Criminal Law Summary
Legislating the Criminal Law
a) The Creation of Criminal Law (1-9)
R v Sedley, 1727: Judges usually writes judgement, earlier in common law, reporters took down decisions and
recorded them. Oral tradition
-Offense: nudity in public, went against modesty, breaching King‘s peace, profane language, throwing urine
- No way of knowing what actual offense was, leaving decision to judges- type of conduct that constituted
crime unclear was.
- Federal parliament has jurisdiction to enact criminal code
Frey v. Fedoruk, 1950 SCC:
Facts: Frey seen by Fedorouk on property, peeping into window. D chases with weapon, caught and detained him.
Second D (police officer) arrested. Frey sued for damages for malicious prosecution and false imprisonment.
Issue: Narrow: Can an individual be convicted of crime if not recognized under criminal code?
Broad: Should courts continue to expand offenses at common law?
Ratio: Courts are reluctant to hold that acts that have previously not been criminal become criminal simply
because a violent retributive act may occur. Criminal offense should be defined clearly enough so that normal
citizens will be confident they are not breaking the law if wish to be law abiding citizens
3 Reasons: 1) Slippery Slope- In time lead to criminalization of many things like adultery that are not crime
2) Create Uncertainty: Loosely defined/general offense, court could characterize many things criminal.
(defer to Legislature)
3) People need fair notice before they act- Otherwise denied opportunity to choose if can and should
violate criminal law.
Conclusion: No clear guiding standard. Developed entirely on what judges think. Could result in inconsistencies,
unwanted consequences of decision.
Nullum crimen, nulla poena, sine lega- no punishment without crime, without law.
Peeping not a crime, therefore was falsely imprisoned
1955- parliament amended the code- trespassing 2005- voyeurism
R v. Henry 2005, SCC:
Issue: Is Obiter dicta of the SCC binding?
Ratio: Not all obiter dicta of the SCC is binding (intended to foster creativity by the lower courts);
Borderline between obiter and ratio sometimes ambiguous
All obiter do not have, and are not intended to have, the same weight. The weight decreases as one moves
from the dispositive ratio decidendi to a wider circle of analysis which is obviously intended for guidance
and which should be accepted as authoritative.
Always wiggle room, to contend binding part is narrower or broader
legalism- too much law may not be good.
Lower courts are bound by the decisions of higher courts. Supreme Court is not bound by it‘s own
precedents, but recognize value of certainty will only overrule previous judgment if there are very
compelling reasons. Salitouro
Sellars principle – each phrase in a judgement of SCC should be treated as if enacted in a statute. Incorrect
according to SCC.
Statutory Interpretation pgs. 10-28
R v. Clarke 2005, SCC
Facts: The accused was observed masturbating near the uncovered window of his illuminated living room by
neighbours from the privacy of their darkened bedroom, from a distance of 90 to 150 feet. The police were
summoned. They observed the accused from ―just below the navel up‖ from the neighbour‘s bedroom and ―from
about maybe the neck or the shoulders up‖ from street level. The accused was charged under ss. 173(1)(a) and
173(1)(b) of the Criminal Code. Section 173(1) makes it an offence to wilfully do an indecent act (a) ―in a public
place in the presence of one or more persons‖, or (b) ―in any place, with intent thereby to insult or offend any
Issue: Was the plaintiff in a public place? Section 150 of the criminal code defines public place as ―includes any
place to which the public have access as of right or by invitation, express or implied.‖ Does the definition of access
include ―visual‖ access?
Ratio: Accused was not in a public place (his living room) within the meaning of ss. 150 and 173(1)(a) of the
Criminal Code. Public place refers to physical as opposed to visual access.
Conclusion/Other Matters: - D Acquitted
Section 150 of the Criminal Code uses the word ―access‖ in reference to a ―place‖ — in this case, a private
home. ―as of right or by invitation‖ – One is invited or where one has a right to be, not looking or listening
in from the outside.
Indecent act is defined in Section 173(1) of the criminal code.
Goal is to determine what the language means:
Ordinary Rule of Interpretation:
1) Grammatical construction: ordinary sense
2) How fits with whole scheme of legislation
3) Larger purpose: look at text (act) and legislative intention
R v. Daoust 2004, SCC
Facts: Charged under 141 and 462.31(1)(a)
Accused ran a pawn shop. On several occasions, undercover police officers offered to sell items to the
accused they claimed was stolen property
Accused charged with laundering proceeds of crime after purchasing items
English version of charging provision contained phrase "or otherwise deals with", capturing more activities
associated with proceeds of crime in actus reus than did French version
Accuseds' conduct was not expressly captured by French version of charging provision. .
Issue: Which interpretation of the offense should be used the narrower French version or the broader English
Ratio Decidendi: Rules of statutory and bilingual interpretation apply. Where the meanings of the two versions of
a provision are clear, yet irreconcilable, the common meaning of the two versions of the enactment should be
favoured. Here, the common meaning is the narrower version, which is the French version.
Conclusion: Even though the legislative history shows that the English version reflects Parliament‘s true intent, it
cannot be adopted. The Court cannot use the history of a clearly drafted statute as the sole basis for changing it or
completely disregarding its meaning.
Under the rules of contextual interpretation words that could effectively broaden the scope of a penal statute
cannot be read in.
. Buying or receiving property or similar acts involving the person who accepts or acquires the property do
not constitute elements of the offence of laundering proceeds of crime. Since the purchase was not a
―transfer of possession‖ within the meaning of s. 462.31, the accused must be acquitted.
Bilingual statute Interpretation:
1. a. Determine whether there is discordance. If the two versions are irreconcilable, we must rely on other
b. We must determine whether there is an ambiguity, that is, whether one or both versions of the statute are
"reasonably capable of more than one meaning".
c. If there is an ambiguity in one version but not the other, the two versions must be reconciled, that is, we
must look for the meaning that is common to both versions
d. If neither version is ambiguous, or if they both are, the common meaning is normally the narrower
2. Determine whether the common or dominant meaning is, according to the ordinary rules of statutory
interpretation, consistent with Parliament's intent.
3. Must also bear in mind that some principles of interpretation may only be applied in cases where there is
an ambiguity in an enactment.
―common meaning‖ is the one that is plain and not ambiguous. If neither or both are ambiguous
then normally the more favourable for the accused will be used. IF ordinary meaning cannot be
R v. Gaulis 1981, Ont. CA
Rule of statutory construction:
If penal provision is reasonably capable of two interpretations the one most favourable to the accused must
This principle does not always require a word with two accepted meanings to be given the more restrictive
meaning. Either or both meanings may apply after determining Parliaments intent. Only if ambiguity exists
after this then will statutory construction will apply.
R v. Steer (1982) – judge found D not leaving scene of accident because he deliberately rammed car.
Example of extreme example of strict construction.
R v. Pare 1987, SCC
Facts: 17 year old accused, indecently assaulted 7 year old, threatens to kill him if tells mother, then strangles him
to death. Sect. 231 of the criminal code murder taking place ―while committing‖ an indecent offense is murder in
the first degree. Had been previously found guilty of 2nd degree murder.
Issue: Is strangling the boy after committing the sexual assault defined as ―while committing‖ even though events
were not simultaneous?
Ratio: Under 231(5) if committed while domination ongoing, one continuous sequence of events it is ―while
committing‖ and considered first degree murder.
-Only if true ambiguity will doctrine of strict construction be applied. Even if wrongdoer may escape from more
o Doctrine of strict construction: adopt most favourable construction for the accused. When faced with two
or more equally reasonable interpretations.
o To decide if there is true ambiguity, look at context of whole statute and legislative intention
1. Grammatical construction
2. Fits with whole scheme it is part of
3. Larger purpose of the text and the provision of the statute, legislative intent.
o Definitions of the act? Ie: defining a public place
-No ambiguity in first degree murder, according to court ―while committing‖ sufficiently broad to include minutes
after in an effort to conceal the crime.
-Although it does mean simultaneous. Unworkable to establish when assault began and finished.
- The offense includes dominion of someone, all one continuous act, already abusing power, arbitrary and irrational
- D convicted first degree murder
R v. Mac 2001, Ont. CA
Facts: Accused was charged with possession of material and machines adapted for and intended to be used to
create forged credit cards, contrary to s. 369(b) of Criminal Code
-Trial judge held that word "adapted", meant "suitable for" rather than "modified or altered"
-Court of Appeal held that word "adapted" had two equally viable meanings and that it could not be stated with any
certainty which of two meanings Parliament intended
Issue: What is the proper interpretation of the word "adapted" in s. 369(b)?
Ratio: found that the word "adapted" had two equally viable meanings and that it could not be stated with any
certainty which of the two meanings Parliament intended. As a result, he held that the ambiguity must be resolved
in favour of the accused and allowed the respondent's appeal.
1. Persons who are subject to the coercive and stigmatizing power of criminal law are entitled to fair notice of
the conduct which will subject them to that power. Where a crime is defined in ambiguous terms, fair notice
is only given with respect to the conduct which is captured by each of the meanings which are reasonably
available upon a reading of the statute.
2. Commitment to individual liberty, especially where the criminal law power is engaged. Doubt be resolved
in favour of the maintenance of individual liberty.
The Limits of Criminal Law
i) Federalism pgs. 28-38
The scope of criminal law in Canada: Are there any limits on what parliament can label criminal?
Reference re: Firearms Act (Canada) 2000, SCC
Facts: 1995, Parliament amended the Criminal code by enacting the firearms act c.39, commonly referred to as
the gun control law, to require all firearms holders to obtain licenses and register their guns. AB challenged law
-Federal government: asserts that the gun control law falls under its criminal law power and POGG power.
-Provincial government: power falls under its power over property and civil rights
Whether or not Parliament has the constitutional authority to enact the law.
What is the ―pith and substance‖ of the law?
Vailidity of the licensing and registration provisions for ordinary firearms introduced by the firearms act?
Ratio: ―Pith and Substance is directed to enhancing public safety by controlling access to firearms through
prohibitions and penalties, which falls under federal criminal law power.
The law regulatory aspects are secondary to its criminal law purpose. The intrusion of the law into
the provincial jurisdiction over property and civil rights is not so excessive as to upset the balance
Division of Powers Analysis:
1. “Pith and Substance” or essential character or matter of the law?
a. Legislative history
b.Legal effects of the law – what and will it achieve its intended purposes?
(Appelant says law will not achieve in the fight against crime but punish law abiding gun holders.)
To figure purpose?
a. What problems is the legislation intended to address? (the ―mischief‖ approach). It is aimed at a number of evils
or ―mischiefs‖. One is the illegal trade in guns.
b. Allan Rock statements says purpose was to promote public safety.
c. purpose of leg conforms with historical public safety purposes of all gun control laws
2. Classify that essential character by reference to the heads of power under the con act 1867.
a. What is the matter in relation to?
Conclusion: Law ruled intra vires, within the legal power or authority of Parliament. Balance of federalism not
Appellant says law will not achieve in the fight against crime but punish law abiding gun holders.
Where the effects of the law diverge substantially from its stated aim it is said to be colourable.
Legislation may be classified as criminal law if it possesses three prerequisites:
2. valid criminal law purposes
a. valid purposes in Margarine Reference: ―Public peace, order, security, health, morality‖
b. gun control laws come within the criminal law sphere? Yes, they have consistently been held within the criminal
3. back by a prohibition
4. and penalty
Is moral content required?
Is the ownership of guns not criminal law because it is not immoral to own an ordinary firearm?
a) Well, ownership is not immoral but the problems associated with the misuse of firearms are firmly
grounded in morality.
b) criminal law is not confined to prohibiting immoral acts
intra vires - within the legal power or authority
ultra vires - outside the legal power or authority
Point: parliament has considerable discretion on what decides to criminalize
ii)The Charter and The Rule of Law pgs 39-61
Charter of Rights and Freedoms
entrenched by the Constitution Act 1982
s. 52(1) ―The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with
the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.‖
this grants courts the power to measure legislation against a entrenched yardstick of human rights and
Impact of the Charter most significant on procedural law. Enshrines several procedural rights quite specific
to the criminal trial.
s.7 – Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof expect
in accordance with the principles of fundamental justice.
s. 1- rights set out in the Charter are subject to ―such reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society.‖
1. Purposive approach
2. Challenged under vagueness, overbreadth, arbitrariness through s. 7. Before the advent of the Charter 'void
for uncertainty' was a well-recognized ground of challenge. Any penal law should be declared
unconstitutional if it is too vague. According to Canada v. Pharmaceutical Society (Nova Scotia), 
the test is whether there is ―sufficient room for legal debate‖ (p42).
Hunter v. Southam 1984, SCC
Facts: Pursuant to s. 10(1) of the Combines Investigation Act, the Director of Investigation and Research of the
Combines Investigation Branch authorized several Combines Investigation officers to enter and examine
documents and other things at a respondent's business premises.
Issue: Is a search under this act unreasonable under s. 8 of the charter?
Warrantless searches are prima facie unreasonable under s. 8.
Appeal dismissed, held that the section of the legislation authorizing the search violated s. 8 of the Charter.
In the result, subss. 10(1) and 10(3) of the Combines Investigation Act are inconsistent with the Charter and
of no force or effect because they fail to specify an appropriate standard for the issuance of warrants and
designate an improper arbiter to issue them.
Hunter v. Southam Inc. is a landmark Supreme Court of Canada privacy rights case and as well is the first
Supreme Court decision to consider section 8 of the Canadian Charter of Rights and Freedoms.
Can right be infringed yet saved under s.1?
s.7: principle of void for vagueness. Unduly vague, invoked principle of fundamental justice under s.7.
2 Types of Charter Challenges
1. Challenges to conduct
a. usually concern a police officers infringement of Charter standards
2. Challenges to law
a. the law is on trial so the court is not concerned with the evidence in the particular case
b. when statutory provision found in violation of Charter, its invalid under section 52, and govt argues it can be
saved under section 1.
Since the Charter, the SCC has determined that any penal law should be declared unconstitutional if it is too
vague. Applies only to law that infringes life, liberty and security
R v. Heywood 1994 SCC
Respondent's earlier convictions of sexual assault involving children made him subject to the prohibition in s.
179(1)(b) of the Criminal Code that he not commit vagrancy by loitering near playgrounds, school yards or public
parks. On two occasions, was stopped by police, the camera and film with frames focusing on the crotch areas of
young girls playing in the park with their clothing in disarray were seized.
A. Is s. 179(1)(b) of the criminal code which makes it a crime for anyone convicted of specific offenses (sex
offenders) to be ―found loitering in or near a school ground, playground, public park or bathing area‖
unconstitutional in that it violated s. 7?
B. Can it be justified by s. 1?
Is this restriction on liberty in accordance with the principles of fundamental justice?
A. Overly broad to an extent that it violates the right to liberty in s. 7 of the Charter:
1. applies to many public places that children aren't primarily expected to congregate
2. applies for life with no possibility of review
3. too broad in the number of persons it encompasses
B. No, it fails the minimum impairment branch of s. 1.
-Majority of SCC confirmed s. 179(1) unconstitutional
In determining whether s. 179(1)(b) is overly broad and not in accordance with the principles of
fundamental justice, it must be determined whether the means chosen to accomplish this objective are
reasonably tailored to effect this purpose.
Gonthier dissenting: consistent with the Charter. p 47
a lifetime prohibition of activities with a malevolent or ulterior purpose related to reoffending is in no way
objectionable or overbroad. (Gonthier raises the bar on what constitutes overbroad)
Leading Supreme Court of Canada decision on the concept of fundamental justice in section seven of the
Charter. The Court found that section 179(1)(b) of the Criminal Code for vagrancy was overbroad
and thus violated section 7 and could not be saved under section 1.
7 of the Charter has also been interpreted to prohibit criminal sanctions that are so vague or
overbroad that they do not provide fair notice to the citizen or limit law enforcement discretion
Court accepts emergencies are an exception
Could be clear, but too sweeping, Could become arbitrary
Geographical overbreath, Temporal overbreath, applies to anyone not just those who might not be
dangerous to children
Further acknowledge in malmol Levine-arbitrariness, irrationality and gross disproportionality shows
threshold is hard to meet
Canadian Foundation for Children, Youth and the Law v. Canada 2004, SCC
Facts: Section 43 of the Criminal Code justifies the reasonable use of force by way of correction by parents and
teachers against children in their care. The appellant sought a declaration that s. 43 violates ss. 7, 12 and 15(1) of
the Canadian Charter of Rights and Freedoms. The trial judge and the Court of Appeal rejected the appellant‘s
contentions and refused to issue the declaration requested.
Issue: Does s.43 violates ss.7, 12 and 15(1) of the Canadian Charter of Rights and Freedoms?
Does s43 deliniate a risk zone for criminal sanction? People must be able to assess when conduct approaches the
boundaries of the sphere that s.43 provides.
Section 43 does not permit force that cannot correct or is unreasonable. It is not overbroad.
Vagueness: a law is constitutionally vague if:
does not provide an adequate basis for legal debate and analysis
does not sufficiently delineate any area of risk
is not intelligible
certainty is not required
Law must set intelligible standard for citizen and officials who must enforce it, or too much discretion in
the hands of public officials
Should be governed by rule of law, not rule of person
Needs to be some uncertainty because no 2 cases are the same
Principle of void for vagueness not the same as void for overbreadth
Trying to lessen power of judicial review under sec. 7. Challenges based on them can be brought forward,
but these standards have few teeth and will usually fail.
iii ) The Charter, The Harm Principle and Freedom of Expression pg. 109-125
Mills principle rejects paternalism (prohibition against harming yourself) and that moral claims towards
1. traditionally has involved the imposition of sanction.
2. Instrument of last resort and used as little as possible
1. Scope of Criminal law: must not overextend itself, only seriously wrong acts should count as crimes
Harm Principle: (not principal of fundamental justice)
1. Must cause harm to other people, to society, or those needing protection from themselves
2. Harm that is serious in both nature and degree
3. Must cause harm that is best dealt with through the mechanism of the criminal law
Pg. 109 Ouimet Committee Report
o 3 suggestions: 1) No act should be criminally proscribed unless its incidence, actual or potential, is
substantially damaging to society
Pg. 110 Law Reform Commission of Canada
Criminal law should be confined to crimes of violence and dishonesty
Reports only advisory
R. v. Malmo-Levine 2003 SCC:
Facts: Using the Charter to challenge marijuana laws. Two RCMP officers on regular patrol observed C and a
male passenger sitting in a van by the ocean. As the officers approached, C, who was in the driver‘s seat, started
the engine and began to back up. As one of the officers came alongside the van, he smelled a strong odour of
recently smoked marihuana. C produced for the officer a partially smoked joint which weighed 0.5gram.
Issue: Is there a principle of fundamental justice under s.7 that a criminal prohibition will offend the Charter where
it can be established that the conduct involved no risk of harm?
Ratio: Even if the ―harm principle‖ relied upon by the accused could be characterized as a legal principle, it does
not meet the other requirements. First, there is no sufficient consensus that the harm principle is vital or
fundamental to our societal notion of criminal justice. While the presence of harm to others may justify legislative
action under the criminal law power, the absence of proven harm does not create an unqualified s. 7 barrier to
legislative action. Nor is there any consensus that the distinction between harm to others and harm to self is of
controlling importance. Finally, the harm principle is not a manageable standard against which to measure
deprivation of life, liberty or security of the person.
Conclusion: Harm principle - That the only purpose for which power can be rightfully exercised over any member
of a civilized community, against his will, is to prevent harm to others.
Interference with life, liberty and security of person must be confined to principles of fundamental justice
Broad potential for judicial action- marijuana is relatively harmless, reports only criminalize things that are
truly harmful. Fundamentally unjust to prohibit and punish unharmful behavior
Mill- Gov‘t not justified in prohibiting conduct only harmful to actor. Rejected view conduct could be
prohibited because seen as immoral. Only should prohibit conduct that has clear and tangible harm to others
Under section 7 SCC does not agree 3 main reasons not a principle of justice:
1) No consensus needs to be harm for crime ie: cruelty to animals
2) No consensus harm to self not allowed to be criminalized- ie: wearing seatbelts
3) Harm not a manageable standard- in the eye of beholder
o Court leaves one door open in addition to medical exemption, appropriateness of imprisonment
(gross disproportionality under sec 12.) does not rule out section 12 to be litigated in the future/
o POINT: still relatively few real legal checks on parliament power to make laws- elections, sect. 12
and sect. 7 are limited and specific restrictions
R v. Labaye and Kouri 2005, SCC
Facts: Only 2 years later, review of harm under criminal law
In 1997, James Kouri, the owner of the Montreal club Coeur à Corps, was accused of operating a common
bawdy-house and fined $7,500 under section 210(1) of the Criminal Code of Canada ―acts of
indencency‖. The fine came after undercover investigations of the club by police. The group sex club was
for couples who, upon entering, would be asked if they were a "liberated couple." Only those who replied
in the affirmative could enter, and the couples would have to pay an entrance fee.
Issue: Were the acts indecent in this case? Court concerned with the legal definition not the moral definition of
Ratio: Harm is the sole defining element of indecency in Canadian criminal law.for defining
Test for indecency, concentrated on whether sufficient measures were taken so that the public was not exposed to
something they would not want to see.
Not decided under charter, don‘t challenge issue of Malmo-Levine, was issue of statutory interpretation
1. crown has to establish a harm or significant risk of harm to others that is grounded in relative legal norms
2. degree of the harm
2 general requirements emerge from this description of the harm required for criminal indecency:
1. Harm must be grounded in norms which our society as recognized in its Con or similar fundamental
2. The harm must be serious in degree.
2 step analysis before acts can be considered indecent under the criminal code:
1.whether the crown has established a harm or significant risk of harm to others that is grounded in societal or
2.where the harm is incompatible with the proper functioning of society.
Reasonings for new test: new standards in society, values reflected
Fair notice to offenders, Serious harm can provide fair notice
Seems majority is trying to set clearer boundaries which prevent judges from being lawmakers
****Is test really objective?
The Criminal Process
a) The procedural classification of offences Pgs. 62-64.
