F A U L T

Subjective Fault
Steane (1947 UKCA) ~ Intent and motive
Facts Issue Ratio
Steane did English broadcast for Nazi Germany. He was charged with doing acts likely to assist the enemy with intent to assist the enemy. Argued duress that his acts were unintentional because there were not the product of coercion. Did Steane intend to assist the enemy? YES. If so, does duress negative this intention? NO. Transferred intention: When you intend to produce X and act towards producing X but produce Y, either in the alternative or as well, you intend Y if Y is necessarily entailed in producing X or is a substantially certain consequence of producing X. Steane intended to assist the enemy because this was necessarily entailed in his intention to broadcast for Nazi Germany. Desire and intention are not the same and thus, duress does not negative intent. Duress operates when an intentional act was committed as a result of coercion. The fact that the act intended was not desired does not detract from the intentional nature of the act. Lewis charged with murder for mailing bomb to Tatleys daughter honour crime. Lewis claimed no knowledge of contents of package. Lewis dire financial straits discussed as motive for the crime. What is the relevance of motive to intention? - Motive and intention are distinct. - Motive is irrelevant to criminal responsibility because the Crown does not need to establish it. - Motive is relevant only as evidence of intention: Absence of motive may be an important factor in favour of an accused, while presence of motive may be an important factual ingredient in establishing intention. Hibbert charged with attempted murder when he lures victim outside apartment building for principal offender to shoot. Argued duress. Trial judge charged jury that duress negatives common intention. What is the meaning of the word purpose? INTENTION. - Duress operates on desire: when an actor is coerced into committing acts that he does not desire. - Party liability : does or omits to do anything for the purpose of aiding any person to commit an offence. Purpose = desire? Problematic in policy because it would exclude aiders who are indifferent - Purpose = intention. Hibberts purpose was to aid the principles offence because he knew of the consequences of his actions. Acting under duress may effect his desire or motive to do so, but duress does not negate intention. Francophone accused charged with wilful promotion of hatred against Francophone community. Claimed their flyer was satire and no intention to promoted hatred. Trial judge said willful means non-accidental. Does recklessness satisfy intention? Generally, YES. Here, NO. Generally: - Meaning of wilfully means many things: primary meaning is intentionally but can mean recklessly or merely non-accidentally. General mens rea for most crimes where no mental element is mentioned is either the intentional or reckless bringing about of the result. s. 281.2(1) wilfully in this context means with the intention of promoting hatred, and does not include recklessness - Often where Parliament intends to extend the meaning of wilfully to include recklessness, it does so expressly. - Some offences require that it be the actors conscious purpose to bring about a consequence and the actors foresight of the certainty of the consequence is not synonymous. - Accuseds only wilfully promoted hatred: if (a) it was their conscious purpose to do so, or (b) they foresaw the promotion of hatred as certain to result from their conduct. Theroux trying to raise money for project. Lies when he tells people he is insured. Charged with fraud. What is the mens rea of fraud? Subjective knowledge or recklessness as to knowledge of consequences. - Actus reus of fraud: deceit, falsehood (prohibited act) that causes deprivation - Mens rea of fraud: subjective knowledge of the prohibited act and knowledge of or reckless to deprivation - Recklessness will suffice for knowledge because it presupposes knowledge of the likelihood of the prohibited consequences Sansregret terrorized and sexually assaulted ex twice. She complied for fear of her life. He was charged with sexual assault and tried to argue honest mistake of consent.

Lewis (1979 SCC) ~Motive is not intention

Facts Issue Ratio

Hibbert (1995 SCC) ~ Purpose = intention (not desire)

Facts Issue Ratio

Buzzanga & Durocher (1979 OCA) ~ Wilful

Facts Issue Ratio

Theroux (1993 SCC) ~ Actual knowledge

Facts Issue Ratio

Sansregret (1985 SCC) ~ Recklessness and wilful blindness

Facts

Ratio

Recklessness: found in the attitude of one who, aware that there is danger that his conduct could bring about the result prohibited by criminal law, persists despite this risk. Test is for subjective awareness of the risk. Wilful Blindness: when someone who is aware of need for some inquiry fails to make the inquiry; they would prefer to remain ignorant. Tantamount to knowledge. For a rape charge there must be knowledge that the woman is not consenting or recklessness as to whether or not she is consenting. Someone who is wilfully blind to consent cannot argue mistaken belief in consent because wilful blindness to a fact is tantamount to knowledge of that fact. Sansregret was aware of the likelihood of complainants reaction to his threats. To proceed with intercourse in such circumstances constitutes self-deception to the point of wilful blindness.

Duong (1988 OCA) ~Wilful blindness is tantamount to knowledge

Facts Issue Ratio
Duong charged with being accessory after the fact to murder for allowing friend wanted for murder to stay in his apartment. Duong knew of killing and told by guest he was in trouble for murder. Claimed inquiry would have done nothing. Was he wilfully blind? YES. - Prof. Stuart Wilful blindness is deliberate ignorance = actual suspicion combined with a conscious decision not to make inquiries which could confirm this decision is equated in the eyes of the criminal law as actual knowledge. - Where Crown proves existence of a fact in issue and knowledge of that fact is a component of the fault requirement of the crime charged, wilful blindness as to the existence of that fact is sufficient to establish a culpable state of mind. - Liability turns on the decision not inquire once suspicion arises, not hypothetical results of inquiries never made. Duong made no inquiry once suspicious of involvement with murder, choosing to remain with imperfect knowledge. Accused charged with s. 229(a)(ii). Under 229(a)(ii) what does being reckless whether death ensues or not mean? It is superfluous. - Essential element is intending to cause such grievous bodily harm that death is likely to ensue. - Recklessness is almost an afterthought because the causing of such grievous bodily harm is of necessity, reckless.

Cooper (1993 SCC) ~ s. 229 recklessness is an afterthought

Facts Issue Ratio

Objective Fault
Mens rea in negligence-based criminal offences e.g. Dangerous driving, manslaughter (unlawful act, crim-neg), unlawful act causing bodily harm - Subject to the principle of fundamental justice that the moral fault of an offence must be proportional to its gravity and penalty, mens rea of criminal offence may be subjective or objective o Subjective requires accused have intended the consequences OR knowing of the probable consequences of those acts, have proceeded recklessly in the face of the risk (knowledge becomes key to recklessness) o Objective failure to direct the mind to a risk which the reasonable person would have appreciated - Acts of ordinary negligence may not suffice to justify imprisonment (R. v. Sault Ste. Marie (City), R. v. Sansregret) hence the modified objective test to determine fault for negligence-based criminal offences: - MOT: Does As conduct exhibit a marked departure from the standard of care of reasonably prudent person (Tutton & Tutton) in the circumstances (Hundal) unless A was incapable of appreciating the risks associated with the conduct (Creighton)? o While the MOT inquires about the ACT, it proves negligence, which is FAULT. - Excuses: Reasonable misinterpretation of facts (Tutton & Tutton, e.g. muffin lady), incapacity (Creighton). Manslaughter (Tutton & Tutton, Creighton), dangerous driving (Hundal, Beatty), unlawful act causing bodily harm (DeSousa) FAULT (Intent to commit the predicate offence e.g. omit, drive, throw bottle + Requisite level of negligence found in objective foreseeability of harm that meets the modified objective test)

R. v. Tutton & Tutton (1989 SCC) ~Objective fault requirement for s. 219 criminal negligence
Facts Issue Ratio
Accuseds cease administering insulin to son because of belief he has been cured of diabetes through faith healing. Boy dies. Accuseds convicted of manslaughter (s. 222) through crim neg (s. 219) by omitting to provide the necessities of life (s. 215). Is the fault requirement for criminal negligence subjective or objective? Objective McIntyre objective - Unlike criminal offences where act coupled with intent are punished, criminal negligence punishes the act which shows the requisite degree of negligence - Test: Conduct which exhibits a marked and significant departure from standard of care of reasonably prudent person in the circumstances - A reasonable interpretation of the facts may be an excuse - As perception is relevant to whether acted reasonably e.g. an unreasonable misinterpretation of the facts is negligent (the reasonable welder would not ask the muffin lady) Lamer objective + personal characteristics - Agrees with McIntyre + generous allowances for personal attributes, factors particular to accused, age, mental capacity Wilson subjective - "Reckless disregard for the lives or safety of other persons" requires proof of advertence or awareness of the risk that the prohibited consequences will come to pass DeSousa breaks glass bottle against wall and shard hurts someone. Charged with (s. 269) unlawfully causing bodily harm (related to assault but does not require assault, requires unlawful act) Is fault requirement for s. 269 subjective or objective for s. 269? Objective. - There must be an element of personal fault in regard to a culpable aspect of the actus reus, but not necessarily in regard to each and every element of the actus reus - No subjective element in relationship between unlawful act & bodily harm: A need not have intended or appreciated risk - Constitutionally sound fault in subjective intent to throw the bottle + the reasonable person appreciating that throwing a bottle could hurt someone - No general constitutional principle requiring subjective foresight for criminal offences. Objective fault requirement is constitutionally sufficient for a broad range of offences. - Fault requirement of the predicate unlawful offence (here, intentionally throwing the bottle) + fault requirement based on objective foreseeability of the risk of bodily harm (here, the reasonable person knowing that throwing a bottle will be harmful) = satisfies principles of fundamental justice under s. 7 Dangerous driving case. Subjective or objective fault for dangerous driving? Objective. - Inappropriate and unrealistic to apply subjective fault element to dangerous driving. - Negligence can be an acceptable basis of liability which meets the fault requirement of s. 7 of the Charter - Test for negligence is a modified objective one requiring a marked departure from the standard of care of a reasonable person in the context of the events surrounding the incident - Potential harshness of objective standard can be lessened by the consideration of certain personal factors as well as the consideration of a defence of mistake of fact - A person may be held criminally responsible for negligent conduct on the objective test, and this alone does not violate the principle of fundamental justice that the moral fault of the accused must be commensurate with the gravity of the offence and its penalty. - Test for criminal negligence is a modified objective one requiring a marked departure from the standard of care of a reasonable person in the context of the events surrounding the incident A injects drug into Vs arm and leaves. V dies. A charged with (s. 222.5.a) unlawful act manslaughter (giving narcotic = trafficking = an unlawful offence). Case arises post Gosset in which police officer charged with penal negligence. Court split on degree to which personal characteristics should be considered in the objective standard, specifically whether being a police officer should be a factor requiring a higher degree of care with a gun.(Lamer 3 McLachlin 3 La Forest) Does the objective fault standard for criminal negligence include personal characteristics? No (except incapacity). McLachlin - Consensus that preventing morally innocent from being punished, objective test must refrain from holding responsible those who are not capable of appreciating the risk. - Lamer advocates objective test that incorporates human frailties (personal characteristics habitually affecting an accuseds awareness of the circumstances which create risk) result of which would be lowering the standard for deficiencies (e.g. young, stupid and inexperienced) and raising for expertise (e.g. Creightons expertise with drugs).

R. v. DeSousa (1992 SCC) ~Objective fault requirement for s. 269 unlawfully causing bodily harm
Facts Issue Ratio

Rule

R. v. Hundal (1993 SCC) ~Objective fault requirement for dangerous driving

Issue Ratio

Rule

R. v. Creighton (1993 SCC) ~Objective test does not include personal characteristics
Facts

Issue Ratio

Rule

- The test would then be whether a reasonable person with the frailties of the accused would nevertheless have appreciated the risk - McLachlin finds no criminal theory to conclude that protection of morally innocent requires general consideration of individual excusing conditions and rejects Lamers view in favour of single, uniform legal standard for all. Personal factors may come into play where actual intent or knowledge are required (subjective mens rea). - Only personal characteristic of the A that will be injected into the objective test is INCAPACITY TO APPRECIATE THE RISK distinct defect of such a nature that making certain precautions is impossible e.g. deaf, blind, etc. - For manslaughter, Lamer advocates objective foreseeability of death is necessary, but due to the thin skull principle, objective foreseeability of bodily harm is more appropriate. The test for criminal negligence is an OBJECTIVE TEST where the accused will be found guilty if his actions were a marked departure from the actions of the reasonable person in similar circumstances to the event UNLESS the person was incapable of appreciating the risks associated with his conduct (only subjective element is incapacity) Fault requirement for manslaughter: 1) the fault element of the predicate offence; 2) objectively foreseeability of the risk of bodily harm which is neither trivial nor transitory in the context of a dangerous act.

R. v. Beatty (2008 SCC) ~ Modified objective test goes to fault element and not act element
Facts Issue Ratio
A crossed center line while driving for no apparent reason and killed 3. Charged with s. 249(4) dangerous operation of a motor vehicle causing death. Does marked departure relate to act or fault element? FAULT. Bastarache marked departure proves fault element - Act = driving 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 was being operated and the amount of traffic that at the time was or might reasonably be expected to have been at that place". Act is proven by failure to confine vehicle to lane - Fault = Conduct that amounts to marked departure from standard of care a reasonable driver would exercise in A's circumstance. Fault is not proven because a moment of lapse of attention, without more, is insufficient to establish the marked departure required for the actus reus or mens rea of dangerous driving - The dangerous act was not a marked departure from that of a reasonable person McLachlin dissent - Marked departure applies to both act and fault therefore if act is proven, we infer fault. Here, the momentary lapse in attention was not a marked departure and act is not proven, therefore fault is not proven.

