", "wilfully", intentionally".
• Fault element to be proved by prosecution
• CL presumption of mens rea required - SEE ABOVE
• Proof of some form of mens rea required for all ‘true
crimes’
o And must be proportionate to stigma and
penalty: Creighton
2) Strict Liability: Offences that do not require proof of mens rea.
The act alone is punishable. No fault element to be proved by
prosecution.
REVERSE ONUS (re REGULATORY OFFENCES:
Wholesale Travel Group: accused may escape liability by proving
reasonable care to avoid committing offence. E.g. DUE
DILIGENCE “will be available if the accused reasonably believed
in a mistaken set of facts which, if true, would render the act or
omission innocent, or if he took all reasonable steps to avoid the
particular event”: Sault Ste Marie SCC 1978
-re Regulatory Offences – liability for negligence does not
violate Charter s 7:Wholesale Travel Group
3) Absolute Liability: not open to accused to prove lack of fault
DEFENCES: INVOLUNTARINESS; NECESSITY
 Absolute liability violates Charter s 7 if has potential to
deprive of life, liberty or security of the person: Re Motor
Vehicle Act (BC) Lamer J at SDC 402: “the combination of
imprisonment and absolute liability violates s 7” (this
combination was held to be unconstitutional)
NB* BC subsequently amended Act to retain AL but remove
imprisonment a penalty: Held Constitutional in Pontes
 STRICT & ABSOLUTE LIABILITY
CRITERIA FOR CLASSIFICATION OF OFFENCES:
1) Relevance of Constitutional Origin
A. Provincial Offences
- presumptively strict liability
o presumption of MR only applies to offences which
are “criminal in the true sense” IF valid prov leg,
then cannot be criminal; Sault Ste Marie
B) Code Offence
- presumptively MR
o inclusion in the code is enough to presume MR;
Prue
2) Relevance of Penalties
- Beaver: MR req’d for possession of drugs b/c mandatory min
sentence of 6mos imprisonment
- Prue & Baril: max 2yr imprisonment, MR offence
- Wholesale Travel: misleading advertising, strict liability
despite 5yr max penalty.
3) Relevance of Subject Matter
- objective of regulatory legislation is to protect the public from
future harm
- objective of criminal offences is to condemn/punish past acts
o Wholesale Travel Group
CONCLUSION: TAKE EVERYTHING INTO ACCOUNT:
NB*Wholesale Travel: although imprisonment indicates criminal
in nature, must also look at the conduct addressed by legislation
and the purpose for which the conduct is regulated. *
OFFENCES
1) MURDER
Homicide
222. (1) A person commits homicide when, directly or indirectly,
by any means, he causes the death of a human being.
Kinds of homicide
(2) Homicide is culpable or not culpable.
Non culpable homicide
(3) Homicide that is not culpable is not an offence.
Culpable homicide
(4) Culpable homicide is murder or manslaughter or infanticide.
Idem
(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.
Exception
(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 (e.g. rape or a gun),
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.
REQUIREMENTS FOR MURDER:
1) MR:
1) “intent to cause death’: s.229(1)(a)(i)
2) ‘Intent to cause BH + Recklessness’: s.229(1)(a)(ii)
Vaillancourt: (death occurred by shooting in course of Robbery)
HELD: murder requires at least OBJ foreseeability of death
(dicta suggested SUBJ)
- ‘though very few in number, certain crimes, which because of
the special nature of the stigma attached, the principles of
fundamental justice require a MR reflecting the particular
nature of that crime’
o Removed 230(d) but technically all of 230 is
unconstitutional
Martineau: (murder conviction on s230(a)) HELD:
unconstitutional b/c requires SUBJ MR
- Lamer CJ: ‘violates principle that punishment must be
proportionate to the moral blameworthiness of the offender’
i.e. proportionality principle – also b/c of the stigma involved
with murder
2) AR – ‘cause the death’
Subjective (intention or recklessness) and complete mens rea
required by Charter s 7 - MARTINEAU
2) ATTEMPTED MURDER
Attempt to commit murder
239. (1) Every person who attempts by any means to commit
murder is guilty of an indictable offence and liable
(a) if a restricted firearm or prohibited firearm is used in the
commission of the offence or if any firearm is used in the
commission of the offence and the offence is committed for the
benefit of, at the direction of, or in association with, a criminal
organization, to imprisonment for life and to a minimum
punishment of imprisonment for a term of
(i) in the case of a first offence, five years, and
(ii) in the case of a second or subsequent offence, seven
years;
(a.1) in any other case where a firearm is used in the commission
of the offence, to imprisonment for life and to a minimum
punishment of imprisonment for a term of four years; and
(b) in any other case, to imprisonment for life.
Subsequent offences
(2) In determining, for the purpose of paragraph (1)(a), whether a
convicted person has committed a second or subsequent offence, if
the person was earlier convicted of any of the following offences,
that offence is to be considered as an earlier offence:
(a) an offence under this section;
(b) an offence under subsection 85(1) or (2) or section 244; or
(c) an offence under section 220, 236, 272 or 273, subsection
279(1) or section 279.1, 344 or 346 if a firearm was used in the
commission of the offence.
However, an earlier offence shall not be taken into account if 10
years have elapsed between the day on which the person was
convicted of the earlier offence and the day on which the person
was convicted of the offence for which sentence is being imposed,
not taking into account any time in custody.
Sequence of convictions only
(3) For the purposes of subsection (2), the only question to be
considered is the sequence of convictions and no consideration
shall be given to the sequence of commission of offences or
whether any offence occurred before or after any conviction.
Subjective (intention or recklessness) and complete mens rea
required by Charter s 7 - LOGAN
3) MANSLAUGHTER
Manslaughter
234. Culpable homicide that is not murder or infanticide is
manslaughter
2 TYPES OF MANSLAUGHTER:
1) UNLAWFUL ACT MANSLAUGHTER (s.222(5)(a))
(COMPUND OFFENCE)
a) MR – CL requires objective foreseeability of BH;
Creighton (ruled that perfect symmetry does not apply to
compound offences b/c of Predicate Offence Principle)
i) Consti doesn’t require anything more b/c
Manslaughter is different than murder (less stigma);
no general consti req’ment for symmetry of AR &
MR; fault and proportionality are constitutionally
required but satisfied by test of foreseeability of BH.
Predicate Offence Principle: gen principle of CL that fault is
required only for the predicate offence
- Foreseeability – Objective
[1] Uniform Test? -- IF D is capable of reaching
minimum standard
 issue w/uniform if accused has mental
limitations and cannot reach the minimum standard of
care of a reasonable person
• IF capable of reaching the
standard, then judged by it; Creighton
[2] Variable Test? – IF cannot reach minimum
standard of r/person then take into account personal ‘frailties’
Cognitive Capacity Principle: requires there to have been the
capacity to appreciate what was being done and why it was wrong,
so that the person not only could have acted differently but also
should have done so. NB* PFJ under Charter s 7: Creighton
- minority in Creighton (Lamer CJ), take into account human
frailties ‘personal characteristics affecting an accused’s
awareness of the circumstances which create the risk’
2nd use of variable standard
Hibbert:
o Excuse based defences: variable standard (Modified
Objective Test)
o Crim Neg: uniform standard
2) CRIMINAL NEGLIGENCE MANSLAUGHTER (s.220)
ii) REQ 1 – Duty of Care
iii) REQ 2- MR - ‘wanton or reckless disregard’ – s.219
iv) REQ 3 – AR – cause the death
Long history of confusion as to elements:
- O’Grady (argued SUBJ)
- Tutton (manslaughter by crim neg. parents refuse to allow
medical advice about diabetic son) HELD: 3/3 split
o ‘marked and significant’
- Creighton (closer to OBJ)
o ‘marked departure’
- JF (resolves it) (Failure to provide necessaries of life-
unlawful act mans. Charged with a) unlawful act mans, and b)
crim neg mans.)
