Criminal Cameron F08 6 by 9B9ojQ4

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									TECHNIQUES OF STATUTORY INTERPRETATION:
Purpose and Rationale: the purpose that the Parliament had in mind for the provision. Who is it supposed to protect? What is the
underlying objective? Is it overinclusive? What is the harm that the provision is seeking to criminalize?
Text: Look at the text of the Crim Code provision: the specific words used; definitions of the terms used.
               o If the terms aren’t defined in the Crim Code, go to the Dictionary.
Context in Code: the headings, surrounding provisions, “used as an aid in statutory construction” only (Davis, Lohnes)
Legislative History: If the legislative history supports the decision, then the Court would follow that (not determinative though (Davis).
Policy Discussion: What are the repercussions of a particular interpretation?
Courts expand or narrow provisions of the criminal law by defining what constitutes an offence.
Frey v. Fedoruk (1950) – the offence must be in criminal code; the offence must be defined with certainty
R. v. Samir (1994) - Each element of the offence should be satisfied in order for A to be convicted
Facts A followed her in his car for two blocks when she was walking asking her to get in and making sexual proposal.
Reasonable Doubt - R. v. Lifchus (1998) SCC – b.r.d. is more than b.o.p., but less than absolute certainty
Jurors should not try to determine the guilt by applying the same standard they use to make their important life decisions. Normally,
even important decisions are based upon carefully calculated risks, in other words on b.o.p. And that is not what criminal cases require.
What should be mentioned.
     -    Burden of proof beyond a reasonable doubt always rests with prosecution and never shifts to the accused.
     -    Reasonable doubt is based on reason and common sense, i.e. evidence or lack of evidence.
     -    A Reasonable doubt cannot be based on sympathy or prejudice.
     -    The Crown is not required to prove its case to an absolute certainty.
     -    If you believe the accused is probably guilty or likely guilty that is not sufficient. You must give the benefit of the doubt to the
          accused and acquit.
     -    If based on evidence you are sure that the accused committed the offence you should convict.
Appeal courts do not have jurisdiction over questions of fact, only over errors made by J. If J made an error of law in instructing jury, it is
a ground for appeal.
R. v. Starr [2000]
Ratio R.d. standard falls much closer to absolute certainty than to proof on a balance of probabilities.
SCC comments (Iacobucci J): If J. charge to the jury as a whole gives reasonable likelihood that the jury misapprehended the standard
of proof, then as a general rule the verdict will have to be set aside and a new trial directed.
R. v. Hutt – s.213(1) – every part of the prohibited act to be proved
Facts       A allegedly solicited undercover police officer for the purpose of prostitution. All the dialogue happened after A entered his
            car from the street and closed the door.
R. v. Chase (s. 271(1) - Is sexual context visible to a reasonable observer?)
Facts       A entered complainant’s house uninvited, seized her around the shoulders and grabbed her breasts. She fought back and
            eventually was able to call the neighbour. After that R had left.
Ratio       SCC: sexual assault is one where sexual integrity of the victim is violated. That may be evident from the part of the body
            touched, the nature of the contact, situation in which it occurred, the words and gestures and threats accompanying the
            act. The intent or purpose of the attacker may also be evident.
R. v. V. (K.B.) SA –if sexual integrity is violated no sexual intent is necessary
Facts A grabbed his 3 y.o. son penis in response to his son’s similar actions towards others (allegedly to discipline his son).
SA attracts social stigma => Crown and J’s should be very careful when charging/convicting a person. Criminal law aims at activity that
society wants to deter and punish, and at the same time not to go overboard criminalizing behaviour that is not necessarily prohibitive in
the society.
R. v. Grilo (s. 212(1)(j)living on avails of prostitution)
Ratio       Anyone who lives on the avail of prostitution by reaping benefits from a prostitute without any legal or moral claim for
            support is guilty of the offence under s. 212(1)(j). There may not be a parasitic relationship when people contribute.
Decision    A benefited from the proceeds solely by his status as her live-in mate, no element of exploitation on his part
R. v. Lohnes - externally manifested disturbance of the public peace required
Ratio       - Interference with ordinary use of the public space.
            - Whether normal use of the public space was disturbed, not the victim.
            - Disturbance must be one which may reasonably have been foreseen in the particular time and place.
Decision    S. 175.1 means to protect the public from disorder created to interfere with public’s normal activities, or ordinary use of a
            place, not to protect individuals from emotional upset.
Analysis:                                                                       175(1)(a) – causing disturbance in a public place
    -    Definition of the term (dictionary: noun vs. verb);
                                                                                          AR                             MR
    -    P’s intent;
    -    Section context within Crim Code;                                      Fighting, etc.             Subjective intent
    -    Language: plural vs. singular;                                         Public disturbance         Obj (was there a disturbance?)
    -    Purpose;
    -    Policy considerations
R. v. Davis, (s. 346 Extortion) – greater meaning to the text than to the heading
Issue &     Definition of “anything“ includes sexual favours. This interpretation is supported by the nature of the offence, and by the
Decision    purpose of s. 346. Extortion criminalizes intimidation and interference with freedom of choice. Threats and demands

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            intimidate and interfere with freedom of choice, as one may be coerced into doing what is demanded against her will.
Omissions - Fagan v. Commissioner of Metropolitan Police [1969] UK – presence of intent
Ratio    Even if the continuous act started accidentally, without intent to cause harm, the act became criminal from the moment the
         intention was formed.
Facts A accidentally parked his car over policeman’s foot, turned off the engine; he turned it back on and reversed only after
         repeated requests by the policeman.
Cameron notes: omissions are generally not punishable. Purpose of Crim. Code is to punish for acts. Failure to act is more ambiguous
than action. General proposition is that a person cannot be held responsible for failure to act unless there is a statutory duty to act.
Obiter:
    -     for assault some intentional act must have been performed; a mere omission to act cannot amount to an assault.
    -     For an assault to be committed both elements of guilty mind (intent) and the act itself must be present at the same time. It is
          not necessary for intent to be present at the start of the act; it can be superimposed upon existing act. However, subsequent
          inception of guilty mind cannot convert the act which has been completed already into assault.

R. v. Miller, [1983] UK – Duty theory
Ratio       anyone who unintentionally starts the act that will cause damage if not stopped, is aware that the act will result in harm,
            and does not do anything to at least minimise the damage is guilty of the offence.
Facts       A felt asleep with lighted cigarette and awoke when the mattress was on fire. A just went into the next room, he did
            nothing to stop the fire.
 Cameron: the rule is specific to the facts. A is responsible because the fire began as a result of his action, he was aware of it. Be
cautious about generalizing. See what duties Crim. Code imposes (s. 215, 219).
R. v. Moore, [1979] SCC (s. 129(a) obstructing an officer in exercising his duty)
Ratio        Refusal to identify oneself to a person in authority when that person has lawful reason to ask constitutes an offence of
             obstructing in performance of duties.
Issue &      Since the peace officer observed A committing the offence, he needed to identify him to issue a traffic ticket. A was
Decision     obstructing the peace officer in the performance of his duties by refusing to identify himself.