EXTENSIONS OF CRIMINAL LIABILITY

s. 21. (1) Every one is a party to an offence who (a) actually commits it; (PRINCIPLE) (b) does or omits to do anything for the purpose of aiding any person to commit it; or (AID) (c) abets any person in committing it. (ABET) (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. (COMMON INTENTION) There are (4) modes of participation in a crime: i. actual commission s. 21(1)(a)  perpetrator or principle in the 1st degree  there can be joint, co-perpetrators who acted in concert must intend but need not do every element  CPs act in concert to commit X, all intend X, and group does or arranges to do all elements of X ii. aiding and abetting s. 21(1)(b)-(c)  Aid - do or omit to do anything for the purpose of aiding another person (the principal) to commit and offence. (Omission here does not concern legal duty to act)  Abet - they encourage another (the principal) with words or acts, and intend to encourage. iii. common intention s. 21(2) iv. counselling s. 22(1)

Principles
s. 21. (1) Every one is a party to an offence who (a) actually commits it; (PRINCIPLE)

R. v. Thatcher (1987 SCC) ~Difference between principle and aiding & abetting legally irrelevant
Facts Issue Held Ratio
A convicted of 1st degree murder for causing death of his wife. Crown argued that A had either killed his wife himself (as principle) or caused someone else to (aided or abetted). Trial judge charged jury they were open to find A guilty if he did either. Did trial judge err in charging the jury that A could be guilty if he either committed the offence himself or aided and abetted? No. Appeal dismissed. Conviction upheld. Interpretation of s. 21 - Provision makes difference between aiding and abetting and personally committing the offence legally irrelevant. Someone who actually commits the offence, just like someone who aids or abets the commission of the offence, is guilty of THAT offence, not a separate offence (e.g. Accessory after the fact) - Designed to alleviate necessity for Crown to choose between 2 forms of participation in offence both forms are equally culpable and should be treated as one single mode of incurring criminal liability - Appellants argument that the jury should have been unanimous on the material facts i.e. whether A was a principle or aided or abetted overlooks the whole point of s. 21 being read as a whole and ignores the very reason Parliament abolished the common law distinction - Jury was unanimous in finding A guilty of having caused the death, and it is of no injustice to A if the jurors differed in their theory because there is no legal difference A jury may find an A guilty of an offence so long as satisfied beyond a reasonable doubt that the A either: committed the offence (21.1.a) OR aided or abetted its commission (21.1.b or 21.1.c). The jury need not articulate or be unanimous in its choice. A charged with forging a passport under s. 57(1)(a). Accepted applications for false passports and falsely stated in writing that applicant had shown proof of citizenship. Innocent 3rd part agent physically made the passports. Common law doctrine that one who causes a crime to be committed by means of the act of an innocent agent is a principle in the first degree. Is A principle in the first degree? YES. 4 categories of people committing felonies at common law and after codification i. Principal in the first degree (actual committer, can be joint or co) = 21(1)(a) ii. Principal in the second degree (present at offence, aider or abettor to principle in first degree 21(1)(b) and 21(1)(c) iii. Accessories before the fact (Counselled, procured, encouraged before it happened) = 21(1)(d) iv. Accessories after the fact (Giving comfort, assistance, harbouring while knowing felony has been committed) = 23(1) Doctrine of Innocent Agency - Predicated on the notion that a person who committed an offence by means of an innocent agent was deemed to be the actual perpetrator, otherwise an A could cape or diminish liability by manipulating an innocent third party - The agent is a mere machine whose movements are regulated by the offender same as actually committing the offence himself A + 3 others repeatedly kicked and punched V until he died. Trial judge focused on the issue of causation and charged the jury that in order for As conduct to have caused Vs death, it must have been at least a contributing cause. Trial judge did not charge on 21.1(a) or 21.1(b). Did the trial judge err in focussing on the issue of causation and failing to charge on s. 21? YES. Proper focus was mode of participation - Judge erred in focus on causation and whether As conduct was contributing cause of death this implies an intervening act - Issue was whether A caused Vs death could have occurred as principle, aider or abettor - Causation would be proved if the jury was satisfied that the victim died as a result of the assault and that A participated or assisted of abetted in the assault - Cribbin & Netty held that where accused is legally considered to have caused Vs death, causation is conclusively established unless there is evidence of an intervening event which breaks the chain of causation linking the A to Vs death Charge required on s. 21 therefore charge fundamentally flawed - Does not require that jury be satisfied A struck final blow

Rule

R. v. Berryman (1990 BCCA) ~Party a principle despite use of innocent agent

Facts Issue Ratio

R. v. H. (L.I.) (2004 MCA) ~ if looking to if accused is a s. 21 party, causation not an issue at that point
Facts Issue Ratio

Rule

As long as jury satisfied that A participated in beating & requisite intent for murder, then guilty of 2nd degree murder - If not satisfied of requisite intent for murder, guilty of manslaughter if reasonable person would have appreciated the risk that participation in the assault would likely lead to risk of bodily harm. As long as there is evidence before the jury indicating that the accused actively participated in the crime with the requisite intent, it wont matter whether the jury finds accused to be principal or aider/abettor, as long as the jury is satisfied BARD that the accused did actively participate in the crime with another person. Causation is proved if the jury is satisfied that the accused was a party in the assault and the victim died as a result of the assault.

Aiding & Abetting

s. 21(1)(b) does or omits to do anything for the purpose of aiding any person to commit it; or (AID) (c) abets any person in committing it. (ABET) Dunlop and Sylvester v. The Queen (1979 SCC) ~ Mere presence and passive acquiescence
Facts Issue Ratio Rule
16 y.o. raped by gang members. Accuseds testified their involvement was dropping off beer and being there for three minutes. Judge told jury that if the accuseds knew rape was going on and didnt stop it, they were guilty of the offence Did the judge err in his charge? YES. The accuseds conduct was mere presence and passive acquiescence - A person does not encourage and is not liable as an aider or abettor to a crime simply by being present and not stopping it Mere presence without factors of encouragement is not aiding and abetting. Presence at the commission of an offence can be evidence of aiding and abetting if accompanied by other factors, such as prior knowledge of principal offenders intention to commit, or attendance for the purpose of encouragement. 20 y.o. A let 16 y.o. unlicensed female drive his car. She drove dangerously. A charged with substantive offence on the basis that he aided and abetted her dangerous driving by failing to stop her. Defence was that A didnt do or omit to do anything that encouraged driver. Did Kulbacki aid and abet dangerous driving? YES. - Kulbackis failure to tell the driver to stop is the flaw in defence, suggests that she was driving with his consent and approval. Kulbacki was in position and had authority as owner of the car to stop the driver. E.g. Halmo A knew chauffeur was drunk and still asked him to drive (a stronger example of encouragement) - Court limits the scope of what seems to be a positive duty to stop an offence by saying that not in every instance will a passenger be subject to aiding and abetting places the focus on the control and authority the A possessed as owner of the car Mere presence may be interpreted as encouragement during the commission of an offence and give rise to liability in the form of aiding and abetting if the accused has the requisite level of control and authority to ask the principle to stop and fails to do so. E.g. If Kulbacki is a passenger in his own car

R. v. Kulbacki (1996 MCA) ~ Presence as encouragement

Facts Issue Ratio

Rule

Common Intention
s. 21(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. Questions to ask: Did the persons form a common intention? Was the purpose unlawful? Did A know or ought to know the offence in question was a probably consequence of carrying out the common purpose? If yes, then A is a party.

R. v. Maier and Clark (1968 SCA) ~ Only liable for probable consequences of common intention
Facts Issue Ratio
As agree to assault someone. Maier pulls a knife. Clark charge with possession of knife. Does the accuseds common intention make Clark liable for possession of the knife? NO. - TJ made finding of fact that Clark did not know about the existence of the knife until it was produced. - The possession offence was not one that Clark should have known was a probable consequence of carrying out the common intention to commit an assault.

Rule

Probable consequence test is both subjective and objective: He did not know, nor should he ought to have known that Maier would brandish a knife. If A and another person form an intention in common for an unlawful purpose, A will be a party to any and all of the other persons offences committed in carrying out the unlawful purpose, only if A knew or ought to have known the offence was a probable consequence of carrying ought the common intention. Kirkness robbing lady while common intender sexually assaults her. Some evidence that A tells common intender to stop, who doesnt listen and kills her. Is A liable for the Vs murder? YES. Majority - For purpose of parties, look to continuous transaction view party to break and enter party to sexual assault party to murder because knew or ought to have known that this consequence was probable Wilson J. (dissent) - Was offence probable? To hold A liable as party, commission of ultimate offence must have been probable. (Did A know killing the V was a probably consequence of B&E? Was B&E the sole purpose? If purpose to commit physical violence, then a more direct route of liability to sexual assault and murder. These are all questions for the jury to decide.) - A whose liability is established as a party has defence of abandonment available. Accused may dissolve liability for the acts of the principle if he can show that he abandoned his purpose to assist in the commission of the offence. This is more than the mere change of intention or physical change of place by associates who wish to abandon common intention. - - For an A to abandon a common purpose and absolve liability for the principles offence, withdrawal must be done with timely communication and an unequivocal manner, with the quality of withdrawal and whether would have been required of the A to exculpate being assessed in relation to As involvement and the type of criminal offence. KEY ISSUE: Quality of the withdrawal and whether more is required to exculpate. Quality assessed in relation to the involvement of the party and the type of criminal offence. - Glanville Williams says that where A has acted positively beyond inciting or enoucragin an offence, he must do his best to prevent the offence e.g. warn the victim

R. v. Kirkness (1990 SCC) ~Abandon common intention

Facts Issue Ratio

R. v. Logan (1990 SCC) ~ Subjective mens rea constitutionally required for party to murder
Facts Issue Ratio
Victim shot during robbery and paralyzed. Logan and other robbers charge with attempted murder under s. 21(2). OCA held objective test of 21(2) is inoperative in relation to attempted murder since objective foreseeability is a lower degree of mens rea than required of the principal. Is it possible for party to murder to be convicted upon proof of objective fault, while the principle could be convicted only upon proof of subjective fault? No. 21(2) inoperative for murder. - It is a principle of fundamental justice that the moral fault of an offence must be proportional to its gravity and penalty. (Vaillancourt) For certain offences that require a minimal constitutional level of mens rea, legislation providing for any lesser degree violates the Charter. - The stigma and penalty for murder requires subjective fault as a constitutional minimum. (Manslaughter, devoid of stigma and of a lesser penalty, can be established on an objective fault basis.) - Vaillancourt does not preclude legislated differential guilt between principles and parties, however, does preclude party conviction on an offence that requires a constitutional fault minimum, on a lesser degree than the constitutional minimum. - Principles of fundamental justice require subjective mens rea for principles murder conviction, therefore subjective mens reas required for partys murder conviction

INCHOATE OFFENCES
Inchoate offences (3) i. Attempt (try but dont succeed) ii. Conspiracy (agree with another to commit) iii. Counselling (actively encourage or incite someone else to commit a crime) When a criminal offence is intended but its commission not completed, the conduct of the A may still be punishable, hence the law of inchoate offences: counselling, conspiracy and attempt. The object of completion remains intact with these offences. - Common rationale: preventive function of criminal law criminalizes the threat of harm to prevent the harm from materializing.

Attempts s. 24, punished under s. 463

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. (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 - An attempt is always included within the substantive offence (e.g. like manslaughter always being included within murder charge). Where trier of fact finds A not guilty of an offence, they are open to find them guilty of an attempt - 2 types of attempts: the incomplete and the unsuccessful. Rationale: Prevent the commission of the substantive offence. Where the objective to complete an intended offence is present, it is inefficient for the criminal law to wait until the offence is actually committed BUT when can the criminal law intervene? Mansons theory Harm Neutralization When the actors steps have gone far enough towards the commission of the offence that some has been caused that cant be neutralized or taken back, the actor has attempted the crime. Other theories: i. Remoteness acts must be sufficiently proximate to the intended harm ii. Series of acts theory crime occurs as a series of acts, and acts that go beyond mere preparation are attempts iii. Last act theory last act before crime itself is an attempt iv. Equivocality an act that unequivocally demonstrates intent to commit X

ATTEMPT AND ACTUS REUS R. v. Cline (1956 OCA) ~ No universal law of attempts
Ratio
Laidlaw J.A. - There is no one law of attempts. In each case, look at facts, nature of the offence and the particular acts in question. - Propositions i. An attempt requires actus reus and mens rea the criminal misconduct lies mostly in the As intention ii. Can look to evidence of acts before and after to establish pattern of conduct for court to find mens rea iii. Not essential that actus reus of the attempt be a crime, tort, or moral wrong iv. Attempt is an act that goes beyond mere preparation v. Criminal acts have genesis in an idea. What follows idea is planning and preparation to put the criminal design into effect. When the preparation is fully complete, the next step done by the accused for the purpose and with the intention of committing a specific crime constitutes an actus reus sufficient in law to establish a criminal attempt Deutsch advertised secretary position and told applicants they would have to sleep with clients. Charged with procuring persons to have illicit sexual relations under s. 212(1)(a). He did not procure but may have attempted to. Did Deutsch attempt to procure? YES. Distinction between preparation and attempt is a question of common sense - essentially a qualitative distinction involving the relationship between the nature and quality of the act in question and the nature of the complete offence, although consideration must necessarily be given, in making that qualitative distinction, to the relative proximity of the act in question to what would have been the completed offence, in terms of time, location and acts under the control of the accused remaining to be accomplished. Preparation or attempt? Look to relationship between nature and quality of act vs. Completed offence, considering the proximity between the acts in terms of time, location, and the acts between them.