 THE LAW: Crim Neg requires OBJ MR
 ‘marked and substantial’ departure from
the standard of a r/person
CONCLUSION: R v JF:
1) Unlawful Act Manslaughter: ‘Marked departure’ is the
constitutional req’ment for obj MR  Creighton, Hundal
2) Crim Neg Manslaughter: ‘Marked and Substantial’ is the
standard established by precedents for criminal negligence
 Sharp, Tutton, *JF
Criminal negligence
219. (1) Every one is criminally negligent who
(a) in doing anything, or
(b) in omitting to do anything that it is his duty to do,
shows wanton or reckless (a SUBJ MR concept) 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.
Causing death by criminal negligence
220. Every person who by criminal negligence causes death to
another person is guilty of an indictable offence and liable
(a) where a firearm is used in the commission of the offence, to
imprisonment for life and to a minimum punishment of
imprisonment for a term of four years; and
(b) in any other case, to imprisonment for life.
- why 2 offences?
o Elements are the same
 B/C: stigma associated with manslaughter,
so juries not convicting based on
compassion that everyone makes mistakes
when driving.
• :. Less stigma?
4) DANGEROUS OPERATION OF A MOTOR VEHICLE
Dangerous operation of motor vehicles, vessels and aircraft
249. (1) Every one commits an offence who operates
(a) a motor vehicle in a manner that is dangerous to the public,
having regard to all the circumstances, including the nature,
condition and use of the place at which the motor vehicle is being
operated and the amount of traffic that at the time is or might
reasonably be expected to be at that place;
(b) a vessel or any water skis, surf-board, water sled or other towed
object on or over any of the internal waters of Canada or the
territorial sea of Canada, in a manner that is dangerous to the
public, having regard to all the circumstances, including the nature
and condition of those waters or sea and the use that at the time is
or might reasonably be expected to be made of those waters or sea;
(c) an aircraft in a manner that is dangerous to the public, having
regard to all the circumstances, including the nature and condition
of that aircraft or the place or air space in or through which the
aircraft is operated; or
(d) railway equipment in a manner that is dangerous to the public,
having regard to all the circumstances, including the nature and
condition of the equipment or the place in or through which the
equipment is operated.
Punishment
(2) Every one who commits an offence under subsection (1)
(a) is guilty of an indictable offence and liable to imprisonment
for a term not exceeding five years; or
(b) is guilty of an offence punishable on summary conviction.
Dangerous operation causing bodily harm
(3) Every one who commits an offence under subsection (1) and
thereby causes bodily harm to any other person is guilty of an
indictable offence and liable to imprisonment for a term not
exceeding ten years.
Dangerous operation causing death
(4) Every one who commits an offence under subsection (1) and
thereby causes the death of any other person is guilty of an
indictable offence and liable to imprisonment for a term not
exceeding fourteen years.
ELEMENTS:
Hundal (conviction for dangerous driving. Appeal on basis that
should be SUBJ req) HELD: negligence can satisfy s7
requirements; MR for dangerous driving is OBJ
- OBJ b/c nature of offence (i) driving is regulated, req’s license
(ii) its routine making it difficult to determine particular state
of mind of the accused
Beatty (acquitted of dangerous driving b/c negligent, but not to a
sufficient degree) :.
REQUIREMENTS for offence of Dangerous Driving as per
Beatty:
- AR: driving in manner dangerous to public
- MR: Marked departure from standard of care that a r/person
would observe in accused’s circumstances
- only req’s “marked departure”; JF
o DISCUSSION: is there a difference b/w ‘marked’
(JF) and ‘marked and substantial” (Creighton)
5) ASSAULT
Assault
265. (1) A person commits an assault when
(a) without the consent of another person, he applies force
intentionally to that other person, directly or indirectly;
(b) he attempts or threatens, by an act or a gesture, to apply force to
another person, if he has, or causes that other person to believe on
reasonable grounds that he has, present ability to effect his
purpose; or
(c) while openly wearing or carrying a weapon or an imitation
thereof, he accosts or impedes another person or begs.
Application
(2) This section applies to all forms of assault, including sexual
assault, sexual assault with a weapon, threats to a third party or
causing bodily harm and aggravated sexual assault.
Consent
(3) For the purposes of this section, no consent is obtained where
the complainant submits or does not resist by reason of
(a) the application of force to the complainant or to a person other
than the complainant;
(b) threats or fear of the application of force to the complainant or
to a person other than the complainant;
(c) fraud; or
(d) the exercise of authority.
Accused’s belief as to consent
(4) Where an accused alleges that he believed that the complainant
consented to the conduct that is the subject-matter of the charge, a
judge, if satisfied that there is sufficient evidence and that, if
believed by the jury, the evidence would constitute a defence, shall
instruct the jury, when reviewing all the evidence relating to the
determination of the honesty of the accused’s belief, to consider the
presence or absence of reasonable grounds for that belief.
6) ASSAULT WITH A WEAPON OR CAUSING BODILY
HARM (COMPUND OFFENCE)
Assault with a weapon or causing bodily harm
267. Every one who, in committing an assault,
(a) carries, uses or threatens to use a weapon or an imitation
thereof, or
(b) causes bodily harm to the complainant,
is guilty of an indictable offence and liable to imprisonment for a
term not exceeding ten years or an offence punishable on summary
conviction and liable to imprisonment for a term not exceeding
eighteen months.
ELEMENTS:
1) Assault: lack of consent + intention to apply force= application
of force with no consent to do so
2) Causation: direct application of force?
3) Bodily Harm: means any hurt or injury to a person that
interferes with the health or comfort of the person and that is more
than merely transient or trifling in nature
4a) Mens Rea re Assault: intentional application of force?
4b) Mens Rea re Bodily Harm: objective foreseeability of BH
Godin(same test applies to aggravated assault s.268)
AGGRAVATED ASSAULT (COMPOUND OFFENCE)
268. (1) Every one commits an aggravated assault who wounds,
maims, disfigures or endangers the life of the complainant.
Punishment
(2) Every one who commits an aggravated assault is guilty of an
indictable offence and liable to imprisonment for a term not
exceeding fourteen years.
Excision
(3) For greater certainty, in this section, “wounds” or “maims”
includes to excise, infibulate or mutilate, in whole or in part, the
labia majora, labia minora or clitoris of a person, except where
(a) a surgical procedure is performed, by a person duly
qualified by provincial law to practise medicine, for the benefit
of the physical health of the person or for the purpose of that
person having normal reproductive functions or normal sexual
appearance or function; or
(b) the person is at least eighteen years of age and there is no
resulting bodily harm.
Consent
(4) For the purposes of this section and section 265, no consent to
the excision, infibulation or mutilation, in whole or in part, of the
labia majora, labia minora or clitoris of a person is valid, except in
the cases described in paragraphs (3)(a) and (b).