Minority (2) (J Dickson) states that Moore could have been arrested for the infraction he had committed, and then Moore would have
been responsible to give his name.
Cameron: To charge Moore with obstructing police officer is to ramp up the charge to a criminal offence, and this is not what police
officers should do. The case was decided before the Charter.
Causation. Test for all homicides is Smithers Test of Causation. A’s act must be “significant contributing cause of death.” To break the
chain of causation between A’s act and death, an intervening act would have to be so overwhelming as to make act inconsequential.
M1 - Planned and deliberate (AR and MR), applying Smithers Test. Or:
231(5) – Once a M has been established (Smithers Test for AR, and foreseeability of death for MR), and A was engaged in a predicate
offence listed in s. 231(5), then the Harbottle Test can be used to see whether M1 would qualify. Requires an essential, substantial and
integral contribution from A, not necessary to physically cause death.
R. v. Smithers, [1978] SCC– causation test for all homicide offences
Ratio          A’s unlawful actions must be a “contributing cause of death that is not trivial or insignificant, outside the de minimis
               range” in order to be convicted.
Reasons        Causation of death was established both through medical evidence, i.e. that the kick caused the vomiting; and lay
               evidence – V died minutes after the kick.
Initial unlawful act was intentional, but the death was not. Deterrent measure of criminal law. That is why the Crown is to prove that
accused acts contributed to the death beyond de minimis range. The Crown did not have to prove b.r.d. that the kick caused both
vomiting and aspiration. Evidence was provided that related the kick, vomiting and aspiration.
R. v. Smiths [1959] QB
Whether the death was caused by A’s acts or other causes is decided on the facts (if A’s acts were just a setting for another causes).
R. v. Shanks (1996) ON C.A. – application of ‘Smithers’ test
Facts       A threatened V and called him to fight. V was put down to the ground. That same evening V had an acute heart attack
            and died. The deceased was a very sick man: diabetes, high blood pressure, strokes and one previous heart attack.
Decision    Causation is a question for jury, trial judge, and they are not restricted to medical opinions (Smithers). If physical assault
            was not a proximate cause of death, the preceding events together with the assault would have been sufficient to trigger
            the heart attack. A’s actions were contributing to the death.
R. v. Harbottle, SCC - M1 (s. 231(5) only) – substantial causation test
Ratio         A’s actions must form an essential, substantial and integral part of the killing. Not necessary that A’s acts physically
              cause the death.
Crim Code     s. 231(5) – irrespective of whether a M is planned and deliberate, a M is a M1 when the death is caused by that person
Reasons       A was guilty of: (1)offence of domination (forcible confinement); (2) M; (3)A’s participation in M was such that he was a
              substantial and integral cause of the death; (4) no intervening act of another which resulted in A’s no longer be
              substantially connected to the death; (5)crimes of domination and murder were part of the same series of acts.
R. v. Nette, SCC - M2 – Smithers test modified – applies to all homicide offences except s. 231(5)
Ratio         Standard for causation is the same for all homicide offences (A’s act was a significant contributing cause of death).
Reasons       V’s advanced age might have contributed to sooner death. No evidence that her death would have occurred without the
              actions of A. No intervening cause which resulted in V’s death. When A tied an elderly person, placed ligature around
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              her neck and abandoned her, knowing that she lived alone, it was not unexpected that death resulted when no one
              rescued V in time. Guilty of M2
Culpable homicide comparison chart
Actus reus    Smithers                                      Harbottle                                  Nette
Act           Assault                                       231 (2) – murder is a 1st degree M         231(5) – murder is a 1st degree M while
                                                            when it is planned and deliberate          committing or attempting to commit: hijacking of
                                                            OR                                         a plane; sexual assaults; kidnapping,
                                                            231(5) – murder is a 1st degree M          confinement; hostage taking.
                                                            while committing or attempting to
                                                            commit: hijacking of a plane; sexual
                                                            assaults; kidnapping, confinement;
                                                            hostage taking.
Cause of      Aspiration caused by failed epiglottis. The   Hierarchy in tests is followed by          Asphyxation due to upper way obstruction. V
death         causation issue whether the accused           hierarchy of causation: it must be         was left hog-tied with garment around her neck.
              caused the failure of epiglottis.             proved that accused played                 A confined V by tying her.
              Kick done by the accused. Ct decides that     essential, substantial, integral part in   Harbottle test applied – A did not play essential,
              the kick caused vomiting and aspiration.      the killing.                               substantial, integral role in the killing.
Death         Manslaughter                                  M1                                         M2
It can be that accused act is not the sole cause of the death, e.g. intervening or subsequent causes. Whether A played sufficient role to
be held accountable for death.
Consent - R. v. Jobidon, SCC (s. 222(5) MS, p.o. s. 265(1))- social utility test – whether consent is at all possible
Ratio        Absence of consent in cases of assault must be proved by the Crown, unless consent is vitiated by s. 265(3) Social utility
             test: consent is vitiated if adults agree to apply force to each other in the course of socially harmful activity causing serious
             or non-trivial bodily harm.
Reasons      Gonthier J: s. 265 doesn’t define the situations in which consent will/will not be legally effective. Considerations of public
             policy play role in common law. Codification did not replace common law principles but reflected them. Policy based
             consideration are fact-specific, and P left s. 265 deliberately open for courts to deal with. S.8(3) preserves common law
             for defences. Because consent functions like a defence, court can use common law to interpret consent pursuant to s.
             265(3).
             Application of the test: social uselessness of fist fights; may lead to larger fights and breaches of public peace; individuals
             engaging in this activity may stop asking for consent at some point; moral point (sanctity of human body). S.14 vitiates
             legal consent to death. S. 265 in this case vitiates consent between adults to cause serious non-trivial bodily harm to each
             other. There would be no assault if activities have positive social value.
             Sopinka J: s.9(a) ...no person shall be convicted of an offence at common law. The above approach creates an offence
             that is not stipulated in the Code. It leads to uncertainty in what the law is. Consent given by V did not extend to the
             continuation of the fight once V had lost consciousness. By hitting V once he was unconscious A acted beyond the scope
             of consent and committed assault. Since V died as a result of the assault, A is guilty of manslaughter ss. 222(5) and 234.
R v. Cuerrier – 2 step ‘fraud’ test that vitiates consent: dishonesty, deprivation
Ratio           (1) 2 requirements of fraud: (a)dishonesty – acts must lead to the obtaining of consent. Acts must be assessed from a
                    standpoint of a r.p. (b)deprivation, i.e. harm or risk of serious bodily harm.
                (2) The existence of fraud should not vitiate consent, unless there is a significant risk of serious harm.
Reasons Cory J (majority): A endangered life of others because they could contract HIV from him (proof of s. 268(1)). Consent for
               sex was not legally effective because it was obtained by fraud => application of force without consent (s.265(1)).