Deutsch v. The Queen (1986 SCC) ~ Distinction between preparation and attempt is a qualitative one
Facts Issue Ratio

Rule

ATTEMPT AND MENS REA R. v. Ancio (1984 SCC) ~ Attempted murder requires specific intent to kill
Facts Ratio Rule
Ancio broke into estranged wifes apartment with shotgun. Confronted by wifes new boyfriend who hit him with chair. Ancio discharged gun, missed new boyfriend. Charged with attempted murder under s. 230. The intent to commit the desired offence is the basic element, and indeed may be the sole criminal element in an attempt. Attempt requires the intention to bring about the completed act. The mens rea for attempted murder is specific intent to kill. The mens rea for attempted murder is the specific intent to kill. A mental state falling short of that level may well lead to conviction for other offences (i.e. aggravated assault) but not for a conviction for an attempt at murder, even pre-CCRF. D robbed Beckers and wounded a cashier. Charged with attempted murder. Is D guilty of attempted murder? No.

R. v. Logan (1990 SCC) ~ Subjective intent constitutionally required for attempted murder
Facts Issue Held

Ratio

Constitutionally required minimum degree of mens rea - Ancio established that a specific intent to kill is the mens rea required for a principal on the charge of attemptedmurder, but this case didnt decide whether that requisite mens rea was a constitutional requirement - Martineau establishes need for subjective foresight of the fact that the death of the victim was likely to ensue, concerned with stigma and severe penal consequences from a murder conviction. - Stigma for murder is the same as attempted murder, therefore subjective mens rea is constitutionally required for attempt murder.

IMPOSSIBILITY United States v. Dynar (1997 SCC)

Facts Issue Held Ratio
Failed FBI sting, attempting to launder money. Sting was ended before money was actually transferred. Money was clean so therefore legally impossible to launder Does the law of attempts whether or not it is possible under the circumstances apply to legal impossibility? No, but Dynar attempt to do what was factually impossible so he is guilty of an attempt. There is no category of legal impossibility, only attempts at imaginary crimes and attempts to do the factually impossible. - Factual impossibility: Try to pickpocket someone who doesnt have a wallet - Legal impossibility: Stealing a book that is you own. - Imaginary crime: Thinking that it is a crime to import sugar s. 24(1) says intent to commit an offence therefore this is the only offence that cannot be attempted. - What Dynar did was factually impossible because his crime was thwarted only by chance - Impossible attempts are no less menacing than possible attempts. What matters in criminal law is what Dynar believe he was doing, which was laundering drug money.

Rule

ATTEMPT TO CONSPIRE R. v. Dungey (1979 OCA) ~ No attempt to conspire

Facts
Dungey a lawyer who asked client to request backdated legal aid certificate so he could be paid twice. Client requested certificate and received post-date certificate. Trial judge found that the client did not agree to fraud and without an agreement, Dungey was acquitted. Crown appealed on the grounds that TJ should have considered an attempt to conspire to commit fraud. Did Dungey attempt to conspire to commit fraud? NO. - In the absence of an agreement, there was no offence, and a conviction for attempt to conspire to defraud would be punishment for a guilty intention alone. - To hold that there is an offence of attempting to conspire to defraud is tantamount to convicting a person of an attempt to attempt to defraud. Dery and Savaard discussed stealing alcohol from outdoor storage area. Charged with conspiracy to commit theft and possess stolen liquor. Trial judge found that there was no agreement (meeting of the minds) to establish conspiracy. Acquitted of conspiracy charge and found guilty of attempting to conspire to commit theft because acts went beyond mere preparation to conspire. Did Dery attempt to conspire to commit theft? NO An attempt to conspire to commit a further substantive offence is not a criminal offence in Canadian law - Acts that precede a conspiracy are not sufficiently proximate to the commission of the substantive offence to warrant the criminal laws intervention. - Policy rationale for inchoate offences is risk an attempt to conspire is merely a risk that a risk will materialize. - 24(2) says attempt occurs after mere preparation, while common law has said that conspiracy is merely preparatory. An attempt cannot precede a conspiracy. - Court looks to R. v. Dungey Court stated that an attempt to conspire to commit a further substantive offence is not a recognized criminal offence. - Unilateral conspiracies (e.g. Dungey) will be caught by counselling.

Issue Ratio

R. v. Dery (2006 SCC) ~ No attempt to conspire to commit a further substantive offence

Facts

Issue Ratio

IGNORANCE/MISTAKE OF LAW
s. 19 Ignorance of the law by a person who commits an offence is not an excuse for committing that offence. - Based in policy reasoning If a defence, ignorance of the law would negate the fault element. Criminal law would not function effectively and efficiently if anyone could plead ignorance to the law. - Mistake of FACT (can be defended against with due diligence) vs. Mistake of LAW (cannot be defended against except in rare circumstances)

- Exceptions to s. 19 (circumstances where mistake of law can be a defence) i. Non-publication ii. Wording of the offence (e.g. Housin & Docherty) that involves colour of right, knowledge of the offence, etc. iii. Officially induced error (e.g. Jorgensen)

R. v. Housin (1966 OCA) ~ Colour of right is a valid defence to theft

Facts Issue Ratio
Tow truck driver charged with theft of a car when he refused to give a towed car back to its owner until the owner paid certain expenses. Believed he was entitled to do that. s. 322(1) says theft occurs when someone takes something fraudulently and without colour of right. Is Housin guilty of theft? NO. There is no offence if there is colour of right - Colour of right = "an honest belief that an act is justifiable..." - Housin had colour of right = believed he had a right to take the car and keep it until dues were paid, had evidence to back this up Honest belief of colour of right is a valid defence to theft despite s. 19. Ignorance or mistake of law may negate mens rea when the language in the provision of the offence allows it. Docherty on probation, therefore required to keep the peace and maintain good behaviour. Found drunk and asleep in car, charged with impaired care and control and wilful breach of probation. Did he wilfully breach his probation? NO. Where knowledge is itself a component of the requisite mens rea, the absence of knowledge provides a good defence - What does wilfully mean? Different things in different contexts but generally an increase threshold for fault e.g. Buzzanga wilfully cannot be satisfied by recklessness - Docherty believed it permissible to fall asleep in the drivers seat, unaware that there is an implied intention. In order to have wilfully breached his probation by committing an offence, he needed to know that what he was doing was an offence. Belief in legality, although wrong, exonerates an accused where knowledge of guilt is included in the offence. Provincial inspector sees guard is away from machine. Charged under provincial statute. Defence is that another inspector said it was permissible to operate machinery without guard. Can officially induce error be a defence to a regulatory offence? YES. - Regulatory offence therefore absolute or strict liability excuse either mistake of fact or due diligence - Mistake of fact demonstrated through officially induced error - Must show that he relied on the erroneous legal opinion of the official, and - Must show that reliance was reasonable (will depend on several factors, including efforts he made to ascertain the proper law, complexity or obscurity of the law, position of the individual who gave the advice, and clarity, definitiveness and reasonableness of the advpice) Officially induced error can be used as a defence to a regulatory offence by demonstrating mistake of fact does not necessarily mean it will be permitted for Criminal Code offence (until Jorgensen). Jorgensen charged under s. 163(2) for knowingly, without lawful justification or excuse... selling... obscene material. Some of the pornographic videos had been approved by Ontario Review Board, others Jorgensen had not watched. Did he sell obscene material knowingly, without lawful justification or excuse? NO. Jorgensen sold obscene material knowingly, but he had a lawful justification or excuse i. Law requires that Jorgensen know of the specific acts or set of facts that led the court to conclusion of obscenity. Doesnt need to prove he knew they were obscene at law or had seen them all. ii. While it does not negative mens rea, officially induced error by virtue of the film board excuses the accused from conviction it was reasonable to rely on this type of advice - Excusing someone where there is CLEAR officially induced error does not offend the maxim of ignorance of the law being no excuse, because these individuals will not be morally blameworthy. - Stuarts four aspects of the rationale for the rule against accepting ignorance of the law as an excuse: i. Allowing this defence leads to insuperable evidential problems ii. Encourages ignorance where knowledge is socially desirable iii. Every person would be a law unto himself, infringing the principle of legality and contradicting the moral principles underlying the law iv. Ignorance of the law is blameworthy in itself Steps in raising an officially induced error of law argument: i. Error was one of law or mixed fact/law ii. Accused considered legal consequences of act iii. Consulted an appropriate official (e.g. not the muffin lady) iv. Advice must have reasonable in the circumstances

Rule

R. v. Docherty (1989 SCC) ~ Mistake of law is a defence when the offence requires knowledge
Facts Issue Ratio

R. v. Cancoil (1986 OCA) ~ Officially induced error in regulatory offence

Facts Issue Ratio

Rule

R. v. Jorgensen (1995 SCC) ~ Officially inducer error in true crime

Facts Issue Ratio

Rule

v. Advice must have been erroneous vi. Accused must have relied on that advice in actions - Officially induced error is an excuse rather than a full defence. Crown must prove all elements of the offence first. Blame is shared with the state official who gave the erroneous advice.

City of Levy (2006 SCC) ~ Appropriate official in officially induced error of law argument
Ratio
- Confirms Jorgensen as the law on officially induced error. - Because of the circumstances leading up to the act, the person who committed it is not responsible in the eyes of the law, is excused and entitled to a stay of proceedings. (Excuse = stay of proceedings. Defence = full acquittal) - Appropriate official? Police officer but not private lawyer.

SUBSTANTIVE OFFENCES
Sexual Assault
18th century - Sexual assault offences originate from history where husbands and daughters were the property of men. Legal minds expressed doubt about allowing women to charge men with rape since it may be serving self-interest 1955 Criminal Code revision still permits for non-consensual sex with ones wife = "male person commits rape when intercourse with woman who is not his wife, without consent or when consent is through force, threat, etc." 1983 Criminal Code reform where old offences amended to ss. 271, 272, 273 sexual assault, aggravated sexual assault and sexual assault with a weapon. - Remedied problems with previous sexual assault provisions (e.g. man could not rape his wife, rape required proof of penetration, requirement of corroboration) with new core approach that sexual violence is a form of assault encompassing a wide range of conduct - Reformed substantive law, procedure and evidence incl. (i) removing rule of recent complaint negative inference where complainant did not report rape immediately (ii) removed corroboration requirement where conviction impossible solely on evidence of complainant (iii) cross examination on prior sexual history limited to the that with the accused, excludes evidence of sexual reputation typically adduced to slander complainant - Key focus now is assault application of force without consent so the assault provisions apply - Manson think that sexual assault law reform as a result of 2 sexual revolutions i. 960s liberal attitude toward sexuality Prior to 1960s religious and moralistic attitudes said that sex outside marriage was considered illicit, the concept of sexuality a verboten topic, children born out of wedlock were bastards. Liberal, free spirited attitude of the 1960s made sex a public topic, pre-martial sex common, sexual diversity acceptable (1968 homosexual sex made legal) ii. Respect for dignity and autonomy of sexual partner impact of this seen in the 1990s amendments because members of the bench and Parliament start to include individuals who were raised in the 1960s era. The attitudes of these individuals would have been developed during time of sexual maturity and development of attitudes re sexuality.

R. v. Chase (1987 SCC) ~ Definition of sexual assault

Facts Issue Ratio
Chase entered home of 15 y.o. girl, grabbed breasts and attempted to grab genitals. Charged with sexual assault and convicted at trial. NBCA substituted conviction for common assault because no interference with genitals means no sexual assault. Did Chases conduct constitute sexual assault? YES. The assault is not the motivation of the actor, but rather the effect on the person acted upon. - If motivation is sexual gratification, that is a significant factor in deciding whether the conduct is sexual or not, however even if the motivation is not sexual gratification, the assault may be a sexual assault. - Part of the body is relevant but certain part of the body not determinative - Grabbing complainant's breasts constituted assault of sexual nature because it was committed in circumstances of sexual nature such that the sexual integrity of the victim was violated. Objective test for determining if conduct has requisite sexual nature to be defined as sexual assault: Would the reasonable observer consider the assault to have been committed in circumstances of a sexual nature such that the sexual integrity of the victim was violated? Pappajohn took complainant home after hours of drinking. 3 hours later she ran naked, gagged and bound from his home. 2 accounts: Complainant denied any form of consent, while Pappajohn claimed she initially consented to preliminary sexual activity and intercourse, objecting only when gagged and bound. Trial judge refused to instruct jury on defence of mistaken belief in consent.