Mens Rea re Bodily Harm: objective foreseeability of BH Godin
7) SEXUAL ASSAULT
Sexual assault
271. (1) Every one who commits a sexual assault is guilty of
(a) an indictable offence and is liable to imprisonment for a term
not exceeding ten years; or
(b) an offence punishable on summary conviction and liable to
imprisonment for a term not exceeding eighteen months.
Aggravated sexual assault (COMPUND OFFENCE)
273. (1) Every one commits an aggravated sexual assault who, in
committing a sexual assault, wounds, maims, disfigures or
endangers the life of the complainant.
(2) Every person who commits an aggravated sexual assault is
guilty of an indictable offence and liable
(a) if a restricted firearm or prohibited firearm is used in the
commission of the offence or if any firearm is used in the
commission of the offence and the offence is committed for the
benefit of, at the direction of, or in association with, a criminal
organization, to imprisonment for life and to a minimum
punishment of imprisonment for a term of
(i) in the case of a first offence, five years, and
(ii) in the case of a second or subsequent offence, seven
years;
(a.1) in any other case where a firearm is used in the commission
of the offence, to imprisonment for life and to a minimum
punishment of imprisonment for a term of four years; and
(b) in any other case, to imprisonment for life.
Where belief in consent not a defence
273.2 It is not a defence to a charge under section 271, 272 or 273
that the accused believed that the complainant consented to the
activity that forms the subject-matter of the charge, where
(a) the accused’s belief arose from the accused’s
(i) self-induced intoxication, or
(ii) recklessness or wilful blindness; or
(b) the accused did not take reasonable steps, in the circumstances
known to the accused at the time, to ascertain that the complainant
was consenting.
8) UNLAWFULLY CAUSING BODILY HARM
(COMPOUND OFFENCE)
269. Every one who unlawfully causes bodily harm to any person
is guilty of
(a) an indictable offence and liable to imprisonment for a term not
exceeding ten years; or
(b) an offence punishable on summary conviction and liable to
imprisonment for a term not exceeding eighteen months.
DeSousa Issue: elements of unlawfully causing BH, HELD:
- ‘Unlawfully’ = offence prohibited by federal or provincial
legislation and constitutionally sufficient + with objective
foreseeability of bodily harm (this is what the CL is saying)
- No additional fault element required for the causation of
bodily harm – gen principle that mental element in compound
offences attaches only to the underlying offence
- Wasn’t assault because there was no intent to cause bodily
harm, thus it was unlawfully causing bodily harm
- The act must involve a foreseeability of bodily harm – this
doesn’t apply to assault causing bodily harm. In this case, the
court was concerned with the ‘act’ itself. Contrast with having
a mens rea requirement of ‘bodily harm’ – this would have a
wider application
MISTAKE OF FACT
- honest mistake can negative SUBJ MR whether reasonable or
not; Beaver, Pappajohn
- reasonable mistake can negative OBJ MR
- reasonable mistakes can provide defence to strict liability –
but reverse burden of proof
Re Sexual Assault
- Pappajohn (unpopular): mistaken belief in consent negatives
intention and recklessness even if unreasonable
- Sansregret (limiting Pappa): mistaken belief (even if honest)
not a defence if lack of awareness was due to ‘wilful
blindness’ – SEE ABOVE
- s273.2(b): Mistaken belief not a defence if accused did not
take r/steps (obj), in circumstances known to accused (subj –
doesn’t have to be necessarily reasonable), to ascertain
consent
o marked departure? IF OBJ – read in marked
departure standard b/c failure to apply it would be a
breach of Charter s7 (debatable- flows from
Creighton)
 i.e. failure to take r/setps to ascertain
whether there was consent constitutes a
marked departure from the standard norm
- Darrach (OntCA): does not have stigma req’ing SUBJ MR
… BUT offence is largely based on subjective fault
 IF has stigma, then still satisfied by
‘circumstances known’
Re Committing Another Offence by Mistake
Ladue (YTCA): (NWT, drunk man, raped dead woman in snow
bank) :. Had AR for one crime, and MR for another. HELD:
mistake not innocent b/c if mistake was true, still committing rape.
Kundeus: (trafficking heroin. Thought another drug) HELD: If
mistake was true, still trafficking.
*Nb: today probs charge for attempt
Air of Reality
ELEMENTS:
- Whether or not the evidentiary burden has been
discharged
- it must be possible for the trier of fact to
conclude that the MR was not made out before it will be
considered; Davis
- there must be a “situation of ambiguity”; Esau
- IF diametrically opposed stories then no need
to consider; Davis – E.g. see Pappajohn, Ewanchuk
Ewanchuk: (accused made advances towards 17yr old he was
interviewing. She repeatedly said no but projected unconcerned
visage out of fear – ‘ambiguity’) TRIAL HELD: acquitted on basis
of ‘implied consent’ SCC HELD:
- AR: no such defence of ‘implied consent’ (c/f
implied consent for assault – NHL)
- MR: no reality to defence of mistake
o ‘continuing sexual contact after
someone has said ‘no’ is at minimum reckless
conduct’
 NB* s273.2(b) was not argued- weird
MISTAKE OF LAW
s19: Ignorance of the law by a person who commits an offence is
not an excuse for committing that offence.
Baxter: (didn’t know flick-knife prohibited) HELD: mistake of
law, s19 applies
Phillips: (didn’t realize it was a flick-knife) HELD: mistake of
fact, negatives MR
Tolson (UK CASE): (bigamy. Thought husband dead) HELD:
mistake of fact, negatives MR
Prue & Baril: (licenses auto suspended under BC law. Convicted
of disqualified driving) HELD: where there has been a
disqualification, it is a matter of fact. If it were a matter of law, this
would effectively create absolute liability. Conviction overturned.
c/f MacDougall: provincial offence of disqualified driving is ‘strict
liability’ and so ignorance is mistake of law, not fact, and so it
doesn’t permit a defence.
- fact/law distinction in Prue & Baril is wrong;
Pontes
Pontes: wording of statute is to create absolute liability. This does
not breach the Charter b/c imprisonment is not an option.
DEFENCES
1) Self Defence – complete defence
Self-defence against unprovoked assault
Section 34(1)
Will be acquitted if the jury finds:
1) The accused was unlawfully assaulted
2) Accused did not provoke assault
3) The force used by accused was not intended to cause
death or GBH
4) Force was no more than necessary to enable him to
defend himself.
- could be a defence to manslaughter if the accused caused
death but did not mean to do so

Section 34(2): broader defence. Allowed even when the accused
was initial aggressor, i.e. provoked assault.
Everyone who is unlawfully assaulted and causes death or grievous
bodily harm is justified if:
1) it is caused under a reasonable apprehension of a
risk of death or grievous bodily harm; and
2) he believes there is no other way to preserve oneself
from death or grievous bodily harm
THUS: look at s34(1) if no intent to cause death; look at s34(2) if
intent to cause death; McIntosh
NB* Ct’s are moving away from s.35 b/c too complicated
Defences only available if going to aid of someone else:
Use of force to prevent commission of offence:
s27: Defence of prevention of offence for which there can be arrest
without warrant+ likely to cause immediate and serious injury to
the person or property of anyone. NB* r/necessary force
- HELD it does not apply to self-defence;
Hebert
s37: Defence of prevention of assault against ‘himself or any one
under his protection – NB* use as much force as necessary
APPLICATION of s.34(1) & (2):
 the test is a ‘Modified Objective Test’ ( Hibbert ) taking into
account the particular circumstances and human frailties of the
accused
(a) REQ 1 – MR – OBJ (‘Modified Objective
Test’; Hibbert)
(i) NB* if negligence is an issue,
uniform standard is applied;
Creighton
(b) REQ 2 - Reasonable Apprehension
(c) REQ 3 - Reasonable Belief
- what the accused reasonably perceived, given her situation
and her experience; Lavallee
- Preceding threats/acts can also be relevant re determining
whether apprehension was reasonable and whether there were
reasonable grounds for belief in need to use deadly force;
Petel – have to look at the standpoint of the accused
(d) REQ 4 – force was “no more than is
necessary”
- Accused is not expected to “weigh to a nicety” the exact
measure of defensive force needed; Kong
- Accused may be mistaken about necessity of force provided
mistake was reasonable in the circumstances, Kong
NB* s.26 Excessive Force:
Any on authorized to use force is responsible for any excess.