At common law distinction between:
1. indictable offenses (treason, felonies, misdemeanours)
2. those triable only by way of summary conviction proceedings
3. or those triable by both
In Canada today, the Code distinguishes between:
1. indictable offenses-those triable only by way of summary conviction proceedings
2. those triable on indictment or by way of summary conviction proceedings
Offences triable only on indictment:
Indictable offenses are divided into 3 categories:
1. Most serious given into the exclusive jurisdiction of the Superior court of criminal jurisdiction
2. Least serious in the jurisdiction of a magistrate
3. for the great bulk remaining the defendant is allowed to choose the mode of trial (do not choose and you get
trial by judge and jury).
To arrest for indictable offense must have reasonable and probable grounds, the person committed the
offense. Caught in the act
Superior court has exclusive jurisdiction, no other court can try these offences. The magistrate has absolute
jurisdiction: entitled to try these offences, not dependent on the accused electing to do so.
Prosecution by summary conviction is for less serious offences. ($2000 or 6 months imprisionment)
Crown Election Offences
If you are charged with a hybrid offence, it is considered indictable until the Crown decides how it will
In ―hybrid‖ offences, the Crown has the discretion to prosecute the offence by indictment or as a less
serious summary conviction offence
A magistrate is a judicial officer. In common law systems a magistrate usually has limited authority to
administer and enforce the law.
b) The Presumption of Innocence p.66-93
(i) Common Law
Presumption of innocence and that the crown must normally prove to a standard of proof beyond a
reasonable doubt were asserted by the House of Lords in:
Wolmington v. D.P.P. 1935, HOL
Facts: Wife left husband. Husband shot wife but claims it was an accident and he was just there with a gun to scare
her into thinking that he was going to commit suicide and into coming back to him. Husband confessed in a letter
but unclear if it was written before or after the incident.
Issue: If accused of murder, what onus rests on the defendant to prove innocence?
The crown has got to satisfy you beyond a ―reasonable doubt‖
Decisions rejects presumption of guilt as laid out in the cases below.
―It is not for the prisoner to establish his innocence but for the prosecution to establish his guilt.‖
Prisoner entitled to the benefit of the doubt.
When dealing with a murder case, crown must prove:
1. death as a result of a voluntary act of the accused,
2. malice of the accused (expressly or by implication). Malice may be implied where death occurs as a result of a
voluntary act of the accused which is (i) intentional or (ii) unprovoked.
Accused must prove that act was provoked or unintentional for acquittal.
- Was presumed to be murder unless W could satisfy jury it was something less- was trial judge wrong to
tell jury W had to prove it was an accident. If did not prove, (in state of doubt) he would be found guilty.
Was judge wrong saying W had to prove he was innocent?
Sufficient that the D raise a reasonable doubt ―Woomlington Priciple‖ Golden thread of English criminal
Even if don‟t accept evidence of D, on the whole of the case if still have reasonable doubt, P has not
made case and D is entitled to an acquittal.
Reg v. M’Naghten: it was firmly established that the onus is on the accused to establish defence of insanity.
Case stands by itself. Unique position
Rex v. Greenacre.: ―In every charge of murder, the fact of killing being first proved, all the circumstances
of accident, necessity, or infirmity, are to be satisfactorily proved by the prisoner‖ – this is a presumption of
guilt mentioned in the case of
Rex v. Abramovitch: also lays down the presumption of innocence proposition
Rex v. Davies: no onus on the defendant to prove that an act was accidental.
C.K. Allen (p72):
C.K. Allen: it is only when there is a reasonable and uniform probability of guilty persons being detected
and convicted that we can allow human doubt to prevail over security.
The principle of reasonable doubt is a counsel of prudence, and there is considerable judicial authority for
this view despite little authority cited for it at that point.
Is there any true difference between a preponderance of probabilities and a reasonable certainty (the
converse of reasonable doubt)?
Sect. 11-6: Presumption of innocence in our Charter
Why do we have it? Stigma of being convicted of a crime.
Is it better to let a murderer go free? – no one wants to be innocent victim sacrificed for public order
Proof Beyond Reasonable Doubt- Presumption of innocence would be hallow without this principle
If ―more likely than not accused guilty‖ not good enough
In theory these concepts combined are our protection
ii) Resonable Doubt
R v. W. (D.) 1991, SCC
Facts: Accused convicted of sexual assault after trial that pitted the credibility of the accused against the
complainant. In a short recharge the trial judge said the jury had to choose between believing the complainant
or the appellant. Defence complained that the jury would think that they would have to accept the accused‘s
evidence in order to acquit him.
Issue: Did the Judge‘s recharge in a case violated the principle of ―reasonable doubt.‖?
Trial judge erred in his recharge. It is incorrect to instruct a jury in a criminal case, in order to render a
verdict, that they must decide whether they believe the crown or defence evidence. It‘s not either or and
ignores that the jury, after considering accused‘s evidence, can still acquit on a ―reasonable doubt.‖
In a case where credibility is important, the jury does not have to firmly believe or disbelieve either way:
they must acquit in two situations
1. if they believed the accused
2. if they do not believe the accused evidence but still have a reasonable doubt as to his guilt after
considering the accused‘s evidence in the context of the evidence as a whole.
R. v. Lifchus 1997, SCC
Facts: Accused charged and convicted with fraud. On appeal defence held that judge erred in the meaning of
―beyond an reasonable doubt.‖ Judge characterized them ―in their ordinary, natural everyday sense.‖
1. Did trial judge err in characterization of phrase?
2. What is the proper definition?
These words have a specific meaning in the legal context. A proper explanation is essential to the
instructions given to the jury.
If instructions by the judge give rise to the reasonable likelihood that the jury misunderstood the standard of
proof, then as a general rule the verdict will have to be set aside and a new trial directed.
: ―beyond reasonable doubt‖ taken in natural and ordinary sense.
o SCC- not an ordinary expression. Not enough to tell jurors akin to standard of important decision
o Accused presumed to be innocent, until proved beyond reasonable doubt guilty
o Not a frivolous doubt, must be based on reason and common sense. ―probability guilty‖ is not
enough. Must give benefit of the doubt to accused and acquit.
o But also virtually impossible to have absolute certainty. Must define it falls much closer to absolute
o Still vague standard, but leave to jury to determine.
o Accused has to invoke air of reality for defense. If no air of reality, judge not permitted to put
defense to jury.
o “air of reality”- test whether evidence upon record, which reasonable acting jury could acquit
o Court- difference between legal and evidentiary burden
Evidentiary burden to lay foundation is on party that want to put defense in play
Legal burden never shifts from Crown
R v. Starr 2000, SCC
Facts: Accused convicted of 2 counts of first degree murder. The majority of the court decided that the reasonable
doubt instruction contained many of the same difficulties outlined in Lifchus, and likely misled the jury to the
content of the criminal standard of proof.
Issue: Did trial court err in defining beyond a reasonable doubt?
Error: jury was not told how a reasonable doubt is to be defined.
A jury must be instructed that the standard of proof in a criminal trial is higher than the probability
standard used in making everyday decisions and in civil trials.
It falls much closer to absolute certainty than to proof on a balance of probabilities.
Reasonable doubt standard appropriately situated between less than absolute certainty and more than
Lifchus is the standard.
iii) Reverse Onus and the Charter
The presumption of innocence is now a Charter right in s.11
Reverse Onus- when accused bears burden to prove case. statutory provision that where one element of the
offense is satisfied, another element will be automatically proven to be on the accussed unless the accussed
can prove otherwise
. Ie: Oakes Case: Assumption trafficking drugs because found in possession of them.
o Standard of balance of probabilities instead of beyond reasonable doubt
o In violation of the Charter? Yes because sect. 8 compells him to disprove an offense. It is
inconsistent with presumption of innocence.
o Reasoning pg. 92
o Reasonable connection test is not sufficient. Crown must prove WHOLE case beyond reasonable
R v. Oakes 1986, SCC (p79)
Facts: s.8 of the Narcotic Control Act finds that if a court finds an accused in possession of a narcotic, he is
presumed to be in possession for the purpose of trafficking. Unless the accused can establish the contrary, he must
be convicted of trafficking.
Ontario court of appeal held that this constitutes a reverse onus on the accused.
Issue: Is of s.8 of the Narcotic Control Act Constitutional?
Ratio : Presumption of innocence essential to the general protection of life, liberty, and security of the person
contained in s.7 of the Charter (Reference re s. 94(2) of the MotorVehicle Act)
Conclusion: The meaning of a right or freedom guaranteed by the charter has to be understood in the light of the
interests it was meant to protect: R. v. Big M Drug Mart Ltd. (1985)
o Reasonable connection test is not sufficient. Crown must prove WHOLE case beyond reasonable
The right to be presumed innocent requires that section 11d have at a minimum the following content:
a. an individual must be proven guilty beyond a reasonable doubt
b. it is the state which must bear the burden of proof
c. criminal prosecutions must be carried out in accordance with lawful procedures and fairness
s.1 has two functions
1. Constitutionally guarantees the rights and freedoms set out in the provisions which follow and
2. States explicitly the exclusive justificatory criteria against which limitations on those rights and
freedoms must be measured.
The onus of proving that a limit on a right or freedom guarantee by the Charter is reasonable and
demonstrably justified in a free and democratic society rests upon the party seeking to uphold the
Burden is on state to prove limitation of right is justified under sect. 1. Prove all steps of Oakes test are
The standard of proof under s.1 is the civil standard—proof by a preponderance of probability.
Bater v. Bater, - there may be degrees of probability within the preponderance of probability
Very high degree of probability required in limiting a Charter right.
To establish that a limit is reasonably and demonstrably justified in a free and democratic society two
central criteria must be satisfied:
1. the objective must be ―of sufficient importance to warrant overriding a constitutionally protected
right or freedom. Objective related to concerns that are pressing and substantial.
2. once objective recognized then the means chosen must be proven reasonable and demonstrably
justified—this involves a form of proportionality test (R v. Big M Drug Mart Ltd, p.352).
3 important components of the proportionality test:
a. measures adopted must be carefully designed to achieve the objective in question, they must not
be arbitrary, unfair, or based on irrational considerations.
b. Should impair as little as possible
c. Proportionality between the effects of the measure and the objective.
What tests actually should be Chaulk- there is reverse onus. Defence of insanity is infringement of charter,
but accused needs to prove he is insane. Saved under sect. 1.
Now conceivable other offenses of reverse onus might be saved under section one.
R v. Downey 1992, SCC
Facts: Accused charged under s.195 of the Criminal Code (now s.212) with living off the avails of prostitution.
Code stated that ―evidence that a person lives with or is habitually in the company of prostitutes…is in the
absence of evidence to the contrary, proof that the person lives on the avails of prostitution.‖
Constitutionality of that mandatory presumption.
Is infringement saved by section 1?
Principles governing reverse onus clauses and the presumption of innocence articulated.
1. POI infringed when accused liable to be convicted despite the existence of a reasonable doubt.
2. If accused, by statute, has to prove or disprove, on the balance of probabilities an element of an offense it
3. Even if rational connection exists between established fact and fact to be presumed insufficient make valid
4. Legislation which substitutes proof of one element for proof of essential element will not infringe on
presumption of innocence. If proves other element beyond reasonable doubt
5. Assumption that may but not must draw assumption draw inference of fact will not infringe
6. Provision intended to play minor role will contravene Charter if must be established by accussed.
7. May still be justified by s. 1
s.11(d): 1. Any person charged with an offence has the right ...
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and
c) Introduction to Evidence Law Pgs. 64-66, 94-107
What is Evidence?
Crown has the obligation of proving the allegations by evidence.
Relevance: there must be a rational connection between the evidence and the proposition sought to be established.
The facts tendered in evidence are either:
1. Testimonial, or direct evidence: trier judges truth of witness statement
2. circumstantial: facts connected with the material fact are proved and the trier is asked to infer from these
facts that the material fact exists.
The concept of materiality demands a rational connection between the tendered evidence and a fact issue.
For evidence to be received it must be relevant to material issue..
Important to consider materiality. Not enough to be relevant (rationally connected to ANY fact) must be
connected to Material Fact. A fact that is an issue
Court not designed to review all that has occurred, but rather segment of history.
Must clear all 3 hurdles 1) relevant 2) relevant to material fact 3) not excluded under laws of evidence, ie:
R v. Duguay 1985, SCC
Issue: Should the evidence obtained be excluded as a result of the Charter?
Ratio: Even illegally obtained evidence was admissible, under the test of the time, Community Shock Test. (pre
charter trial) Evidence only excluded in―highly exceptional cases‖ Community Shock test retains value in
determining exceptional quality. Charter must now be considered evidence admissible unless brings administration
of justice into disrepute. When there is a Charter violation must ask- Would the damage do more the fabric of
society than crime being investigated?
Community Shock Test (Rothman): looks at manner in which evidence obtained. If obtained in manner that would
shock Canadian Community not admissible
ie: pretending to be priest taking confession would shock
community, but pretending to be drug addict to break drug ring would not shock them.
Vague test, evaluation would become subjective and inconsistent- so 1982 Charter is adopted sect 24(2)
discretion to exclude evidence
When court concludes evidence obtained that infringed on rights of Charter, evidence will be excluded if
admission would bring administration of justice into disrepute
R v. Buhay 2003 SCC:
Facts: Police conducted warrantless search of bus locker and found marihuana. Court found search violated s.8
right to be free from unreasonable search and seizure
Issue: Should the evidence be excluded under s.24(2) of Charter
Ratio: Evidence excluded on 3 factors 1) Trial Fairness 2) Seriousness of Breach 3)The Effect of Exclusion on the
Reputation of the Administration of Justice- mandate to weigh the 2 previous factors against the objective of
getting to the truth of the matter
Conclusion: Court will not interfere with trial judge`s conclusions absent apparent error as to applicable principled
or rules of law or unreasonable finding.
1) Admission of ``conscription evidence``- accused compelled to incriminate himself by means of statement,
use of the body or production bodily sample, violation cannot be admitted. Marijuana can be admitted it
was `Discoverable evidence``
2) Was it committed in good faith or deliberate, wilful or flagrant. Was it motivated by urgency, could be
obtained by other means- could have obtained search warrant but didn`t `casual approach`` absence of
sincere effort to comply with Charter. Search not obtrusive
3) Conviction turned on admissibility of evidence- essential to case favour admitting it. S. 24(2) not remedy
for police misconduct.
ACTUS REUS: THE CONDUCT ELEMENT
a) What is an act Pgs. 194-219
Actus Reus: A traditional principle of criminal law has been that the accused must commit the criminal act at the
same time that he or she has the fault element or mens rea (mental element)) required for the particular crime. This
requirement is sometimes called the simultaneous principle.
Criminal responsibility requires elements of an offense be met when there is no defense that is present.
Must be a guilty act, actus reus, accused must have done an act voluntarily, the product of a willing mind
with choice to engage or not engage in conduct prohibited by criminal law. Must be accompanied by a
guilty mind mens rea, must have done act while simultaneously possessing a culpable, blameworthy state
Are definitional elements for all crimes actus non facit reum and nisi mens sit rea no guilty act without a
Do not appear anywhere in criminal code, are customary, used by lawyers to describe customary features of
Actus reus: guilty act requirement- depends on statutory provisions. Must study provision to discern what
the actus reus is. Elements are external circumstances of the offense
Might not go through with it, even if think about it. Thoughts are unknowable
What about if had proof, like diary entry or told someone else? Can‘t punish every person can‘t tell how
serious they are
Even when mental element met, no responsibility is possible without prohibited act being carried out Ie: if
shot someone already dead, did not cause act so there is no actus reus, intention cannot undo this. May be
Commission of an Unlawful Act
(a) Causing Disturbance in Public Place
R. v. Lohnes 1992, SCC
Facts: Disagreement between 2 neighbors, focuses on s.175. Porter collects equipment which happen to make loud
noises. Lohnes get sick of it, and yells profanity at Porter. Also claims that if he had a gun he would shoot Porter.
Two element offense: (1) Cause disturbance; (2) In or near a public place. No issue on if offense occurred
(shouting swearing) only thing to be determined is if it was in a public place.
Issue: What constitutes disturbance? Mere irritation or emotional disturbance?
Ratio: Disturbance must be reasonably have been foreseen in circumstances, no disturbance in this case, wasn‘t
enough of a disturbance, no manifestly external act of disturbance. Mental disturbance is not enough. In order to
have a disturbance needs to be more than emotional upset, needs to be external disturbance of the peace, where use
of the public place is interfered with. Can be small, but must be present (ie: distracted from working) must be
reasonably foreseen in the circumstances of the time and place.
Judge concludes that the enumerated conduct must cause an overtly manifested disturbance which constitutes an
interference with the ordinary and customary use by the public of the place in question
Conclusion: Statutory interpretation and look at case law- concludes few if any convictions absent overtly
manifest disturbance. Interruption of tranquility or emotional upset insufficient
Precedence is there is no need for a second disturbance secondary to disturbing act. Act itself may amount
Principles of Statutory Construction: Meaning of the words- not everything that disturbs results in public
disturbance. If parliament wanted to protect against emotional disturbances they would have expressly
stated it. Reconciled with French version
Page 141 of code- title of section is Disorderly conduct, more than emotional.
Policy:- Fundamental justice considered- know in advance conduct a crime FAIR NOTICE
Foreseeability cannot be punished- pg 200 criminal law stepping in at this stage is overkill
Judge allows appeal.
Can‘t be subjective sense because could be affecting anyone at any time. Ordinary custom use and time and
place important. Court doesn‘t want to deal with minor disturbances. Criminal law should only be used for
offences which are serious enough to require the law.
(b) Deeming Provisions
The task of the Crown in proving that a particular element is met is sometimes made easier by the presence
of a ―deeming‖ provision in the Criminal Code.
(c) Vicarious Liability
One person is automatically responsible for wrongdoing of another soley on the basis of a relationship
between the parties, irrespective of whether that person was at fault or even acted. Courts reluctant to
impose it in criminal law unlike tort law. Usually, they only impose when there is an express statutory
R. v. Burt 1985, Sask. QB
Facts: Car made excessive noises and left tire marks. The RCMP pursued, and found the owner by the vehicle,
who ignored the officer and walked in his residence. The driver of the vehicle was not identified, so it is presumed
to be the owner under s. 253, which states an owner of a vehicle is liable for violations in that vehicle unless can
prove that it was not operated by him or other person with consent express or implied. The trial judge held that this
contravened s. 7: not deprived of rights except in accordance with principles of justice. Crown appealed.
Issue: Does the absence of actus reus render the legislation invalid?
Ratio: Law invalid due to vicarious liability, there must be a mens rea and actus reus for there to liability. There
must be a minimum of control for there to be an offence.
By reason of s.253, an owner became vicariously liable for any violation of the Act in which the vehicle
was involved. An owner could be convicted without mens rea and actus reus.
Throughout the history of common law, there had to be an actus reus, and mens rea as well.
However, the legislative tradition is more mixed
Reverse onus- D must prove they were not consenting to person driving- don‘t need to bother with it
because whole law invalid do to vicarious responsibility
Effects of this law- the owner would not be convicted of his actual crime (letting someone use his vehicle
improperly) but would actually be convicted of the substantive offense or actual violation (loud noise).
Law is contrary to principles of fundamental justice so invalid under s. 7 of charter and s. 1 cannot save
this law. Appeal should be dismissed.
(d) Possession Offences
Marshall v. R. 1969, Alta. CA
Facts: Boys went to Vancouver. Marshall says that he discovered there was marijuana in the car on the way back.
He passed it on, but did not smoke it. On the way back they were speeding, and as they were being pulled over,
they threw the bag of MJ out the window. They came back for the bag, and at that time, Cameron was detained.
Appellant claims he didn‘t want to go back for it. They drove again towards Calgary but were stopped because of
a faulty light fixture. The police then found the marijuana on the floor, an additional bag in Cameron‘s sweater,
and a hookah. Charged with possession s. 4(3). Trial judge says that Marshall was in possession because he rode in
the car for as long as he did, and did not protest the actions of the others.
Issue: Should D be guilty of possession under s. 3(4)(b) which states where one of two or more persons, with the
knowledge and consent of the rest, has anything in his custody, it shall be deemed to be in the custody and
possession of each and all of them.
Ratio: Unnecessary to find ―control‖ in order to find ―knowledge and consent‖ as described by s. 3(4)(b), however
riding in car does not automatically constitute consent to drugs in car.
Conclusion: Court held that since had little money and no other way to get home, although error in judgment
understandable 16 year old stay in car.
Consenting to ride home, not consenting to drugs in car. Did protest going back for drugs
Fact passed on pipe, comes close to consent, but could be reflex
Did not help the police but did not hinder them either
He is thus not guilty of the offence.
R. v. Terrence 1983, SCC
Facts: The accused was charged under s. 3(4)(b)for having unlawfully in his possession a car of value exceeding
$200, which was the property of Trudeau Motors. Stolen car, Terrence goes on a ride with a friend. The friend
claims its his brother-in-law‘s new Camaro. Terrence was convicted by trial judge on premise that Terrence knew
that the car was stolen. Court of Appeal finds there is reasonable doubt that he did not know it was stolen.
Issue: Should D be convicted when he did not steal the car and possibly did not know it was stolen
Ratio: Not only knowledge and consent, but need control as well for there to be an actus reus.
Conclusion: R. v. Lou Hay Hung in order for there to be possession, knowledge and consent are vital.
SCC agrees with CA. Appeal dismissed.
R. v. Pham 2005, Ont. CA
Facts: A lived in apartment and on numerous occasions was seen by neigbours giving visitors plastic bags with
white powder. She left the apartment for 32 hours and the police raided her apartment when her roommate was
home. There was no actual evidence of possession because the appellant was not present in the apartment when the
search was conducted. So the Crown‘s case rested on constructive or joint possession.