               P widened the concept of ‘fraud’ in s. 265(3) by repealing requirement that fraud must relate to ‘nature and quality of the
               act’. The case requires interpretation of ‘fraud’ in unlimited manner. R. v. Bennett (1866) provides support – consent was
               vitiated by the fact that man failed to disclose his veneral disease. Deadly consequences of non-disclosure of HIV
               persuade to make a policy decision to view fraud in a broader way. Such approach will only continue evolution of Crim.
               Code. To conceal fact that A is HIV-positive can constitute fraud, and this vitiates consent to have sex. The Crown has to
               prove b.r.d. that C would have refused to engage in unprotected sex with A if she had known he was HIV-positive.
               L’Heurex-Dube J: Assault scheme - protecting physical integrity and autonomy which is more than serious physical
               harm. Test: whether the nature and execution of the deceit deprived C of the ability to exercise his will about his physical
               integrity with respect to activity in question. Aimed to maximize individual’s right to determine under what conditions and
               with who one will consent to physical contact.
               McLachlin J: Clear language is required to create crimes. Where a crim statute is ambiguous, the interpretation that
               favours A is preferred. By repealing phrase ‘nature and quality of the act’ P did not mean to widen the concept of fraud. To
               consider otherwise, would be to change law in court. Cory J approach does not require fraud to induce consent. Causal
               requirement is missing. This requirement exists at common law. Change can be made if it is incremental development of
               common law with no unforeseeable ramifications. A return to pre-Clarence view of the common law will draw a clear line
               between crim and non-crim conduct. Approach: (a)deceit related to the sexual character of the act; (b)deceit as to the
               identity of the offendor OR (c) deceit as to the presence of sexually transmitted disease.
THREE Proposed Tests for when fraud vitiates consent to an assault:
Cory J. (majority (4) –middle view of fraud)              L’Heureux-Dubé (broadest view of fraud)                     McLachlin – 2 (narrow)
1. Dishonesty (objective)                                 1. Dishonesty                                               1. Deception as to the
2. Deprivation (signif risk of serious bodily harm        2. Inducement                                               nature/quality of act
to be proved by Crown)                                    3. A must be aware that his actions induced consent.        2. Inducement
- Cases are decided on a case by case basis;              LHD makes valid points.                                     How much is included
- It is inferred that A lied when he said that he         Q: can and should Crim system penalize people for           into the definition is up
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had tested negative. Neither of the                          these offences? A: Where harm has not been caused                to the court within the
complainants did due diligence to ask about HIV              the system leaves people alone.                                  parameters of the
status directly? Neither of them took precautions            -The value is in protecting the principle of physical            doctrine.
to have safe sex.                                            integrity and autonomy of people.                                A’s dishonesty must
- Cory’s test is broader than McLachlin’s                    -Failure to disclose should be deliberate in nature. The         have really induced C
because no inducement is clearly shown in                    fraud should lead to the consent.                                to have sex. Test
Cory’s test, serious bodily harm is not defined.             -Physical integrity is not limited by physical bodily harm.      subjective to the
- No positive duties in criminal law unless                  The approach is much broader – LHD does not care                 particular C.
imposed by statute.                                          whether there is harm at all.
Mens Rea General principles
R. v. Sault Ste. Marie (City) [1978] SCC
C must establish a mental element, that A who committed AR did so intentionally or recklessly or being wilfully blind. Mere negligence is
excluded from the concept of the mental element.
    1. True crimes (Crim. Code and other fed legislation) - require that the Crown proves AR and MR
    2. Public welfare offences
      2.1           Strict liability (way for A to escape criminal liability). The Crown is to prove AR b.r.d., and A is to prove absence of MR
        (due diligence performed) on the b.o.p. Applies only where legislation does not specify that the offence is of absolute liability.
      2.2           Public welfare offences. The Crown is required to prove AR only. Rationale: administrative efficiency, penalties were
        small, not the same social stigma. There is no evidence that this deters people; makes them be more careful. Social stigma is
        still attracted: cost of litigation, feeling of being convicted, fines have become steep.

Reference re: s. 94(2) of the Motor Vehicle Act [1985] SCC
Drafters of the Charter limited s. 7 to procedural rights only, i.e. no substantive content. The Ct rejected intentions of the drafters
Ratio      The law is invalid if it creates absolute liability offence, and it cannot be saved by s. 1.
Facts      BC made it an offence of absolute liability to drive while one’s licence was suspended. The Act stipulated jail sentence.
Decisio Absolute liability - people can be convicted even if MR is absent. Presence of MR is required by principles of fundamental
n          justice. Principle of fundamental justice – morally innocent should not be punished. You can’t send one to jail without MR
           present. Where there is a prison sentence MR is a constitutional minimum. The legislature cannot create absolute liability
           offence in violation of the principle of fundamental justice. Hence, s. 94(2) is unconstitutional – violates s. 7 of the Charter.
Procedural part – the way the offence is tried. Substantive part – the content. Both parts of s. 7 have to be violated in order for offence
to be pronounced violating principles of fundamental justice.
Principle of fundamental justice is indeterminate expression. Include whatever Ct chooses to include. They do not lie in the domain of
public policy but in the inherent domain of judiciary. Ct says that as long as they stick to justice they do not encroach on the area of
public policy. Symmetry principle. MR definition included in the offence must correspond to AR definition.
Degrees of Mens Rea
Subjective mens rea                                               Objective mens rea                                Strict liability   Absolute liability
Intent (Buzzanga) –     Recklessness,       Subj for P.O.,        M.O. Standard      Objective (crim negligence).   Burden on A        No mens rea
evidence of             Willful blindness   obj for               (Hundal)           Obj for P.O., obj for          to show due        required
conscious purpose,      (Martineau)         consequence           Offence: s.        consequence (DeSousa;          diligence on
or A foresees the       subj for P.O.,      (Vaillancourt)        249.(1)(4)         Creighton)                     the b.o.p.
consequence is          subj for                                  Dangerous          Offence: s. 269 unlawful       (Soux-Ste-
certain or              consequence         Offences:             driving causing    causing bodily harm, 220       Marie)
substantially certain   Offence: s. 231     Assault (ss. 265,     death              crim negligence causing
                        M                   267, 268)                                death; 222(5) MS

R. v. Buzzanga and Durocher (1980) ON C.A. – s. 319 wilfully promoting hatred
Ratio       A acted wilfully IF a) intended the consequences of the act; OR b) foresaw that the consequence was certain or
            substantially certain to result from the act, but acted to achieve a different purpose. One who foresees that a consequence
            is certain to result from an act which he does to achieve some purpose intends that consequence.
Decisio     By including the “wilfully” P intended to limit the offence to intentional promotion of hatred. Meaning of “wilfully” varies in
n           jurisprudence depending on the context. s.319(2) requires MR ‘intention’, i.e. higher degree of MR. s. 319(1) requires MR
            ‘intention’ or ‘recklessness’. Intention to create “controversy, furor and uproar” is not the same as to promote hatred.