BWS:
- Evidence of BWS relates to: (Lavallee)
o Whether the apprehension was
reasonable
o Whether there are reasonable
grounds for belief in the necessity of killing –
“learned helplessness”
- c/f Mallot: (per L’Heureux Dube, dissenting)
o self defence must focus on the
reasonableness of her actions.
 Focusing on BWS “shifts
[the legal debate] from the objective
rationality of her actions to preserve
her own life to those personal
inadequacies which apparently
explain her failure to flee from her
abuser”
 IoW, BWS isn’t credible
anymore
SLEEPING ABUSER CASES:
the sleeping abuser cases, i.e. afraid that when abuser wakes
up, he/she will abuse the victim again, eg Whynot NSCA 1983;
Secretary NTCA 1996 – defence succeeded in this case. HWR in
CANADA assault (s.265) is required in order for the defence to
succeed.
(1A) SELF DEFENCE OF PROPERTY
…lawful for person in peaceful possession, uses no more force
than is ‘necessary’ (person doesn’t have to be entitled to property):
“necessary”: imports an element of reasonableness; Gunning
s38(1) to defend personal property against trespassers
▫ if does not strike or cause bodily harm
s 39(1) to defend personal property under claim of right
▫ If uses no more force than necessary
s 40 to defend dwelling against forcible breaking or entering
▫ If uses no more force than necessary; can kill/GBH
s 41(1) to defend real property against trespassers
▫ If uses no more force than necessary
NB: killing/GBH only ever necessary in defence of dwelling;
Baxter (ONT CA)
2. Provocation – MoT doesn’t apply!
s36: “Provocation includes, for the purposes of sections 34 and 35,
provocation by blows, words or gestures.”
Murder reduced to manslaughter
232. (1) Culpable homicide that otherwise would be murder
may be reduced to manslaughter if the person who committed it
did so in the heat of passion caused by sudden provocation.
What is provocation
(2) A wrongful act or an insult (can be words) that is of such a
nature as to be sufficient to deprive an ordinary person of the
power of self-control is provocation for the purposes of this section
if the accused acted on it on the sudden and before there was time
for his passion to cool.
Questions of fact (for the jury to decide)  judge decides if
evidentiary burden is discharged
(3) For the purposes of this section, the questions
(a) whether a particular wrongful act or insult amounted to
provocation, and (OBJ Test)
(b) whether the accused was deprived of the power of self-control
by the provocation that he alleges he received, (SUBJ Test)
are questions of fact, but no one shall be deemed to have given
provocation to another by doing anything that he had a legal right
to do, or by doing anything that the accused incited him to do in
order to provide the accused with an excuse for causing death or
bodily harm to any human being.
History
- Parent: Trial judge held that anger could
negative criminal intent for murder. SCC overturned
o “anger is not a stand-alone defence”
– per McLachlin CJ
 NB: only in reference to
reducing murder to manslaughter, not
affecting the defence of lack of MR
** IMP to dist anger/revenge and loss of self-control due to
provocation **
Thibert: (wife having affair, T kills lover – not his wife. Lover has
wife in front of him provoking T to shoot HELD: provocation b/c
deceased insulted accused)
2. REQ 1 – MR – subj/obj
 - who is ORD person?
o Same age + sex; Thibert, Hill
Conditions for the Defence:
(1) Time Frame
a. Sudden Provocation
- must be unexpected; Thibert
b. ‘On the Sudden before
passion cooled’
- no longer required at CL – how liberally can
Code be interpreted?
o Ex: slow-fuse problem
(2) SUBJ Test
a. ‘in the Heat of Passion
caused by sudden provocation’, s232(1)
- ‘heat of passion’ = loss of self control
- Personal Characteristics: alcohol, mental
state, psychological temperament all count
o “mental state and psychological
temperament” – per Dickson CJC, Hill
(3) OBJ Test
a. Who is ORD (not reasonable) person?
s232(2) – ‘wrongful act or insult…deprive ORD person…’
- same age and sex, and share with the accused:
o “such other factors as would give the
act/insult a special significance and have
experienced same series of acts/insults
experienced by the accused”; - per Cory J,
Thibert
- No Mandatory Direction Rule; Hill
- NB* MUST have sufficient degree of
provocation to make ORD person lose self-control
b. Loss of self control – judged by:
(1) Gravity of the provocation
- measured with reference to any ‘relevant
characteristic’ of the accused
o ex: insult with realistic basis is
particularly grave
o ex: accused may be sensitive to
particular provocation
- take into account any cumulative provocation
experienced
(2) ORD person power of Self
Control
- adjusted for age and sex, but not for any other
variable; Thibert
Cultural Background?
- reference to “‘special significance’ could be
said to include implications of an accused being raised
in a particular culture” – Nahar (BCCA)
- where the insult targets a particular religious or
cultural belief it must be factored; ONTCA Humaid
Humaid: (ONTCA) Muslim husband stabs wife when learns of
infidelity b/c serious blow to the honour of the family. Jury told to
ignore cultural background. HELD: proper decision b/c accused
didn’t testify to his beliefs and the cultural significance is that
Muslims are more likely to inflict punishment, not to lose self-
control.
NB: per Doherty JA, dicta, cultural significance based on idea that
men are superior to women and violence to women is accepted in
certain circumstances – these beliefs are antithetical to Cdn values
and the ORD person cannot be fixed with beliefs contrary to
fundamental Cdn values.
What if Provoking Third Party? – **don’t worry about this**
CL: no technical rules
Traditionally: person killed must have been the provoker. EXC (i)
where mistaken belief about who offered the provocation (ii) where
an attack made on provoker and another person killed by accident;
Manchuk
3. NECESSITY – CL Defence
s8(3): preserves CL defences/excuses/justifications
Morgentaler: (1st time defence recognized) – abortion, s287.
provided stat defence if performed lawfully in a hospital. HELD:
acquitted b/c need abortion and impossible to have it done lawfully
-- :. s287 was unconstitutional
2 forms (Perka)
(1) Justification (e.g. self-defence s34):
challenges wrongfulness – action taken was to prevent a
greater evil
(2) Excuse (e.g. duress s17): concedes
wrongfulness but denies responsibility
Perka: (taking cannabis from Colombia to Alaska. Hit rock in BC
shore. Had to offload drugs to stop from flipping.) HELD:
available in cases of ‘moral involuntariness’ (3 req’s); not in this
case
 the test is a ‘Modified Objective Test’ ( Hibbert ) taking into
account the particular circumstances and human frailties of the
accused
NB: the test for proportionality is wholly objective
(a) REQ 1 – Clear and Imminent Peril (MOT)
- planning, deliberating, etc are incompatible
with ‘involuntary conduct’ (per George Fletcher)
o :. Defence is not available on a
charge of conspiracy to perform abortions;
Morgentaler (Ont CA) –conspiracy refers to
something to happen in future, thus defence not
available
- BUT immediacy requirement with duress was
held to be unconstitutional; Ruzic
o NB* Distinction b/w
immediate/imminent is that the latter is more
liberal
Re A(Children): (UK) conjoined twins. Shared organs. Shared
blood. 1 has problematic conditions and will die in a period of
months. Is this still ‘imminent peril’? Some authority that the
killing cannot be intentional.