Issue: Did the A have knowledge and control of the cocaine in her apartment and therefore have it in her
possession even though possibility someone else brought it into apartment
Ratio: Joint or constructive possession can be accomplished by direct evidence or inverted from circumstantial
Conclusion: Is D guilty even though wasn‘t home and drugs could have been brought by someone else- yes
circumstantial evidence was capable of excluding reasonable inference someone else left cocaine in bathroom
3 types of possession:
(ii) Constructive Knowledge which extends beyond quiescent knowledge and discloses some
measure of control over the item to possessed.
(iii) Joint Knowledge, consent and a measure of control on the part of the person deemed to
be in possession.
Evidence allows exclusion of theory that someone else brought the drugs while she was absent.
Dissent McMurtry – not capable to infer because was gone for 32 hours
b) Omissions and the Duty to Act Pgs. 247-295
a) Moral and Legal Duties
General common-law principle is that criminal responsibility for omissions is limited to cases where
there is a legal and not merely a moral duty to act
Buch v. Amory Mortgage Co. 1898: with purely moral obligations the law does not deal, not liable
for child‘s injuries if stand by while child in danger that you could have prevented
H. R.S. Ryan Criminal Responsibility for Omissions: Bentham- would impose duty on everyone
to save another from harm when can do so without ―prejudicing himself‖
o Somebody present and aware of danger and who can easily prevent harm without danger to
himself, and omits to act, where harm follows as a consequence
o Livingstone- ―without personal danger or pecuniary loss‖
o Macaulay- rejected this idea based on difficulty, if not impossibility of defining the
conditions and limitations of guilt. Would be infinite number of cases in which answer
would be in doubt
Difficulty in practice to define the limits of an offence based on an omission- could
be defined to include only situations in which clearly demonstrated actor could have
acted without harm.
Omission illegal if intended to cause harm.
Macaulay and the English court have reached the same position
Quebec Charter of Human Rights and Freedoms 1980: If life in peril have right to assistance.
Every person must come to aid unless involves danger to himself or 3rd person or has valid reason
French Penal Code 1958: if able to prevent an action/provide assistance without risk to self or
others, and voluntarily neglect to will be liable and can be imprisioned from one month-3 years and
fined 24,000-1,000,0000 francs.
B) What is an Omission?
O.W. Holmes, The Common Law: right to stand by but once meddle no longer have that freedom. Cannot
withdraw at will. Would not matter if wickedness began with act or with the subsequent omission
Fagan v. Commissioner of Metropolitan Police, 1968 CA England
Facts: A was convicted of assaulting a police constable. Was reversing a car when police officer directed him to
drive forwards and standing at front of car pointed to suitable place to go. D drove over PO foot and when asked to
take it off refused. A stated could not have been assault because when wheel mounted foot there was no mens rea.
After which there was no actus reus, but only omission.
Issue: Did the prosecution prove facts which in law amounted to an assault? Was the act of the appellant complete
at moment when car landed on foot or was it a continuing act operating until the wheel was removed?
Ratio: An assault is any act which intentionally or recklessly causes another person to apprehend immediate and
unlawful personal violence, some intentional act must have been preformed, mere omission cannot amount to
assault. Became assault moment intention was formed to continue the act, even though at its inception there was no
Conclusion: Act was not complete until the wheel was removed, when gained knowledge of the situation an act
was required. However generally there is no duty to act
- ―knowingly, provocatively and unnecessarily allowed wheel to remain on foot‖ after officer said get off. Found
on these fact assault proved.
o Standing on foot or using stick it would have been assault if failed to remove, so the car is an
extension of the person. No difference. Accept continuous act theory
o Pg 256: crucial question is act complete- when all results are continued to be felt. But threat of harm
are over the act is completed, whereas when harm remains continuing.
o If hadn‘t been a continuing act would not have been convicted no mens rea, need an act for assault
- Cannot regard this activity as mere omission or inactivity
- Appeal dismissed
- Dissent- Bridge: No mere omission can amount to assault. After wheel of appellants‘ car accidently came
to rest on constable‘s foot, the appellant did nothing to constitute assault.
o Did not maintain the wheel there or hold it there, just allowed it to remain there. Would have
allowed appeal and quashed conviction
- Case illustrates not always clear cut if dealing with an act or an omission
- Absent a legally to act, there can be no liability to omission. Only if in act.
C) How Do Legal Duties Arise?
Sometimes through statutes
R v. Miller, 1983 HOL
Facts: Written undisputed statement to the police by appellant stated lay on mattress and lit a cigarette and then
fell asleep. When woke up found the mattress on fire, did not attempt to put it out, but went back to sleep in next
room. Charged with arson: reckless damage to a house by fire. Found had duty to take action to put out fire, treats
conduct as a continuous act
Issue: Whether the actus reus of the offense of arson is present when a D accidently starts a fire and then fails to
take steps to extinguish it.
- Actus reus suggests some positive act is needed for guilt and failure or omission to act is insufficient unless
express provision in a statute -If act unknowingly done, but then becomes aware of present and obivious is there a
duty to act?
Ratio:-both duty theory and continuous act theory lead to same conclusion in this case
- R v. Caldwell relied on for exceptional case of accused initially unaware that has done act, then becomes aware
would find guilty if do not try to prevent or reduce risk of damage.
Conclusion: Struggle to get around mens reas and actus reus. Argues actus reus doesn‘t have to be a physical
positive act. Duty to perform could be subject to actus reus. Don‘t do anything recklessly could be an act. - Appeal
Moore v. R., 1979 SCC
Facts: Charged with obstructing a Peace Officer in the execution of his duty. D went through an intersection
where the light was red on his bike. Officer observed infraction and chased after Moore to ticket him. D refused to
stop and made lewd comments. Was not charged with failing to stop at a stop light, obstructed a peace officer by
failing to give name when requested.
- Motor Vehicle/Vehicle does not mean bike
- Sect. 58 Motor Vehicle act charges those who are stopped in a motor-vehicle must give name and address
Issue: Do you have a duty to give your name to a police officer when they have seen you commit an offense?
Ratio: Respondent was not in breach of S.58. Was obstructing constable who had no power to arrest the accused
until attempted to identify him. Does not ignore Rice v. Connolly: appellant had not committed an offense in view
- refusal created a major inconvenience to officer and obstructed the police in carrying out their proper duties
Conclusion: Appeal Dismissed- was done without trying to obtain omission of fault
- Dissent Dickson: right of citizen to stay silent, no duty to identify self in absence of a statue
- -distinction in this case is whether there is a common law duty in this case.
- possible decision would have been different under Charter. After Moore series of decisions stated no legal
obligation for ordinary citizen to cooperate with police investigation (Espositio)
R v. Hayes, 2003 Ont CA
Facts: D was riding his motorcycle when stopped at police roadcheck that was operating to target member of gang.
To ensure highway safety were checking compliance with highway traffic legislation, D stopped because
motorcycle very loud. D was asked to remove helmet but he repeatedly refused- police said they wanted to inspect
it because it did not appear safe and wanted to find safety sticker on it.Was arrested and helmet removed, sticker
found, no helmet safety charges laid
Issues: 1) Was the appellant obligated to turn over his helmet for inspection under s. 216 of the HTA?
2) Was the appellant obligated to turn it over under s. 82(1) HTA?
3) Can the appellant‘s refusal to turn over helmet form the grounds for the Obstructing a peace office offense (sect.
129a) under the Criminal Code ?
1) authority to examine equipment does not come from s. 216 alone, permits visual inspection. Helmet laws give
authority to inspect helmets s. 104
2) authority to examine vehicles for safety requirements. S. 82 not limited to written notice. Did not agree with
appellants arguments, duty to submit and helmet is equipment. (just like a horn or muffler part of the equipment.
Plain language of statute requires driver to submit- imposes statutory duty as long as for purpose of act)
Appellent had obligation to remove helmet and turn it over under (1)
3) not distinguishable from R v Sharma where officer was not frustrated in the performance of his duty because
overlooks fine in sec. 82(3). Officer did not attempt to use this enforcement could not invoke a more serious
offense. Could not go to s. 129 right away must try this first
R v. Thornton, 1991, Ont CA
Facts: D donated blood to the Red Cross when knew he was infected with HIV. Red Cross detected contamination.
Charged with common nuisance under s.180 ―does an unlawful act or fails to discharge a legal duty and therby
endagers the lives, safety or health of the public‖
-charged with violating a duty as opposed to being charged with criminally negligent action. No result so can‘t use
result based offenses (blood was caught in time).
-donating contaminated blood is not an unlawful act.
Issue: Can a legal duty be one that arises at common law or must it be found in a statute? Is there a legal duty at
common law the breach of which could be a basis for an offense under s. 180?
Ratio: Law does not specifically make it an offense to donate contaminated blood. So could not be unlawful act
- Law requires one refrain from conduct that would cause serious harm, breach of common law duty under s.
180(2) therefore does allege an offense.
Conclusion: Appeal dismissed, trail judge did not impose max sentence.
SCC- held duty of care was breached under sect. 216 and was a common nuisance that endangered life, safety and
health of the public. -unnecessary to define how far duty extends, but donating blood that would cause harm
breaches the duty. Endangered life and health of public, he knew it was contaminated so had mens reus
- distinction between criminal and tort law becomes blurry. Could be held resp. For things not clearly defined.
-SCC decision criminal omission can‘t be enforced by common law, bases decision on s. 216
-prefers statutory duty to common law duty. Resistance of higher court of country to endorse decision in Moore.
- Seemed to establish new wide measure of criminal responsibility for omissions
R. v. Browne, 1997, Ont CA
Facts:-D was drug dealing partners with Audrey Greiner. She swallowed bag of crack cocaine to avoid detection,
tried to vomit it up and failed. D found her shaking and sweating and said he would take her to the hospital, called
a cab and when they arrived she was pronounced dead. Charged with criminal negligence s. 220 Criminal
negligence causing death. To find legal duty under s. 217 must find an undertaking of care
Issue: Did Browne undertake duty to care for Audrey?
Ratio: Conviction carries max. Penalty life in prison so threshold must be high for there to be considered
-TEST: must be some commitment, upon which reliance has been placed, must be clearly made with binding
-fundamental error by trial judge reversing analytical steps, inquiry should begin with undertaking of s. 217, not
on duty of care. Since 217 does not depend on nature of relationship of the parties should not be considered, there
was no undertaking therefore no duty of care.
Conclusion: Evidence does not disclose undertaking of a binding nature. Not duty can be found, so no breach.
-appeal allowed, conviction set aside to acquittal
R v. Peterson 2005, Ont CA
Facts: When a parent is under the charge of a child, requiring them to provide necessities of life falls under s. 215
of the criminal code. D was convicted of failing to provide the necessities of life to his father Arnold. Was found
by Dr. Lam to be in early stages of Alzheimers and said living situation totally unsafe, not hygienic, could not take
care of himself, not aware of environment in, should have supervision once every half hour
Issue: Is there reasonable doubt that Arnold was not in Dennis‘ care? Did the trial judge fail to explain his
conclusion for conviction?
Ratio: Meaning of in charge is duty to provide necessities of life when cannot for oneself, protect that person from
harm. Also depends on relationship of the parties
-Contributory negligence is not a defence, victim‘s unwillingness to cooperate is not a defence either
-when publically acknowledge responsibility through obtaining power of attorney then there is an assumption of
Conclusion: Appeal dismissed for both conviction and sentence
1) Arnold was dependent- unable to provide necessaries of life
2) Appellant had familial relationship with Arnold, aware of dependency
3) Appellant controlled living conditions and kept him in an unsafe environment- prevented access to working
toilet and kitchen
4) Had control over personal care- power of attorney, and taking back from neighbours
5) Appellant chose not to make decisions that would result in Arnold receiving necessaries of life- made aware
6) Arnold incapable of withdrawing himself form appellants charge due to age and illness.
- Diability cannot be used as a defense
- had to be under others charge, unable to withdraw from charge and unable to provide himself or herself with
necessaries of life.
-Necessaries of life not only food shelter, care, medical attention and protection of care from harm
-What does under his charge mean? Dependency, relationship of parties, element of trust, explicit resp. To the
person (power of attonery)
-may not have capacity to understand need for help
- once duty has been established test to see if duty violated is: marked departure of conduct of reasonably prudent
person that failure to provide necessities of life
-Could person in charge have other options for action? Not just discrete act but failure in relationship over period
-defense- financial inability may be an excuse (Prof: might not be efficient- obligied to seek help of community
agency), contributory negligence by victim is not a defense unless injuries are soley attributable to the victim
People v. Beardsley 1907: trail judge convicted accused of manslaughter of mistress.
o They were drinking heavily and he purchased her camphor and morphine tablets
o She was discovered putting them in her mouth, they managed to knock some from her hand but she
swallowed 2 tablets.
o The man and his friend helped her to a room because she was in a stupor and did not rouse when
spoken too- Respondent was too intoxicated to be of any assistance, asked neighbor to look after her
o Neighbour called doctor who pronounced her dead.
o Accused was acquitted because no legal duty to act.
Voluntariness Pg. 296-312
a) Defining Conduct that is Not “Voluntary”
R v. King, 1962
No actus reus unless a result of a willing mind at liberty to make a definite choice or decision. Must be
willpower to do an act
Rabey v, R,, 1980
Automatism, unconscious, involuntary behaviour, though capable of action is not conscious of what is
Dickson: Absence of volition leads to acquittal. Automatism the middle ground between criminal
responsibility and legal insanity. Crown bears burden of proving a voluntary act. No act can be a criminal
offense unless don voluntarily.
R v. Parks, 1992
Voluntariness requirement part of actus reus component of criminal liability
R v. Stone, 1999
Automatism State of impaired consciousness rather than unconsciousness. No voluntary control over
action. Voluntariness, key legal element of automatistic behaviour. Denial of voluntary component of actus
reus. Has to be proven on a balance of probabilities
R v. Ruzic: Physical voluntariness distinguished from moral involuntariness used as justification or
excuse. No reference to reverse onus.
C) Examples Not Associated with Mental Disorder
R v. Lucki 1955, Sask. Pol. Ct.
Facts: Accused operated a motor vehicle and was charged with failing to keep on the right half of the highway.
- Car skidded onto left side of the road and collided with another car. Happened due to involuntary act
caused by the condition of the road
Issue: Should accused be charged even though his act was involuntary?
Ratio: Not to blame for involuntary act, no mens rea.
Conclusion: Would be grave injustice if found guilty for act not to blame for. Not guilty.
R v. Wolfe, 1975, Ont CA
Facts: complainant had been told not to enter hotel premises. Appellant ordered him to leave. A Charged with
assault causing bodily harm by hitting C on the head with a phone after C punched him.
Ratio: Involuntary act goes not to mens reus but actus reus. There are offenses that involve strict liability which do
not require mens reus and if one would apply involuntariness to the mental component, one could still be found
Conclusion: Trial Judge characterized the action as being reflexive ―almost involuntary‖- reminds of Marshall
case (pass on joint). Court of appeal-acquittal because no intent.
R v. Swaby, 2001 Ont CA
Facts: Possession of an unlisted restricted handgun contrary to section 91(3) of Criminal code (now sect. 94(1)
now exception does not apply to occupant motor vehicle who intend to leave vehicle if feasible. Car stopped- one
man ran from car. Both men claim the other owns the handgun. Appeal depends on questions that were asked to the
trial judge to the jury- timing of the knowledge of the presence of the gun. Could find that learned about gun on
Issue: What is the actus reus? – occupant of car where there is restricted weapon where there is no permit and
knowledge that restricted weapon is there and know there is no permit.
Ratio: Nothing refers to voluntariness, but there is still a necessary element for liability. Will be read into each and
every provision. Voluntary act or omission required to be legally responsible. No voluntary act unless given chance
to deal with situation.
Comments: Court playing with concept to let him off.
R v. Ryan, 1967 Aust. HC
Facts: Accused read a novel where hero robed service station for money to invest in Irish sweepstake. In book, tied
up hands of clerk and won the lottery, repaying clerk. accused tried to emulate hero, armed with a sawn off riffle
that was loaded, tied up attendant. According to D attendant made sudden movement causing the gun to accidently
discharge and kill him. Accused argues on appeal jury should be instructed on involuntariness, firing of gun was a
reflex to sudden movement causing finger to put pressure on the trigger. Act only punishable when voluntary-
involuntary means done without conscious exercise of will. Refelx action probable but unpredictable reaction of a
man when startled, involuntary movement of body
Issue: Would a reflex action absolve a criminal from responsibility of the consequences of an act when all acts
leading up to the lethal act were voluntary?
Is an act to be called involuntary merely because the mind worked quickly and impulsively?
Ratio: Reflex action is not an excuse for a fully conscious man where the consequences were probable and
foreseeable. It is considered a voluntary act.
Conclusion: Unanimous rejection of appeal. -accused put himself in situation where finger was on the trigger of a
loaded gun.-However spontaneous the act, accused put himself in situation.
Kilbride v. Lake, 1962 NZSC
Facts: Appellant found traffic ticket on car for not displaying current warrant of fitness. Agreed that warrant had
been in correct place when left car and must have been detached and lost or removed before he returned to car.
Was found it was not an expired warrant. appellant operated vehicle by having it on the road and must have
warrant affixed to operate. claimed absence of mens rea so could not be convicted, warrant disappeared without his
knowledge. Claimed by respondant offence was one of strict liability and knowledge or intention were irrelevant
Issue: If something done lawfully by appellant can become an offence on part by reason of an intervening cause
beyond his influence or control which produced an effect outside means of knowledge?
Ratio: A person cannot be made criminally responsible for an act or omission unless it was done or omitted in
circumstances where some other course was open to him. Act must be considered involuntary
Conclusion: Appellant had no opportunity to deal with situation- inactivity after warrant removed was involuntary
and unrelated to the offense. Actus reus not a result of his conduct –chian of causation was broken
-physical ingredient not proved mens rea excluded as ingredient of offense- purpose of law is to ensure vehicles
kept of road if not roadworthy should not be elevated to level that charges are laid almost automatically who have
shown missing warrant was current and have acceptable explanation for absence from windshield. Can‘t prosecute
people who cannot be reasonable expected to do any more than have done.
-appeal allowed, conviction quashed
Strict liability v. absolute liability offence
iii)Circumstances: The role of Consent pgs. 220-246
e) Consent Making Act Lawful
-lack of consent often refered to as a defense, better seen as a denial that the Crown has proved an unlawful act.
R v. Jobidon, 1991 SCC
Procedural History: tried by judge alone, appeal to SCC
-trial judge found that accused and victim had consented to fist fight and physical injury was intended. Found no
intent to kill or cause bodily harm and did not intentionally exceed consent given. Aquitted decided no unlawful act
for manslaughter conviction.
-appeal to Ontario CA, convicted for manslaughter
Facts: D charged with manslaughter for fight. Struck victim with fist, landed on car and became unconscious. The
D continued to strike victim 4-6 times in the head. Victim later dies of contusions to head. Culpable homicide
when cause death of human by means of an unlawful act. No assault, since consented to fight, so no unlawful act
-CA found consent to a fight is not a defense to charge of assault if bodily harm intended and/or caused
-Sect. 265 assault occurs when without consent another person, apply force intentionally to them.
-D argued consent should be bar for conviction, could have specified if in some circumstances absence of consent
would not be operative element as had in other offenses. Also in England not in code but common law, code of
general principals in favour of liberty.
- sect. 8 common law continues to apply only extent not inconsistent with code
Issue: Is absence of consent a material element that must be proved by the Crown in all cases of assault or whether
there are common law limitations which restrict or negate the legal effectiveness of consent in certain types of
Ratio: Not in public interest that people should cause each other bodily harm for no good reason, consent not
answer when harm intended and caused. Public nature of fights not determinative
-common law cases restrict extent consent may be nullified as do policy considerations.
-Consent between adults intentionally to apply force causing serious hurt or non-trivial harm to each other
in the course of a fight or brawl not recognized.
- Does recognize activities that have positive social value and intent of actors to produce social benefit for the
good of the people involved and a wider group sometimes.
Conclusion: Appeal dismissed by SCC
-Do not accept failing to enact list of objects or forms of conduct to which one could not validly consent, that
parliament intended eliminate their role in the offense of assault and rely only on four factors specified. Departure
from policy and unnecessary giving entrenchment in common law.
Summary of the Common Law
English Position: -consent would not have been a defense in England. –where conviction not barred if harm
intended and/or caused. In Canada broad formulation cannot apply must restrict to intended and caused
-Canadian Position: when weighing provincial CA decisions, scale in Canada tips heavily against validity of
person‘s consent to infliction of bodily harm in a fight. English common law important, integral component
Canadian Common law
-Policy Considerations: Social uselessness of fistfights. Consensual fights may lead to larger brawls and breaches
of the public peace. Limitations may deter activities. Determination must be narrow in scope not include sports,
medical procedures etc. Must be decided on case-by-case basis
Sopinka: Consent cannot be read out of the offense. Consent of victim cannot transform a crime into lawful
conduct, but vital element in determining what conduct constitutes a crime. Absence of consent is essential
ingredient of actus reus. -No generally accepted exception for intention of inflicting physical harm except for death
-nothing in language of s. 265 that outlaw consensual fighting to avoid breaches of peace or allow for socially
useful circumstances. -can`t compare to England where there is no codified law.-creates an offense where there is
not one, judge-made policy -would find guilty on basis that consent ended when victim was knocked unconscious
Bolduc and Bird v. R, 1967
Facts: Physician was treating patient and brought Bird into examination room telling patient he was medical
student. Patient consented under fraudulent representation. Bird did not touch the patient at all
Issue: Did the conduct amount to indecent assualt
Ratio: No indecent assault committed, consent to examination. No fraud about nature and quality of what was
done but to Bird`s identity as medical person.
Conclusion: Hall: Unethical and reprehensible behavior but do not imply infraction s.141. Presence of Bird did
not amount to an assault because did not touch her. ``Peeping tom`` was not an offence
Spence (dissent): The accused should have been found guilty, consent only given for invasion of privacy because
thought Bird was a doctor.