R. v. Docherty, [1989] SCC – every element of AR requires its own MR
Crimin      s. 253(1)(a) “...has a control of a motor vehicle whether the vehicle is in motion or not while his ability to operate the vehicle
al          is impaired by alcohol”. Conviction under s. 253(1)(a) triggers a charge under s. 733.1(1) failure to comply with p/order
Code        (“keep the peace and be of good behaviour”) without reasonable excuse.
Decisio     MR has to be proved for A to be convicted on s. 666 (733.1(1)). MR of s. 666 requires that A intended to breach his p.o.
n           This requires proof that A knew he was under p.o. and that it would be breached by his act. Intent to commit the underlying
            offence is not a basis to infer the intent to breach p.o. Where the AR of s.666 consists of commission of an offence, an
            honest belief by A that he was not committing the offence means that A cannot be said to wilfully fail or refuse to comply
            with p.o. AR for s. 666 is conviction for s. 236. A could not have wilfully breached p.o. by committing an offence unless he
            knew that his act was an offence. The conviction [for underlying offence] is evidence of MR under s. 666 to the extent that
            wilfulness can be inferred from the AR (AR – committing the underlying offence). MR must be proved. Absence of
            knowledge by A that he was committing an underlying offence is good defence.


Willful breach of probation –old 666(1)                                                                                                                     4
AR                                   MR
Predicate offence (s. 236)           Willfully intent to breach probation




Objective MR - R. v. Barron (1986) - marked and substantial departure from standard of r.p.
Facts      A slightly pushed his friend who fell down the stairs, suffered head injuries and died a week later. Both were intoxicated
               at the time. Both A and his friend were going downstairs, but the deceased changed his mind at the last moment.
Crim Code      MS s. 222(5)(b) causing death of a person by criminal negligence
Decision       Trial J: No assault here b/c of the relationship between A and the deceased. The push was such as commonly occurred
               between friends. Implied consent, no explicit consent. A acts are to be judged from the position of a sober 16-y.o. That
               average boy would have averted to the risk.
               C.A. approach: whether the push amounted to a marked and substantial departure from the standard of a reasonable
               16 y.o. in the circumstances? - For behaviour to constitute criminal negligence there must be marked and substantial
               departure from the standard of a reasonable person (higher degree than required in civil law).
Trial J found criminal negligence, but CA did not. Both courts customize the obj standard for Crim Negligence to include age.
R. v. Nurse - Subj MR for P.O. Obj foresight of the consequence
MR of assault causing bodily harm (s. 267) is the intentional threat to apply force with the ability to effect that purpose, in circumstances
where the harm caused is objectively foreseeable. The evidence is that the plan was to fire shots in the air in front of V’s house. It is not
reasonable foreseeable then, that someone in the house will suffer bodily harm. Hence, not guilty under s. 267.
                         AR                   MR
P.O.                     Assault              subjective MR for the act
CONSEQUENCES             Bodily harm          objective MR for the consequences (objectively foreseeable)
R. v. Buttar – mixed MR
Ratio   s. 390(a) the Cr has to prove subj MR of wilfully setting fire to the first thing. Obj foresight that the house would catch fire.
Decisio Majority: it is the act of setting fire to the material which must be wilful. “Wilfully” does not apply to the house catching fire.
n       Unlike s. 389 which requires to prove wilfulness of setting fire to a house, s. 390 requires only proof of reckless state of
                                                         st
        mind in relation to the setting of fire to the 1 thing, e.g. clothing.
        Dissent: definition of “wilfully” under s. 386 should be brought into s. 390. There is no offence unless A either intended the
         nd
        2 fire to happen or knew it was likely to happen and was reckless whether it would happen or not. Otherwise A could be
        convicted for the big fire though he did not have MR for it. SCC dismissed on the facts
             AR              MR
P.O.         Small fire subjective MR for the act (wilfully)
Consequenc House             Subj MR not present here. If subj MR required it would favour A. Is Obj MR sufficient? – lower standard
e            fire            would allow to convict A. Whether A should have known that small fire would lead to the H fire? –
                             Objective test is sufficient.
R. v. Hinchey - MR of a particular offence is composed of the totality of its component MR’s.
R. v. Tutton, [1989] SCC – 3:3 split on whether criminal negligence requires subj or obj MR. Issue with mistake of fact/mistaken
belief. Mistake can be honestly held, but be unreasonable. If subj standard for MR – the same standard for assessment of mistake.
Wilson J (subj MR)                                                                             McIntyre J (obj MR)
Presumption when dealing with serious crim offence should be in f/o requirement of             Negligence is made criminal in s. 219.
some degree of blameworthiness if the text and purpose of the section do not prohibit Conduct and its results are to be punished,
such interpretation.                                                                           not the state of mind.
“wanton or reckless disregard for live or safety of other” means more than gross negligence in Objective test should be used of a
objective sense.                                                                               reasonable person in the circumstances.
Conduct that shows “wanton or reckless disregard for live or safety of other” will make A’s perception of facts is to be considered to
up AR of the s. 219, and it will be prima facie evidence of A’s blameworthy state of           form a conclusion whether A’s conduct was
mind. Proof of the conduct will shift burden to A to explain why inference of conscious reasonable.
awareness or wilful blindness should not be drawn (Cameron doesn’t like the
reasoning) .The inference will arise in most cases because s. 219 requires minimal             Lamer J – obj standard that takes account of
intent. Malice, i.e. mind directed to a purpose is not an element of s. 219 The Q              certain qualities of the A. Modified objective
should be answered in each case whether a subj standard has been breached.                     standard.
Constitutionalization of MR
VAILLANCOURT (1987)         MARTINEAU (1990)             DESOUSA (1992)               CREIGHTON (1993)             HUNDALL (1993)
(M2)                        (M2)                         (Unlawful act causing        (MS; Crim negligence         (Dangerous operating of a
                                                         bodily harm)                 causing death)               vehicle)
AR        MR                AR          MR               AR          MR               AR         MR                AR       MR
Felony    X                 Felony      X                Unlawful    Objectively      Unlawful   Objectively       Bad      Modified
                                                         act         dangerous        act        dangerous         driving  Objective
Death     Objective         Death       Subjective       Bodily      Objective        Death      Objective         Bodily   (Objective
          foreseeability                foreseeability   harm        foreseeability              foreseeability    harm/    foreseeability of
          of death (later               of death                     of bodily harm              of bodily harm.   Death    bodily harm?)
          subj)


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    1.     General proposition is subjective MR. Start with it then look if Crim Code suggests anything else. If nothing, any of the below
           will satisfy MR requirement:
          Intention
          Recklessness - A knows of a danger/risk and continues with his act despite the risk that the act can bring criminal result.
          Wilful blindness – A prefers to remain ignorant deliberately failing to inquire about the consequences though he has suspicions
           as to the lawfulness of his acts.

    2.     Objective MR is an exception to the general proposition. Two categories:
     o     A) Negligence offenses – dangerous driving, crim negligence, crim neglig causing death where law imposes a duty on A.
           B) Predicate offenses – consequences of p.o’s causing bodily harm/death (except M – requires subj foresight of death).