(b) REQ 2 – No Reasonable Legal Alternatives (MOT)
- in Perka should have thrown drugs overboard
o not illegal to possess drugs outside
Cdn borders
(c) REQ 3 – Proportionality between Harm Inflicted and
Harm Avoided (WHOLLY OBJECTIVE TEST)
- Perka: harm inflicted must be less than the
harm sought to be avoided
o On this test, Re A(children) would
fail
- Latimer: the harm avoided must be either
comparable to, or clearly greater than, the harm inflicted
o On this test, Re A (Children) might
succeed
o ***COLVIN LIKES THIS
VERSION***
(d) REQ 4 (?) **nb: subsequent cases have only referred to
the 1st three requirements** - Danger must not have been
foreseeable and avoidable at earlier time; Perka
Air of Reality
 - evidentiary burden lies on the accused and the
judge can withdraw the defence from the jury if there is
no air of reality; Latimer
Latimer: (sask. 12yr old daughter. Mental capacity of 4-month old.
Could communicate. Not terminally ill) HELD: NO ‘air of reality’
b/c (1) ongoing pain did not constitute emergency (2) he could
have struggled on (3) harm inflicted (death) was immeasurably
more serious than the operation Mr Latimer sought to avoid.
4. MENTAL DISORDER
Defence of mental disorder
16. (1) No person is criminally responsible for an act committed or
an omission made
-while suffering from a mental disorder
-that rendered the person incapable
-of appreciating the nature and quality of the act or
omission
-or of knowing that it was wrong.
Presumption of Sanity
(2) Every person is presumed not to suffer from a mental disorder
so as to be exempt from criminal responsibility by virtue of
subsection (1), until the contrary is proved on the balance of
probabilities. – i.e. reverse onus – held constitutional in Chaulk
Burden of proof
(3) The burden of proof that an accused was suffering from a
mental disorder so as to be exempt from criminal responsibility is
on the party that raises the issue.
Nb: prosecution can only raise mental disorder if (1) accused
has put state of mind in issue or (2) where accused has not, but
preliminary verdict of guilty is entered, followed by trial of issue of
mental disorder; Swain
ELEMENTS:
REQ 1 – suffer from Mental Disorder
‘mental disorder’: a disease of the mind – def’n s2
- “embraces any illness, disorder, or abnormal
condition which impairs the human mind…excluding
self-induced states caused by alcohol or drugs, and
transitory mental states such as hysteria or concussion”
– per Dickson J in Cooper
REQ 2 – Deprivation of one of the specified capacities, not
merely impaired capacity (either 2A or 2B)
REQ 2A – incapacity of appreciating nature/quality of the
act/omission, ie appreciate what the person is doing
- refers only to the material character of the
conduct
o does not extend to someone who
understands the consequences but lacks
remorse or guilt (even though that can be a
disease of the mind); Kjeldsen quoting
Simpson
- “appreciate”  according to Dickson J in
Cooper, it is uniquely Cdn and extends to cover cases of
incapacity to foresee consequences as well as conduct
REQ 2B - Incapable of knowing it was wrong
- “wrong” = legal wrong – Schwartz
- “wrong” = moral wrong – Chaulk
o Per Lamer CJ: “it cannot be
determined that an accused does not have the
mental capacity simply because they cannot
retain factual information”
 Ex: moral wrong:
psychopath hiding body. Because hid
the body, recognized that it was
morally wrong.
Issues
(a) Constitutionality of the Reverse Onus
- breaches s11(d) but does so in “the absolutely
least intrusive means of meeting its objective” and as
such is saved by s1 – per Lamer CJ, Chaulk
(b) Paranoid Delusions (ex: delusion that killing is
necessary in self-defence)
- Q – is this raised under 1st or 2nd arm?
o Colvin: 1st – WHY?
o Oomen: 2nd
 b/c the issue is not whether
the accused had a general capacity to
know right from wrong but rather
whether the accused had the ability to
know that a particular act was wrong
in the circumstances
(c) Incapacity vs Reduced Capacity
- No defence of diminished responsibility
- Can evidence of mental disorder short of
incapacity, support defence of lack of MR?
o Can for murder that was ‘planned
and deliberate’
o Can for whether MR for murder was
present; dicta
 Swain
The Special Verdict: if guilty, but mental disorder, “render a
verdict that the accused committed the act or made the omission
but is not criminally responsible on account of mental disorder” -
s672.34
5. AUTOMATISM
‘Automatism’
- “refers to involuntary conduct that is the
product of a mental state in which the conscious mind is
disassociated from the part of the mind that controls
action” – per Doherty JA in Luedecke (OntCA)
- “state of impaired consciousness, rather than
unconsciousness, in which an individual, though capable
of action, has no voluntary control over that action” –
per Bastarache J in Stone
- NB*can run defence of automatism against
specific intent, but not general intent; Lippman (UK)
Indicators
- glassy/flickering eyes
- loss of memory
- disorganized and motiveless conduct
The Voluntariness Principle:
- Principle of Fundamental Justice; Daviault
Presumption of Voluntariness: Stone
- “law presumes that people act voluntarily… an
evidentiary burden is thereby imposed on the accused”
REQ 1 – Did Automatism Occur?
Evidentiary Burden: Accused.
- judge decides if burden discharged  whether
‘Air of Reality’
Persuasive Burden: to establish automatism on BofP
- jury decides
- LOOK to Indicators
- Supporting psychiatric/psychological evidence
is required; Stone
o “I agree that the plausibility of a
claim will be reduced if the accused had a
 motive to commit the crime in questions or if
the ‘trigger’ of the alleged automatism is also
the victim. On the other hand, if the
involuntary act is random and lacks motive, the
plausibility of the claim of automatism will be
increased” – Stone
REQ 2 –What Caused the Automatism?
- psychiatrists testify as to their opinion
- Judge: directs whether a cause would amount
to mental disorder
o ** different tests ** - remember PEI
- Jury: decides what was the cause
3 Different Types/Causes
[1] Caused by Mental Disease
- ex: epilepsy, brain tumour
- mental disorder defence – s16(1)
o special verdict – s672.34
[2] Caused by Intoxication (alcohol or drugs)
- intoxication rules – s33.1
o conviction of Manslaughter --
Lippman: (acid trip, saw little green men
attacking him, killed gf)
[3] Other Cases
- physical blow producing concussion
- CL defence of involuntariness – s8(3)
Presumption of Mental Disorder: “start with proposition that
condition accused claims to have suffered is a disease of the mind”
-- Stone
Non-Mental Disorder Automatism (NMD)
- SAFEGUARD: IF voluntariness issue is NMD
automatism, trial judge should review the serious policy
factors surrounding automatism
o “feignability and the repute of the
administration of justice” Stone
 :. Practical scope of NMD
is very narrow
Fault and NMD
McDowell: (accused charged with dangerous driving) Defence of
NMD disallowed b/c he ought to have known that mixing alcohol
with prescription drugs could have led to his automatistic state
- b/c negligent in getting into that state, the
defence of NMD is excluded
o ISSUE: IF seeking NMD for murder
charge, does this test become subjective b/c
SUBJ MR?