R. v. Cuerrier, 1998 SCC
Procedural History: Trial judge and CA acquitted the accused. SCC ordered new trial.
Facts: Accused tested positive for HIV, had unprotected sex with two women who he did not disclose was HIV
positive. If they had known HIV positive would not have consented to sex with him. Two counts of aggravated
assault sect. 268. S. 2653(c) Sexual assault no consent if agree for reason of fraud. Fraud consists of dishonesty
which consists of non-disclosure or deliberate falsehood which lead to depravation or loss or risk of it.
Issue: Is failure to disclose HIV status fraud
Ratio: Non disclosure can constitute fraud, because of deadly nature of the disease. Broad interpretation of
dishonesty and deprivation because of what is at stake. A consent that is not based upon knowledge of the
significant relevant factors is not a valid consent. The extent of duty to disclose will increase with the risks
attendant upon the act of intercourse. The greater the risk deprivation the higher the duty of disclosure.
Conclusion: Cory:Builds upon offense of simple assault –assault of no consensual where it endangers life of the
complainant. Fraud consists of dishonesty which consists of non-disclosure or deliberate falsehood which lead to
depravation or loss or risk of it. Persons knowing that they are HIV positive who engage in sexual intercourse
without advising their partner of the disease may be found to fulfill the traditional requirements for fraud
dishonesty and deprivation. Without disclosure of HIV status cannot be true consent.
L‟Heureux-Dube: In order to maximize protection only consent obtained, without negating voluntary agency of
the person is legally valid. Should focus on whether the nature and execution of the deceit deprived the
complainant of the ability to exercise his or her will in relation to physical integrity. Fraud focusing on serious
bodily harm too restrictive. Wants lower threshold, also subjective.
McLachlin: Much more cautionary in tone. Warn court should be careful in defining elements of crime so as not
to broaden them and create new crimes.Can change on condition- if necessary to bring law in step with changing
needs of society and changes made are gradual and not overly complex (foreseeable). Rule propose is common law
A deception as to the sexual character of the act
Deception as to the identity of the perpetrator
Deception as to the presence of a STD giving rise to a serious risk or probability of infecting the
Test for deception would be objective, test for inducement would be subjective.
Policy: What if HIV positive person insists on use of condom? Substantially reduce risk so could change the
outcome, probably not amount to fraud. Where does this leave a lie? Ie: married man lying about being married
Limits on fraud, trivial cases not captured
Limit court sets is significant risk of serious harm
Does this include psychological harm? Fails to say serious bodily harm, creates confusion and
leaves door open non life threatening harm
Does not intend for there to be fraud for every situation of fraud, but not entirely clear
R v. Williams, 2003
Facts: Accused had unprotect sex during relationship, 5 months in learned that he was HIV positive and did not
tell partner even though given counseling duty to disclose. Partner became HIV positive and would not have had
sex if had known accused was HIV positive. Possible he infected her before knew status.
Issue: Does an accused who fails to disclose he is HIV positive be convicted of aggravated assault for
endangering life of complainant who at the time could have been infected.
Ratio: At some point actus reus and mens rea must coincide. There was endangerment but no intent in this case
and then intent and reasonable doubt of endangerment.
Conclusion: Shocking level of recklessness and selfishness, at least guilty attempted aggravated assault. Unable to
establish actus reus. No paradox with Cuerrier who was deceitful from the beginning. Failure to prove
endangerment of life was fatal to prosecution of aggravated assault.
Pages 315-336 Consequences: Causation
Acting Through Innocent Agent
R v. Michael, 1840
Facts: D charged with murder of her infant. Mother was a wet nurse and child was cared for by Mrs. Stevens. The
mother gave Stevens a bottle of medicine telling her to give a teaspoon each day to the infant. Stevens did not open
the bottle, but one of her children gave the infant half the bottle and he died. The bottle was found to contain the
poison laudanum. Alleged doctor gave by mistake but he said D said could not support child on her wages. Was
found a teaspoonful would kill an infant.
Issue: Is the defendant guilty of murder even though posion given by third party?
Ratio: There was an intention to murder, so D is as guilty as if had given poison herself. Where an individual
brings about particular consequence or result through use of unconscious agent. Causation will be attributed back
to agent. Intervening acts do not break the chain of causation.
Conclusion: D original intent to produce death continued even though poision given by third agent. Large quantity
given made no difference because a teaspoon would kill. D guilty.
Doctorine of acting through an agent has conferred criminal responsibility on injuries committed through animals.
a) Criminal Code
- In some cases the actus reus requires the causing of certain consequences ie: homicide. Graver
consequences attract higher maximum penalty. No general principles concerning causation but only a
number of special rules concerning homicide.
- B.C. Electric RY v. Loach 1916: Speak of cause of injury simply and without qualification.
b) Common Law:
Smithers v. R, 1978 SCC
Procedural History: Appeal to SCC from Ont CA
Facts: appellant 16 years old charged with manslaughter for kicking victim Cobby in the head. Had been playing
against each other in rough hockey game, Cobby shouted racial insults to black appellant, both ejected from game
and appellant said was going to get Cobby. He attacked him outside the arena punching him and then after being
held back by others kicking him in the stomach. Cobby fell on ground and died. It was learned he died from
aspiration of foreign materials present from vomiting, unusual in healthy teen. Dr. Said very probable cause and
effect of the kick and vomiting.
-manslaughter by means of an unlawful act.
Appeal on ground trail judge did not make clear act of assault must also cause the death and cause of death had not
been proven beyond reasonable doubt, No conclusive medical evidence kick definitely cause of vomiting
Issue: Was causation explained to the jury properly?
-Did the appellant commit homicide directly or indirectly by causing the death of Cobby and was such homicide
culpable for reason that it was caused by an unlawful act?
Ratio: Jury entitled to consider all evidence expert and lay. Distinguish between causation as a question of fact and
causation as a question of law. Person commits homicide who directly or indirect causes death of human being.
-Test applied to all criminal offenses requiring causation : a contributing cause of death that is not trivial or
insignificant ―a contributing cause of death outside the de minimis range‖
- de minimis- law does not concern itself with trivial matters
Conclusion: Causation is both question of fact and law, mixed determination. Trier of fact must consider the facts
as found. Trial judge did not err in failing to instruct only consider medical evidence, substantial body of evidence
indication kick was at least contributing cause of death.
- R v. Larkin: many acts not dangerous themselves not likely to cause injury which if cause death render
actor guilty of culpable homicide. In intentional crimes where death unintended consequence actor always
guilty of manslaughter at least.
- No burden to prove intention to cause death, no defence that fatality not anticipated or death would
ordinarily not result from unlawful act.
- -Today act itself must give rise to objectable risk of foreseeable harm, that is neither trivial nor transitory
before criminal liability imposed. Only limit on thin-skull theory
- Must take victim as find them. Kick may have contributed to epiglottal malfunction. - Kato- expert evidence does
not have to make line absolutely, enough make factual link.
- Thin skull rule applies does not break chain of factual or legal causation. Moral and religious standpoints count as
Things become more complicated when there are multiple assailants. Anyone who contributes to death is guilty of
murder. Unlike in civil law there is no apportionment of liability
R v. Blaue, 1975
Procedural History: D acquitted of murder but convicted of manslaughter on ground of diminished responsibility,
convicted wounding with intent to do grievous bodily harm and indecently assaulting victim. Sentenced to life in
prision Appeals manslaughter conviction.
Facts: Victim, was a Jehovah‘s Witness, D asked her for sexual intercourse, then attacked her with a knife
inflicting 4 wounds including one that pierced her lung. She needed surgery and a blood transfusion, but she
refused because it was contrary to her religious beliefs. If she has had the blood transfusion she would not have
Issue: Did the victims‘ refusal of a blood transfusion break the chain of causation between the stabbing and her
Ratio: He who inflicted injury which resulted in death could not excuse himself by pleading victim could have
avoided death by taking greater care of himself. Morally responsible for all natural and probable consequences of
wrongful act. Must take victim as the find them, causal connection not broken.
Conclusion: Accepted it was diminished responsibility
Holland: Causation stab wound. Stab wound was still the operative or substantial cause of death.
- D tried to argue that decision not to have a blood transfusion was an unreasonable one. But question is not
was it unreasonable, but what caused her death and answer is stab wound. Fact refused to stop end coming
did not break causal connection between act and death.
- Judge is entitled to tell jury result of application if there is no conflict of evidence. Entitled to tell jury stab
wound was an operative cause of death.
- Appeal dismissed.
R. v. Harbottle, 1993
Procedural History: appeal to SCC. Convicted of murder in first degree upheld by CA
Sect. 231(5) murder with sexual assault or confinement
Facts: Accused with companion forcibly confined woman. Companion brutally sexually assaulted her while the
accused watched, they discussed ways of killing her. Accused held victim‘s legs to prevent her from continuing to
kick and struggle while companion strangled her.
Issue: Are we confronted with culpable or non-culpable homicide?
Controlling test for causation under sec. 231(5)? Does it require more than Smithers test?
Ratio: The gravity of the crime and severity of the sentence of first degree murder indicate a substantial and high
degree of blameworthiness.
Substantial Cause Test: take into account consequences of conviction, present wording of section, its history and
its aim to protect society from most heinous murders. Must be strict test, must have sufficiently substantial causal
effect, must play very active role in killing, physical element usually required.
Accused may be found guilty of first degree murder if established beyond reasonable doubt:
1) Accused was guilty of the underlying crime of domination or of attempting to commit that crime
2) Accused was guilty of the murder of the victim
3) Accused participated in the murder in such a manner there was substantial cause of the death of the victim
4) No intervening act of another which resulted in the accused no longer being substantially connected to the
death of the victim
5) Crimes of domination and murder were part of the same transaction. Death caused while committing the
offence of domination
Conclusion: Appeal dismissed.
- Hardbottle played essensial, substantial and integral part in killing. If hadn‘t held legs might not have been
able to strangle her.
- For distinctions of causation necessary to examine sections in their context. First degree murder aggravated
form only to be considered after jury concluded accused guilty of murder
- Act or series of acts must be essential, substantial and integral cause of death, much higher than Smithers
manslaughter ―contributing cause of death outside the de minimis range‖ Distinctions in the degree of
causation required for different homicide offenses.
- Intervening act of another will often mean the accused is no longer substantial cause of death, but S. 214(5)
there will be instances where an accused could be substantial cause of the deal without physically causing
R v. Nette, 2001
Procedural History: appeal to SCC. Had been charged with first degree murder, sect. 231(5) murder while
committing the offense of unlawful confinement, was convicted of second degree murder. Appeal on basis jury
was misdirected as to the test of causation applicable to second degree murder
Facts: Accused charged with first degree murder arising from the death of 95 year old who was victim of robbery.
Her hands and feet bound up clothing wrapped around head, left on bed. 24-48 hours later died of asphyxiation.
Clothing had become wound around her neck and she had fallen from the bed. During undercover sting operation
accused told police he had been involved in robbery and death, later claimed fabricated admission and found victim
already dead when tried to rob house.
- D argued Smithers test applies to all culpable homicide but should be reformulated to significant or
substantial standard instead of ―more than trivial‖ to clarify language to jury, say does not raise threshold.
- Argued trail judge erred by using ―slight or trival cause‖ instead of more than trivial to explain standard of
causation for second degree murder
- P Hardbottle establisbed elevated causation thresehold with ―substantial cause‖ only to first degree murder.
Issue: What is the proper test of causation for second degree murder?
Ratio: One standard of causation for all homicide offenses. Smithers still valid but phrase ―significant contributing
cause‖ instead of ―not trival/significant‖ Hardbottle requires additional instructions for first degree murder.
Conclusion: Appeal dismissed. In determining whether a person can be held responsible for causing a particular
result, must be determined whether the person caused that result on fact and in law. Factual causation is inquiry
about how victim came to death and contribution of accused to that result. Legal causation whether accused should
be held responsible in law for death (wording of section creating offense and principles of interpretation).
- Causation distinct issue from mens rea, proper standard expresses element of fault that is in law sufficient
in addition to mental element. When unlawful act combine with mental element not an issue. Where
statutory rules don‘t apply, common law principles apply
- Appellant had requisite intent for offense of murder, foresight of death. Jury could not have been effected
by instructions on causation. Appeal dismissed
- L‟Heureux-Dube: Do not agree with suggestion to rephrase standard of causation. ―not trivial or
insignificant cause‖ not same as ―significant contribution cause‖ drastically changes substance. Calls for
more direct causal relationship, raising the standard and elevating the threshold for causation with no
legitimate reason to reformulate it.
- Policy: Case shows how important language and its meaning can be. Net of culpability cast much more
MENS REA: THE FAULT REQUIREMENT
Mens Rea: ―an act does not become guilty unless the mind is guilty‖ Mens rea means intention, knowledge,
recklessness or wilful blindness. Negligence is said not to count but due to recent developments it remains a
species of fault and an accepted basis upon which to ground criminal liability. No moral content.
J.F. Stephen, A History of the Criminal Law of England (1883) (pg. 351)
- maxim actus non facit reum nisi mens sit rea is misleading
- supposed to mean that there is no legal guilt without moral guilt but this isn‘t true
- also suggests that without mens rea there is no crime – also untrue
- maxim just means that all crimes have an outward element and a mental element, varying according to
different nature of different crimes.
- mens rea malice aforethought
- expression itself doesn‘t mean anything, need to consider the definition of the particular crime
G. Mueller, on Common Law Mens rea (pg. 352)
- misconception that there is no single, unifying concept of mens rea
- all crimes have a different mens rea, but the concept of mens rea itself unifies them
G.L. Williams, Criminal Law: The General Part (1961) (pg. 352)
- mens rea is the mental element necessary for a crime – can be intention or recklessness
- negligence doesn‘t require mens rea (but is still a type of legal fault so in this way they are similar to mens rea
- other crimes don‘t even require negligence – strict or vicarious responsibility
Should be clear distinction between the subjective standard of whether the accused was actually aware of a
risk and the objective standard of whether the accused failed to measure up to the external standard of the
reasonable person, irrespective of awareness.
Subjective: All of the accused individual factors are taken into account
Objective: much tougher, no personal factors taken into account except where relate to incapacity.
R v. Hundal, 1993 SCC
Determined the fault requirement for dangerous driving.
Subjective test seeks to determine what was actually in the mind of the particular accused at the moment the
offence is alleged to have been committed. Vital the accused intended or foresaw the consequence and/or
circumstance, whether ―could,‖ ―ought‖ or ―should‖ have foreseen or whether a reasonable person would
have foreseen is not the relevant criterion of liability
May draw reasonable inferences from the accused‘s actions or words at the time of his act or in the witness
box to conclude ―must have thought‖ not departure from test, but ―must have realized if had thought about
it‖ is objective
Test for negligence is objective requiring marked departure from the standard of care of a
reasonable person What the accused “should” have known
Distinction between one who was aware and one who should have taken care irrespective of
R v. Theroux, 1993 SCC
Fault requirement for the crime of fraud
Distinguished between mental element of a crime and the mens rea (does not encompass all the mental
elements of a crime). Actus reus has own mental elements, act must be voluntary for AR to exist.
MR is guilty mind, wrongful intention, prevents conviction of the morally innocent who don‘t understand
or intend consequences of acts.
Test for mens rea is subjective- whether accused subjectively appreciated consequences at least as a
possibility looks at accused intention and facts as the accused believed them to be.
Nothing to do with value system, doesn‘t matter if thought moral
Need not show precisely what was in mind can be inferred from the act itself, baring explanation casting
doubt on inference.
R v. Mulligan, 1974 Ont. CA
Central issue of case was whether accused intended to cause death of wife when repeatedly stabbed her or
meant to cause bodily harm and knew it was likely to cause death and was reckless.
Jury was entitled to reject assertion did not mean to kill wife even though accused did not testify to state of
mind, could make inference on his acts and words
Person‟s state of mind is subjective, but process of determining state of mind is objective.
R v. Ortt 1968, Ont CA
Crown had onus of proof on issue of intent
Error to tell jury: Presumed person has intended natural consequences of his act, may suggest onus on
accused, contrary s.11(d) of Charter.
Can say reasonable inference intended natural consequences of acts
What kind of inference can jury make? Inference of intention based on evidence (ie: accused actions and
words) can be relied upon to make common sense inference accused knew what did.
o Permitted inference, not mandatory. Not a legal presumption
o Factual as opposed to legal inquiry required
o Depends on if jury satisfied D intended or knew what was doing
FAULT FOR PUBLIC WELFARE (REGULATORY) OFFENCES
Beaver v. R. (1957) SCC
Procedural History: at trial - accused convicted of selling and possessing diacetylmorphine, unanimous Court of
Appeal upheld trial judge‘s decision, now appealing to SCC
Facts: Appellant and Max Beaver were jointly involved with selling the drugs to an undercover cop – appellant
didn‘t know that package contained drugs. Trial judge told the jury that if they were satisfied that appellant had
package in his possession and sold it, whether he knew what the substance was or believed it was harmless is
Issue: Is the appellant guilty of possession if he had no knowledge of the drugs?
Ratio: Unless a statute rules out mens rea, it can‘t find someone guilty of a crime unless he has a guilty mind –
mens rea is an essential element of a criminal offence. No other provision that excludes mens rea has a mandatory
prison sentence therefore cannot be strict liability must be public welfare offense. No possession without
knowledge of the character of the forbidden substance. Drug offenses because of the possibility of imprisonment
are True crimes, presumption of mens reas.
Decision: Appeal from conviction for possession allowed. Appeals from conviction for sale of a drug and finding
of being a habitual criminal dismissed.
Conclusion: Cartwright: Have to look at the Opium and Narcotic Drug Act, 1952, s. 4(1) Every person who has
in possession any drug, sells ―represented or held out to be a drug‖... guilty of an offense
o Conflict between judgments of Appellate Courts in Ontario, Quebec, and Nova Scotia and judgment by
o according to Reynolds v. G.H. Austin & Sons Ltd., it is important for a court to bear in mind that unless
a statute rules out mens rea, it can‘t find someone guilty of a crime unless he has a guilty mind – mens
rea is an essential element of a criminal offence
o according to Cartwright J, if X possesses heroin that he honestly believes to be baking soda, he isn‘t
guilty of possession
o Parliament didn‘t intend for mens rea to not be a part of s. 4(1)(d) because it involves a min sentence of
6 months + $200 fine
Fauteux J. (dissenting):
o goal of the Act is to protect public health, guard society against social evils
o only exceptions to the Act are from controlling provisions (i.e. for doctors)
o case is an authority to support the proposition that depending on the subject matter of the Act or
language of its provisions, mens rea requirement may not apply
R. v. City of Sault Ste. Marie (1978) SCC
Procedural History: Went through 5 courts, acquitted in Provincial Court (Criminal Division), convicted after a
new trial on a Crown Appeal, City appealed to the Divisional Court and the conviction quashed, Ontario Court of
Appeal directed a new trial, SCC granted leave to appeal.
- Trial: Cherokee was independent so City not guilty
- Appeal: offence is strict liability, so City convicted
- Divisional Court: charge was duplicitous, required mens rea, conviction set aside
- Court of Appeal: conviction can‘t be quashed on ground of duplicity, but still requires mens rea – no sufficient
evidence to establish mens rea, new trial
Facts: City of Sault Ste. Marie charged with discharging materials in the Cannon Creek and Root River under s.
32(1) of the Ontario Water Resources Act. City had an agreement with a waste disposal company (Cherokee) to
dispose of garbage from the city – Cherokee picked a site (site borders Cannon Creek and runs into the Root
River). Cherokee dumped material on top of some fresh-water springs pollution. Cherokee was charged under s.
32(1) – question is whether the City is also guilty
Issue: Should the city be convicted for acts of Cherokee without establishment of mens rea?
Ratio: Distinction between true criminal offence and public welfare offence. Case concerns interpretation of
―discharge‖, ―cause‖ and ―permit‖ – doesn‘t indicate full mens rea or absolute liability – should be put in the
category of strict liability.
o 3 categories of offences:
1) True Crime: offences in which mens rea must be proved by prosecution – for offences that
are truly criminal. Crown must establish mental element.
2) Strict Liability: offences in which prosecution doesn‘t need to prove mens rea, the accused
can avoid liability if he can prove he took all reasonable care– for public welfare offences
3) Absolute Liability- just need actus reus, no mental element
Decision: Appeal dismissed. New trial.
- Blackstone- there must be a vicious will for mens rea
- Dickson- intention, recklessness or willful blindness. Mere negligence is not a crime. Failure to know
something one should have known is not a crime under the law
o What about public welfare offences? - tension between maintaining high standards for public health
and safety but not punishing morally innocent
o Two arguments justify absolute liability for public welfare offences:
protection of social interests requires a high standard of care – will be more likely to be
maintained if there are no loopholes
administrative efficiency – difficult to prove mental culpability
o Arguments against absolute liability:
violates fundamental principles of penal liability
no evidence that absolute liability results in a higher standard of care
Not sufficient to say public interest engaged therefore liability imposed without fault because in
serious crimes public interest involved and mens rea required
o Public welfare offences shift emphasis from protection of individual interests to protection of public
o Past tendency has been to choose between full mens rea or absolute liability – this is changing in many
Canadian courts, Australia, England – looking for a middle position
o The correct approach is to relieve the Crown of the burden of proving mens rea – difficult to prove
burden falls on the def because he is the only one who can prove his intention – not unfair
because the alternative is absolute liability
- pollution offences are public welfare offences – no presumption of full mens rea
- liability will be incurred if the def could have prevented the impairment and failed to do so – depends on the
specific circumstances of the case
- Were they in position to control third party by supervision or through municipal by-laws. Failure to do so
would lead to conviction because did not take reasonable care.