Rule

R. v. Pappajohn (1980 SCC) ~ Mistaken belief in consent must be honest but not reasonable
Facts

Accuseds appeal to BCCA was dismissed.

Issue 1. Can accused raise defence of mistaken belief in consent if belief was honest but unreasonable? YES.
2. Did accused raise sufficient evidence of his mistaken belief in consent to justify the judge instructing the jury on it? NO.

Ratio 1. Mens rea involves intent to have sex with non-consenting woman so honest mistaken belief in consent, whether reasonable or
unreasonable, should lead to an acquittal. Defence of mistake is determined on a subjective level whether the particular accused held the mistaken belief NOT on an objective level whether a reasonable person would have held that mistaken belief. - Mistaken belief negates mens rea because if you need to know X to be convicted, and you honestly believed in non-X then you are missing an essential element. - Notion of reasonableness may be considered by jury to determine whether the accused in fact held the belief but the determination is not whether the accused acted as the reasonable person 2. The evidentiary threshold for putting the defence of mistaken belief in consent is reasonable grounds or air of reality for belief beyond the mere assertion of belief in consent by the accused. Notes re policy of defence of mistaken belief in consent: cases where legitimately advanced are few, an evidential case must exist to support the plea, 1. Defence of mistaken belief in consent is available where accused honestly but unreasonably held the belief. 2. Sufficient evidence for the defence of mistaken belief in consent to be put to the jury is raised where evidence for consent extends beyond accuseds mere statement. D considered air of reality test for s. 265(4) (judge should instruct jury on honest mistaken belief in consent if accused alleges consent to the conduct and there is sufficient evidence that, if believed, would provide a defence) a violation of ss. 11(d) and (f) of the Charter. Does s. 265(4) violate ss. 11(d) and (f) of the Charter? NO. - No requirement that evidence beyond the accused be put forward, but evidence must exist beyond the mere assertion of belief in non-consent by the accused - Accused only bears an evidentiary burden to put the defence to the jury, not the burden of proof to establish conclusively - Cory. J for the dissent says that the defence of honest mistaken belief in consent cannot arise when testimony of accused and complainant are diametrically opposed and will only arise when the same set of facts are told with differing interpretations. Majority rejected dissent argument because in rare cases the jury may adopt aspects of both testimonies. Like all defences, mistake only goes to jury when there is air of reality to evidence upon which defence is based. An air of reality requires more than the mere assertion of belief in non-consent by the accused. From R. v. Cinous - test for an "air of reality" - whether a properly instructed jury acting reasonably could acquit? Accused broke into ex's apartment, terrorized and raped her - twice! Complainant consented solely for the purpose of calming the accused and protecting herself from further violence. Accused found to be wilfully blind but acquitted of rape because of honest mistaken belief in consent. Did the trial judge err in acquitting accused on defence of mistaken belief in consent? YES. Accused was wilfully blind and therefore could not have entertained an honest mistaken belief in consent. - Wilful blindness supportable because of prior incident, therefore his self-deception leaves no room for operation of defence of mistaken belief in consent. - Wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. In law he is affixed with actual knowledge and his belief in another set of facts is irrelevant. - This is NOT a retreat from Pappajohn position that the honest mistake need not be reasonable. Wilful blindness satisfies knowledge of non-consent and therefore the mistaken belief is not HONEST. Where there is wilful blindness, the defence of mistaken belief in consent does not apply.

Rule

Osolin v. The Queen (1993 SCC) ~ Air of reality test for putting defence of mistaken belief in consent to jury
Facts Issue Ratio

Rule

Sansregret v. The Queen (1985 SCC) ~ The wilfully blind cannot argue mistaken belief in consent
Facts Issue Ratio

Rule

R. v. Seaboyer (1992 SCC) ~ s. 276 (excluding evidence of complainants sexual activity with non-accused) unconstitutional
Facts Issue Ratio
1983 reform included rape shield provisions s. 276 barring evidence re sexual activity of complainant with any person other than the accused, with exceptions. s. 277 prohibited use of evidence of sexual reputation. Seaboyer contended that ss. 276, 277 infringe right to present evidence related to defence, violating Charter ss. 7 and 11(d). Are ss. 276 and 277 unconstitutional? YES and NO. s. 276 - renders evidence inadmissible which may be essential to the presentation of legitimate defences and hence a fair trial. (LHeureux Dube dissent says evidence excluded under s. 276 would not satisfy the "air of reality" that must accompany the defence of mistaken belief in consent because such evidence depends in large measure upon stereotypes of women and rape) s. 277 - There is no logical or practical link between a woman's sexual reputation and whether she is a truthful witness , and hence s. 277 does not touch evidence rendered for valid purposes. Parliament responded to this case with Bill C-49 and formed s. 273. Important parts: Meaning of consent 273.1 (1) Subject to subsection (2) and subsection 265(3), consent means, for the purposes of sections 271, 272 and 273, the voluntary

Rule

agreement of the complainant to engage in the sexual activity in question. Where no consent obtained (2) No consent is obtained, for the purposes of sections 271, 272 and 273, where (a) the agreement is expressed by the words or conduct of a person other than the complainant; (b) the complainant is incapable of consenting to the activity; (c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority; (d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or (e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity. 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 accuseds belief arose from the accuseds (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. Evidence of complainants sexual activity 276. (1) In proceedings in respect of an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273, evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant (a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or (b) is less worthy of belief. (2) In proceedings in respect of an offence referred to in subsection (1), no evidence shall be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 276.1 and 276.2, that the evidence (a) is of specific instances of sexual activity; (b) is relevant to an issue at trial; and (c) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

R. v. Darrach (1998 OCA) ~ Sexual assault is a general intent crime

Facts Issue Ratio
s. 273(2) requires accused to demonstrate that he took reasonable steps to ascertain whether the complainant consented. Accused argues that sexual assault is one of the small subset of offences to which a significant level of stigma is attached, that there is a constitutional requirement for subjective fault Is s. 273(2) unconstitutional? NO. Sexual assault is not a specific intent offence and the mental element is still subjective, despite injection of new objective elements. - Sexual assault is not one of the very few specific intent offences and dont need to have subjective mens rea. Nonetheless, sexual assault largely based on subjective fault at a level that satisfies constitutional requirements. Objective element is a modified one circumstances known to the accused at the time, not ought to have known - A person is not entitled to take ambiguity as the equivalent of consent. A defendant is guilty if he realized the woman might not be consenting and took no steps to find out. Were a person to take reasonable steps, and nonetheless make an unreasonable mistake about the presence of consent, he would be entitled to the defence of mistake of fact For a defence of mistaken belief in consent to be available, the accused must have take reasonable steps to confirm consent. Accused met with complainant in car for job interview. Accused engaged in multiple progressive instances of sexual touching, each one met with a "no" from the complainant. After each "no", the accused would cease touching, only to begin again moments later. Complainant claimed she did not consent to any sexual touching, permitting it because she feared for her safety if she resisted more. Accused acquitted on the basis of trial judge finding of "implied consent". Can a complainant can provide "implied consent" to sexual touching that will exculpate the accused of sexual assault? NO. i. There is no defence of implied consent to sexual assault in Canada. ii. Trial judge erred in considering complainant's actions, and not subjective mental state, in determining issue of consent. 1. Actus reus of sexual assault (3 elements) i. Touching (objective) ii. Sexual Nature (objective) iii. Absence of Consent (subjective determined only by complainants view, subject to accused raising evidence about complainants words or actions that cast doubt on whether complainant withheld consent in her own mind) - Either CONSENT or NO CONSENT. Cannot find that complainant did not consent in her mind but

Rule Facts

R. v. Ewanchuck (1999 SCC) ~ Mens rea and actus reus of sexual assault

Issue Ratio Rule

2.

implied consent in her actions. Mens rea of sexual assault (2 elements) i. Intention to touch ii. Knowing, or being reckless or wilfully blind, to a lack of consent on the part of the person being touched - Accused may challenge mens rea by raising defence of honest mistaken belief in consent. Defence raised by accused, but no burden to prove. Practically speaking, evidence typically comes from the accused. - Accuseds belief in consent requires an active communication, not simply a speculation of consent. Silence, passivity or ambiguity does not constitute consent. - Lack of expressed agreement also does not constitute consent. Once no has been said, an unequivocal yes must be obtained before further sexual activity.

R. v. Bouldock & Bird (1967 SCC) ~ Fraud vitiates consent

Facts Issue Ratio Rule Facts Issue Ratio
Women shows up for gyno exam and is told by Dr. Bird that his colleague Dr. Boulduck will be sitting in. Patient consented. Boulduck was infact a musician and not a doctor. Both doctors were charged with indecent assault. s. 265(3)(d) says no consent to assault if obtained by fraud or exercise of authority. Did the fraud in this case vitiate the patients consent? NO. Interpreted consent narrowly fraud must be viewed with respect to the quality and nature of the act the act was exactly what she consented to so that fraud committed here is not such to vitiate consent. Fraud will only vitiate consent when the fraud relates to the nature or quality of the act being consented to. Cuerrier diagnosed HIV+ and told by doctor he should tell all sexual partners. One woman asks and he lies. Other woman does not inquire. Charged with 2 counts of aggravated sexual assault on the basis that consent was obtained fraudulently and that the fraud vitiates the consent given. Did the fraud in this case vitiate consent? YES. Court tries to fill in minimum requirement for fraud: It is no longer necessary to determine whether the fraud went to the nature or quality of the act consented to. Now, existence of fraud should not vitiate consent unless there is a significant risk of serious harm. McLachlin dissent fraud has always relied on the mistake going to the nature and quality of the act LH-D dissent fraud is simply about whether the dishonest act led to obtaining consent, it should not hinge on a risk of bodily harm Existence of fraud should not vitiate consent unless there is a significant risk of serious harm.

R. v. Cuerrier (1998 SCC) ~Fraud vitiates consent if significant risk of serious harm

Rule

Homicide
s. 222 defines the parameters of homicide. Read in conjunction with s. 229, which defines murder. Culpable homicide (3): Murder, manslaughter, infanticide. 1976 1st & 2nd degree murder mainly a distinction in parole times - 1st life imprisonment, no parole elibility for 25 years, can apply after 15 years to have eligibility reduced - 2nd life imprisonment, no parole eligibility for 10-25 years, judge hears jury recommendation for this. - 15 year parole eligibility review stipulation for 1st degree and 2nd degree with parole longer than 15 years goes before a jury requires unanimous verdict to decrease 229. Culpable homicide is murder (a) where the person who causes the death of a human being (i) means to cause his death, or (pure intention of consequences) (ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not; (Cooper says that recklessness is superfluous since causing bodily harm likely to cause death is already reckless) (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; (transferred intent) 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. (objective element)

SECOND DEGREE MURDER R. v. Simpson (1981 OCA) ~ s. 229(a) intentional or reckless killing
Facts
Accused strangled one victim to point of unconsciousness in his apartment and attacked another outside a bar. Charged with 2 counts

Issue Ratio

Rule Facts Issue Ratio

attempted murder. Trial judge stated intent exists where accused knew or ought to have known that strangling would cause death (objective). Did the trial judge err in his charge? YES. Murder requires subjective intent so no ought to know (objective) - Intention to cause bodily harm accused ought to know will cause death is evidence from which, along with all the other circumstances, the jury may infer the accused actually had the requisite intent but it is not the requisite state of mind. The requisite state of mind is KNOWS is likely to cause death. - The standard of foreseeability is high: Likely to cause death rather than might cause death Mens rea for murder is subjective intent. Cooper passed out while strangling victim. Argued no contemporaneity that at time that at time bodily harm was likely to cause death there was no intent. Were the act and intent contemporaneous? YES. - It is sufficient that act and intent coincide at some point part of the same transaction (Fagan). When Cooper seized her by the neck, he was committing bodily harm which he knew was likely to cause death. - Recklessness is an afterthought (superfluous) because an accused who intentionally causes bodily harm which is likely to cause death is of necessity, acting reckless whether death ensues - Intent under 229(a)(ii) has two aspects, requires both for conviction: a) subjective intent to cause bodily harm, and b) subjective knowledge that the bodily harm is of such a nature that is likely to result in death. While trying to commit suicide, Fontaine killed someone else (passenger in his car). s. 229(b) says "meaning to cause death to a human being". Can attempt to kill oneself satisfy s. 229(b) transferred intent? NO. - Word another should be read in to give accused benefit of ambiguity (where words are reasonably capable of more than one meaning) - To do otherwise would violate Creighton principles and apply stigma of murder to those who have attempted something categorically different (removal of attempted suicide from Code signifies there should be less moral blameworthiness than for murder) s. 229(b) transferred intent will only apply to cases where the accused was attempting to kill another human being.