    3.     Constitutionalization: SYMMETRY is the general principle. Each element of AR must have a MR. It’s nice, but not required,
           that the MR reflects the gravity of the corresponding AR.
R. v. Vaillancourt, [1987] SCC
Ratio              Absent proof b.r.d. of at least objective foreseeability, there cannot be conviction in M.
Facts              A armed with a knife remained at the front while another shot and killed smb at the back.
Issue &           It’s not necessary to convict of murder those who did not intend or foresee the death and who could not have
Decision          foreseen the death to deter others from using or carrying weapons.
Prior to the Charter validity of s. 230 could not be challenged. Pursuant to s. 7 P must respect principles of fundamental justice. Courts
have a duty to consider whether crim code provision is in accordance with principles of fundamental justice.
Motor vehicle reference – A was morally innocent, he did not know driving licence was suspended. Here, A is not morally innocent, he
committed robbery, so he is blameworthy for robbery. Whether A is blameworthy enough to be convicted of M? Blameworthiness is
required in connection to the specific offence being charged. The difference between Motor Vehicle (morally innocent) and Vaillancourt
(blameworthy enough?). Symmetry required between the AR and MR. S. 230 requires no MR, thus violates s. 7 and principles of
fundamental justice
AR                             MR
Any felony under s.230         Subjective
Death                          Lamer J: personal view that subj MR is required, but majority holds that at min obj foresight of death
                               should be proved. S. 7 of the Charter and principles of fundamental justice. The reason – M is the most
                               serious offence with harsh stigma attached. S. 230 is unconstitutional unless “read up” to require obj MR.
R. v. Martineau, [1990] SCC – subj foresight of death required for M conviction
Ratio      Subj foresight of death must be proved b.r.d. before a conviction for M can be sustained
Issue & s. 229(c) violates s.7 of the Charter – the principle that punishment must be proportionate to the moral blameworthiness
              the offender. Crim liability for                                         where the actor possesses a culpable mental state
Decision of respect of that result. Special a particular result isn’t justified except gives rise to moral blameworthiness that justifies
           in                                  mental element with respect to death
             the stigma and punishment that goes with M conviction.
      nd
See 2 para on p. 89. What further step – beyond Vaillancourt – does Martineau take? Symmetry required between what A is to be
convicted of and A’s blameworthiness for this offence. Concept of stigma and severity of the offence. For those offences that have
special stigma and carry severe punishment the Charter requires constitutional minimum MR. Symmetry between the act/severity of
punishment and level of blame required.
R. v. DeSousa, [1992] SCC – obj MR for underlying act + obj foresight of harm (s. 269)
Ratio         Test for s. 269 is objective foresight of serious bodily harm for all underlying offences (unlawful and objectively
              dangerous). Whether a r.p. would realize that the underlying unlawful act would subject another to the risk of bodily harm.
Decision      Lamer J: stigma and penalty are not the same as in M => no requirement for subj MR. No symmetry is required in all
              cases between AR and MR, i.e. not required that subj AR corresponds to subj MR. MR attaches only to p.o., not to the
              consequences. One is not morally innocent b/c he did not foresee the consequences of the prohibited act. In punishing for
              unforeseen consequences, the law doesn’t punish morally innocent, but those who cause injury through unlawful action.
              Cr must first satisfy MR of the underlying offence. Offences of absolute liability excluded. The act must be both unlawful
              and the one that subjects other person to danger of harm or injury. The bodily harm must be more than merely trivial in
              nature and in most cases would involve act of violence done deliberately to another. MR of s. 269 has 2 separate aspects:
              1)Underlying offence with constitutionally sufficient MR has been committed; 2)At least a fault requirement is based on
              objective standard.
              No constitutional requirement that intention either on obj or a subj basis extends to the consequences of the unlawful act.
R. v. Hundal, [1993] – modified objective MR (in the context of events) s. 249(1)(4) dangerous driving causing death
Ratio       M.O. test required at min to convict for dangerous driving causing death: “What was reasonable in A’s circumstances?”
Decision    Since licence is required for driving, and drivers choose to engage into regulated activity, and reflexive nature of driving,
            and wording of s. 249, obj standard is required. Basis for liability for dangerous driving is negligence.
            Cory J (5): MR should be assessed objectively in the context of all events surrounding the accident. Personal factors are
            not to be accounted for. Marked departure from a standard of a r.p. in A’s situation is required.
            McLachlin J (2) : straight objective test without modification. Unexpected disease/disability will either eliminate AR (act
            done involuntary) or be a circumstance which negates inference of want of care.
Cory J. says the test should cover other “similar human frailties”  problematic and vague. M.O. test is more obj than subj. Take into
acc external circumstances (weather, driving conditions, etc.), but not A himself. Purpose of the section is to protect the public.
R. v. Creighton, [1993] SCC – MS (s. 222(5)(a), (b); s. 220) requires obj foresight of bodily harm
                                                                                                                                            6
Ratio         To be convicted of MS objective foreseeability of bodily harm is sufficient (obj MR). Test for crim negligence:
              1. AR  A marked departure from the standard of the r.p. in all the circumstances of the case. 2. MR  objective
              foresight of bodily harm. 3. Did A possess the requisite capacity to appreciate the risk flowing from his conduct?
Decision      Lamer CJ (4): obj foresight of death required. Symmetry between AR and MR required. Adjustment to be made if A
              failed to take care because of his incapacity to foresee the consequences, but no adjustment if A failed because he did
              not pay attention. If incapacity was the reason, what would a reasonable person with A’s frailties do?
              McLachlin J (4+1): obj foresight of bodily harm is sufficient. Stigma is not the same as in M, punishment is flexible.
              Symmetry is not an absolute requirement in criminal law. Straight obj standard should be used. One who cannot live up
              to the standard is expected to adjust in order to comply, e.g. not to drive, drive slower, etc. Lack of capacity may be
              taken into account in sentencing but not in deciding responsibility.
Cameron agrees with majority. High degree of incapacity is required.
Mistake of Fact – as to consent
R. v. Pappajohn, [1980] SCC- mistake of fact (consent) negates MR of the offence
Ratio       Where there is no ‘air of reality’ in A’s assertion J is not bound, in the absence of other evidence, to put mistake of fact
            defence to the jury. Honest and reasonable belief, i.e. obj MR is required. Q’s: a)whether V consented based on her
            evidence; b)if not, whether A had guilty intention.
Decision    Not enough evidence to support putting of the defence of honest but mistaken belief to the jury. A doesn’t say he had a
            mistaken belief, rather he claims that she did consent. A cannot have it both ways.
            Majority (5): There must be in evidence some basis (‘air of reality’) upon which the defence can rest; it’s only where such
            basis exists a trial J must put a defence. Evidence should go beyond mere assertion of belief of consent, it must come
            from or be supported by other sources, not only A.
            Dissent (Dickson +1): 1)symmetry between AR and MR is required. Requirement of guilty intention must be satisfied.
            Intention or recklessness must be proved including lack of consent. 2)Mistake of fact (belief in consent) negates guilty
            intention for that element of the offence => entitles A to an acquittal.