- should be a new trial – City didn‘t lead evidence directed to a defense of due diligence
o For assessing due diligence corporation- those who are direction mind- executives/managers.
o No vicarious liability in provincial penal law if operating mind of corporation exercised offense if not
done at will of company.
Reference Re Section 94(2) of the Motor Vehicle Act (B.C.) (1985) SCC
“Motor Vehicle Reference”
Procedural History: Lieutenant-Governor of BC referred the following question to the Court of Appeal
o Is s. 94(2) of the Motor Vehicle Act…consistent with the Charter s.7?
- Court of Appeal decided it was inconsistent with the Charter, Attorney General of BC appealed to SCC
Motor Vehicle Act
s. 94(1) A person who drives a motor vehicle on a highway or industrial road while
(a) he is prohibited from driving a motor vehicle under sections 90, 91, 92 or 92.1, or
(b) his drivers license or his right to apply for a driver‘s license is suspended under s. 82 or 92 as it was before its repeal and
replacement came into force pursuant to the Motor Vehicle Amendment Act, 1982,
commits an offence and is liable,
(c) on a first conviction, to a fine of not less than $300 and not more than $2000 and to imprisonment for not less than seven days
and not more than six months, and
(d) on a subsequent conviction, regardless of when the contravention occurred, to a fine of not less than $300 and not more than
$2000 and to imprisonment for not less than 14 days and not more than one year.
(2) Subsection (1) creates an absolute liability offence on which guilt is established by proof of driving, whether or not the defendant
knew of the prohibition or suspension.
Issue: Did BC gov‘t demonstrate that the risk of imprisoning a few innocent, given the desirability of ridding the
roads of bad drivers, is justifiable and a reasonable limit in a free and democratic society?
Ratio: Combination of imprisonment and absolute liability violates s. 7 and can only be saved if the authorities
demonstrate under s. 1 if the violation is reasonably justified. A law enacting an absolute liability offence violates
s. 7 if it has the potential to deprive life, liberty or security of the person – obviously imprisonment deprives people
of their liberty
Decision: S. 94(2) is unconstitutional.
Conclusion: Court of Appeal‘s decision based on decision in R. v. City of Sault Ste. Marie – but they didn‘t go as
far to say that all absolute liability offences violate s. 7 and can‘t be salvaged under s. 1 – there are still certain
offences where public interest requires that the offences be absolute liability offences
- has been argued in the past that all but a narrow construction of s. 7 leads the courts to question the laws and
adjudicate based on public policy- ―judicial super legislature”
o leads to the question of whether the ―principles of fundamental justice‖ have a substantive or
- Court shouldn‘t be deciding between substantive or procedural content, just ensuring ―the full benefit of the
Charter‘s protection‖ for people under s. 7, while avoiding adjudication of the merits of public policy
- Only accomplished through Purposive analysis and articulation objective and manageable standards.
- Should not be frozen in time by interpreting Minutes of Special Joint Committee- 1) Testimony of civil
servants (before the Special Joint Committee of the Senate and HOC on the Constitution) is admissible but is
to be given minimal weight in interpreting the Charter.
- Court rejects view principles of fundamental justice are analogous with natural justice.
- POLICY: ―words of Charter cannot be given exhaustive content‖ 2)The principles of fundamental justice
which qualify the right not to be deprived of life, liberty and security of the person under s. 7 are to be found in
basic tenants of the legal system ** significant and controversial move by SCC- Power grab vs. legitimate
consideration of Charter- Permitted SCC to revamp mens rea
- the term “principles of fundamental justice” is not a right, but a qualifier of the right not to be deprived
of life, liberty, and security of the person
- BC gov‘t did not demonstrate that the risk of imprisoning a few innocent, given the desirability of ridding the
roads of bad drivers, is justifiable and a reasonable limit in a free and democratic society
- Case intentionally leaves number of other constitutional issues unaddressed - mandatory imprisonment or
imprisonment for not paying a fine. Corporations would have different result. Different for humans then profit
- ss. 8 through 14 are illustrative of the meaning in a criminal or penal law context of the principles of
fundamental justice. Not exhaustive. S. 7 provides residual protection. In deciding whether or not a given
principle rises to level of a basic tenet and forms a part of the principles of fundamental a court must consider
the nature, sources, rationale and essential role of that principle within the judicial process and in our legal
o Charter challenges under s. 7 are very frequent
- The principles of fundamental justice are not synonymous with procedural due process. Rather, given the
language used, there is nothing to suggest that these principles can have substantive content. This means that
courts may consider whether or not the substance of a legislative provision (which is challenged under s.7) is
fundamentally just or not
- It has long been principle of our legal system that the innocent not be punished. From this proposition it
follows, according to the court that an absolute liability offence that can potentially lead to imprisonment is
fundamentally unjust and violates s. 7, This is because such a provision allows for the punishment of the
morally innocent ie: individuals who may have taken reasonable steps to comply with the law but ultimately
- Left unanswered:
o Were the morally innocent only those who lacked mens rea?
o Did a criminal offense have the effect of punishing morally innocent if it did not have the requirement
set out in Sault St. Marie?
o Inadvertent actor if fails to know facts should have know is innocent in eyes of law, if non-negligent
person punished is this same as punishing morally innocent person that motor vehicle said was
constitutionally prohibited under s.7?
Vaillancourt v. R. (1987) SCC
Procedural History: Vaillancourt convicted of second degree murder at trial, appealed to Quebec Court of Appeal,
appeal dismissed and convicted affirmed, now appealing to SCC challenging constitutional validity of s. 213(d)
now s. 230
Facts: Appellant and his accomplice committed an armed robbery at a pool hall, appellant armed with a knife,
accomplice had a gun. During the robbery the appellant stayed at the front of the hall, the accomplice went to the
back – there was a struggle between the accomplice and a client. Client was shot, accomplice escaped and hasn‘t
been found – appellant arrested at the scene. In testimony the appellant said they had agreed to commit the robbery
with knives only, accomplice showed up with a gun and the appellant made him unload the gun – at the time of the
robbery he was certain the gun was unloaded.
Section 213 provides that a person can be found guilty of culpable homicide "whether or not the person
means to cause death…[or knows it is likely to be caused]…" while committing the enumerated acts in the
section. In this case the act was in 213(d): "[using] a weapon or [having] it upon his person." S. 213 only
applies to person who is liable for a culpable homicide s.222 (which takes us to manslaughter)
Issues: 1) Is s. 213(d) of the Criminal Code inconsistent with the provisions of either s. 7 or s. 11(d) of the Charter
and therefore, of no force and effect? 2) If not, is the combination of s. 21 and 213(d) of the Code
inconsistent with the provisions of either s. 7 or s. 11(d) of the Charter and is s. 21 of the Code therefore of
no force and effect in the case of a charge under s. 213(d) of the Code?
Ratio: s.213 violated s.7 and 11(d) because s. 213 will catch an accused who performs one of the acts in the
subsections and thereby causes a death, but who otherwise would have been acquitted of murder because he did not
foresee and could not have reasonably foreseen that death would be likely to result. Not upheld by s.1. The mental
element required by s.213(d) is so remote from the intention specific to murder that a conviction under that
paragraph violates fundamental justice.
Conclusion: Lamar: Appellant– principles of fundamental justice require that there be some degree of subjective
mens rea before any criminal liability. However, if decided on that basis, doubt would be cast on the
constitutional validity of many provisions in the Code.
This appeal calls into play two principles of fundamental justice
1. The Essential Elements of Certain Crimes and s.7 of the Charter: Before the Charter legislature had
full power in the determination of essential elements of any given crime. Courts had very little power to
review. Under s. 7 if a conviction will result in the deprivation of life, liberty or security of the accused
then Parliament must respect the principles of fundamental justice. Parliament can still define the elements
of a crime but it is subject to judicial review.
2. Section 11(d) and the Burden of Persuasion: Presumption of innocence in s.11(d) of the Charter requires
at least that an accused be presumed innocent until his guilt has been proven beyond a reasonable doubt
(Oakes). Not holding to the standard of proof beyond a reasonable doubt violated s.7 and 11(d).
Application of the two preceding principle to s. 213:
o s. 213 has substituted in proof beyond a reasonable doubt of certain forms of intentional dangerous
conduct causing death.
o Possible for a conviction for murder to occur under s.213 despite the jury having a reasonable doubt as
to whether the accused ought to have known that death was likely to ensue (objectively foreseeable).
Can s. 213 be upheld as a reasonable limit of a constitutional right under s.1?
o Criteria to assess set out in Oakes/ R v. Big M Drug Mart Ltd.
1. Objective Important: Yes, to deter use of carrying weapons in certain offenses because of the
increased risk of death.
2. Reasonably and Demonstrably Justified: No, would unduly impair the rights and freedoms in
question. If Parliament wishes to deter the use or carrying of weapons it should punish the use or
carrying of weapons.
LA Forest: Would dispose of the appeal in the manner proposed. The mental element required by s.213(d) is so
remote from the intention specific to murder that a conviction under that paragraph violates fundamental justice
McIntyre J. (dissenting): The principle complaint in this case is not that the accused should not have been
convicted of a serious crime deserving of severe punishment, but simple that Parliament should not have chosen to
call that crime "murder". No objection could be taken if Parliament classified that offense as manslaughter or a
killing during the commission of an offense. No principle of fundamental justice is offended because of this
R v. Martineau (1990) SCC
Facts: Tremblay and Martineau set out to rob a trailer. Martineau was armed with a pellet gun and Tremblay was
armed with a rifle. Martineau was under the impression that they were only going to commit breaking and entering
and no one would be killed. During the robbery Tremblay shot and killed couple in trailer. Martineau was charged
with second degree murder (s.213(a) and (d) of the Criminal Code of Canada) for both deaths (under s.21(1) and
(2)). At trial Martineau was convicted. But in appeal at the Alberta Court of Appeal the court overturned the
decision, concluding that s.213(a) violated s.7 and s.11(d) of the Canadian Charter of Rights and Freedoms.
Issue: Was the appeal court was correct in holding s.213(a) as a violation of ss. 7 and 11(d) of the Charter?
Ratio:The Supreme Court upheld the ruling of the Appeal Court. s.213(a), deciding that it violated the Charter and
could not be saved under s.1. under a subjective foreseeability test. Principles of fundamental justice (POFJ)
demand a conviction for murder requires proof beyond a reasonable doubt of subjective foresight of death.
Conclusion: Lamer: In Vallaincourt concluded that objective foreseeability of death was the minimum threshold
test before a conviction for murder could be sustained.
POFJ require, because of the stigma and penalties attached to a conviction for murder, a mens rea reflecting
the particular nature of that crime. s.213 violates the principle that punishment must be proportional to the
moral blameworthiness of the offender. Murder must be reserved for those who intended to cause death or
who intended to cause bodily hard that they know will likely cause death.
The rationale underlying that principle is that criminal liability for a particular result is not justified except
where the actor possesses a culpable mental state (R v. Bernard, R v. Buzzanga)
Upheld under s. 1? No. Deterring the infliction of bodily harm during the commission of certain offenses
because of the increased risk of death is of sufficient importance to warrant overriding a Charter right. But
it is not necessary to achieve this result by convicting those who did not intend or foresee the death.
s.212 also fails under the test of the subjective foresight requirement.
L'Heureux-Dube J. (dissenting): Subjective foresight is not the only appropriate standard that can be applied.
The test of objective foreseeability test (OFT) of death for murder does not offend POFJ.
Section 213(a) passes the OFT, and if the test is sufficient then no Charter violation
Sudden introduction of a subjective foreseeability test is novel and finds no parallel in similar common law
jurisdictions (US, NZ, UK…)
Number of homicides in Canada committed during a criminal act is a matter of concern and should be left
to the Legislature to remedy.
Justification for a narrow definition for the crime of murder based on stigma of murder, is an example of
misplaced compassion. Is stigma less because they are tagged as manslaughterers rather than murderers?
Accidental killings cannot result in murder prosecutions because they are not objectively foreseeable
therefore s.213 does not deal with them.
s.213 requires the act of a serious offense during which the death happens. In this circumstance it is
appropriate for Parliament to hold that if death happens in this circumstance you will be charged as a
If commit with weapon should be obvious they might die. Shouldn‘t risk of death be obvious to you for
causing bodily harm too?
Serves as effective deterrent and court should not second guess legitimate policy decision
Sopinka: I agree there should be a new trial but not for the reasons of Lamar. This case is governed by the reasons
given in this court's decision in R. v. Vaillancourt.
PROF: Left important questions unanswered: What other offenses beyond murder and theft (subjective
dishonesty) would make list where subjective mens rea constitutional requirement? Would it be possible to
conceive of all offenses to fall into list. All crimes carry stigma.
Notes: In R v. Sit, SCC made it clear that the constructive murder category under s.213(c) (now 230(c)) was
unconstitutional since it resorts to a test of objective foresight.
Meiler (1999) (Ont. C.A.).:
s. 229(c) contains the words ―ought to know‖ and was clearly problematic. In Martineau the Court had
indicated that its reasoning cast serious doubt on the objective portion of s. 229(c).
In Meiler Ontario Court of Appeal held that the objective portion of the section (―ought to know‖), was
unconstitutional, but otherwise upheld the section.
Three Types of Crimes Since Creighton:
Subjective mens rea: Aware of risk, all individual factors eg. Murder, assault, break and enter,
theft, possession offences
Objective Negligence: Marked departure from objective norm, no individual factors short of
incapacity. Eg. Dangerous driving, careless firearms, failure to provide necessaries.
Offences based on Predicate Offenses: Objective foresight of harm, no individual factors, no
marked limit, except for predicate offences of negligence.
Eg. Unlawful act manslaughter, unlawfully causing
bodily harm, aggravated assault.
a) Crimes Requiring Subjective Awareness
i) Common Law Presumption
Subjective mens rea is only a Charter requirement in cases of a few serious crimes.
When offense contains clear mens rea word ―intentionally,‖ ―wilfully,‖ or ―knowingly,‖ subjective test
Where no mens rea word and no language indicating crime should be interpreted as one of objective
negligence, should be interpreted as subjective.
Some offences has been interpreted to have both subjective and objective fault requirements
More recently in Lucas a common law presumption of subjective mens rea was asserted by SCC
J. Hall, General Principles of Criminal Law
Can distinguish mens reas for motive. Mens rea a fusion of cognition and volition is a mental state
expressed in voluntary commission of a proscribed harm
Exclusion of motive, as not essential in mens rea does not deny importance of motive in determining
Must preserve objectivity of mens rea, must signify some degree of culpability regardless how good motive
Principle of mens rea must be given objective ethical meaning.
Niether offenders conscience or the personal code of ethics of the judge or jury can be substituted for ethics
of penal law
Lewis v. R, 1979 SCC
Facts: Accused and Tatlay were jointly charged with murder of Tatlay`s daughter and her husband. He admitted
mailing package for Tatlay but denied knew it contained a bomb. Crown put forward theories D either was asked
to make the bomb and mailed it or knew it contained one. Accused claimed judge did not charge on motive
correctly by failing to discuss absence of proof of motive.
Issue: Is the Crown required to prove there was a motive for the crime if they have proved mens rea for the act
Ratio: Mental element of crime includes no reference to motive. It is not essential to the crime.
Conclusion: Mental element mens rea relates to intent (exercise of free will to use particular means to produce
particular result. Motive precedes or induces exercise of will (Reason for killing).
1) As evidence motive always relevant, evidence of motive admissible
2) Motive is no part of crime and legally irrelevant to criminal responsibility. Not an essential element of
prosecutions‘ case as matter of law
3) Absence of motive important fact in favour of the accused and ordinarily worthy of not in charge to jury
4) Proved presence of motive is important factual ingredient in Crown‘s case, notably on issues of identity and
intention when evidence is circumstantial
5) Motive question of face and evidence, falls within general duty of judge to give jury matters of evidence
essential in arriving in just conclusion
6) Each case unique set of circumstances. Issue of motive always a matter of degree.
In this case motive was not proven or disproven and was not asked to be charged on by counsel so no
obligation to charge on motive. Given jury`s request for financial situation read back would imply they were
aware of motive without need to be charged on it
R v. Mathe, 1973 B.C. CA
Facts: D charged with attempting to steal from a bank using threats of violence against teller s.24 (Robbery s. 343
not committed unless something actually stolen). D told teller had gun in pocket and to hand over the cash. When
she opened cash drawer he said ―that‘s not what I want‖ and added only joking and was a security guard who did
not want the cash. It appeared he had been drinking and when caught said he was only fooling.
-trial judge said his explanation might point to change in heart during robbery
Issue: If there is reasonable evidence pointing to his actions being a joke can they be considered a crime?
Ratio: If evidence yields inference of guilt but likewise an inference of innocence then it cannot result in proof
beyond reasonable doubt. Pranks are not considered more serious crimes in harmless situations. Intent to commit
offense required to charge. Pranks are not defense but show no intent so cannot be guilty. If initially intended and
as underway changed mind and abandoned then would be guilty because had intent and had taken some steps to
carrying it out.
Conclusion: Inference of farce as strong as inference of change of plan. As long as mens rea simply means
intention and has no moral content then what accused did cannot justify intention because did not intend to steal.
R v. Wilkins not convicted for stealing police officer‘s motorcycle as a joke. R v. Kerr not convicted for drunkenly
Stuart- court confuses motive and intent and creates an offence of prank. If motive was prank should only be
mitigating factor in sentencing Ie: if steal a sign for frat house as prank with no intent to return it then it is still
stealing. Doesn‘t want people to act stupid
Subjective Mens Rea (Awareness of Risk)
iv) Intention or Knowledge
Variety of terms: ―means to‖ ―intentionally‖ ―with intent‖ ―purpose‖ ―knowingly‖
Task left to judges to generally define terms
Subjective mens rea court usually satisfied with mens rea in any of the forms of intent, knowledge,
recklessness or wilful blindness
There is uncertain jurisprudence that limits mens rea required for certain offences to intent rather than
allowing extensions to recklessness or wilful blindness
R v. Buzzanga and Durocher, 1979- Leading authority on the definition of intent as conscious purpose of
foresight of a certainty.
Procedural History: appeal to Ontario CA
Facts: The defendants distributed a pamphlet with material that said hateful things about French Canadians in
order to create controversy in a fight to get a French language only school built. They felt that economics was
being used as an excuse not to build the school but the real reason was prejudice. They said the purpose of the
pamphlet was to show the prejudice and thought it would be a catalyst to provoke the government to react. It was
intended as satire They said they did not intend to promote hatred of French people because they are French. They
were charged under s. 281.2(2) now s. 319 (2) for ―wilfully promoting hatred‖
Issue: What is meant by the word wilfully? Does it include recklessness in s. 281.2(2) of the CCC?
Ratio: Only means intention and not recklessness in this case. Wilfully promoted hatred if a) conscious purpose
was to promote hatred or b) foresaw that the promotion of hatred was certain or morally certain to result from the
distribution of the pamphlet, but distributed it as means of achieving their purpose..
Where an offense has an express ―with intent‖ element this requires proof of intent or actual foresight of certainty.
Conclusion: Willfully can be used to mean intentionally and recklessly in some occasions depending on the
context. It was decided where parliament intends to extend meaning to include recklessness it does so expressly.
-compared to 281.2(1) where breach of the peace lead to immediate threat of public order, so limited in this case to
intention. Use of word willfully is intended by parliament to strike balance in protecting the competing social
interest of freedom of expression and public order and group reputation on the other. The object of including word
wilfully was to include actual intention to promote hatred and take out recklessly.
-Proof of an intention to promote hatred is required and is not done with intent to produce prohibited consequences
unless actor‘s conscious purpose to bring it about. Foresight of certainty of consequence is not synonymous with
intention to produce it
-a person intends a particular consequence not only when conscious purpose is to bring it about, but also when
foresees that consequence is certain or substantially certain to result from conduct. If still acts to achieve ultimate
goal even when knows it will bring about consequence.
-appellants intention was not to produce hatred it was to produce controversy so appeal was allowed
Notes: SCC adopted interpretation in R v. Keegstra
R v. Jorgensen- charged with knowingly selling obscene material, but was ruled accused must show more than
general knowledge of the nature of a film as a sex film. The Crown is not required to prove that the retailer
actually knows that the films meet the legal definition of obscenity though. They may watch it and think it is
harmless, but is not a defence. Only defence is if did not know what was on tape when sold it
v) Recklessness or Wilful Blindness
There are occasions where our criminal code expressly relies on recklessness as fault Ie: murder, criminal
harassment, criminal negligence
No examples where Parliament has expressly resorted to wilful blindness
The normal willingness in courts is to extend subjective mens rea beyond actual intent or knowledge to
recklessness and wilful blindness.
Central concept is actual awareness of risk in one of these forms
R v. Theroux, 1993
Procedural History: appeal to SCC.
Facts: The accused was directing mind of company charged with fraud under s. 380(1)(a). The company entered
into contracts and took deposits on basis of false representation that the deposits were insured. The company
became insolvent and the deposits were lost. The D was found to sincerely believe that housing project would be
completed and deposits would not be lost. It was found that he deliberately practiced a deceitful act constituting
mens rea but argued there was no mens rea for the offense.
Issue: Does the fact that the D honestly believed that the projects would not be completed negate the guilty mind
or mens rea of the offence? What constitutes the mens rea for the offense of fraud?
Ratio: Then mens rea of fraud is the subjective awareness that one was undertaking a prohibited act that could
cause deprivation or risk of deprivation. The fact that accused hoped deprivation would not take place is not a
Conclusion: Prohibited act is deceit, falsehood or other dishonest act, which accused committed. It is not necessary
the accused personally did not consider the acts dishonest it must be what a reasonable person considers dishonest
- The mental state necessary to the offence must be determined by reference to the external acts which
constitute the actus rea.
- No reason recklessness as to consequences might also attract criminal responsibility. Recklessness
presupposes knowledge of the likelihood of the prohibited act.