R. v. Cooper (1993 SCC) ~ contemporaneity, recklessness, mens rea s. 229(a)(ii)

R. v. Fontaine (2002 MCA) ~ application of s. 229(b) to attempted suicide

Facts Issue Ratio

Rule Facts

R. v. Vaillancourt (1987 SCC) ~ Certain crimes require subjective intent

V and accomplice robbed pool hall. Agreed to only use knives but accomplice shot someone. V charged under s. 213(d) (now s. 230) constructive murder, despite no subjective or objective foresight of murder. Issue Is s. 213(d) unconstitutional? YES. Ratio There are certain crimes that because of the special nature of the stigma attached to a conviction, principles of fundamental justice require a mens rea reflecting the particular nature of that crime. Murder requires some special mental element giving rise to the moral blameworthiness, justifying stigma and sentence attached to conviction for murder. Mens rea of s. 230 requires subjective intent to commit the offence. There must be at least objective foreseeability that death will ensue. Rule It is a principal of fundamental justice that, absent proof beyond a reasonable doubt of at least objective foresight, there cannot be a murder conviction. Accidental killings cannot result in murder conviction absent objective foresight of death. NOTE: This is a stepping stone case the real case is Martineau.

R. v. Martineau (1990 SCC) ~ Principles of fundamental justice dictate subjective intent required for murder
Martineau and accomplice B&E. Martineau thought they were only B&E, but accomplice shot and killed someone. Martineau charged with constructive murder under ss. 230(a) and (d) by virtue of s. 21(1) and (2). Issue Does 230(a) violate ss. 7 and 11(d) of the Charter? YES. Ratio Principles of fundamental justice: 1) there must be a mens rea reflecting the particular nature of that crime 2) punishment must be proportionate to the moral blameworthiness of the offender 3) those causing harm intentionally be punished more severely than those causing harm unintentionally Subjective intent or foreseeability of death is constitutionally required for murder conviction - Constructed murder provision allowed for conviction of murder despite not having intent to kill nor subjective knowledge that death might ensue from actions. This is in contrast to other murder provisions requiring subjective intent or subjective foreseeability of death - Murder carries significant penalty and stigma, therefore proof of subjective intent or foresight of death is constitutionally required for a murder conviction to be in accordance with the principles of fundamental justice. NOTE: All forms of constructive murder are unconstitutional because the stigma and punishment for murder conviction require subjective mens rea in the form of subjective intent or foresight of death.

Facts

R. v. Meiler (1999 OCA) ~ Actus reus and mens rea of 229(c) unlawful act murder

Facts Issue Ratio

Rule

Meiler armed self with gun and searched for boyfriend of estranged wife with intention of killing him. Accidentally shot and killed friend of boyfriend who had assisted in trying to disarm accused. Meiler is charged with s. 229(c). Is Meiler guilty of unlawful act murder? YES. - Even an accidental discharge of the gun would satisfy the act element - 1st element of mens rea met by accused's acts of carrying loaded, cocked gun with finger on trigger with intention of killing the wifes boyfriend - 2nd element of mens rea subjective foresight of death satisfied because Meiler knew he would cause the death of someone does not matter who Actus reus of unlawful act murder 1. Culpable homicide 2. Does anything need not be unlawful, but since causes death it will likely be dangerous or unlawful 3. Act caused death Smithers test of contributing cause Mens rea unlawful act murder: 1. Subjective intent to commit acts done for unlawful object unlawful object must be different from the assault that gives rise to the death. Unlawful object must be object of conduct that is indictable offence requiring mens rea. Does not require 2 objects, because if there was object to cause harm to victim then conduct would fall within 229(a) or (b). 2. Subjective foresight of death and there need not be foresight as to precise events leading to death (Ought to know objective knowledge read out as a result of Martineau.)

FIRST DEGREE MURDER

Murder is first degree when it is: 1. Planned AND deliberate (premeditated) ss. 231(2),(3) 2. Murder of police officer or someone working in jail ss. 231(4)(a),(b),(c) 3. While committing specific other offences ss. 231(5), (6), (6.01), (6.1)

s. 231(2): Planned and Deliberate R. v. More (1963 SCC) ~ Planned AND deliberate
Facts Issue Ratio
More planned murder-suicide. Killed wife but failed to kill him self. More charge with 1st degree murder (capital murder then). Defence adduced psychiatric evidence to establish that murder was not planned and deliberate. What does planned and deliberate mean? Planned = Considered in advance, not impulsive. Need not be complicated or smart plan. Deliberate = more than just intentional, since intent is already a requirement for murder - Must be planned AND deliberate adds an added degree of moral blameworthiness "Planned" = calculated scheme or design which has been carefully though out, and the nature and consequences of which have been considered and weighed. The plan need not be complicated. May be very simple. "Deliberate" = considered, not impulsive, slow in deciding. Implies that accused took time to weigh advantages and disadvantages of his intended action 2 accused planned to beat victim with baseball bats in minor dispute over money and property. Can murder be first degree on the basis of the secondary intent in s. 229(a)(ii) a reckless killing? YES. - Vital element of requisite intent is persisting with such bodily harm that the perpetrator knows is likely to cause death. This time of bodily harm can be planned and deliberate. Planning and deliberation to cause bodily harm which is likely to be fatal must of necessity include the planning and deliberation to persist despite the knowledge of risk. - Variation in the degree of culpability between s. 229(a)(i) and s. 229(a)(ii) is too slight that drawing any differentiation in the degree of culpability is an exercise in futility. First degree murder conviction can be sustained by virtue of the combine operation of s. 214(2) and s. 212(a)(ii) when a person plans and deliberates to cause such grievous bodily harm that he knows is likely to cause death and is reckless to whether death ensues or not.

R. v. Widdlefield (1961 OSC) ~ Planned and deliberate

Ratio

R. v. Nygaard (1989 SCC) ~ First degree murder can be sustained under s. 229(a)(ii)
Facts Issue Ratio

Rule

s. 231(4): Murder of Police Officer, etc. R. v. Collins (1989 OCA) ~ Rationale, procedure for establishing first degree murder under s. 231(4)
Facts Issue Ratio Rule
Collins charged and convicted of 1st degree murder for killing a police officer who was on duty and in uniform. Accused argued that s. 231(4) was unconstitutional , infringing s. 7 because that stigma and increased penalty can only be justified on the basis of higher degree of moral blameworthiness, consisting of the planning and deliberation. Can 231(4) be justified an offence with a higher degree of moral blameworthiness to support its inclusion under first degree murder? YES. Rationale behind 231(4) is to provide additional protections to the persons designated while acting in the course of their duties. The murder of a person whose obligation it is to maintain law and order carries with it an added moral culpability and requires a heavier deterrent to protect the public interest. Primary determination to be made is whether murder has been committed. Once the offence has been found, it is classified. There is an onus on the Crown to establish beyond a reasonable doubt that the victim was a person who falls within the designation of

the occupations set forth, acting in the course of his duties, and that the accused had knowledge of or was reckless as to whether the victim was such a person.

s. 231(5): While Committing NOTE: Leading case on the requirements of s. 231(5) is R. v. Pare (1987 SCC) R. v. Russell (2001 SCC) ~ While committing not limited to same victim
Facts Issue Ratio
Accused forcibly confined girlfriend and raped her. Then beat and stabbed her boyfriend. Does 231(5) apply where the victim of the killing and the victim of the enumerated offence are not the same? YES. If Parliament had intended to restrict the scope of the provision as such, it would have done so, as it does with other provisions. Court did not wish to foreclose multiple victim scenarios. Killing and enumerated offence must be closely connected, temporally and causally. As long as the connection exists, it is immaterial that the victim of the killing and the victim of the enumerated offence are not the same. Accused commits a murder "while committing or attempting to commit" an enumerated offence only if there is a close temporal and causal connection between the murder and the enumerated offence, however the victim of the murder and enumerated offence need not be ne the same.

Rule

D E F E N C E S
Now the Crown has presented its case and the ball is in the court of the defence. (3) types of defences: 1. Exemptions/incapacities (got to the mens rea or actus reus of the offence) e.g. Mental disorder, automatism, itnoxication 2. Justifications considered rightful and punishment incompatible with social approval e.g. Self defence 3. Excuses = concede wrongfulness of the act but under the circumstances, the action ought not be attributed to the actor e.g. Necessity, duress + 4. Partial defence mitigates only - Provocation

1. PROVOCATION
ONLY partial defence in Canada formal mitigation that reduces murder to manslaughter logically occurs only after jury is satisfied beyond a reasonable doubt of either 229(a), (b) or (c) - 2 basic elements: (i) loss of self control (ii) produced by some external event which the law recognizes is sufficient What kind of external events? - CL recognizes as provocative events: assault, mutual combat, crime against close relative, illegal arrest, observation of adultery - CL excluded: trivial battery (a lower form of assault), learning about adultery, observing sexual unfaithfulness of fiancee or girlfriend, words (no matter how insulting or offensive) Murder reduced to manslaughter s. 232. (1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation. What is provocation (2) A wrongful act or an insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control (objective part) 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. (subjective part) Questions of fact (3) For the purposes of this section, the questions (a) whether a particular wrongful act or insult amounted to provocation, and (b) whether the accused was deprived of the power of self-control by the provocation that he alleges he received, are questions of fact, but no one shall be deemed to have given provocation to another by doing anything that he had a legal right to do, or by doing anything that the accused incited him to do in order to provide the accused with an excuse for causing death or bodily harm to any human being.

Note: Words can now constitute provocation. Ordinary person is not exceptionally pugnacious or excitable or illtempered or drunk 2 important judicial roles with respect to provocation: (i) Judicial role that applies to every defence - Is there an air of reality in the evidence that could support the defence? If there is no air of reality in the evidence, then the defence should not go to the jury. If there is an air of reality in the defence, it is not up to the judge to buy it, but rather just to charge it to the jury (ii) How the defence is explained to the jury

R. v. Camplin (1978 HL) ~ Ordinary person

Facts Issue Ratio
15 y.o. boy sexually assaulted by older man. Who is the ordinary person? The entire factual situation which includes the characteristics of the accused must be considered. The collective good sense of the jury will lead it to the ascribe to the ordinary person the personal characteristics relevant to the insult. Seems to include race, idiosyncrasies. Trial judge must not in each case tell the jury which attributes to ascribe. Jury members will apply common sense and naturally ascribe personal characteristics. Objective test of ordinary person includes age, sex, and the particular characteristics that gives meaning to the insult. Hill appealing second degree murder charge. Hill was 16 years old, claimed victim made homosexual advances. Trial judge charged jury to consider whether the advance was sufficient to deprive an ordinary person "of the age and sex of the appellant" of his power of self control. Who is the ordinary person? 3 part test for provocation: 1. Would an ordinary person be deprived of self control by the act or insult? - First threshold step is objective standard because we dont want to have injustice in a man being able to rely on his exceptional excitability of pugnacity (Camplin). - Ordinary person has a normal temperament and level of self-control. Not exceptionally excitable, pugnacious or in a state of drunkenness. - Characteristics that are not idiosyncratic or peculiar may be ascribed to the ordinary person. General characteristics like age, gender, race, disability shall be ascribed if they are relevant to the provocation in question e.g. race not relevant when insult was about disability. Age will be relevant when a young person is concerned. - Judge need not charge on the ordinary person because in applying their common sense to the factual determination of the objective test, jury members will quite naturally and properly ascribe certain characteristics to the ordinary person 2. Did the accused in fact act in response to those provocative acts; was he provoked by them whether or not an ordinary person would have been? (Subjective) 3. Was the accused's response sudden and before there was time for his or her passion to cool? (Subjective) Thibert shot ex-wifes boyfriend. He threatened victim and victim said go ahead and shoot me, walking towards Thibert, who with eyes closed and backing up did shoot him. Was there an air of reality to the defence of provocation? Onus Onus of proof - the burden is on the Crown to disprove provocation beyond a reasonable doubt if there is any doubt, it is to the benefit of the accused Air of Reality test Is there some evidence on which the jury could find provocation? Judge must be satisfied that (a) that there is some evidence to suggest that the particular wrongful act or insult alleged by the accused would have caused an ordinary person to be deprived of self-control (objective) - Background relationship between victim and accused relevant - requirement for suddenness of insult and reaction does not preclude a consideration of past events, the final trigger and reaction must be sudden, but the incident may be coloured and given meaning only by past events - The ordinary person must be of the same age, and sex, and share with the accused such other factors as would give the act or insult in question a special significance and have experienced the same series of acts or insults as those experienced by the accused. (b) that there is some evidence showing that accused was actually deprived of his self-control by that act or insult(subjective) - Background relationships relevant here too. Look to the relationship between deceased and accuseds wife.

Rule Facts Issue Ratio

R. v. Hill (1986 SCC) ~ Ordinary person

R. v. Thibert (1996 SCC) ~Air of reality test

Facts Issue Ratio

Provocation defence recognizes human frailties On the facts threshold was met to put provocation defence to jury (a) Accused hadnt slept in 34 hours, deceased was mocking him and preventing him from having vitally important conversation with his wife ordinary married man, going through a break up, might be provoked by the actions of the deceased such to lose control (b) Same as above, Thibert had gone through some lengths to avoid accused. Past events and background relationships are relevant to both the objective and subjective aspects of the threshold test. Campbell tried to rely on defence of provocation when charged with attempted murder of his wife. - Provocation as a defence to murder is based on a loss of self-control as a result of sudden provocation rather than on its negativing the requisite intent, and the law is now settled beyond question that provocation reduces murder to manslaughter notwithstanding the existence of intent to kill. - Absence of provocation is not part of the actus reus of murder like absence of consent is for sexual assault. Defence of provocation exists even thought all of the elements have been established it is an allowance made for human frailty that recognizes a killing made by someone who has lost their self control is less blameworthy than one made by someone in possession of self control - Provocation does not operate as a defence, but rather as a relevant item going to intent. The provocation goes to circumstances that might raise a doubt as to whether the accused had the requisite intent. Parent shot his estranged wife when she said she intended to ruin him financially. He claimed that he didnt intend to kill her. Found guilty of manslaughter instead of murder. - Charge to the jury suggests that anger, if sufficiently serious or intense, but not amounting to defence of provocation, may reduce murder to manslaughter. - Charge also suggested that anger, if sufficiently intense, may negate the criminal intention for murder. - Intense anger alone is insufficient to reduce murder to manslaughter. May form part of provocation, but need other elements.