            Actual consent negates AR => consensual act is not a crime.
            Evidence must exist to support honest mistaken belief; if the consent was withheld but V’s conduct and other
            circumstances led A to believe that consent was present, it should be up to the jury to decide; jury should be concerned
            with A’s state of mind, not that of a reasonable man. If A’s belief looks outrageous, he would not be believed. Defence of
            honest belief is based on A’s subj perception of the situation. If A relies on consent he asks jury to reject V’s testimony. If
            A relies on mistaken belief defence, he means that even if she did not consent, he proceeded in mistaken but honest
            belief that she had been willing. Though the offence was committed he is not responsible for he lacked the requisite
            intention. Jury should have been given 3 options: a) A was telling the truth – V consented; b) A was not telling the truth, V
            did not consent, A was aware of the fact or reckless; c) A believed that V was consenting. Defence of consent is rejected,
            and that of honest belief is accepted.
R. v. Ewanchuk, [1999] SCC – SA – consent must be communicated
Ratio       AR of sexual assault – consent is determined by V’s subj state of mind only. MR. A) intention to touch and B) being
            reckless of or wilfully blind to a lack of consent. A can assert that he honestly believed that V had communicated consent
            by words or conduct (A to show evidence).
Criminal    s. 273.2 – belief in consent is not a defence if it arose from (i) self-induced intoxication; (ii) recklessness/wilful blindness;
            or (iii) A did not take reasonable steps, in the circumstances known at the time, to ascertain that V was consenting.
Code
Decision AR of SA: unwanted touching, sexual nature of the contact (obj r.p. R. v. Chase), no consent (subj – V’s state of mind).
            MR – intention to touch, knowing of, or being reckless of, or wilfully blind to a lack of consent.
            AR deals with V only. A is irrelevant. Cr does not have to prove any MR with respect to sexual nature of the behaviour.
            Absence of consent as an element of AR is determined by V’s subj state of mind.
            To be legally effective the consent must be freely given. If V agrees to sexual activity because she honestly believes that
            she otherwise will suffer violence - no consent. Consent – V in her mind wanted touching to happen.
            1.Did V want in her mind sexual touching to occur? 2. If no, is her testimony sincere and credible based on totality of
            evidence including any ambiguous and contradictory conduct? 3. If the trier of fact is satisfied b.r.d. that V did not consent
            AR is established. If there is r.d. or if V actively participated, the trier must still establish if V consented because of fear,
            fraud or under authority. V’s fear need not be reasonable, nor has it to be communicated to A for consent to be vitiated.
            MR. A belief that V wanted but did not show it - not a defence. If there is an ‘air of reality’ in A’s evidence it is up to the
            triers of fact to determine whether A believed honestly in communicated consent. Consent means that V communicated
            her consent by words or conduct. Continuing after ‘no’ is reckless conduct. A must point to some evidence the consent
            has been re-established before he resumed contact. If the evidence raises r.d. as to A’s MR the charge is not proven.
Cameron: Don’t use s. 265.4 for SA. It is a question of credibility, whose evidence to believe. If it’s a p.o. followed by consequences,
often obj MR is required to be held responsible for the consequences.
State of mind defences – A is to establish on b.o.p.
        Mental Disorder (MD) s. 16 of the Code.
        Automatism: non-MD automatism and MD automatism. MDA triggers s. 16 defence.
        Intoxication.
Mental Disorder under s. 16 of the Criminal Code
Comes up 3 times: before trial - whether A is fit to stand trial (mental capacity); at trial – whether A can be excused because of MD
(found NCR); at a hearing (if the defence of NCR succeeds) - whether A should be sent to the institution (periodic reviews). MD can
result in the acquittal of the person who nonetheless committed the offence. To succeed accused must establish on b.o.p. that:
                                                                                                                                                7
a) he suffered from a mental disorder, AND b) the disorder rendered him incapable of appreciating the nature and quality of the
act/omission OR c) the disorder rendered him incapable of knowing that the act was wrong.
M’Naghten’s Case - Q to the jury whether A had a sufficient degree of reason to know that he was doing an act that was wrong.
Cooper v. The Queen (1980), SCC
Dickson J: Whether A appreciates the significance of the conduct. To ‘appreciate’ may involve estimation and understanding of the
consequences. A may have known the nature and quality of the physical act of choking. But it is another thing to suggest that in
performing the physical act of choking A was able to appreciate its nature and quality in the sense of being aware that it could lead to
death.
Disease of the mind is a legal term. The law retains the prerogative to decide on its own what the disease of the mind is.
Abbey case – disease of the mind can be used to excuse the act, but not the consequences of the act.
R. v. Chaulk, [1990] SCC – meaning of “wrong” in s. 16
Ratio     ‘Wrong’ in s. 16 means more than ‘legally wrong’ – ‘smth ought not to be done’. 1.The incapacity of moral judgments must
          be causally linked to MD. 2.Moral wrong is to be judged by A’s awareness that society regards the act wrong.
Facts     Evidence given that A’s suffered from a paranoid psychosis which made them believe that they had power to rule the
          world, and the killing was necessary. A knew of the laws but believed themselves to be above the ordinary law.
Majority 6:3 decision. Lamer CJ: If M’Nagthen is paraphrased to say: ...that the act committed was one that he ought not have
                                 that “wrong” means more than “legally wrong”. It may
Reasons done, then it is cleardo the act because he knows that (1) the act is againstbe established that A is breachesof knowing
          that he ought not to                                                            the law OR (2) the act
                                                                                                                 capable
                                                                                                                           the moral
          conduct. A may be aware that it’s legally wrong to commit a crime, but, because of MD, believes that it would be right to
          commit the crime in particular context.
Minority McLachlin J: at min A is capable of knowing that the act was in some sense wrong. Support: Plain language of s.16 – P
                                  “wrong” it meant; Historical view of insanity provisions;
Reasons did not specify whichdifficulties of determining what is “morally wrong” (how aThe purpose and theory underlying insanity
          provisions; Practical                                                             jury is supposed to agree on that).
Cameron agrees with majority. Minority raised legit concerns.
Automatism
    MD-automatism. Treated like s. 16 MD.                                         Internal vs. external cause
    Non-MD automatism. Harder to prove.                                           Continuing danger
R. v. Rabey (1977) ON CA, (1980) SCC
Ratio         Ordinary stresses and disappointments of life do not fall under external cause. Unless an external cause can be identified
              (that might prompt an average normal person to dissociate), it is an internal cause => MDA defence => s. 16.
C.A.          Psychiatric evidence that dissociative state was caused by a ‘psychological blow’. No underlying pathology in A. Very
Reasons       slight possibility that A would suffer from recurrence of a condition. Any malfunctioning of the mind having its source in
              some subjective condition internal to A may be a MD if it prevents A from knowing what he is doing. Transient
              disturbances of consciousness due to specific external factors do not fall within the concept of mental disorder.
              Since a psychiatrist described dissociative state as a disorder of consciousness, it is a disorder of mental functions.