- The actus rea for fraud will be established by proof`:
o 1. The prohibited act 2. Deprivation caused by the prohibited act
o The mens reas of fraud is established by proof of:
Subjective knowledge of prohibited act 2. Subjective knowledge that prohibited act could
have consequence of deprivation of another.
- Accused guilty whether intended prohibited consequence or was reckless as to whether it would occur.
Sansregret v, R, 1985
Recklessness: Must have element of the subjective. Must be aware of danger and know conduct could bring about
the result prohibited by the criminal law, but nevertheless persists despite the risk. Sees risk and takes the chance.
Culpability is justified by consciousness of risk and proceeding in the face of it.
- Finding of recklessness in this case could not override defence of ―mistake of fact‖. Honesty of belief will
support ―mistake of fact‖ defence even where unreasonable
Negligence: Tested by objective standard of the reasonable man. Departure by act or omission which reveals less
than reasonable care
Wilful Blindness: Distinct from recklessness, arises where person becomes aware of the need for some inquiry but
declines to make the inquiry because he does not wish to know the truth and would prefer to remain ignorant.
Culpability justified by accused fault in deliberately failing to inquire when he knows there is reason for inquiry.
- Has narrow application can only find when can be said D actually knew, suspected the fact, realized its
probability but refrained from obtaining final confirmation because wanted in the event to be able to deny
- Finding of wilful blindness will leave no room for application of ―mistake of fact‖ defence because law
presumes knowledge on part of accused
R v. Currie, 1975
Procedural History: Appeal to Ont. CA
Facts: Accused charged with uttering a forged document. D was approached by man whom never seen before
who asked him to cash the cheque and he would pay the D $5. He was convicted based on the conclusion he was
―wilfully blind‖ to the forged nature of the endorsement. The D testified he didn‘t think anything was wrong and
had no suspicions about the cheque.
Issue: Was the defendant ―wilfully blind‖ to forged nature of the cheque?
Ratio: Misconception of doctrine of ―wilful blindness‖ if think should have been suspicious, only wilfully blind if
IS suspicious and omits to make further inquires.
Conclusion: Crown suggested accused must take on some responsibility, make some inquiries as to the validity of
the cheque from whom he was obtaining it, before he voluntarily proceeded to cash that cheque. But court found
must be suspicious to be wilfully blind and did not find on facts he was. Appeal allowed
Dissent- the D ―deliberately and knowingly‖ neglected to make the inquiries which he ought to have made. Plainly
suggests judge decided D suspicious or could not have ―deliberately‖‖ failed to make inquiries
R v. Duong, 1998
Procedural History: appeal to Ont. CA
Facts: Accused was charged with being accessory after the fact to murder committed by L. Two people were
killed and there were reports in newspaper and on TV connecting L to homicides. L asked if could stay at
accused‘s apartment and he indicated he was in trouble for murder and had no place to go. D told police he knew L
was in trouble but said didn‘t want to know anything more because he knew he would be in trouble for helping him
Issue: Should the D not be convicted because he did not know the specific offense L was hiding for or should he
be convicted for being wilfully blind to L‘s offense?
Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?
Ratio: Crown can prove wilful blindness if proves that an accused whose suspicions were aroused had means
available to verify accuracy of those suspicions Deliberately choosing not to know something when given reason to
believe further inquiry is necessary can satisfy the mental element of the offence. Liability on wilful blindness
subjective. Described as ―deliberate ignorance‖ Actual suspicion combined with a conscious decision not to
make inquiries which could confirm that suspicion is equated with actual knowledge. Does not matter about
hypothetical of inquiries outcome.
Conclusion: Accessory after the fact if know person has been party to the offence, and assists them in escaping.
Accessory after the fact 240 (23) (1)- uses the phrase knowing person has been party to offense. Requires Crown
to prove that accessory knew of the specific offence committed by the person assisted. Otherwise is a charge of
obstruction of justice. D argued only way to verify suspicious was to ask L who might not have admitted to
culpability of murders so did not have means to verify suspicions and should not be culpable. Liability turns on
decision not to inquire once real suspicions arise and not on hypothetical result of inquirie. D suspected L had some
connection to homicides and was wilfully blind to that fact.
Crimes of Objective Fault
Criminal Negligence: Pg. 509-510, 516-527, 532-548
Criminal Negligence: Objective standard words: ―ought to‖, ―reasonable care‖, good reason‖, reasonable ground‖,
―reasonable steps‖. Objective standard used for criminal negligence.
S.21(2): Intent for accessories
S. 86(2): Careless use of firearms or ammunition
S.22(2): Counselling another to be a party to an offence
S. 46(2)(b): Treason
S. 72(2): Forcible Detainer
S.77 Endangering aircraft safety….
S. 219-222, 234. 236
O‟Grady v. Sparling 1960, SCC
Appellant charged with careless driving under provincial legislation. Argued legislation invalid because of
overlapping federal/provincial legislation. SCC dismissed the appeal on the grounds that the Criminal Code
legislation dealt with recklessness and the provincial legislation dealt with inadvertent negligence
―The difference between recklessness and negligence is the difference between advertence and
inadvertence.‖ (subjective vs. objective standard)
Note: Overwhelming tendency for courts to ignore O‘Grady and apply an objective standard to criminal
R. v. Tutton and Tutton 1989, SCC
Facts: Accused charged with manslaughter in the death of their five-year-old son. He was diabetic. They failed to
provide him with insulin/obtain timely medical assistance. Parents‘ actions motivated by belief that son cured by
Charge: Manslaughter through criminal negligence in that they denied him the necessaries of life without lawful
excuse. Criminal Code s. 197(2) [now s. 215(2)]
Issue: Whether or not objective standard or subjective standard to be used in determining if wanton or reckless
disregard for life or safety of others.
Ratio: Reasonableness, and proof of conduct which reveals a marked and significant departure from the standard
which could be expected of a reasonably prudent person.
Decision: New trial ordered.
Conclusion: McIntyre: Authorities dictate an objective test for wanton or reckless disregard for the lives or safety
of others. Objective test should be used regardless of whether the act is one of commission or omission. Reason: It
is the conduct of the accused that is being examined, not their intention or mental state.
Sights Waite case – in which justice Cory acts of omission should have subjective standard. MacIntyre
does not think this is acceptable. Wholly unable to see difference of principle in act or omission.
If subjective foresight of death required for manslaughter difference with murder is null. What would
separate it from murder?
•―Recklessness‖ in the case of other criminal offences (eg. Sansregret) forms part of the mens rea and must be
proven on a subjective basis. ―Recklessness‖ in the case of an offence which makes negligence a crime in itself
should be considered objectively.
•Application of objective test may not be made in a vacuum: Must be made based on accused‘s perception of the
facts in order to determine whether conduct was reasonable. However, any mistaken belief held would have to be
reasonable – as opposed to other crimes where the mistaken belief need not be reasonable (Pappajohn).
•In this case, jury would have to determine whether the Tuttons‘ belief was honest and reasonable. They would
have to determine whether their conduct represented a marked and significant departure from the standard to be
observed from reasonably prudent parents.
o Recognizes criminal negligence exceptional but acceptable standard for criminal liability. Punish
conduct and results- what is blameworthy is not particular state of mind but mindless action.
o to think or advert to a risk in circumstances where reasonable people would have foreseen the risk.
Lamer: A ―generous allowance‖ must be made for factors which are particular to the accused (youth, mental
development, education). Suggests that ‗criminal negligence‘ may not satisfy the test set out in Vaillancourt
(Objective foreseeability of death is a constitutional requirement for murder). But does not address issue directly.
o Lamer is suggestion mixed test- objective standard subject to subjective qualifications.
Wilson: Majority have in effect held that criminal negligence is an absolute liability offence by saying no
blameworthy state of mind required. (contra Sault Ste Marie). Criminal negligence provision ambiguous.
Interpretation should be more consonant with the text and purpose of the provision and also, broader concepts and
principles of law (Paré). Interpretation can leave room for a mental element.
•Possibility of introducing a subjective element into the objective standard to relieve some of the harshness. H.L.A.
Hart – Could the accused, given his mental and physical capacities, have taken the ordinary precautions?
―Injustice would be inescapable in cases in which individuals could not but violate the law.‖ – Prof. George
•Requiring that misperceptions be reasonable will punish many who cannot live up to the standard of the
reasonable person. Adopting Lamer‘s idea of a quasi-subjective would cause over and under-inclusiveness in the
test. Too many personal characteristics can be imported. A fluctuating standard undermines principles of equality,
•Prefers adopting a subjective standard. Or, to reason from an objective standard and ask the question: must not the
accused have had the minimal awareness of what he or she was doing?
PROF: Isn‘t there something inherently blameworthy in negligent actor‘s thoughtlessness. Language of s. 219 is
ambiguous. If emphasis ―shows‖ and ―negligence‖ supports objective. Emphasis on ―wanton or reckless‖ imports
subjective. Principle statutory construction take one most favourable to accused. MacIntyre- Doesn‘t just focus on
language but looks at entire legislative scheme. .Isn‘t Wilson applying objective standard to wilful blindness? Isn‘t
reasoning circular? Are theorists really supporting her view? Hart – seems to be more in line with Lamar.
Wilson does not think Lamer‘s approach goes far enough. Approach allows for someone to be held criminally
responsible where due to sudden injury or ailment loses control, but what about Involuntaryness. Two important
issues left unresolved- what is the test for criminal negligence? Given Lamer‘s comments- what is the
constitutional status of offenses that have objective language? With respect to test for criminal negligence
unclear which 3 competing approaches was actually the law.
Constitutionality finally put to rest in 1992 under Nova Scotia Pharmaceutical and Desouza. Combined effect is
rejection of subjective mens rea going to each element as a constitutional requirement. As a result these decisions
made clear objective standards were constitutionally permitted standard exceptions murder and theft (Valiancourt/
R v. Hundal 1993, SCC
Offence: Dangerous driving s. 233 of the Criminal Code (now s. 249)
Facts: Dump truck driver, overloaded by 1,160kgsm, runs red light. Hits a car. Kills driver. Roads were wet. Lots
of traffic. Saw light turn yellow, thought he would be unable to stop at intersection so honked his horn and
Issue: Does the offence of dangerous driving require a subjective mens rea?
Ratio: A modified objective test is to be applied to the offence of dangerous driving.
Test: Objective test
•Onus on accused to raise a reasonable doubt that a reasonable person would have been aware of the risk‘s
in the accused‘s conduct.
•Should be applied in the context of the events surrounding the accident (eg: sudden onset of disease).
Should not be applied in a vacuum (as per McIntyre J in Tutton). External circumstances plugged in to
determine marked departure in same circumstances.
Trier of fact should be satisfied that the conduct amounted to a marked departure from the standard of care
that a reasonable person would observe in the accused‘s situation.
Conclusion: Cory: Laws for driving offences ―a mess‖ – Stuart Finding the correct mens rea as ―elusive as the
legendary Minotaur.‖ – Prof. Peter Burns. Appellant contends the prison sentence makes proof beyond a
reasonable doubt of subjective mens rea a constitutional requirement for this offence.
Court: s. 7 requires that all offences that present possibility of imprisonment require a mens rea. But it can
be either objective or subjective depending upon the crime.
A modified objective test is the appropriate standard for dangerous driving:
•Drivers licenses set fixed standards for all licensed drivers. Courts are not required to demonstrate that a
driver is aware of the standard of care, that they are physically and mentally well, etc.
•Driving is automatic and reflexive. Hard to determine a driver‘s particular intent at a specific moment.
•The wording of s. 233 implies an objective standard – ―manner that is dangerous to the public, having
regard to all the circumstances‖ – has it met the standard of care?
•High number of deaths from car accidents. There is a need for effective legislation to control dangerous
•Satisfied that trial judge correctly applied a modified objective test.
Majority endorse MacIntyre definition of criminal negligence from Tutton.
McLachlin: Feels that what Cory describes is in effect an objective test. ―Was it reasonable for the accused, in
these circumstances, to have acted as he did?‖ – That is an objective test.
•Cory suggests the test is a mix of objective/subjective factors, this is dangerous – jurists need to be very clear
about whether they are convicting on a subjective/objective basis.
R. v. Creighton 1993, SCC
Facts: Accused injected cocaine into deceased who died as a result. Injection constituted trafficking under Narcotic
Control Act. Accused convicted of manslaughter. S. 222(5)
Issue: Does the mens rea for unlawful act manslaughter (objective foreseeability) infringe s. 7 of the Charter?
Does s. 7 mandate a subjective mens rea for manslaughter?
Ratio: No infringement. Objective standard fine. The question is what the reasonably prudent person would have
done in all the circumstances.
Conclusion: McLachlin: Differs with CJ on the extent to which personal characteristics of the accused may affect
liability under the objective test. CJ‘s decision would hold different people to different standards of care.
•Principle that criminal law not convict morally innocent does not require consideration of personal factors short of
incapacity. Only comes into play when the person cannot appreciate the nature and quality or the consequences of
his or her acts. Apart from this, same standard.
•The question is what the reasonably prudent person would have done in all the circumstances.
Lamer : A reasonable person can enjoy advanced foresight because of past experience that might relate to the
conduct giving rise to an offence. But, the standard of care will remain uniform: It is the standard of a reasonable
person. It is in the determination of what is reasonable that the particularities of the accused can be considered.
Objective test „checklist‟:
1. Would a reasonable person in the same circumstances have been aware that the likely consequences of his
or her unlawful conduct would create the risk of death?
a. If the answer to this question is No, then the accused must be acquitted. If the answer is Yes, the trier
must then ask:
2. Was the accused unaware:
a. Because he or she did not turn his or her mind to the consequences of the conduct and thus to the risk
of death likely to result; or
b. Because he or she lacked the capacity to turn his or her mind to the consequences of the conduct and
thus to the risk of death likely to result, due to human frailties.
c. If the answer is (a), the accused must be convicted. If (b):
3. In the context of the particular offence, would the reasonable person with the capacities of the accused have
made him- or herself aware of the likely consequences of the unlawful conduct and the resulting risk of death?
It must be emphasized that this is not a subjective test: if a reasonable person with the frailties of the accused
would nevertheless have appreciated the risk, and the accused did not in fact appreciate the risk, the accused
must be convicted.
“Human Frailties” Are not to include: Intoxication, impairment through voluntary drug use, diversion of
attention. Could include: Illiteracy, traits accused could not control in the circumstances.
La Forest: Prefers subjective mens rea. Avoids punishing the morally innocent. Objective view does not serve
PROF: Under majority approach religious beliefs could not be taken into account. Under minority approach
unclear whether or not religious belief would be considered a trait. If take view choice not admissible. If take view
that have it when born and not changeable then have opposite result
(b) Crimes Based on Predicate Offences (SD 549-564 / 568-573)
Predicate offences involve situations in which a prohibited consequence that is not intended or deliberately
risked occurs as a result of otherwise unlawful conduct.
In predicate offenses mens rea questions relate only to the underlying unlawful conduct and not to the
unintended and/or unforeseen consequence.
eg. Unlawful act manslaughter criminalizes the causing of death. However, it is a predicate crime. The
actus reus has two aspects, the unlawful act (the predicate offence) and the ensuing prohibited consequence
of death. But mens reas is required only with respect to the underlying predicate offense. Once that mens
rea is established the accused can be held criminally responsible for the unintended and unforeseen results
of the unlawful conduct.
On the authority of Creighton and DeSousa there are some offences based on predicate offences where the
fault requirement regarding the consequence of the underlying offense is much reduced but constitutional.
So far there are 3 offenses recognized by the SCC. In each case the unlawful act is interpreted to require
objective foresight of harm.
1. DeSousa: the offense of unlawful act causing harm.
2. Creighton: manslaughter category of unlawful act causing death.
3. R v. Godin: aggravated assault.
DeSousa also held that that the unlawful act must be a provincial or federal offense, that the fault for the predicate
offence must be proved and that this cannot be absolute liability. There is no requirement of a marked departure
from the objective norm beyond proof of the underlying offence. However, where the predicate, or underlying
offence is one of negligence the gross departure limit must be applied to it (R v. Gosset).
R v. DeSousa (1992) SCC
Facts: Accused involved in a fight. Bystander injured by glass bottle thrown by the accused, hitting wall and
shattering, striking the bystander. Accused charged with unlawfully causing bodily harm contrary to s. 269 of the
CC. Accused brought motion declaring s.269 of no force or effect in that it violated s.7 of the Charter. Trial judge
found that s.269 created criminal responsibility for causing bodily harm by way of an unlawful act. The unlawful
act could be a violation of a federal or provincial statute, including an offense of absolute liability. Since the
section also allowed the possibility of imprisonment, it contravened s.7 of the Charter and was not justified under
s.1. Appeal court overturned motion to quash.
Issues: What is the constitutionally required level of mens rea for the charge of "unlawfully causing bodily harm"?
Does s. 269 violate s. 7 or s. 11(d) of the Charter?
Ratio: The appeal should be dismissed. Section 269 does not violate s. 7 or s. 11(d) of the Charter. Due to the lack
stigma or any sort of significant prison sentence attached to the offence it did not warrant a higher "subjective
fault" requirement (R. v. Martineau). The Court dismissed the argument that the offence would punish the morally
innocent by not requiring proof of intention to bring about the consequences. Instead the offence is intended to
prevent those who undertake objectively dangerous acts (this justification is elaborated on in R. v. Creighton).
Conclusion: To be brought within the ambit of s.269 an accused must have:
1. committed an underlying unlawful offence or a predicate offense (this includes provincial and federal
offences, criminal or otherwise, but precludes any absolute liability offences.)
2. have caused bodily harm to another as a result of committing that underlying offense.
For liability to be imposed for unlawfully causing bodily harm, the harm caused must have sufficient causal
connection to the underlying offense committed (R v. Wilmot).
(1). The Mental Element Requirement of s.269
A fault requirement was asserted to be a fundamental aspect of our criminal law (R. v. Sault Ste. Marie) and
as a matter of constitutional law under Charter s. 7 in Reference Motor Vehicle Act (BC).
The first requirement is that the mental element of the underlying offense of s.269 be satisfied and the
second is that the additional fault requirement be satisfied.
(a) The mental element of the underlying offense:
to be convicted under s.269 the prosecution must satisfy the mental element requirement of the underlying
as a matter of statutory interpretation underlying offenses of absolute liability are excluded from forming
the basis for a prosecution under s.269.
if the underlying offense contains a constitutionally insufficient mental element, it is of no force or effect
and thus cannot be the basis for a prosecution under s.269.
(b) the meaning of "unlawful" in section 269
English authority has consistently held that the underlying unlawful act required by its manslaughter
offense requires proof that the unlawful act was "likely to injure another person" (R v. Larkin).
the most principled approach to the meaning of "unlawful" in the context of s.269 is to require that the
unlawful act be at least objectively dangerous. This is supported by R v. Smithers.
objective foresight of bodily harm should be required for both criminal and non-criminal unlawful acts
which underlie a s.269 prosecution.
the TEST is one of objective foresight of bodily harm for all underlying offenses. The act must be both
unlawful and one that is likely to subject another person to danger of harm or injury
(2). Constitutional Sufficiency
The mental element of s.269 has two separate aspects:
an underlying offense with a constitutionally sufficient mental element has been committed.
bodily harm caused by the underlying unlawful act was objectively foreseeable. (This latter requirement
insures that all prosecutions under s.269 contain at least a fault requirement based on an objective standard).
s.269 has neither the stigma nor criminal sanction to require a more demanding mental element (subjective
C. Foresight of Consequences
Appellant argues that on the authority of R. v. Martineau and R. v. Metro News Ltd., s.7 of the Charter
requires subjective foresight of all consequences which comprise part of the actus reus of the offense and
the minimum mental element required by Charter s.7 for s.269 includes an intention to cause bodily harm.
However, the authority referred to in the above cases were not meant to be general statements but were
specific to the circumstances of each case. For example, in Martineau subjective foresight was required
because of the stigma and penal consequences of a murder conviction.
One is not morally innocent because a particular consequence of an unlawful act was unforeseen by that
There is a general principle in Canada and elsewhere that, in the absence of an express legislative direction,
the mental element of an offence is attached only to the underlying offence and not to the aggravating
R. v. Creighton (1993)
Issue: The Court divided 5-4 on the issue of whether the objective test for unlawful act manslaughter required
reasonable foresight of death or merely reasonable foresight of bodily harm.
Ratio: The test for the mens rea of unlawful act manslaughter is objective foreseeability of the risk of bodily harm
which is neither trivial or transitory, in the context of a dangerous act. Foreseeability of the risk of death is not
Conclusion: McLachlin: 3 types of culpable homicide: 1. Murder: the intentional killing of another human being.
2. infanticide: : the intentional killing of a child. 3. Manslaughter
Two requirements are constant for manslaughter (s.225(5) –now s.236(?)):
1. conduct causing the death of another person
2. fault short of intention to kill (the fault may be either in committing another unlawful act which
causes the death, or in criminal negligence).
The structure of the offense of manslaughter depends on a predicate offense of an unlawful act or criminal
negligence, coupled with a homicide.
Fact that an offense that depends upon a predicate offense does no render it unconstitutional (R v.
DeSousa) provided that the predicate offense involves a dangerous act and is not an absolute liability
It is suggested in this case that the offense of manslaughter is unconstitutional because it requires only
foreseeability of the risk of bodily harm and not foreseeability of death.
In more recent times the prevailing view has been that foreseeability of bodily harm is required for
manslaughter and the act must be objectively dangerous as stated in R. v. Larkin, R. v. Tennant, R. v.
Adkins, R. v. DeSousa.
Does the above test violate the principles of fundamental justice under Charter s.7?
The Appeal Court Judge found that manslaughter offense is unconstitutional for 2 reasons:
1. Gravity and stigma of the offense requires a minimum mens rea of foreseeability of death and
2. Considerations of symmetry between the element of mental fault and the consequences of the
offense mandate finding it unconstitutional.