Rule Facts Ratio

R. v. Campbell (1977 OCA) ~Provocation raises a doubt about (but does not negate) intent

R. v. Parent (2001 SCC) ~ Intense anger alone is not provocation

Facts Ratio

R. v. Cujo MISSING NOTES

Facts Issue Held Ratio Rule

2. MENTAL DISORDER Law of mental disorder the result of interaction between the law and the development of psychology of mental disorder
1. Fitness to stand trial - a person can be so incapacitated by reason of mental disorder that they aren't fit to be tried  ss. 672.2 672.33  Mental disorder at time of trial  There are concerns with people feigning unfitness - Fitness should always be dealt with by a jury, and as well as being charged with the test for unfitness, they should be asked to determine if it was real or counterfeit  All persons are presumed to be fit (s. 672.22) unless someone raises the issue of unfitness at any stage of the proceedings   What is unfit? Fitness test is limited cognitive ability test and does NOT include ability to appreciate what is in your best interest.

s. 2 Unfit to stand trial = unable on account of mental disorder to conduct a defence at any stage of the proceedings before a verdict is rendered or to instruct counsel to do so, and in particular, unable on account of mental disorder to (a) understand the nature or object of the proceedings (b) understand the possible consequences if the proceedings or (c) communicate with counsel If found unfit, "to be confined indefinitely subject to his or her Majesty's pleasure"

2. (Insanity) NCRMD (Not criminally responsible by reason of mental disorder )- the exempting impact of meeting the s. 16 test Defence of mental disorder 16. (1) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong. Presumption (2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities. Burden of proof (3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue.    ss. 672.34 672.94 related provisions Mental disorder at the time of offence Test for mental disorder historically involved knowing different between right and wrong

MNaughten (1843 HL) ~Source of mental disorder provisions

Facts
Accused thought he was being stalked by Roman Catholic Church and police. Later complained the Tories were after her because he voted against them in last election. Was seen hanging around White House. Shot a man who he believed to be Robert Peel, but it was not. Defence tried to establish insanity as a legitimate excuse. Jury found him not guilty by reason of insanity. the jurors ought to be told in all cases that every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong. Swain swings his infant child around his head, muttering unintelligible things. Crown raised defence of mental disorder. Argued that it is a breach of fundamental justice to allow the Crown to raise the defence because it is prejudicial to the accused. Can the Crown raise the mental disorder issue? YES. - Allowing the Crown to raise evidence of insanity over and above the accuseds wishes interferes with the accuseds control over the defence. Crown is limited to raising the issue in 1 of 2 ways: 1. If the Crown wants to raise insanity when it is disavowed by the accused (accused says NO), it can only do so after there is a verdict of guilty and then you have a second part of the trial to deal with insanity. 2. Unless the accused has called evidence as to mental state, in which case the Crown is not placing the accused in a position where inconsistent defences are advanced. (3 reasons why accused might do that: argue s. 16, automatism, mental disorder short of s. 16.) Charged with 2 sexual assaults and denies that he committed them. Crown raises insanity defence and brings psychiatric evidence that Simpson suffered from psychopathic personality disorder. Is psychopathic personality disorder a "disease of the mind" within s. 16 of the Code? YES. - It has been implicitly recognized by SCC and HL that personality disorders or psychopathic personality are capable of constituting a "disease of the mind". "Disease of the mind" under s. 16 y Legal concept that includes a medical component y Function of psychiatrist to consider and describe accused's mental condition from a medical point of view. Question of

Ratio

R. v. Swain (1991 SCC) ~ Who can raise the mental disorder issue?
Facts Held Ratio

R. v. Simpson (1977 OCA) ~s. 16 Disease of the mind = legal concept

Facts Issue Ratio

y y y

law for the judge whether the condition described is comprehended by the term Sometimes practical to ask medical witness directly whether the accused suffers from a disease of the mind Concept capable of evolving with the advance of medical knowledge Existence alone does not constitute insanity. Insanity = disease of the mind + exists to an extent that renders the accused incapable of appreciating the nature and quality of the act or that it is wrong

Cooper v. The Queen (1980 SCC) ~ 1st branch of s.16 test appreciating nature and quality of acts
Facts Issue Ratio
2 people who were patients in a psychiatric hospital went to a dance. Afterwards, they went off by themselves and Cooper strangled the young woman. Does Cooper meet the s. 16 test? NO. Disease of the mind but no appreciation of nature and quality of choking. Disease of the mind y No reason to give a narrow or limited interpretation to the term "disease of the mind" - favour liberal legal construction y In a legal sense, 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. y In order to support a defence of insanity the disease of the mind must, of course, be of such intensity as to render the accused incapable of appreciating the nature and quality of the violent act or of knowing that it is wrong. 1st branch appreciating the nature and quality of the act Disease of the mind that renders the accused person incapable of an appreciate of the nature and quality of the act must necessarily involve more than mere knowledge that the act is being committed, there be some appreciation of the factors involved in the act and a entail capacity to measure and foresee the consequences of the violent conduct "knowing" and "appreciating" are not synonymous To "know" the nature and quality of an act may mean merely to be aware of the physical act To "appreciate" may involve estimating and understanding of consequences of that act o Test is: Was the accused person at the very time of the offence, not before or after, by reason of disease of the mind unable to appreciate not only the nature of the act but the natural consequences that would flow from it?

y y y

R. v. Abbey ~ Appreciating penal consequences not part of 1st branch

Facts
Accused found with cocaine at airport customs. Both Crown and defence psychs testified to delusions believing he could not be punished by virtue of mystical protection, but he knew what he was doing was wrong Trial judge found that accused was incapacitated from appreciating the nature and quality of his acts because he failed to appreciate the consequences of punishment for his acts Did the accused's failure to appreciate the penal consequence of his acts mean he was unable to appreciate the nature and quality of his acts? NO. y Trial judge erred in law in holding that a person who by reason of disease of the mind does not "appreciate" the penal consequences of his actions is insane within the meaning of s. 16 Abbey knew what he was doing, knew that it was wrong, simply believed that if he was caught he would not be punished y y A disease of the mind which renders the accused incapable of appreciating the penal sanctions attaching to the commission of a crime does not render him incapable of appreciating the nature and quality of the act y A delusion which renders an accused incapable of appreciating the nature and quality of his act goes to the mens rea of the offence and brings into operation the first arm of the insanity defence. y A delusion which renders the accused incapable of appreciating the penal sanctions attaching to the commission of a crime does not go to the mens rea of the offence, does not render him incapable of appreciating the nature and quality of the act.

Issue Ratio

R. v. Schwartz (1988 SCC) ~ 2nd branch of s. 16 test wrong = legally wrong

Does wrong mean legally or morally wrong? LEGALLY. - Majority found that wrong in this context means no more than the capacity to know act is against the law of the land. Dickson (dissent) found it to be ambiguously legal or moral. - unlawful means legally wrong, looks also to French version mauvais - Looks to MNaughten historical CL test to determine the criminal responsibility of insane persons was whether the particular accused had the capacity to distinguish between conduct that was good or evil, right or wrong NOTE: Dickson dissent becomes majority in Chaulk & Morisette.

Issue Held

R. v. Chaulk & Morisette (1990 SCC) ~ 2nd branch of s. 16 test wrong = legally OR morally wrong
Facts Issue Ratio
Accuseds B&Ed, stabbed occupant. Expert evidence that accuseds suffered from paranoid psychosis which made them believe that they had the power to rule the world and that the killing was a necessary means to an end. Trial judge directed meaning of "wrong" as "criminal act or legally wrong". Accuseds argue they did not know it was morally wrong. Does wrong means legally or morally wrong? EITHER. Lamer for majority adopts Dicksons dissent in Schwartz - Legal and moral are incorporated in such a way that the two cannot be divorced.

Rule

- Wrong = (MNaughten) Ought not to have done - Schwartz had the effect of expanding the scope of criminal responsibility unacceptably to include persons who, by reason of disease of the mind, were incapable of knowing that an act was wrong according to the normal and reasonable standards of society even though they were aware that the act was formally a crime. Appreciate that the act was wrong means that because of the mental disorder, the accused could not understand or comprehend societys condemnation of the conduct.

R. v. Worth (1995 SCC) ~ Affirms Chaulk

Ratio The correct charge on mental disorder would be that the defence is available if an accused proves on the balance of probabilities that he is suffering from a disease of the mind that renders him incapable of knowing that his act was legally or morally wrong.
Oommen killed woman sleeping on mattress in his apartment by shooting her many times. Convicted of 2nd degree murder. Evidence disclosed no rational motive for killing. For years, he had suffered from a psychosis of paranoid delusional type. Psychotic disorder produces breaks from reality. He thought that she was going to kill him. Does know the act was wrong mean general or particular knowledge? PARTICULAR Inquiry focuses not on general capacity to know right from wrong, but rather on the ability to know that a particular act was wrong in the circumstances - Here Oommen would know killing was wrong, but would believed to be justified in the circumstances as he perceived them. - He possessed the general capacity to distinguish right from wrong. However, that night his delusions deprived him of the capacity to know that killing Ms Beaton was wrong. - MNaughten at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know what he was doing what was wrong.

R. v. Oomen (1994 SCC) ~ 2nd branch knowing the particular act is wrong
Facts Issue Ratio

3. AUTOMATISM
- Criminal liability requires proof of voluntary conduct. Automatism is a specific condition of dissociation between mind and body where a person cannot consciously control his of her conduct. - The automatism "defence" is not a defence in the true sense but is a denial of the commission of the actus reus of the crime because the act will be done involuntarily.. - There is insane and non-insane automatism - Non-mental disorder automatism negates voluntariness, results in acquittal. - Mental disorder automatism results in the same provisions as s. 16 NCRMD o person found NCR-MD is subject to a post-verdict disposition hearing before either the trial judge or a Review Board. Section 672.54 of the Criminal Code lists the dispositions available. These range from an absolute discharge to confinement in a hospital. A person found NCR-MD must be granted an absolute discharge if the court or review board is not satisfied that he or she poses a "significant risk"

R. v. Bratty (1963 HL) ~ There is room for automatism not routed in insanity
Facts
Brathey charged with strangling young girl with her stocking. Claimed that he blacked out just prior to the killing and was therefore in a state of unconscious. Medical evidence suggested that he suffered from "psychomotor epilepsy". Trial judge was asked to leave with the jury this emerging defence of automatism, essentially saying that he was in a state of unconsciousness, therefore one of the requisite elements of the crime was not proven - the act element, the need for a voluntary act Introduces the notion of non-insane automatism - Automatism may be caused by a disease of the mind (insane automatism) or not (non-insane automatism). It is a question of law for the judge to determine whether the dissociative state is as a result of a disease of the mind. - There is room for automatism not rooted in insanity, i.e. blow to the head or sleepwalker. Reason for lack of consciousness isn't disease of the mind. Rabey was a loser infatuated with a pretty girl. He read a letter where she made fun of him and she told him they were just friends. He hit her in the head with a rock wrapped with a cloth which he had brought from the geology lab that morning. He choked her yelling You bitch. Raised defence of non-insane automatism, claimed a whoosh feeling came over him just prior to hitting her. Was the accused suffering from a disease of the mind? YES.

Ratio

Rabey v. The Queen (1980 SCC) ~ Insane and non-insane automatism

Facts

Issue

Ratio

Ritchie J. - Automatism a state of a person who, though capable of action, isnt conscious of what he is doing. Act becomes an unconscious, involuntary act where the mind doesnt go to what is being done, due to a dissociative state - To determine insane vs. non-insane automatism, look to G. Arthur Martins external/internal distinction- difference of something that is within the actor vs. something transient and produced by external factors (e.g. concussion). If no evidence of external source, assume disease of the mind - What will satisfy an external source? Ordinary stresses and disappointments of life are not external causes that will explain a malfunctioning mind as not being a disease of mind. Must be an extraordinary event (e.g. watching a family member being murdered) - Rabeys infatuation with the victim created an abnormal condition in his mind, under of the influence of which he acted unnaturally and violently to a an imagined slight. Dickson J dissent - Automatism can be subsumed into insanity defence where the unconscious action is rooted in disease of the mind. - Very concerned that When the condition is transient and not persistent, not likely to recur or in need of treatment, and not the result of self induced intoxication, the policy objective of finding someone insane is not served. - Believes we should not be considering the trigger, but rather the effect - The defence of automatism should be available where there is evidence of unconsciousness that cannot be attributed to fault or negligence. Such evidence should be supported from expert medical opinion that the accused did not reign memory loss and cannot be attributed to underlying pathological condition.