The ‘Internal Cause’ TEST - Rabey
- IF automatism is due to internal workings of
the mind THEN mental disorder
- IF automatism is due to impact of external
factor on a normal mind THEN NMD
o “The distinction to be drawn is
between a malfunctioning of the mind arising
from some cause that is primarily internal to
the accused, having its source in his
psychological or emotional make-up or in
some organic pathology, as opposed to a
malfunctioning of the mind, which is the
transient effect produced by some specific
external factor, such as, concussion” per
Martin JA in Rabey
Psychological Blow Automatism
TEST: Could an ORD person have disassociated?
- IF yes THEN defence is NMD Automatism
- IF no THEN defence is insanity (s16(1)) 
mental disorder
o “The emotional stress suffered by the
respondent as a result of his disappointment
with respect to Miss X cannot be said to be an
external factor producing the automatism
within the authorities, and the dissociative
state must be considered as having its source
primarily in the respondent’s psychological or
emotional make-up” – per Martin JA in OntCA
in Rabey
 SCC Held: only defence
of insanity was available
ALT TEST (1): ‘Continuing Danger’ Test
- “real question is whether the [accused] should
be confined in an institution for the criminally insane” –
per Dickson J in Rabey (SCC)
o Especially – what do the psychiatrists
predict?
o NB: Dickson was dissenting
- “courts have been focusing on whether the
accused is likely to exhibit violent behavior if he/she
were again to encounter the alleged trigger… a more
appropriate question is whether the alleged triggers
are likely to re-occur” – per Grant and Spitz in Stone
ALT TEST (2): Multi-Factor ‘POLICY’ Test – Parks
- should the accused receive the ‘Special
Verdict’
o SCC acknowledged 2 different
approaches but that they are “merely analytical
aids in deciding which defence should be
available as a matter of policy”
Stone: (stabs wife 47 times. Claims ‘whoosh’ sensation after she
abuses him and denigrates his sexual ability and dimensions)
HELD: convicted of manslaughter (provocation) after judge ruled
the only cause available was mental disorder. APPEAL to SCC:
argue NMD should have been put to jury. Dismissed.
- ‘Holistic’ approach taking account of internal
cause factor, continuing danger factor, multi-factor
policy test
Sleepwalking
- Burgess (EngCA) – applied internal/external
cause test and HELD: insanity
- Parks – applied Policy Test. Psychiatrist
testified that not continuing danger. HELD: NMD
automatism, complete acquittal
o NB: Colvin always thought Parks
was wrong. It was the ‘high water mark’
- Luedecke: (OntCA) (party. Woman wakes up
with man having sex with her)
o Trial judge erred in not giving
attention to Stone re continuing danger test + :.
Focusing on the likelihood of the attack
reoccurring rather than the trigger itself
(drinking at a party)
 NCR – MD: ‘Not
criminally responsible by reason of
mental disorder’
6. INTOXICATION – *MOT DOESN’T
APPLY*
Evidentiary Burden: on accused
Persuasive Burden: on Crown (EXC: where involuntariness due
to intoxication; BoP on party asserting the proposition – Daviault)
How do the intoxication rules apply:
1) usually operate to reduce the offence committed;
-Ex: re murder: to support denial of specific intent to cause
death/gbh or denial of voluntariness;
-- re manslaughter: to support no defence; therefore cannot be used
to support defence of involuntariness
A) Self-Induced Intoxication
- defence is only available for offences of
specific intent but not for general intent
o b/c the standard fault elements of the
offence are substituted by the fault in becoming
dangerously intoxicated
B) Involuntary Intoxication
- there must be no negligence in becoming
intoxicated – McDowell (OntCA – persuasive) (accused
consumed beer after taking prescription drugs and was
charged with dangerous driving)
o “if the accused either foresaw or
should have foreseen that the combination of
alcohol and drugs might impair his ability to
drive a motor vehicle, the fault required to
constitute the offence was present”
- ENG authorities suggest absence of foresight
of becoming intoxicated will suffice
Classification of Offences
1) Specific Intent
- murder – 229
o ex: to support denial of specific
intent to cause GBH/death or denial of
voluntariness
- theft – 322
- robbery – 343
- aiding and abetting – 21(1)
- possession of a weapon for a purpose
dangerous to the public peace – 88
- breaking and entering with intent – 348(1)(a)
- breaking and entering and committing an
indictable offence – 348(1)(b) (where offence is one of
specific intent)
2) General Intent
- manslaughter – 222(4)
- assault by application of force – 265
o what if assault by threat?
- Sexual assault – 271
- Dangerous driving – 249
- Pointing a firearm – 87(1)
- breaking and entering and committing an
indictable offence – 348(1)(b) (where offence is one of
general intent)
Problematic Offences – BE AWARE OF THESE FOR EXAM
a) Attempts
- generally all attempts involve specific intent
but lack of clear authority in CAN
b) Mischief (ie damage to property) (430) and Arson (433)
- OntCA says general intent; Schmidtke
- BC CA says specific intent; Swanson
o These offences have a form of SUBJ mens rea, i.e.
“wilfulness” re mischief; intention &/or
recklessness re arson
c) Possession
Various Rationales
(1) Specific intent = ulterior intent (an intent going beyond
the AR) – per McIntyre in Bernard + Sopinka J
(dissenting) in Daviault
- BUT with murder, it is only reduced to
manslaughter?
(2) General intent offences have such a minimal mental
element that a person would have to be in a state of
extreme intoxication akin to automatism to lack it – per
Wilson J in Bernard, and Cory J in Daviault
Nb: is this correct?
Challenges to Intoxication Rules
1) At CL
Leary: (rape) upheld the general/specific distinction
2) Charter s7 and 11(d)
Bernard: (sexual assault causing BH) upheld the general/specific
distinction
- “the accused persons who have voluntarily
consumed drugs or alcohol, thereby depriving
themselves of self-control leading to the commission of a
crime, are not morally innocent, and are indeed
criminally blameworthy” – per McIntyre
Daviault: (sexual assault) voluntariness is required by charter s7
for all offences. BUT there is a reverse onus for proving
involuntariness.
Statutory Intervention
Where belief in consent not a defence  restatement of the CL
Leary Rule
273.2 It is not a defence to a charge under section 271, 272 or
273 that the accused believed that the complainant consented to the
activity that forms the subject-matter of the charge, where
(a) the accused’s belief arose from the accused’s
(i) self-induced intoxication, or
(ii) recklessness or wilful blindness; or
(b) the accused did not take reasonable steps, in the circumstances
known to the accused at the time, to ascertain that the complainant
was consenting.
When defence not available  reversal of Daviault
33.1 (1) It is not a defence to an offence referred to in
subsection (3) that the accused, by reason of self-induced
intoxication, lacked the general intent or the voluntariness required
to commit the offence, where the accused departed markedly
from the standard of care as described in subsection (2).