3. Those causing harm intentionally should be punished more than those causing harm
in response to 1. directly above: the stigma attached to manslaughter is an appropriate stigma. Also,
convicting a person who has killed another only of aggravated assault—the result of requiring foreseeability
of death—is not sufficient. The terrible consequences of death demand more. Stigma not close to murder
because unintentional killing. Stigma is appropriate, would shock public conscious if guilty only of
aggravated assault if caused death didn‘t foresee.
also, manslaughter does not carry with it a minimum sentence as with murder, therefore the punishment is
proportionate to the moral blameworthiness of the offender.
in response to 2. above: the criminal law has traditionally aimed at symmetry between the mens rea and the
prohibited consequences of the offense.
i. Criminal law theory suggests that the accompanying mens rea must go to the prohibited
consequence, therefore the Appeals judge concludes that foreseeability of death is
required not just foreseeability of harm. In doing this we are abandoning the thin-skull
rule (take your victim as you find her) which I cannot accept.
ii. If one engages in criminal behavior, one is responsible for any unforeseen action
stemming from the unlawful act (Smithers v. The Queen (1978)).
iii. reject symmetry as a general rule, there are exceptions, and the concern is whether the
principle of fundamental justice is satisfied, which does not require absolute symmetry
(Malmo-Levine) Crimes based on predicate offenses are exception to symmetry
principle. Rule is just that a rule, to which there are exception
G.P. Fletcher, Re-thinking Criminal Law (1978): When used normatively, "criminal" refers to the type of
person who by virtue of his deeds deserves to be branded and punished as a criminal. When used descriptively, as
in the phrase "criminal act" it may refer simply to any act that the legislature has declared to be "criminal".
G.P. Fletcher, The Theory of Criminal Negligence: A Comparative Analysis (1970-71)
we require mens rea as an essential condition for criminal liability in order achieve justice
Coke's saying: the act is not culpable under the law (actus non facit reum) unless the actor is culpable for
acting as he did (nisi mens sit rea).
non compos mentis (not having a sound mind) negates culpability the same as acting under duress or
Anne Stalker, Can George Fletcher Help Solve The Problem of Criminal Negligence? (1982)
A normative test is one that applies directly to the underlying policy, without translating it into measurable
and consistent components. A descriptive test would specify identifiable elements that are consistent from
case to case. The problem with a normative test is that it is discretionary and can change from judge to
judge and day to day. The problem with a descriptive test is that it is rigid and may not accurately reflect
the underlying principle or policy in every situation.
J.M. Weiler, R.V. Kundeus: The Sage of Two Ships Passing in the Night (1976): Something is always left out.
We cannot anticipate and enumerate all of the conditions of blameworthiness in advance.
Rosemary Cairns Way, The Charter, The Supreme Court and the Invisible Politics of Fault: A Critical
Analysis of the Consitutionalization of Fault. (1992): We need a multidimensional, contextualized approach to
fault, not just relating to objectivism and subjectivism. Decisions about responsibility should invoke a rich and
multifaceted debate about the nature and appropriate allocation of blame, the assumption of free will and the
efficacy of the criminal law as a mechanism of social control.
Toni Pickard and Phil Goldman, Dimensions of Criminal Law (1992)
The basis in fairness for an objective standard. An objective standard presupposes the possibility of agreeing on
what is reasonable or natural in any given situation. That possibility in turn, presupposes both shared
understandings, perceptions, and values among the fact finders etc.
Loss of centre and the problem of fairness. People of different cultural and ethnic backgrounds have sometimes
different and conflicting values. Facts, meanings, etc. are not out there in the world in some absolute sense…and is
a large part a function of the observer's beliefs. Therefore the view of the decision maker may vary from the view
of those decided upon.
Mistakes of Fact
Is a defence but unlike most defences is premised on absence of mens rea. When made out
mens rea is said to be absent
Cases that make out mistake of fact are mostly ones that deal with rape an offence that used
to be in criminal code until 1982. Now sexual assault.
Mens rea allowed us to examine murder and manslaughter as well as cases based on
criminal negligence. We now consider sexual violence
Pappajohn and Sanregret what cases say how defence of mistake of fact applies in context
of sexual violence has been modified by amendments to the code since these cases have
been decided. S. 271-273 (sexual assault)
SEE: Criminal Code, ss. 265(4), 273.1 & 273.2: amendments to code, that as a result read Pappajohn and
Sabregret to generally learn about Mistake of Fact which stills applies to all other offenses of code other
than sexual assault. Sexual assault deals with MOF in the above sections. Common law rules of MOF were
developed in sexual assault cases but only remain applicable to offenses other than sexual assault, as has
own statutory regime.
How has law evolved out of narrow and male perspective.
Ewanchuk how MOF modified in code for sexual assault and struggle against male
perspective of sexual assault was not over and cannot be undone with a few amendments to
the criminal code.
The former crime of rape in the criminal code (s.143) contained no express mens rea requirement. That and
the possibility of a defense of mistaken belief was the issue in the controversial cases of Pappajohn and
S.143-rape when a male person have sexual intercourse with a female without consent or with consent in
certain circumstances . Note immunity for husband and wife and man with another man and for women.
Also need to prove sexual intercourse used to be defined as penetration (no rape without it even if was
forced sexual encounter. Also no mens rea in offense
Pappajohn v. R (1980) SCC
Facts: Appellant was convicted at trial for rape S. 143 (looked at in Currier . After consuming a lot of alcohol with
his real estate agent, they went to the house that was for sale and there the appellant claims they had consensual
sex. The complainant was witnessed running from the house later in the evening, in obvious distress and partially
clothed and hands tied. She ran to a neighbours house and the police were called. She claimed rape. Appellant
appeals rape conviction (affirmed by BC Appeal Court) on the grounds that the trial judge failed to put to the jury
the defense of mistake of fact. No issue of capacity here, were not drunk according to restaurant owner. Keys and
purse neatly placed in house and blouse hung in closet. None of the clothing was damaged.
Issue : Did the trial Judge err in failing to instruct the jury that the honest belief by the accused that the
complainant consented to intercourse was a defense that if proven would exhibit the lack of the necessary mens rea
for the offense?
What is the mens rea of rape? IS a mistake belief in consent available in defence to the charge of rape? If so does
mistake afford a defence only where the mistake is one which is held both honestly and on reasonable grounds?
Did the trial judge err in the case at bar in ruling that there was not sufficient basis of fact to justify leaving the
defence of mistake of fact to the jury?
Is an honest but mistaken belief in consent actually a defense to a rape charge? Must honest but mistaken belief be
Ratio: Mistaken belief defense does not have to be reasonable, as long as it was an honestly held belief.
Conclusion: McIntyre, J: Appeal dismissed/ new trial. There must be some evidence upon which the defense can
rest. Was there adequate evidence of a mistaken but honest belief in the consent of the complainant? No, there were
only the opposing stories of the two. There was not sufficient evidence to put the defense of mistake of fact to the
jury. The issue of consent is the only realistic issue that can arise considering the evidence. To charge mistake of
fact defense in this case would mean doing so in all cases where the complainant and accused differ on the issue of
-This case differs from R. v. Plummer or D.P.P. v. Morgan where evidence supported the contention that the
accused could have thought consent existed, no matter how unlikely it was eventually determined that was.
If appellant entertained honest but mistaken belief victim was consenting necessary mens rea would not be present
and appellant would be entitled to aquital. Jury should have been given possibitlity of MOF
- Majorty rejects this. Why? Must be air of reality to defence in the evidence. Cinous p.849 (presumption of
innocence) Trial judge must decide whether there is factual basis for defence grounded in the evidence.
Could the evidence put forward if believed enough that jury could acquit on that basis
- Accused has evidential burden and if air of reality judge puts defense to jury and Crown has legal burden to
disprove defence beyond reasonable doubt (therefore no objection of reverse onus)
- Majority thinks no air of reality in this case, nothing in evidence that supported the defence. Only thing put
to jury is issue of consent.
- Meaning of MOF: adopted Dickson‘s judgement of meaning and its availability as a defence ‗
- Examples of when MOF whould have air of reality Plummer complainant went to Plummer‘s and was
raped by him Brown entered after, open unaware had been raped. Complaintant submitted because of fair,
but was at least air of reality to Brown‘s defence. Morgan evidence husband said it was ok even if wife
struggled. However preposterous MOF might be there was evidence expalaining basis for mistaken belief
but in this case no such air of reality based on evidence.
- Where complaintent says rape and accused says consent and on whole there is clear issue on this point and
accused makes not assertion of belief of consent as opposed to actual consent, unrealistic unless other
circumstances to consider judge bound to put MOF defence. More than just accused assertion.
Notes: Dickson Dissent
Dickson‟s judgement is authoritative on meaning of MOF and availability in rape cases at the time (modified
by amendments to code)
- Before can get to MOF as to consent- element of acuts reus have to address if mens rea of rape
includes requirement accused know the victim is not consenting because MOF is defense premised on
absence of mens rea (mens rea corresponding to actus rea of consent)
- No express mens rea language in offence. Dickson applies general interpretive principles
o Actus reas Elements 1. Male sexual intercourse with female 2. Without genuine consent.
o General presumption subjective mens rea pg. 589
o Elements of mens rea: 1. Must be intention or recklessness in act 2. Intention or recklessness
in absence consent – accused must subjectively be aware that P is not consenting- must have
knowledge, be wilfully blind, or reckless to consent
o Defence of MOF: Defence should avail when honest belief in consent or absence of knowledge
consent has been withheld.
Defence where prevents accused from having mens rea for very crime which charged,
negation of guilty intention then affirmation of positive defence
Avails accused who acts innocently pursuant to flawed perception of the facts who
nonetheless commenced actus reus. Raised as issue by the accused.
Was mistaken “thought that she consented” therefore didn‟t have mens rea required.
If on facts as accused honestly but mistakenly believed conduct would be innocent,
lacks mens rea and is entitled to acquital
What is the mens rea of rape?
The mental element must be proved with respect to all circumstances and consequences that form part of
the actus reus (excluding the morally indifferent).
It follows that in the case of alleged rape, where a fact or circumstance is not known to, or is
misapprehended by, the accused, leading to a mistaken but honest belief in the consent of the woman, his
act is not culpable in relation to that element of the offence.
In summary, intention or recklessness must be proved in relation to all elements of the offense, including
absence of consent.
Mistake of fact? (p590)
Leading English cases on mistake of fact are R. v. Prince (1875) and R. v. Tolson (1889).
o In R. v. Prince Brett, J held that the mistake as a defence applies whenever facts are present, in
which an accused believes and has reasonable ground to believe, which if true would render his act
innocent and not a crime.
o In Tolson an honest and reasonable mistake of fact is on the same footing as the absence of a
reasoning faculty, as with infants, or impairment of the faculty, as in lunacy. Cave J: at common law
and honest and reasonable belief in the existence of circumstances, which, if true, would make the
act for which the prisoner is indicted an innocent act has always been held to be a good defense.
Mistake is a defense where it prevents an accused from having the mens rea which the law requires.
Honest and Reasonable Mistake? (p592)
Must the defense of honest, though mistaken, belief in consent be based on reasonable grounds?
No (not as in R .v. Rees (1956) and Beaver v. R (1957).
It is unfair to speak in terms of two beliefs, one of the accused and the other by a reasonable man, and to
ask the jury to ignore an actual belief in favour of an attributed belief.
By importing a standard of the reasonable man external to the accused, there is created an incompatible mix
of subjective and objective factors.
Plea and Evidence (p594)
Was there a sufficient evidential base in this case? There is circumstantial evidence: clothes undamaged,
folded clothing at the foot of the bed, blouse hung neatly in the closet, in the house for hours, no evidence
Doesn‘t think MOF defence can be reduced to situation where evidence of third party. Testimony might be
Must the mistake be objectively reasonable? No. Unreasonable but honest mistaken belief can provide a
o Reasonableness requirement would allow for intent. Beaver- had already decided suffiecient belief
be honestly held, did not also have to be objectively reasonable. Requirememt belief be reasonable
would require objective standard akin to negligence which is problematic because rape is a true
crime. Statutory language does not import objective standard and court will not read it in.
o Danger to defence of MOF- easy for accused charge with rape to say did not consent but he honeslty
believed consented and appreciate belief is unreasonable but still be aquitted. Dickson responds that
in practice triar of fact accused mistaken belief honestly held unless mistake seems reasonable in
circumstances. Grounds determine weight of defence belief actually held
o Dickson believes it was open to find truth was somewhere in middle of complaintant‘s and accussed
stories. MOF should have been left to jury. Can be ambiguous situation in sexual relations law can‘t
always solve, not always possible to find which interpretation of events is right. Truth can
sometimes be grey.
o Parliament has codified need for instruction in s. 265(4) Accused‘s belief as to consent- where an
accused alleged he believed complaintent consented to the conduct that is subject-matter, a judge if
satisfied that there is sufficient evidence and that if believed by the jury the evidence would
constitute a defence, shall instruct the jury when reviewing all the evidence relating to the
determination of the honesty of the accused belief to consider the presence or absence of reasonable
grounds for that belief. – Reasonableness only goes to evidence of mistaken belief.
o WHAT TO TAKE AWAY: is defence of MOF. Goes to mens rea- test is honest but mistakedn belief
in facts therefore negating mens rea, reasonableness of belief not part of test but can be one of
evidential factors that proves actually held belief genuinely
Sansregret v. R. (1985) SCC
Facts: The appellant and the complainant lived together. They had a violent relationship in which the appellant
frequently roughed up or slapped the complainant. In September 1982, they decided to end their relationship. A few
days later the appellant became furious and attacked the complainant with a file-like object. The complainant tried
to calm down the appellant by pretending that there was some hope of reconciliation and they had intercourse. The
complainant reported the incident to the police, but decided not to press charges. Three weeks later the appellant
broke into the complainant's house. The appellant picked up a butcher knife and entered the complainant's
bedroom. The complainant became fearful for her life. The complainant tried to calm down the appellant by again
pretending that there was some hope of reconciliation. They engaged in intercourse and the complainant stated that
she engaged in intercourse only to prevent further violence by the appellant. She later filed charges against the
appellant for rape.
Appellant charge with rape s.143, unlawful confinement, etc. Acquitted at trial of rape.
Crown claimed consent extorted by threats of fear of bodily harm s. 143(b)(i). Trial judge found appellant did not
know of first complaint of rape. Appellant testified he honestly believed complainant was consenting Support in
testimony of complaintent because said he thought everything was back to normal. Accused saw what wanted to
see, wilful blindness. Did not find subjective appreciation, but chose not to inquire further, found no one in right
mind could believe consent, but he did. However SCC finds evidence revealed Sansregret knew of rape complaint.
Issue: Issue is the application of the defense of mistake of fact in a rape case. Did the trial judge err in finding
MOF? What is the mens rea for rape premised upon s. 143(b)(i). Does MOF provide a defence for this offence?
Does finding of wilful blindness as to fact consent out of fear preclude defense of MOF
Ratio: Appeal dismissed: Where the accused is deliberately ignorant, as a result of blinding himself to reality, the
law presumes knowledge, in this case of the nature of the consent. Therefore no mistake of facts defense
Conclusion: McIntyre J: Appellant claims that the defense of mistake of fact is open to the accused under
s.143(b)(i) of the criminal code and that it is the honesty of such belief that is determinative not reasonableness.
Reliance placed on Pappajohn v. R. Trial judge: after terrorizing the girl the accused claims that he honestly
believed that everything between them was fine and her consent was real. This was wrong but real to the accused.
Acquitted. Did the accused have the honest belief that she consented? The honest belief must encompass more than
the fact of consent, it must include a belief that it was freely given. Wilful blindness rule applied in this case.
Appellant was aware of the likelihood of the complainants reaction to his threats (because he had 'forced' her
consent in the previous incident).
- Is mens rea for rape modified under s. 143(b)(i). 1) Accused must know that consent was given because of
threats out of fear or bodily harm or be wilfully blind – suspect consent likely coerced but choose not to
inquire further to perfect knowledge or be reckless-subjectively appreciate there is risk consent through fear
but be indifferent, go ahead anyway
- Can MOF still provide denfense? YES. Can be grounded in honest belief on part of accused even if
unreasonably held. Honest belief women consenting freely and voluntary and not because of threats.
- Does court think finding of recklessness available on facts? YES. One would think man who intimidates
would know consent was result of threats, at very least reckless.
- Does finding of recklessness preclude finding of MOF? NO. Can‘t override it. Finding of intention or wilful
blindness could. Honesty of belief will support MOF even where unreasonable.
- Recklessness and MOF are not mutally exclusive because Papajohm provides for unreasonable MOF to
provide a defence.
- PROF: Has court confused unreasonable belief MOF as to consent with recklessness as to consent.
Recklessness subjective test- subjectively appreciates risk but proceeds any way. Different than P who
honestly believes compliantant consenting and doesn‘t suspect otherwise even though reasonable person
- Court says: Can be concurrent findings of recklessness and MOF.
- PROF: doesn‘t understand because recklessness complaintant must subjectively appreciate risk P not
consenting. SCC has authority to be wrong and still authoritative.
- Is MOF available for wilful blindness? No. Would leave no room for application of the defence because
presumes knowledge of part of accused. PROF thinks this makes sense
- Given trail judge found appellant wilfully blind, conviction maintained.
-NEW framework governing sexual assault- s.271: Everyone who commits a sexual assault is guilty of a) an
indictable offence and is liable to imprisonment for term not exceeding 10 years b) an offence punishable on
summary conviction and liable to imprisonment for term not exceeding 18 months.
- The task of defining this offense was essentially left to SCC. Given that this provision appears within a series
under the larger heading of ―assault‖ Parliament was taken to have intended that this offence builds upon a simple
assault in s. 265(1).
-It was left to court to decide what would have to be present before an ―assault‖ would be characterized as a
- 1987 R v. Chase The SCC held that a sexual assault is an assault within any one the definitions of s. 265(1) which
is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated
-This determination is objective ie: Whether viewed in light of all the circumstances would a reasonable observer
characterize the assault as sexual in nature.
-Factors relevant to this determination will be part of the body touched,the nature of the contact, the situation in
which it occurred, the words and gestures accompanying the act and all other circumstances surrounding the
-In most instances the underlying assault will be one premised upon s.265(1)(a). Under that subsection, given
Chase, the elements of sexual assault are as follows:
-Actus Reus: 1. Applying force directly or indirectly to another person 2. The application of force must
when the entire circumstances are viewed objectively violate the sexual integrity of that person and 3. Without the
consent of that other person (Whose state of mind is relevant? The complaintants)
Mens Rea: 1. An intention to apply direct or indirect force to another person and 2. Knowledge of or recklessness
or wilful blindness towards the absence of consent.
N. B. The Crown need not prove that the accused had any mens rea with respect to the sexual nature or his/her
-In addition to the offence of simple sexual assault there are also aggravated forms of the offence. These
aggravated forms have additional external circumstances (elements of the actus reus) that the Crown must
establish. They also carry a longer potential maximum punishment and a minimum in certain circumstances
Consider: s. 272 (1) Sexual assault with a weapon, threats to a third party or causing bodily harm.
** PREDICATE OFFENSE
S. 273 (1) Aggravated sexual assault- everyone commits an aggravated sexual assault who ,in commiting a sexual
assault, wounds, maims, disfigures or endangers the life of the complaintant. (2) where use of firearm min. 4 years
up to life b) any other case life imprisonment.
- Also specify limits on what kind of consent can displace finding of sexual assault. Provisions that define measin
of Consent for all assaults. S. 265(2) Applies to all forms of assault including sexual assault, SA with weapon and
aggravated SA (3) Consent- for the purposes of this section, no consent is obtained where the complaintant
submits or does not resist by reason of a) application of force to the complainant or to a person other tahn the
complainant b) threats of fear of the application of force to complaintant or person other than the complainant c)
fraud d) the exercise of authority.
-some apply specifically to SA: s. 273(1) Meaning of ―consent‖ voluntary agreement of the complainant to engage
in the sexual activity in question (2) Where no consent obtained a) agreement is expressed by words or conduct of
person other than complaintant b) complaintant incapable of consenting c) abuse of postion of trust, power or
authority d) complaintant expresses by words or conduct a lack or agreement e) Complaintant having agreed
expresses lack of agreement to continue. (3) not limiting- can be other circumstances of no consent
R. v. Ewanchuk (1999) SCC
Facts: Accused charged with sexual assault s. 271 after a number of touching incidents with the 17-yr-old
complainant. Had told complaintant was looking for help working at service desk for his business and she met him
for interview. Accused acquitted at trial because the complainant was not explicit enough in communicating to the
accused her objection (even though she said no to his advances multiple times). She said she believe door to trailer
was locked and became frightened, she complied with massage requests, told her to relax and not be frightened.
Accused stopped every time she said ‗no‘ but would continue a few minutes later. Complaintants words and
conduct were not sending message of consent.The defense was one of implied consent. The complainant testified
that she did not object further because she was afraid of his potential reaction. Was acquitted at trial based on
absence of consent not proved beyond reasonable doubt. Appeal dismissed by AB Court of Appeal. Concluded
acquittal factual so no basis for appeal.
-Accused did not testify- had 2 prior rape convictions and 1 SA conviction, wanted to avoid making case worse by
attacking his record.
Issue: 1. Did the trial judge err in his understanding of consent in sexual assault? Yes.
2. Was his conclusion that the defence of ―implied consent‖ exists in Canadian law under s.271correct? No.
Ratio: For a defense of honest but mistaken belief in consent to succeed, the evidence must show that:
1. The accused believed that the complainant communicated consent. (s.265(4)) I.e. A belief by the
accused that the complainant, in her own mind, wanted the accused to touch her (eg. ―She wanted it,
she meant yes‖) but did not express that desire, is not a defense, you must have mistakenly thought
that she communicated consent through words or conduct.
2. The accused must have taken reasonable steps (273.2) to discover whether the victim consented to
the sexual activity.