              Malfunctioning which A suffered although temporary is an MD, unless it can be considered as transient state triggered by
              external cause. An external blow that might prompt an average normal person to dissociate can trigger NMDA defence.
SCC           Majority. Ritchie J: Since A had not dated anyone before, he became obsessed with his relations with V. This created
Reasons       abnormal condition in his mind under the influence of which he acted unnaturally and violently. Ordinary stresses and
              disappointments of life do not fall under external cause.
              Minority. Dickson J: no act can be a crim offence unless it is done voluntarily. At any point where A raises Q of
              voluntariness Cr has to prove voluntariness b.r.d. Policy considerations: one can feign defence of automatism, its success
              depends on semantic abilities of psychiatrists. On the other hand, where the condition is transient and unlikely to recur
              policy conditions of finding a person insane are not served. Such a person is not a danger to society or himself.
              To exclude a defence of automatism – lay upon Crown to establish that A suffered from MD. No evidence supports that A
              had underlying pathological condition. Subj state of mind of A matters. It should not matter that all normal persons would
              not have reacted in the same way to the external blow. Still there must be a shock that leads to a state of automatism.
Internal/external distinction is just one of the tools (p. 31) which may be used if it helps. This distinction is downgraded in Parks (La
Forest J). It’s difficult to tell the difference whether A was acting in anger or in a dissociative state.
R. v. Parks, [1992] SCC - Sleepwalking was held to be NMDA
Reasons Lamer CJ (2): A was sleepwalking at the time of the incident; sleepwalking is not an illness, it’s a sleep disorder; no
            medical treatment, apart from good health practice. Concerned by the fact of setting A free. Any conditions imposed
            should not violate A’s rights under the Charter. Special hearing is justified because of the concern for public safety.
            La Forest J (3): in distinguishing between automatism and insanity trial J must consider the evidence and policy
            considerations. If there is sufficient evidence given by A, J must consider whether the condition alleged by A is, in law,
            NMDA. If it is, J leaves the issue to the jury: did A suffer from the condition at the time of the act. ‘Continuing danger’ –
            any condition likely to present a recurring danger to the public should be treated as insanity. Recurrence suggests MD,
            but absence of risk of recurrence doesn’t preclude finding of MD. ‘Internal cause’ – a condition stemming from
            internal/emotional make-up of A, rather than from some external factor, should lead to finding of insanity.
            Cr here argues that causes of A’s violent sleepwalking were internal, a combination of genetic susceptibility and the
            ordinary stresses of life. What is ordinary stress for a waking person, may be not so for a sleeping person. Same of
            internal/external cause. Neither of the two theories determine the result. A possibility of open floodgates is slight. A
            defence has been recognized for long time with no result in a huge amount of cases. Very difficult to feign – a lot of
            external evidence is to be provided. Cr must prove that somnambulism stems from MD. Not proved – A should be
                                                                                                                                            8
            acquitted. Decision is specific to the facts of this case. Sopinka J: agree with CJ as to the special hearing and an order to
            be considered. McLachlin J (2): acquittal should be unconditional; one cannot acquit and impose conditions.
Parks is more problematic than Rabey and Stone because P had no motive, anyone could become a V.
R. v. Stone, [1999] SCC – modifies defence of automatism
Ratio      A has to rebut that the act was voluntary and establish on b.o.p. that the act was involuntary. Once A has established
           involuntariness trial J should start from a proposition that A suffered from MD. Determine if NMDA:
            - whether a normal person could have reacted in the same way if put in the same circumstances (contextual obj test);
           - continuing danger test – how likely is it that A’s condition may recur?
           If A passes this test for NMDA, then J charges the jury, which only has to determine if it was voluntary. If test is not
           satisfied, then it’s MDA and proceed with s. 16 analysis.
Reasons Minority. Binnie J (rely on Dickson’s dissent in Rabey). A was entitled to a jury verdict on whether his conduct, though
           sane, was involuntary. Expert’s opinion was that A did not fabricate the story. A did not suffer from underlying pathological
           condition. Once the evidential burden is met (A gave evidence of automatism), it is up to the jury to assess the credibility.
           Crim law – responsibility of sane individ’s for their voluntary acts. Requiring A to prove automatism on the b.o.p. is a
           change in law. “Internal cause” theory doesn’t justify taking evidence of unconsciousness from the jury b/c A cannot
           identify specific external cause. Risk of recurrence is a legit policy factor. As it is rare for an A to meet even an evidentiary
           burden, there is no “floodgates” problem. The task of A was to demonstrate the fact of unconsciousness, not to satisfy the
           Ct about the cause of the condition. Once the trial J exercised his ‘gatekeeper’ function to screen frivolous claims, the
           defence should have been put to the jury. If the jury rejects NCR because of MD, the jury still should be left with
           instruction that A is entitled to acquittal if the Crown fails to establish b.r.d. all elements including voluntariness of the
           offence. A was either unconscious at the time of the killing or he was not telling the truth.
           Majority. Bastarache J (rely on majority in Rabey). Involuntary action which doesn’t stem from MD gives rise to a claim
           of NMDA. If successful it leads to acquittal. If involuntary action is found, at law, to result from MD it leads to a claim of
           MDA. The latter is subsumed by the defence of MD. Successful claim of MDA would trigger s. 16 and result in a verdict of
           NCR because of MD. A must provide expert evidence of involuntariness. The burden will be met when trial J concludes
           that there is evidence upon which a properly instructed jury could find on b.o.p. that A acted involuntarily. Trial J will
           examine expert evidence and inquire into the foundation and nature of expert opinion. If the trail J concludes that proper
           foundation has not been established, the presumption of voluntariness will be effective. A can still claim s. 16 defence of
           MD. Whether the condition is a MD? Trial J should start with the proposition that the condition is a MD. Internal cause
           theory – A’s reaction to psychological blow is compared to that expected of a normal person in the same circumstances in
           order to determine whether the condition A claims to have suffered from is a disease of the mind. It is a contextual
           objective test (only an analytical tool). Continuing danger theory – likelihood of recurrence is assessed based on any
           evidence, e.g. psychiatric history, likelihood the trigger will recur. If the condition can recur it suggests MD, but
           unlikelihood of recurrence doesn’t preclude finding MD. Two theories are not mutually exclusive or alternative to each
           other. Policy factors – trial J may identify a policy factor. Any valid policy factor can be considered to determine whether A
           suffered from a disease of mind.
Cameron: extrapolates beyond one event which is at issue. Cause of dissociation and the outcome:
      Internal cause – likely MDA. External cause – may be NMDA.
      Continuing danger – risk of recurrence of dissociation or the act that triggers dissociation.
      Policy – feigneability of the condition.
      Likelihood of recurrence. If trigger is generalized likelihood of recurrence increases (trigger is not one person’s action, but
       underlying condition that A has).