- mentions general intent, but what
about specific intent offences?
o Defence of involuntariness: ‘person who acts
involuntarily will not intend any consequence
of the act’
o Solution: Frame as a denial of
specific intent
- several trial court rulings on
constitutionality of 33.1, and they all hold that it violates
s7 and 11(d) but rulings diverge on whether saved by s1
1. Consti –Vickberg (BCSC)
2. Unconsti - Dunn (Ont.
Gen. Div)
Criminal fault by reason of intoxication
(2) For the purposes of this section, a person departs markedly
from the standard of reasonable care generally recognized in
Canadian society and is thereby criminally at fault where the
person, while in a state of self-induced intoxication that renders the
person unaware of, or incapable of consciously controlling, their
behaviour, voluntarily or involuntarily interferes or threatens to
interfere with the bodily integrity of another person.
- COLVIN: sub(2) doesn’t add anything, not expecting on EXAM
Application
(3) This section applies in respect of an offence under this Act
or any other Act of Parliament that includes as an element an
assault or any other interference or threat of interference by a
person with the bodily integrity of another person.
NB* in order to get around 33.1 – argue that b/c I was an
automaton, I lacked the required specific intent for ex.
Murder.
NB** 33.1 does not affect the CL defence if drunkenness
available to specific intent crimes such as murder and robbery;
Daviault
7. DURESS
Compulsion by threats
17. A person who commits an offence under compulsion by
threats
of immediate death or bodily harm from a person who is
present when the offence is committed (Held constitutional)
is excused for committing the offence if the person believes
that the threats will be carried out (doesn’t have to be reasonable
– SUBJ TEST)
and if the person is not a party to a conspiracy or association
whereby the person is subject to compulsion,
but this section does not apply where the offence that is
committed is high treason or treason, murder, piracy, attempted
murder, sexual assault, sexual assault with a weapon, threats to a
third party or causing bodily harm, aggravated sexual assault,
forcible abduction, hostage taking, robbery, assault with a weapon
or causing bodily harm, aggravated assault, unlawfully causing
bodily harm, arson or an offence under sections 280 to 283
(abduction and detention of young persons).
 the test is a ‘Modified Objective Test’ ( Hibbert ) taking into
account the particular circumstances and human frailties of the
accused.
- OBJ test of “no safe avenue of escape”
NATURE OF THE DEFENCE:
- defence of excuse
- depends on ‘moral’ or ‘normative
involuntariness’
o Hibbert: “remorsefully compelled by
human instincts”
o Ruzic: “when faced with perilous
circumstances, she is deprived of a realistic
choice whether to break the law”
- Moral voluntariness is PFJ under s7
o Ruzic: person is not morally
blameless, but not blameworthy in a way to
attract penalty and stigma of criminal liability
 “The law is designed for
the common man, not for a
community of saints and heroes”
Ruzic: (threat against woman’s mother. Serbian. She knows drug
ppl. Tell her to strap heroin and bring to CAN. Captured in CAN.)
PROBLEM: issue of the threat is not ‘present’ and it is not of
‘immediate BH/death’
- requirement for immediate and present danger
is unconstitutional b/c can be convicted with moral
involuntariness (criminalizing morally involuntary
behaviour) – e.g. re threats of future harm and threats
re 3rd parties
o IF s17 defence doesn’t work GO TO
CL defence
- fear could negate MR but in form of ‘purpose’;
Paquette, HWR SCC in Hibbert overrules Paquette re
possibility of fear negativing ‘intention in common’ in
s21(2).
Steane: (UK) (trapped in GERMANY w/family b/c outbreak of
war. Germans tell him to make broadcasts and he does so out of
fear. Charged with activity likely to help the enemy. PROBLEM:
there were no threats to give rise to Duress. HELD: interpreted
‘intent’ to assist the enemy as ‘purpose’ :. Acquitted b/c his
PURPOSE was not to help them.
- leads to Paquette – held can negative MR
(murder case)
- only applies to principals, not secondary parties
o b/c says ‘a person who commits’ not
‘a person who is a party’; Paquette, accepted in
Hibbert
c/f CL defence of DURESS
a) can apply to secondary parties
no exclusion of offences
- objective test of “no safe avenue of escape”
Like necessity, must be no reasonable legal alternative to
disobeying law, Hibbert SDC 912
 Although modified to take account “the particular
actor’s capacities and abilities” = MODIFIED
OBJECTIVE TEST – Hibbert
 If genuine belief, can rely on s17. However
if not, other requirements may need to be
met to get the CL defence
ABUSE OF PROCESS + ENTRAPMENT
‘Entrapment’: improper facilitation or inducement of offences for
the purpose of prosecuting them
- mere facilitating (ex: providing an opportunity)
is generally not entrapment
nb: no controlled operations legislation in Canada
Response to Entrapment
- a discretionary stay of proceedings on grounds
of abuse of process
Abuse of Process Doctrine
CL: courts may intervene if a trial following a bad prosecutorial
decision would constitute an abuse of the courts process.
REMEDY: stay of proceedings.
- ‘residual discretion to be used where…
compelling an accused to stand trial would violate those
fundamental principles of justice which underlie the
communities sense of fair play and decency and to
prevent the abuse of a courts process through oppressive
or vexatious proceedings’ – per Dickson JC, in Jewitt
- … “it is a power which can be exercised in the
clearest of cases”; Jewitt, quoting Young
Stay of Proceedings
- judicial order to stop proceedings either temp
or perm
o OBJ – to prevent abuse of process
and/or to ensure a fair trial to the accused
 Perm stay only in extreme
cases; O’Connor
Charter
24(1): IF rights and freedoms infringed/denied, can apply to court
for such remedy as the court considers appr and just.
- only time to distinguish between different
regimes is if Charter isn’t breached; O’Connor
o does prosecution following
entrapment violate s7?
Entrapment in CAN - Mack
A) Authorities provide a person with an opportunity to
commit an offence without acting on a reasonable
 suspicion that this person is already engaged in criminal
activity or pursuant to a bona fide inquiry
B) Although having such a reasonable suspicion or acting in
the course of a bona fide inquiry, they go beyond
providing an opportunity and induce the commission of
an offence
- For Q of inducement – consider effect on AVG
person
‘reasonable suspicion’ can include:
- information about a person
o current activities, observations, info
from 3rd parties, past criminal record
- information about a location (problematic)
o Barnes: Q-is it “virtue-testing”?
HELD: justifiable – can have reasonable
suspicion about certain area with certain
characteristics
 Based on crime rates, area
must be defined with sufficient
precision
Procedural Issues:
Burdens: Accused has to prove on a BofP; Mack
Decision: Judge decides, after the substantive guilt of the accused
has been proved; Mack
Entrapment by Improper Inducement
(i) Improper Inducement
- what did the police do it for?
o Going beyond facilitation/provision
of opportunity – ex: offering inducements,
threats, pertering  ex: Mack
 Usually involves unlawful
participation in offence
 Some traditional tolerance
by courts
(ii) Improper Selection of Target for Facilitation or
Inducement
- who did the police do it to?
o No reasonable suspicion – ex:
Barnes
o May or may not involve participation
in offence
SECONDARY LIABILITY
Parties to offence
21. (1) Every one is a party to an offence who
(a) actually commits it;
(b) does or omits to do anything for the purpose of aiding any
person to commit it; or
(c) abets any person in committing it.
Common intention – ‘Common Purpose Rule’
(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.
‘counselling’: def’s s22(3) to include “procure, solicit, or incite”
Charges: need not identify a particular mode of participation.