R. v. Parks (1992 SCC) ~ Sleepwalking

Facts Issue Ratio
Parks drives 23km to in-laws home - strangles father in law, stabs mothers in law - drives to police station and confesses. Charged with murder, admits all of the facts. Defence is that he was sleepwalking. Acquitted and Crown appeals on the grounds that jury should have been charged on insane automatism. Did trial judge err in leaving the defence of non-insane automatism to the jury? NO. Lamer CJC - Three important points emerging from the testimony: 1) he was sleepwalking at the time, 2) sleepwalking isn't neurological, and is common, and 3) no medical treatment other than stay healthy and sleep. - External/internal distinction test not exhaustive. Here wasnt a mental disorder, but it is possible that there is a mental disorder is associated with sleepwalking. NOTES: possible that both insane and non-insane automatism can be left with the jury, but this likely rare. In most cases, TJ must make the call: if insane, treat like s. 16 (burden on whoever asserts insanity), if non-insane look to evidence for voluntariness. - La Forest wants judge to consider community safety-based policy considerations: likelihood of recurrence and future danger.

R. v. Stone (1999 SCC) ~ General test applicable to all claims of automatism

Facts Ratio
Stone stabs his wife 47 times, acknowledges this. Defence that he lost consciousness when his mind snapped under her cruel verbal abuse. Bastaraches new test: Rabey + Parks - Automatism goes to voluntariness of actus reus (Parks). Law presumes voluntariness, defence of automatism is a rebuttal to that presumption. Reverse onus on accused to show automatism on a balance of probabilities. Always requires expert evidence - Trial judge must decide if the evidentiary burden has been satisfied - Air of reality test: is there some evidence upon which a jury might decide on a balance of probabilities? - Trial judge must decide on insane or non-insane automatism. 2 analayses: external/internal distinction from Rabey (presume insane automatism) and policy considerations from Parks. - *** Policy areas of the test: TJ may find either or both of continuing danger and internal cause theories helpful. For continuing danger, there are two particularly relevant issues: the psychiatric history of the accused and the likelihood that the trigger alleged to have caused the automatistic episode will recur.

T]he fundamental question of mixed law and fact which is at the centre of the disease of mind inquiry: whether society requires protection from the accused and, consequently, whether the accused should be subject to evaluation under the regime contained in Part XX.I of the (Criminal) Code?
Binnie dissent

- s. 16 does not speak to the voluntariness of one's actions but instead addresses cognitive functions that assume voluntary conduct. However, a person whose conduct is involuntary because of a condition that is the product of a mental disorder falls exclusively within the purview of the "insanity" defence (NCR-MD) Rule
2 big changes: (i) Alters the approach to distinguishing insane from non-insane automatism with a presumption of insane

automatism, (ii) Strong preference for insane automatism driven by social safety concerns

R. v. Luedecke (2008 OCA) ~Sexsomnia

Facts Ratio
Accused charged with sexual assault. Claims he had sex with victim while he was sleeping and argues defence of noninsane automatism. Undisputed expert evidence at trial that the accused was a parasomniac. Trial judge found accuseds actions were not voluntary and were as a result of non-insane automatism. - The reason for his conduct automatism - renders his actions non-culpable in the eyes of the criminal law. That very same explanation, however, makes his behaviour potentially dangerous and raises legitimate public safety concerns. - An NCR-MD verdict acknowledges that the accused is not criminally culpable but also permits an individualized postverdict dangerousness assessment of the accused leading to a disposition tailored to the specifics of the individual case. A determination that an accused suffers from a mental disorder is not a medical diagnosis, but more a reflection of the need for a further inquiry into the dangerousness of that accused than it is an assessment of his or her medical condition.

4. NECESSITY
Justifications and excuses true defences because they do not argue involuntariness (negate actus reus) and negate mens rea. E.g. Necessity, duress, self-defence s. 8(3) allows for common law defences (duress is the only one partly legislated)

R. v. Morgentaler (1976 SCC) ~ Defence of necessity exists in Canada

Facts Issue Ratio Rule
Charged with inducing a miscarriage and conspiracy to commit that offence. Argued necessity to preserve the womans life. Is Morgentaler entitled to the defence of necessity? NO. Not necessity because it was a conscious decision to break a law which they disagreed with. One cannot conspire or plan to break the law in advance and then claim necessity. Lacks the requirement of immediacy and had a alternative legal solution. Conduct must be truly involuntary (constructive/normative).

Although not accepted here, authority that there is a defence of necessity in Canada (see Perka) R. v. Dudley & Stevens (1884) ~ Necessity is no defence to murder
Facts Ratio
Ship wrecks and 4 men on lifeboat. Out at sea for 17 days. 2 of the men kill and eat the cabin boy. The next day, they are saved, and argue defence of necessity against their murder charge. Necessity is no defence to murder to save your own life. It is a higher calling to sacrifice your own life before taking someone elses. Problem is who gets to judge these moral questions. Which criteria can you use to decide who will die? Age, family, weakest etc. To say one had no choice is not true; the choice is to die yourself (normative involuntariness) Ship with marijuana, due to bad weather forced to enter waters along Vancouver Island. Originally intending to import into US. Argued that necessity brought them there. - Majority says that after Morgentaler a defence of necessity exists in Canada. - Difference between excuse and justification. Justification = action considered rightful and punishment incompatible with social approval. Excuse = concede wrongfulness of the act but under the circumstances, the action ought not be attributed to the actor - Better to look at necessity as excuse recognizes human frailties and act being realistically unavoidable. - Morgentaler: Look to a sort of involuntariness, whether the wrongful act was truly the only realistic reaction open to the actor. If actor was making a choice, then the wrongful act would not have been morally involuntary. Common law defence of necessity 1) urgent, peril imminent 2) no legal way out (compliance with the law must be demonstrably impossible), and 3) proportionality (cant inflict greater harm to avert a lesser evil). Dicksons summary of the defence of necessity in terms of its nature, basis and limitations: 1) Defence of necessity conceptualized as either justification or excuse 2) Necessity recognized in Canada as an excuse, operating by virtue of s. 7(3) of the Criminal Code 3) Necessity as an excuse implies no vindication of deeds of actor 4) Criterion is moral involuntariness of wrongful action 5) This involuntariness is measured on societys expectation of appropriate and normal resistance to pressure 6) Negligence or involvement in criminal or immoral activity does not disentitle actor to excuse of necessity 7) Actions or circumstances which indicate the wrongful deed was not truly involuntary do disentitle 8) Existence of a reasonable legal alternative disentitles; to be involuntary act must be inevitable, unavoidable and afford no reasonable opportunity for alternative course of action that does not involve breach of law 9) Defence only applies in circumstances of imminent risk where action was taken to avoid direct and immediate peril

R. v. Perka (1984 SCC) ~ urgent, compliance with the law demonstrably impossible, proportionality
Facts Ratio

10) Where accused places before court sufficient evidence to raise issue, onus is on Crown to meet it beyond a reasonable doubt

R. v. Latimer (2001 SCC) ~ true involuntariness, clarified Perka

Facts Issue Ratio
Father found guilty of second degree murder of severely disabled daughter. Compassionate killing. Is there an air of reality to the defence of necessity? NO. There must be RARE, TRUE involuntariness 1) Clear and imminent peril (urgent) a. Situation could not have been avoided, cant just be foreseeable or likely. 2) Compliance with the law is not an option a. No reasonable legal alternative doesnt need to be the last resort imaginable, realistically appreciate the alternatives available b. Suggestion as to the choices of which you are aware (maybe unless there in some fault on your part for making your ignorance unreasonable) 3) Proportionality a. At least the harms must be of a comparable gravity. - (1) and (2) measured on a modified objective scale (assess voluntariness objectively + incorporate personal characteristics that legitimately affect what is expected of the person + reasonable perceptions of the accused) - (3) measured on an objective scale to avoid persons subjective feelings that will always favour them self - There must be an air of reality to each of the requirements - Here, Latimer was not in peril, had a reasonable legal alternative of proper care for daughter, and harm is not proportional in gravity to death.

5. INTOXICATION
y

Law of intoxication is a policy question Tension between: (i) Troubling idea that you can get closer and closer to a state of moral innocence by becoming more and more intoxicated and (ii) (ii) the fact that it would be unconstitutional to deprive accused of defence if they were so intoxicated that they could not form the most basic of intent.
y

Current state of the law: Three variations on the defence of intoxication: (i) CL rule in cases such as Bernard restricting the defence of intoxication to specific intent offences (ii) Expanded defence of extreme intoxication (Daviault) applies even to offences of general intent need expert evidence on the nature and effect of the intoxicant and defence cannot succeed unless proven on a balance of probabilities (iii) CC s. 33.1 denies the defence of extreme intoxication to any general intent offence that involves interference with the bodily integrity of another person, provided that at the relevant time, the act was performed in a state of intoxication that shows a marked departure from the standard of reasonable care

COMMON LAW DEFENCE OF INTOXICATION D.P.P. v. Beard (1920 HL) ~ Beard rules
Ratio Rule
y 1. Drunkenness in itself is not an excused for the crime but that the state of drunkenness may be incompatible with the actual crime charged and may therefore negative the commission of the crime Insanity, produced by drunkenness or not, is a defence to a crime. The law takes no notice of the cause of insanity. There is a distinction between intoxication that gives rise to a state of insanity, and that which makes a man incapable of producing intent. Evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into consideration with the other facts proved in order to determine whether or not he had this intent Evidence of drunkenness short of incapacity to form the necessary intent does not rebut the presumption that a man intends the natural consequences of his acts.

2.

3.

INTOXICATION DEFENCE: CAPACITY OR INTENT? R. v. Robinson (1996 SCC) ~ Beard rules unconstitutional, primary determination is intent in fact
Facts Issue
Accused killed man but claimed to have acted without intent because he was intoxicated. Recall that Beard rules dictate that evidence of intoxication is to be considered by a jury only in those cases where its effect is to render an accused incapable of forming the requisite intent. Should the Beard rules be reformulated? YES.

Ratio

Rule

Beard/MacAskill rules create constructive liability that violates ss. 7 and 11(d) of the Charter - All accused persons who had the capacity to form the requisite intent will be unable to rely on their state of intoxication despite the fact that the state might create a reasonable doubt in the minds of the triers of fact as to whether the accused actually possessed the requisite intent. Rules would preclude trier of fact from acting on that reasonable doubt. - Restriction is not justifiable under s. 1 because, while the protection of the public from intoxicated offenders is a sufficiently important objective and there is a rational connection between the "capacity" restriction of the defence and its objective, the restriction failed the proportionality prong of the Oakes test because it does not minimally impair an accused's rights. Charging a Jury on the Defence of Intoxication 1. Beard/MacAskill charge which only refers to capacity is constitutionally unfirm and constitutes reversible error. 2. Proper charge will ask the jury to, considering all evidence including evidence of intoxication, determine whether the accused in fact possessed the requisite specific intent. 3. In certain circumstances (mainly if medical professionals speak of capacity), two step charge may be appropriate that involves charging on capacity to form intent and intent in fact. a. If jury has reasonable doubt as to whether the accused had the capacity to form the requisite intent, must acquit. b. If jury believes the accused had capacity to form requisite intent, main job is still to determine whether, in light of all circumstances, the accused actually had the requisite intent. If any reasonable doubt, must acquit. 4. If two-step charge is used with "capacity" and "capability" type language, and the charge is the subject of appeal, the determination by the appellate courts will be whether the jury may have been misled into believing that a determination of capacity was the only relevant inquiry. Following factors to be considered not exhaustive: a. Number of times reference made to capacity b. Number of times reference made to actual intent c. Whether there is an additional "incapacity" defence d. The nature of the expert evidence e. Extent of intoxication defence f. Whether the defence requested that references to "capacity" be used in charge to jury g. Whether during 2 step charge it was made clear that primary inquiry is with respect to actual intent Accused convicted of murder. Was there an air of reality to the intoxication defence? NO. y Question is whether intoxication rendered the accused unable to foresee the consequences of his or her act. Appropriate threshold will be evidence sufficient to permit a reasonable inference that the accused did not in fact foresee those consequences. y "Air of reality" - evidence is present to support the reasonable inference that the accused did not in fact foresee the consequences y Evidence of intoxication which fails to demonstrate incapacity may still have an air of reality about it capable of leaving the jury with reasonable doubt that the accused knew that death was likely to ensue from his conduct - In this case there was no air of reality to the defence of intoxication because the accuseds blood alcohol level was only slightly over legal driving limit, he carried out purposeful actions before and after shooting, conduct following shooting demonstrate an awareness of the consequences of what he had done. A trial judge in almost every instance will make a mistake if he or she divides the direction to the jury on this question into 2 stages - capacity versus intent in fact. y When an expert witness testifies with respect to capacity, the judge may need to 2 step charge to correct what was said by the expert witness. Otherwise, mention of capacity to the jury is a MISTAKE. Distinguishes 3 types of intoxication 1. Slight intoxication that does not act as a defence to any offence 2. Substantial intoxication that may be a defence to a crime of specific intent 3. Extreme or severe intoxication that may be a defence to a crime of general intent, so long as it is not a 33.1 offence (one that involves the compromise of bodily integrity) y