Intoxication
R. v. Bernard (1988), SCC – only in gen intent offences if intoxicated to the state of automatism
Reasons      Minority (Dickson CJ): sanction of imprisonment without proving blameworthy state of mind violates s. 7 of the
             Charter. Rule that intoxication is not a defence is not saved by s. 1. If public protection requires special measures it is
             up to P. McIntyre J: General intent – the only intent involved relates solely to the act in question with no further
             purpose. Specific intent – performance of AR + intent/purpose going beyond the mere performance of the act. SA –
             general intent. Disagree with CJ. It would mean the more drunk one becomes more chances he will have for acquittal.
             Ways to prove MR: 1) It can be inferred from AR; 2) By proving that A voluntary self-induced intoxication. Reckless
             behaviour in achieving that level of intoxication gives necessary evidence of culpable MR. Policy factor: intoxication is a
             major cause of crime. Majority (Wilson J) (doesn’t like Dickson proposal and McIntyre proposal).
General intent, e.g. assaults including sexual assault. Specific intent, e.g. administering poison with the intent to kill.
R. v. Daviault, [1994] SCC – defence available only if intoxicated to the level of automatism.
Majority (Cory J): Leary rule denies A the ability to negate his awareness of committing the crime. A’s intention to drink is substituted
for the intention to commit the offence. Requisite MR of SA – intention to commit SA or recklessness as to whether the actions will
constitute SA. MR can be inferred from the proof that SA was committed by A. But substituted MR of an intent to become drunk cannot
establish MR to commit SA. Minority (Sopinka J): None of the principles of fundamental justice require that the intent to perform AR of
general intent offence be an element of the offence. Proof that A became voluntarily intoxicated is sufficient. To allow A, who is not
affected my MD, plead absence of MR where he has voluntarily caused himself incapable of MR would be to negate the principle of
moral responsibility which the requirement for MR is intended to give effect to. A blameworthy state of mind is sufficient, it doesn’t have
to be the blameworthy state required by this specific offence.
s. 33.1 of Crim code has since been enacted. Its constitutionality has not been confirmed.
Whether A was so drunk to be in a state akin automatism (Q of fact). Whether A can rely on s. 33.1
Defences
                                                                                                                                               9
Excuse: A has committed the offence, but his action is excused because of some circumstances (duress, necessity).
Justification: A never really committed a crim offence because his action was right (self-defence).
Common law defences                                          Statutory defences
Mistake of fact – negates MR acts like defence               MD (s. 16) – b.o.p.
Automatism – b.o.p.
Intoxication – b.o.p.                                        Intoxication (s. 33.1)
Necessity
Duress (Hibbert)                                             Duress (Ruzic)
                                                             Self-defence
                                                             Provocation
Necessity - R. v. Perka (1984), SCC
Ratio       1.Urgent and imminent danger or peril 2. No reasonable legal alternative 3. Proportionality between the harm avoided
            and the harm done.
Decision Dickson J: 1)conceptually either justification or excuse; 2) only excuse available in C as per s. 8(3) of Crim Code;
            3)necessity as an excuse implies no vindication for the act; 4)criterion – involuntariness of the wrongful act, e.g. self-
            preservation, altruism; 5)proportionality - measured on the basis of society’s expectation of normal resistance to
            pressure; 6)negligence or involvement in criminal activity at the time of the act still allows to claim a defence of
            necessity; 7)existence of a reasonable legal alternative => cannot claim excuse of necessity; to be involuntary the act
            must be inevitable, unavoidable and afford no reasonable opportunity for alternative cause of action; 8)the defence
            applies only where there was imminent risk, and the action was taken to avoid a direct an imminent peril; 9)where A
            shows sufficient evidence to raise the issue, the Crown is to disprove it b.r.d. Wilson J: justification should be allowed
            as appropriate defence in situations where A was acting in discharge of a duty recognized in law.
Dickson is wary of the idea people excusing themselves because they acted out of necessity.
R. v. Latimer, [2001]
Ratio        Parts 1 & 2 from Perka are assessed on a modified obj standard, i.e. obj evaluation taking into account the situation and
             characteristics of A. Part 3 measured on an obj standard. ‘air of reality’ requirement before charge goes to the jury.
Duress Excuses responsibility if the crime was committed under compulsion by threat of another person. Moral involuntariness, A
cannot do the right thing because he is threatened. s. 17 of the Crim code limits application of the defence - excludes 22 offences.
Principal offenders can rely only on s. 17 defence Ruzic. Party to the offence can rely also on common law defence of duress.
R. v. Hibbert, [1995] SCC
Ratio        A party to the offence can rely on common law defence of duress if he can establish there was no reasonable legal way
             out from the situation of duress. M.O. standard.
Facts        A claimed that he had called V under threat that the offender would seriously harm or kill him if he would not comply.
R. v. Ruzic, [2001] SCC
Ratio       Availability of safe avenue of escape from the point of view of r.p. in like circumstances and proportionality between the
            harm avoided and harm done (replace requirement for presence of the threat maker at the time and place of the
            offence). A’s ability to perceive a reasonable alternative based on his background will be taken into account.
Issue & Only voluntary conduct should attract the penalty and stigma. s. 17 requires immediate presence of the person who
                    at the time when the offence is committed. A cannot rely on              in
Decision threatsharm => violates s. 7 of the Charter. Analogy of common law defenceandsituation of hostage taking or threats of
            future                                                                 duress       s. 17 defence; and necessity defence
            and duress defence. Ct focuses more on whether A had a safe avenue of escape. The nature of the threat influences
            the assessment of safe avenue of escape.
A has to show that his acts were morally involuntarily. Evidence should be provided by A to suffice J’s want for an air of reality.
Courts’ steps to constitutionalise defences of necessity, duress, intoxication opened up a possibility of defence.
Self-defence
Requirements of 34 (1): A did not provoke the assault; cannot rely on 34(1) if intended to cause death or grievous bodily harm; the force
must be no more than is necessary.
S. 34(2) used whenever death or grievous bodily harm results. Requirements: A must be under reasonable apprehension of death or
grievous bodily harm; must believe that he cannot preserve himself otherwise.
                 rd
Protection of a 3 party is covered by s. 37 – everyone is justified in using force to defend himself or anyone under his protection from
assault if he uses no more force than is necessary to prevent the assault or the repetition of it.
R. v. Lavallee, [1990] SCC
Ratio        M.O. standard. Test: given A’s history and circumstances, was the belief that she could not preserve herself other
             than by shooting reasonable?
Facts        A shot her partner in the back of the head as he was exiting the room. A claimed self-defence, as the partner had
             threatened to kill her. There was evidence that he had frequently beaten her before.
Decision     It is not for the jury to judge why battered woman stayed in the relationship. Self-defence doctrine does not require a
             person to retreat from the home i/o defending herself. Imminence requirement of harm/death has to be adapted to the
             battered women syndrome (the pattern of violence in the partnership relationship).
Cameron: there was a concern with subjectifying the defence and creating beneficial conditions for some classes of defendants. Too much subjectivity is
bad, as it would hamper the functioning of legal system.
Wilson J contextualized concept of battered woman to create a different apprehension of reasonable belief.
What about any one subject to physical abuse? Can the approach apply to them?
The case relaxed the temporal connection requirement (s. 34(2)) between the threat and violent self-defence.
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