- arguments can be presented in the alternative;
Dunlop & Sylvester
- NB: but if particular mode is specified it
MUST be proved
Verdicts: do not identify a particular mode of participation;
Thatcher (SASK cabinet MIN, if half jury thinks principal and
other half thinks secondary, it is irrelevant because can still
convict, same sentence)
Sentences: secondary parties are liable to the same penalties as
principals
Aiding and Abetting
- “ terms often used together in the context of
determining whether persons are parties to an offence.
Although similar, they are separate concepts”; per Cory J
in Greyeyes
o AID: to assist of help the actor
 Something material, ex:
drive the car
o ABET: incl encouraging, instigating,
promoting, or procuring the crime to be
committed
 Something psychological,
ex: ‘go ahead, do it’
 Support at the scene of the
offence (c/f counseling: occurs
sometime before)
Passive Presence
GenRule: no liability for being a passive spectator of an offence;
Dunlop & Sylvester
- “mere presence at the scene of a crime is not
sufficient to ground culpability. Something more is
needed: encouragement of the principal offender, an act
which facilitates the commission of the offence, or an act
which tends to prevent or hinder interference with
accomplishment of the criminal act” – per Dickson J in
Dunlop & Sylvester
NB: in 21(1)(b) covers ‘omits’ – what does this mean? Incl passive
spectator?
Exception: unless breach of a duty to act
- see general duties of care and liability for
omissions
- see legal powers of control over vehicles
o Kulbacki (passenger in car when
speeding) HELD: aiding b/c he has a right to
control the driver – can direct him to stop
driving :. Legal power of control over the
vehicle  :. Duty to ensure vehicle is used
appropriately
- See application of legal powers of control over
premises
o Laurencelle (1026)
‘Passive Presence’
- distinguish from act of making oneself present,
and from presence providing opportunity to principal
o “presence at the commission of an
offence can be evidence of aiding and abetting
if accompanied by other factors, such as prior
knowledge of the principal offender’s intention
to commit the offence or attendance for the
purpose of encouragement” – per Dunlop &
Sylvester
Mens Rea
21(1)(b): express – ‘for the purpose of’
- interpreted in CAN to mean ‘with intent to’;
Hibbert (:. Can apply to the commercial aider…someone
who is solely looking to profit)
21(1)(c): implied – intent or recklessness; supported in Hamilton
Intermediate Aiding
- lack of knowledge of details is immaterial as
long as intended type of offence
o Yanover (OntCA)
 - Lack of knowledge of specific type of offence
is immaterial as long as ‘within the contemplated range’
o Maxwell (HK)
 Example of conditional
intent?
The “Common Purpose Rule” – s21(2)
- the other person is liable if knew or ought to
have known commission of the offence was a probable
consequence
o OBJ regardless of MR for principal
offence
 contingencies considered?
• Creighton: crim
neg as MR (cannot take
personal characteristics
into account – Uniform
standard)
• Hibbert:
exculpatory defences (can
take into account ‘human
frailties’
o EXC: offences which constitutionally
require SUBJ MR – Logan
 For SUBJ MR offences,
words ‘ought to have known’ are
inoperative
Proportionality Principle: Is fault sufficient to convict of murder?
NO; **Martineau (focus on) Vaillancourt
Counselling – 22
Person counselling offence
22. (1) Where a person counsels another person to be a party to
an offence and that other person is afterwards a party to that
offence, the person who counselled is a party to that offence,
notwithstanding that the offence was committed in a way different
from that which was counselled.
(3) For the purposes of this Act, “counsel” includes procure, solicit
or incit
- ‘counsel’: to encourage, occurs beforehand
o ‘actively inducing’: Sharpe
- ‘procure’: intentionally cause
o Commission of offence would not
otherwise have occurred
o Ex: payments, threats or trickery
- MR: intention or recklessness – Hamilton
(acquittal on grounds that required intention to commit
fraud beyond reasonable doubt) HELD: overturned.
Intention is not required, recklessness is sufficient
- Q: Do ‘solicit’ and ‘incite’ mean the same
thing?
The Extended Counselling Rule – s22(2)
(2) Every one who counsels another person to be a party to an
offence is a party to every offence that the other commits in
consequence of the counselling that the person who counselled
knew or ought to have known was likely to be committed in
consequence of the counselling.
Definition of “counsel”
MR: OBJ – EXC for those offences requiring SUBJ MR.
Principal/Secondary Parties
Where one party cannot be convicted
23.1 For greater certainty, sections 21 to 23 apply in respect of an
accused notwithstanding the fact that the person whom the accused
aids or abets, counsels or procures or receives, comforts or assists
cannot be convicted of the offence.
- secondary party may be convicted even though
principal is not criminally responsible
o ex: excusing defence may be
available to principal but not to secondary
- Principal and secondary may commit different
offences
o Secondary party committing lesser
offence; Jackson
o Secondary part commits greater
offence (?)
The ‘Manslaughter Rule’
- COLVIN: ethically have to talk about this rule,
he things it is wrong and doesn’t understand it
RULE: a person may be convicted of manslaughter who aids and
abets another person in the offence of murder where a r/person in
all the circumstances would have appreciated that BH was a
foreseeable consequence of the dangerous act undertaken
- b/c Murder requires SUBJ awareness of the
risk of death (Logan), but manslaughter only requires
OBJ awareness of the risk of BH
Withdrawal from Secondary Participation
- ‘common purpose’ liability
o REQ: ‘timely communication’ of
the withdrawal; Henderson
- Abetting or counseling
o The encouragement can be reversed
- Problem of 21(1)(b)
o ‘does or omits for the purpose of
aiding’  is there any scope for withdrawal
defence?
ATTEMPTS
Forms of ‘Inchoate Liability’
(I) Attempts – 24, 463
(II) Counseling an Uncommitted Offence – 464
(III) Conspiracy – 465-7
Liability for Attempts
1. The General Scheme
463: attempting an indictable or summary offence is an offence
2. Special Provisions
239: Attempted Murder
265(b): Assault (attempt is form of complete offence)
Attempts
24. (1) Every one who, having an intent to commit an offence,
does or omits to do anything for the purpose of carrying out the
intention is guilty of an attempt to commit the offence whether or
not it was possible under the circumstances to commit the offence.
- MR: intention to
commit offence – ‘Every one who, having an intent to
commit an offence…”
 Intention
required for all conduct elements of offence; Ancio
• E
x: intent to kill required for murder
• E
x: intent to rape required for attempted rape
- AR: action going
beyond mere preparation (impossibility of completion is
immaterial)
Question of law
(2) The question whether an act or omission by a person who has
an intent to commit an offence is or is not mere preparation to
commit the offence, and too remote to constitute an attempt to
commit the offence, is a question of law.
- Multi-Factor Approach: “distinction b/w preparation and
attempt is essentially a qualitative one, involving the
 relationship between the nature and quality of the act
and the nature of the complete offence, although
consideration to the relative proximity of the act to what
would have been the completed offence in terms of time,
location, and acts remaining to be accomplished” per
LeDain J in Deutsch

Impossibility
a. Factual: immaterial that it is impossible to commit
offence – 24(1)
b. Legal: where intended outcome mistakenly believed
to be an offence, there is no liability for ‘imaginary
crimes’
Dynar: thought homosexual intercourse is still criminal offence
NB: IF problematic distinguishing, then amount to factual
impossibility; Dynar
- WHY? Ex: attempt to receive stolen property (but its
from police, so not actually stolen)

PRINCIPLES
1) Common Law
2) Constitutional
- principles of “universal application” so do not
readily permit exceptions; Creighton