Lemky v. The Queen (1996 SCC) ~Threshold for charging jury on intoxication relating to intent
Facts Issue Ratio

R. v. Daley (2008 SCC) ~Charge jury on capacity ONLY to correct what was said by expert witness
Ratio

INTOXICATION AND SPECIFIC INTENT R. v. George (1960 SCC) ~ General and specific intent
Facts
George acquitted of "unlawfully and by violence" stealing from an old man because he was "so drunk on the night in question that he was unable to form an intent to do so". Also acquitted of included offence of assault. Appeal made on the grounds that there is a distinction between the degree of drunkenness required to negative the intent of robbery and that of assault. Did the trial judge err when, in acquitting the accused of robbery because of incapacity due to intoxication to form the requisite intent, he also acquitted the accused of common assault due to the defence of intoxication? YES. y There is a difference between crimes of specific and general intent

Issue Ratio

Specific Intent y Acts done with a specific and ulterior motive and intention of furthering or achieving the illegal object y e.g. A man may be so drunk so as not to form the specific intent for murder yet in sufficient control of his sense to contemplate some harm and so be guilty of manslaughter y Intentional = preconception, deliberate steps o General Intent y Acts done to achieve an immediate end y Intentional = voluntarily "Intentionally" in common assault refers to the intentional application of force, that is, the voluntary application of force. There is no specific intent necessary, therefore drunkenness as an offence to a crime of general intent would need to render someone incapable of intentionally applying force - metaphysically impossible short of drunkenness akin to insanity o

Bernard v. The Queen (1988 SCC) ~ Defence of intoxication not available to crimes of general intent
Facts
Accused allegedly punched victim in the face and had forced intercourse with her. Charged with sexual assault causing bodily harm (s. 462.2(c)). Accused stated that he only forced intercourse because he was drunk and stopped when he realized what he was doing. Accused thought he should have the defence of intoxication available to him, despite sexual assault being a crime of general intent Does the accused have the defence of intoxication available for the offence of sexual assault? NO. y Distinction between crimes of general and specific intent form the basis of the defence of intoxication o Gen intent = intent only for performance of the act, with no further ulterior intent o Spec intent = involves performance of actus reus coupled with intent or purpose that goes beyond mere performance of the act y Law of intoxication criticized because (i) distinction between general and specific intent is an artificial legal fiction and (ii) it is an illogical policy decision that allows for the defence in some situations but not others o The fact that considerations of policy influenced development of law cannot be condemned. No good law can be inconsistent with sound policy. Sexual assault is a crime of general intent - simply the application of force, of a sexual nature because of where or how y the assault occurs. No evidence that we are dealing with extreme intoxication that would render the accused incapable of forming even the most minimal and general of intents. Therefore, evidence of intoxication not capable of raising reasonable doubt as to existence of minimal intent required.

Issue Ratio

EXTREME INTOXICATION R. v. Daviault (1994 SCC) ~ Extreme intoxication akin to automatism may defend crime of general intent
Facts Issue Ratio
Accused charged with sexual assault of woman. At the time, his blood alcohol level would have put the average person in a coma or killed them. Expert testified that individual with that level of intoxication would have blacked out and brain would temporarily dissociate from normal functioning. Can a state of drunkenness which is so extreme that an accused is in a state that resembles a disease of the mind defend a crime which requires a general intent? YES. y It is only those who can demonstrate that they were in such an extreme degree of intoxication that they were in a state akin to automatism or insanity that may be permitted to defend a crime a general intent. A person this drunk would be capable of voluntarily moving their arms or legs, but not capable of forming even the most basic intent required to perform an act prohibited by a general intent offence. It would be inconsistent with ss. 7 and 11(d) if in cases of extreme intoxication, the accused was unable to say that he y did not have the intent in mens rea or the voluntary aspect of the actus reus. There was NOTHING raised in the court about the Charter. It was not argued and it could not have foreseen. One of the consequences of this form of procedure notice has to be given to Attorney General before constitutional challenge is brought that those people may come to the court and make submissions. By proceeding in this way, the SCC denied the Attorney General the right to make submissions and frame the constitutional question. None of that happened here. It was a major change in the law. y The effect of the intoxicating substance was to negate one of the essential elements of the offence. In the cases of extreme intoxication, the defence of intoxication can be used in offences of general intent when there is (i) expert evidence and (ii) it can be proven on the balance of probabilities that the accused was severely intoxicated. y

Bill c-72 s. 33.1 Self-induced Intoxication ~Legislative response to Daviault

When defence not available 33.1 (1) It is not a defence to an offence under (3) if an 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 (2) Criminal fault by reason of intoxication (2) 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. Application (3) This section applies in respect of an offence 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.

6. DURESS
VERY COMPLICATED DEFENCE i. Exists as a defence under s. 17 (principles of non-excluded offences) and at common law (parties and principles of excluded offences) [Paquette] ii. Circumstances of duress may raise reasonable doubt re whether accused had some forms of subjective mens rea, but duress cannot negate intent required of a party under ss. 21(1)(b) and 21(2). [Hibbert] iii. Immediacy and presence requirements of s. 17 violate s. 7 of the Charter by permitting for the conviction of an accused who commits a crime in a morally involuntary manner [Ruzic] Compulsion by threats 17. A person who commits an offence under compulsion by threats of immediate death or bodily harm from a person who is present when the offence is committed is excused for committing the offence if the person believes that the threats will be carried out and if the person is not a party to a conspiracy or association whereby the person is subject to compulsion, but this section does not apply where the offence that is committed is high treason or treason, murder, piracy, attempted murder, sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm, aggravated sexual assault, forcible abduction, hostage taking, robbery, assault with a weapon or causing bodily harm, aggravated assault, unlawfully causing bodily harm, arson or an offence under sections 280 to 283 (abduction and detention of young persons).

R. v. Paquette (1976 SCC) ~ s. 17 only available to principle offenders

Ratio - Restrictive codification of the defence of duress applies only to persons who actually commit the offence as principals,
while a common law defence of duress apply to those who commit an offence as a party. - Duress provides a defence in two distinct ways an excuse, or by negativing mens rea.

R. v. Hibbert (1995 SCC) ~ CL defence of duress does not negate mens rea of parties
Facts Issue Ratio
Hibbert claims he was forced by the principal offender to lure the victim to the principal. Hibbert stood by while the principal shot the victim. Charged under s. 21(1)(b) for aiding the crime. Was Court in Paquette correct in stating that defence of duress negates mens rea for party liability? NO. - Paquette was wrong for saying that those under duress could not have formed common intention because this erroneously equates purpose = desire, when purpose = intention. A person who performs an action in response to a threat will known what they are doing and be aware of the consequences, therefore they are capable of possessing the necessary mens rea. 1. Duress can only negate mens rea in an offence where the mental state is specified to be free of coercion. 2. A person who commits a criminal act under threats of death or bodily harm may be able to invoke excuse-based defence either s. 17 or the common law defence of duress. 3. Mental states specified in ss. 21(1)(b) and 21(2) are not susceptible to being negated by duress. Common Law Defence of Duress and Moral Involuntariness - Along with necessity and self-defence, duress arises under circumstances where person is subject to external danger and commits a criminal act to avoid the harm the danger presents. Duress and self defence dangerous is intentional threats. Duress is a particular application of defence of necessity, both based on moral involuntariness. - Safe avenue of escape specific example that compliance with the law must be demonstrably impossible. You can't rely on common law defence if you had opportunity to safely extricate yourself. Whether or no a safe avenue existed is to be determined by an objective standard taking into consideration the perspectives of a reasonable person

R. v. Ruzic (2001 SCC) ~ s. 17 immediacy and presence requirements unconstitutional

Ruzic came to Canada with heroin, claimed duress. Believed a mafia member would harm her mother in Belgrade and that police were corrupt. Ratio Court concludes that moral involuntariness does not negate the actus reus, it is a principle similar to physical involuntariness that deserves protection under the Charter only the voluntary should be punished. S. 17 requirements that the threat of immediate death or bodily harm from a person who is present when the offence is committed violate Charter s. 7. by allowing a conviction of a person who commits a crime in a morally involuntary manner. - Left open the constitutionality of the offence exclusions in s. 17 - Neither immediacy nor present are elements of s. 17, however a number of offences are specifically excluded from s. 17. Some of those excluded offences are open to the common law defence of duress

Facts

- Threat must be of death or serious bodily harm, not of damage to property. Threat must be one that a persona of reasonable firmness would not have been able to resist. - Honest belief on reasonable grounds take into account age, sex, pregnancy, mental disorder. We dont look at self induced situations, - Immediacy is not require just a temporal connection - Hibbert says you must take reasonable steps to render the threat neutralized.

7. SELF-DEFENCE
Common law has always recognized that people have a right to defend themselves, and the defence of selfdefence has been codified. S. 34, 35, 36, 37. 35 rendered almost useless by Supreme Court in MacIntosh. Current general approach in Ontario Moldavers functional approach which account is most favourable to the accused? Put that one to the jury. Self-defence against unprovoked assault 34. (1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself. Extent of justification (2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if (a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and (b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.

R. v. Bogue (1976 OCA) ~ Reasonableness of the belief

Facts Issue Ratio
Bogue found guilty of manslaughter. She and Moran were drunk. He threw her to the ground, she hit him with an iron and stabbed him. She said it was self-defence and didnt mean to kill him. Whats the difference between 34(1) and 34(2)? Intent to cause death or grievous bodily harm Distinguishes 34(1) from 34(2) (1) Accused repels an unprovoked assault, but does not intend to cause death or grievous bodily harm and force is no more than necessary for self-defence. (2) Accused intentionally kills or causes grievous bodily harm to his assailant. No specific requirement that the repelling force be proportionate if the other conditions are satisfied. a. defender must be under a reasonable apprehension of death or grievous bodily harm (objective standard), and b. believe on reasonable and probable grounds that he could not otherwise preserve himself from death or grievous bodily harm (subjective element imported what the reasonable person in the accuseds situation might believe as to circumstances and force necessary) Focus on reasonableness of the belief, not just reasonableness of the force used. Did she believe on reasonable and probable grounds that it was necessary to stab him as she did? Pauliauk was defending himself, waved his gun at someone who he believed had a gun, and the gun accidentally discharged. The victim actually didnt have a gun Does Pauliauks defence claim fall under 34(1) or 34(2)? 34(2). Jury should not have been charged on 34(1). - What differentiates the sections is (not whether injury or death was intentional) but whether the accused reasonably apprehended the attack was likely to cause his death or grievous bodily harm if yes, entitled to more favourable provisions of s. 34(2). Both 34(1) and (2) may apply when the accused, repelling an attack, did not intend to cause grievous bodily harm; 34(1) where you think you are going to be hurt (2) where you think you are going to be seriously hurt or killed.

Rule

R v. Pawliuk (2001 BCCA) ~ 34(1) and 34(2) distinguished by apprehension of death or grievous bodily harm
Facts Issue Ratio

Test in 34(2) DID YOU BELIEVE ON REASONABLE GROUNDS THAT YOU COULD NOT OTHERWISE PRESERVE YOURSELF? Withdrawal is not a requirement. You do not have to turn and run you can stand your ground. But, if there is a way to preserve yourself, then you are obliged to take it.

R v. Cinous (2002 SCC) ~ air of reality to all three requirements

Facts Issue Ratio
Cinous believed he was going to be killed, shot deceased in the back of the head at a service station where they had been stopped. Does the evidence satisfy an air of reality to all 3 requirements? NO because there is no evidence to show complete absence of alternatives. There must be an air of reality to all 3 requirements, each comprised of subjective belief and reasonableness (objective) of belief. 1) Existence of an unlawful assault 2) Reasonable apprehension of a risk of grievous bodily harm 3) Reasonable belief that it is not possible to preserve yourself from harm except by killing the adversary Lavallee suffered long-term physical and psychological abuse by husband. He threatened to kill her when everyone left the party. As Rust was leaving the room, Lavallee shot him in the back of the head. Was Lavallee acting in self defence? YES. - Must look at 34(2) (a) temporal connection apprehension of death and (b) magnitude of force need to repel with deadly force. - Imminence? Normally requires the raised knife/pointed gun approach, but rebutted with evidence of Walker theory of abuse cycle an abused person more likely to defend themselves during the calm period preceding violence. - Magnitude? She does not give up her right to self defence by staying in the relationship but could she not have fled at that moment? She was more like a hostage. - Jury must ask itself whether, given the history, circumstances and perceptions of the appellant, her belief that she could not preserve herself from being killed by Rust that night except by killing him first was reasonable. - Psychological effect of battered women relevant to whether the perceptions of the accused were reasonable. Because of myths and stereotypes, appreciation of this effect almost requires expert testimony. Battered womens syndrome is not a defence in itself, but it may be evidence that goes to the objective standard of whether the woman was reasonable in her apprehension of death, and of not being able to preserve herself.

R. v. Lavallee (1990 SCC) ~ Battered womens syndrome

Facts Issue Ratio

Rule