Conclusion: Major: There is no defense of implied consent in sexual assault. The absence of consent, combined
with behaviors that imply consent, is not a defense. Trial judge erred in considering the actions of the complainant
rather than her subjective mental state. To be legally effective consent must be given freely, not under duress, etc
(see Saint-Laurent v. Hetu (1994) p.82)). The trier of fact has to find that the complainant did not want to be
touched sexually and madder her decision to permit or participate in sexual activity as a result of an honestly held
fear. Fear need not be reasonable nor communicated. Once complainant's testimony establishes the absence of
consent beyond a reasonable doubt, the actus reus analysis is complete. In order to establish mistake of fact defense
the accused must prove that he had consent communicated affirmatively by words or conduct. Silence on the part
of the complainant is no defense (R. v. M. (M.L.) (1994)) nor is equivocal conduct. Continuing sexual conduct
after someone says no is at a minimum reckless conduct (R. v. Esau (1997)).
-absence of consent is subjective and subject to complaintant‘s mind at time of touching. Does not mean if
complaintant testifies did not consent court is bound to accept this. Credibility must still be assed, open to accused
to argue actions and words raise reasonable doubt she did not consent. IS there such a thing as implied consent?
NO. There is either consent or no consent. If reasonable doubt if complaintant consented it must be resolved in
-trial judge error focusing on complaintants actions as opposed to subjective state of mind to conclude ambiguous
conduct gave rise to implied consent. Confused absemce of consent from actus reus with accused knowledge of
consent which is element of mens rea. A finding complaintant did not want or consent to sexual toufching should
have ended analysis of actus reus. Lack of consent element of actus reus was present.
-How does s. 265(b) effect this? Fear of violence- if complaintant consents out of fear even though doesn‘t
vocalize fear, provided believed this will negate consent. Analysis is subjective. Law interested in reasons for
chossing to participate, examination of choice believed she face. Did she freely make up mind about conduct. She
did not want to be touched, fear does not have to be reasonable or communicated to accused must just be believed.
-She said No 4 times and body language communicated absence of consent. S.265(3) only applies when
outwardly show consent so unnecessary to go to it (Sanrgret)
- Mens rea of sexual assault- also have to be satisfied for SA to succeed, can also be predicate offense for
s.272 and 273.
-Does honest but mistake belief to consent still provide a defense? YES MOF still available to people who
charged with sexual assault even where actus reus made out and found complaintant did not consent. Available to
those who honestly believe through words or conduct she vouluntarily consented to conduct. Required subjective
awareness complaintent not consenting has to be lacking. Loophole for recklessness Sanregret unclear if this still
applies, but it might. Correction happens statutorily, but court has not put its mind to it yet. Only applies to offenses
of sexual assault. Ruling of Sanregret still applies to MOF in other circumstances.
-s.273(2) limits defence of MOF: Where belief in consent is not a defence- It is not defence to charge under
s. 271, 272, or 273 where a) accused belief arose from the accused 1) self-induced intoxication 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 complaintant was consenting.
-(b) has proved controversial because positive duty complaintent must assert certain facts did what
reasonable person would do.
-Some people claim that s.273(ii) agreement akin to contract would be needed to engage in SA with confidence
would not result in prosecution because or rigidity and positive duty it would imply PROF thinks SCC ruling does
not fall prey to this criticism. Consent can be communicated through words or actions, can send clear message of
consent that justified reasonable to rely on. Once someone says NO must air on side of caustion ans ask if ok
before go further. Common sense once express unwillingness- accused should make certain truly changed mind
before proceeding with further intimacies.
- Was there air of reality to MOF in this case? NO. Words and conduct said no, no basis accused to suggest
mistakenly thought complaintant consenting. SCC takes unusual step of overturning acquittal and substituting a
conviction instead of ordering new trial.
L'Heureux-Dube: The complainant clearly articulated her absence of consent: she said no. It is difficult to
understand how the issue of implied consent even arose in this case considering that the complainant said no
multiple times and the accused kept trying. Unless an accused takes reasonable steps to assure that there is consent,
the defense of honest but mistaken belief does not arise. (R. v. Daigle (1998)).
- Given said no 4 times and he said don‘t be afraid L‘Hereux questions how question of implied consent even
arose. Why didn‘t court take complaintent repeatedly saying no at face value.
-Male constructed mythology about women and sexuality. Error does not derive from findings of fact but when
women saying no really saying yes but persuade me. Findings seem to stretch bounds of reason. CA compounded
trail judge error by pointing out did not enter in bonnet and crinolines and was teen mother. Makes clear myths
women who is unchaste is more likely to have consented and less deserving of belief still alive in minds of many
-Implications s.273(b), majority refrained from commenting but she writes agree with Fraser unless accused takes
reasonable steps to ensure consent mistaken belief defense does not arise. Can one rely on physical cues and no
words? Probably can rely on actions, but makes more sense to ask.
Note: Outside framework of SA still Papajohn that governs defence of MOF. Establishes negation of mens reas so
where subjective MR requirement reasonableness is only relevant to creditability. Just has to be honestly held.
Additional caveats of Sanregret for recklessness, but not knowledge and intention.
-Where crime requires objective negligence mistake must be honest and reasonable. Can still be negligence
because goes to mens rea.
-Where there is due diligence offence (sualt st. Marie) strict liability must be honest and reasonable with onus of
proof on the accused.
-Where offense is one of absolute liability MOF is not defense because there is no mens rea. This is subject to
constitutional limitations to absolute liability offenses.
The Components of Sexual Assault (p642):
conviction for sexual assault requires proof beyond a reasonable doubt of two basic elements:
1. that the accused committed the actus reus—unwanted sexual touching
2. that he had the necessary mens rea—the intention to touch, knowing of, or being reckless of or
wilfully blind to, a lack of consent, either by words or actions, from the person being touched.
Actus Reus of sexual assault requires proof of:
1. touching (objective—accused's action voluntary)
2. sexual nature of the contact (objective –crown need not prove that accused had any mens rea with
respect to the sexual nature (R. v. Litchfield, R. v. Chase) )
3. the absence of consent—complainants subjective internal state of mind towards the touching at the
time it occurred (R. v. Jensen (1996), R. v. Park (1995))
Mens Rea of sexual assault
o sexual assault is a crime of general intent.
o the crown need only prove that the accused intended to touch the complainant
o but common law recognizes a defense of mistake of fact for those who honestly believed consent
was given (Pappajohn v. The Queen). Otherwise the morally innocent may be convicted (R. v.
o The defense of mistake of fact is a denial of mens rea. It does not impose any burden of proof upon
the accused (R. v. Robertson (1987)) and its not necessary for the accused to testify in order to raise
the issue. Support for the defense may stem from any of the evidence before the court.
Mistakes of Law
Relates to what is going on in accused mind, but unlike MOF generally not a defence.
Ignorance of the law is no excuse
o At Common Law: ignorance of the law is no excuse- the latin maxim ignorantia
juris non excusat
o Criminal Code, s. 19: Ignorance of the Law: by a person who commits an offence is not an excuse
for committing that offence.
Not a defence for an accused to claim, did act that constitute actus reus and had intention/K/R/WB toward
prohibited consequences- necessary mens rea but did not know what doing contrary to law. Everyone is
presumed to know the law, ignorance of it including understanding of what it might require is not a defence
Policy rationales- Would allow courts in protracted disputes in what accused believed would be. Would
encourage people to remain ignorant to the law, would make every person a law unto themselves, law
represents moral values of community and ignorance of these values are blameworthy (in less regulated
Application in practice not straightforward because distinction between MOF and MOL is sometimes
difficult to draw depending on ingredients of the offence. Can also be mixed MOF/MOL application of law
to the facts.
Making an entirely reasonable MOL- mistake everyone in circumstance would make is not a defence
because still had mens rea.
R. v. Campbell and Mlynarchuk 1972 Alta. Dist. Ct. SD 699-704
Facts: D charged under S. 163(2) (now s.167(2)) taking part in immoral performance- commit offence if take part
in immoral, indecent or obscene performance, entertainment or representation in a theatre. D danced a ―go-go
dance‖ on stage in front of an audience and by end of dance she was not wearing any clothes (strip club). Argument
D lacked necessary mens rea for offense because she earlier refused to do performance but had been informed that
a Supreme Court Judge ruled they could go ahead with bottomless dancing from ruling of manager of place.
s.167(2) Person taking part- Everyone commits an offence who takes part or appears as an actor a performer or an
assistant in any capacity, in an immoral, indecent or obscence performance, entertainment or representation in a
150 Definitions ``Theatre`includes any place that is open to the public where entertainments are given, whether or
not any charge is made for admission.- PART OF ACTUS REUS (offence not made out if place doesn`t meet
requirements of theatre)
Issue: Was the performance immoral? Could the D use the defence of mistake of fact?
Ratio: Since being nude in public place offense to perform in nude is therefore immoral performance, performance
was immoral within meaning of section.
Mistake of fact is a defense to a criminal charge where it can be said that the facts believed by the accused, if true,
would have afforded him a defence. Mistake of mixed fact and law also a defence because it is also a mistake of
fact. Mistake of law is no defence contained in s. 19 of the CC, cannot be defence as matter public policy. The
principle that ignorance of the law should not be a defence in criminal matters is not justified because it is fair, it is
justified because it is necessary, even though it will, sometimes produce and anomalous result.
Conclusion: This is a performance within meaning of section and she took part as performer. R v. Johnson s.170
crime to appear nude in public place, ―breach of moral standard in Canada‖ This was the case the D relied on and
the decision was the trail level decision that was reversed on appeal. No mistake of fact in this case, what she was
told had happened did happen. Mistake was concluding that judge‘s statement was the law, this is mistake of law. --
-Mistake of law to misunderstand the significance of the decision of a Judge and conclude that decision correctly
states the law unless speaks on behalf of ultimate CA. Not situation where mistake of law can be defence because
can negative malicious intent required for that crime, no wording of ―wilfully/maliciously‖ The only mens rea
required here is that appellant intended to do what she did, no suggestion she lacked this mens rea. Excuse or legal
justification is a defence at law, not available when person has made mistake as to whether or not this act is
excused by another law or authorized by another law, not matter of justice but matter or policy. R v. Brinkley got
advice from counsel, but still convicted notwithstanding reliance on that opinion. Kokoliades v. Kennedy relied on
municipal by-law licensing to sell candy on Sunday, law was ultra vires gave rise to defence of excuse-
respectfully disagrees with this outcome.
Actus Reus: 1. Taking part as actor, performer or assistant to immoral or indecent or obscene performance. At
time subject to community standards test (know when see it Butler and Lebay come later) 2. In a theatre
Mens Rea: Presumption of subjective mens rea 1. Intentionally doing what constitutes actus reus, intentionally
participating in the performance with knowledge that doing this. 2. Knowledge it is theatre, open to public
-So if thought was private party and turned out wasn‘t would have defence
- **Knowledge that ones conduct is considered immoral, indecent or obscene is not part of mens rea
Because alleged to be question of law not question of fact (Community standards test up to court to determine)
-appellant‘s argument on appeal that reliance on trial decision in Johnson negated mens rea. Court characterized
this as mistake of law. Misunderstand significance of judge and his reasons and to think that this decision states the
law unless ultimate CA. Given s.19 MOL not a defence
-RULE: MOL do not provide a defence- rule of policy not matter of justice. One cannot help but have sympathy
for the accused but not defence because requirement system of justice is it work efficiently and effectively. If
understanding of the law is ever to be relevant would have absurd proceeding. Issue would not be what did , but if
had understanding of the law.
-Strange ruling but necessary. Principle ignorance of law should not be defence not justified because fair, but
necessary even if produces anomalous result. Reliance on judge‘s authority of the law is misplaced.
PROF: is this rule really necessary? Could we not have limited defence of MOL based on reasonable reliance upon
the incorrect judgement of a court?
-Result is dictated by long line of precedent- How should application be dealt with? MOL can mitigate sentence
-PROF: Did appellant really chose to violate the law? Is she fairly labelled a criminal?
-Mistake of law no defence conviction correct but can mitigate sentence. Gave absolute discharge.
Policy: First requirement of justice system it work efficiently and effectively. If state of understanding of the law of
an accused person is ever to be relevant in criminal proceedings, we would have absurd proceeding. Issue would
not be what the accused did, but whether or not the accused had a sufficiently sophisticated understanding of law to
appreciate what did, there would be premium placed on ignorance of law . Can go to grounds of milder
punishment. Reliance on a specific order of specific judge granted at specific time and place seems not to be
ignorance of law, but knowledge of the law, but if judge mistaken then reliance on judge‘s judgement is mistake-
Note: Ironically trail decision in Johnson was later upheld on final appeal to SCC. Even though public nudity is
offence does not follow public theatre performance is necessarily indecent, immoral or obscene.
-TWO MAJOR EXCEPTIONS TO IGNORANCE OF THE LAW AS NO EXCUSE:
1. Colour of Right- Statutory exception that applies to certain property offences like theft
2.Officially Induced Errors of Law: May create tension with above case.
C) Colour of Right for Property Offences
R. v. Dorosh 2004 Sask. CA
Facts: Appellant was charged with stealing trailer, s. 334(b) value not exceeding $5000 (theft). Appeals pursuant
to s. 813 then s. 839(1) applied for leave to appeal. D purchased Van with carpet cleaning unit for Mr. Zayshley
with no warranty, traded trailer, other items, plus payment for van. Found carpet cleaning unit not operational
needed major repairs that would cost several thousands of dollars, he tried reaching Zayshley but could not get a
hold him. He became suspicious about transaction and found out there were writs of execution against the seller‘s
name (ended up being his son) D though there were liens against the van (van not clear and free of all debts as
stated in contract) and the seller failed to honour promise to train D in use of cleaning equipment so concluded deal
was dead. He went and picked up the trailer ―thought he was picking up own trailer‖ he later sold the trailer.
s. 322 (1) Everyone commits theft who fraudulently and without colour of right takes, or fraudulently and without
colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with
intent. a) To deprive temporality or absolutely the owner of it, or a person who has a special property or interest in
it of the thing or of his property or interest in it
(2) Time when theft Completed: Commits theft when, with intent to steal anything, moves it or caused it to move
or begins to cause it to become movable
(3) Secrecy: A taking or conversion of anything may be fraudulent notwithstanding that it is effected without
secrecy or attempt at concealment
Issues: Did the trial judge err in interpretation of the phrase ―without colour of right‖ in s. 322 of the Code when
established could only have basis in MOF?
Ratio: Trail judge did not properly interpret ―without colour of right‖ or properly apply law embodied by phrase to
facts of case. A colour of right can have basis in either mistake of civil law (exception to S. 19) or mistake in a
state of facts. Mistake must give rise to either an honest belief in a proprietary or possessory right to the thing
which is the subject matter of the alleged theft or an honest belief in the state of facts which if it actually existed
would at law justify or excuse the act done.
Actus Reus: Taking by the defendant of the trailer-not disputed
Mens Rea: Prove beyond reasonable doubt three requirements i) Fraudulent intent on part of D at time of taking of
trailer. ii) an absence of any colour of right asserted by the D. iii) Intent on part of the D to deprive, temporarily or
absolutely the owner of the trailer.
Conclusion: Trial judge referred to ―colour of right‖ as not civilly justifiable claim to grab something think is
there‘s. ―Colour of right‖ has quality of elusiveness. R v. De Marco assertion of a proprietary or possessory right
to the thing which is the subject matter of the alleged theft. One who honestly asserting what he believes to be an
honest claim cannot be said to act ―without colour of right‖ even though it may be unfounded in law or in fact.
Also an honest belief in a state of fact which, if actually existed would at law justify or excuse the act done. Trail
judge rejected mistake of civil law, acknowledge D had belief had claim to trailer but did not ask ―Did the D have
an honest belief in his claim even though unfounded in law and in fact? Instead asked ―Was the D claim unfounded
in law? Treated it not as requirement of mens rea but as a defence for the D to establish. New trial ordered.
-Trail judge found colour of right can only have basis in a state of facts-pen example
-CA thinks colour of right can also have basis in civil law or in MOF. The mistake in each case must give rise to
honest belief in a proprietary or possessory thing or honest belief in state of fact which if actually existed at law
would justify act done. Colour of right could be MOF or MOL in civil law
-In context of theft- not only defence of MOF, an honest but mistaken belief in entitlement to take or obtain the
thing taken affords a defence to the charged. Programmed into charge of theft because have to know taking
property to which have no legal entitlement in civil law. If honestly but mistakenly believe did have civil
entitltement even if ddin‘t then afforded a defence to negate mens rea. Does belief in legal entitlement have to be
objectively reasonable? NO Critical question is: Did D have honest belief in claim even if unfounded in law. Not
unreasonable or unfounded in law- note Houson- relevance of reasonableness to claim of colour of right does not
destroy honestly of belief may be considered along with other evidence if colour of right is established. Could
undermine finding but cannot alone negate it or be determinative.
-New trial will take into account honest mistake in legal entitlement: defence of colour of right
PROF: Why theft? Complex nature of property rights and real possibility for mistake. Parliament has chosen to
expressly incorporate MOL defence. Criminal law punishes those who choose of free will to violate the law – is it
fair to say this in this case?
-Issuse of choice reduced to whether accused possessed subjective mens rea in most cases
-No attention paid by trial judge to 2 and 3 requirements of mens rea- doubtful D had these intents.
-Expression colour of right appears elsewhere in code: s. 429(2): No person shall be convicted of an offence under
s. 430-446 where he proves that he acted with legal justification or excuse and with colour of right. (Property
R. v. Drainville 1991 Ont.Prov.Div. SD 713-719
Facts: Accused was priest and MPP charged with mischief contrary s.430(1)(c). He had blocked parcel of land to
protest construction of a road, the province had title to the land but the protestors believed that the aboriginal rights
to the lands should prevail as a matter of justice. The courts had ruled the rights were extinguished by 1850 treaty
(no doubt who had legal right to the land) No inclination court not fully aware of this, had moral conviction for his
belief. The incident resulted in delay of one hour.
S. 430(1) Mischief: Everuone commits mischief who willfully a) destroys or damages property b) renders property
dangerous, useless, inoperative or ineffective c) obstructs, interfers with the lawful use, enjoyment or operation or
property or d) obstructs, interrupts or interferes with any person in the lawful use, employment or operation of
Issue: Did the accused cause mischief? Is ―civil disobedience‖ or even ―passive resistance‖ such a small infraction
or such a minimal use of force, that the actus reus ought to be overlooked?
Should activity be justified by approval by the Courts on grounds that the motives are good and noble or that the
situation is really a ―political‖ one?
Was there an honest mistake of law?
Does the statutory defence of colour of right include an honest belief in moral as opposed to legal entitlement?
Ratio: Civil disobedience does not transform illegal actions into legal ones. Motives must be weighed in balance
in regard to penal sanctions but no honourable or just cause justifies the breaking of an acceptable and reasonable
The apparently insignificant or harmless steps taken without respect for the ―rule of law‖ is one which is made is
same substance as disrespect, mischief…for these reasons ―civil disobedience‖ cannot be condoned.
An honest belief in a moral as opposed to legal right cannot constitute a colour of right defence.
Conclusion: On Civil Disobedience and The Rule of Law- Defence of accused was actions constituted passive
resistance and should not result in conviction. Involvement minimal and motive and intentions good and he
contributed to a ―political solution‖ What does court make of valid point of protestors? Certainly mindful ―civil
disobedience‖ is method of drawing public attention to claims of fundamental freedoms and human rights which D
says should be condoned by the court. Referred to Ghandi but clear he was more concerned with doing what felt
conscience said was right than observe legislated provisions of a government, cannot assume he meant ―civil
disobedience‖ was lawful. No consistent with ―rule of law‖ rely on ideology at own peril, current law represent
will of the majority of the people. Would be tempting to say in some instences at discretion of judge and
irrespective rule of law there are times when ends justify means, but process of legitimizing previously unlawful
acts after the fact is inherently dangerous concept, not acceptable as alternative to rule of law. Line of defence
-Civil Disobedience is Time honoured method of drawing public attention to claims of fundamental freedoms and
rights. D cites proposition to be right more honourable than law abiding. Houson: Proposition of right in clour of
right should be construed broadly, but there are limits as to how broadly can be construed. Distinction between a
moral as opposed to legal or lawful right clear in Ontario honest belief in moral right cannot constitute a colour of
right defence. Unless can be demonstrated belief of entitlement to land is based on MOF or MOL defence cannot
succeed on moral conviction alone.
-Justification: Only way to uphold the ―rule of law‖- requires offenses not be overly vague. Flipside is when law is
clear and someone does not have legally justified excuse for infringing it, should not act as self appointed judge as
to what is acceptable/unacceptable, legal/illegal however good or noble motives are.
-To permit this process of self-judgment to replace law would allow people to determine for themselves what is
acceptable or not. Would lead to anarchy.
-Notion of choice – purposely and deliberately placed himself at peril. Having chosen that path must now walk it to
end. Finding of guilt.
-Note: Judge troubled by entering this conviction, refers to cause as noble and good. Moral convictions or devotion
to God did not mean he had to obstruct roadway, could have been done lawfully.
PROF: Judicial oath of office requires judges to do justice according to law. Often they correlate and sometimes it
is impossible because of state of law and no creative interpretation. (Swaby tweek notion of voluntariness) When
justice and law blatantly conflict, judges are confronted with moral dilemmas- causes them to admit rule of law is
not everything. Good reminder law not everything, moral considerations
-Law remains defence of colour of right does not extend to moral beliefs.
Colour of Right: s.429(2)-No person shall be convicted of an offence under s. 430 to 446 where he proves that he
acted with legal justification or excuse and with colour of right. Provided defence to anyone who can demonstrate
―legal justification or excuse‖ or ―colour of right‖ (an honest belief in the existence of a state of facts which, if it
actually existed would at law justify or excuse the act done)
Test for mistake of fact or law or mixed is ―subjective‖ and ―right‖ should be constructed broadly and that it is in
its ordinary sense charged with legal implications. ―Reasonableness‖ not necessary element in these considerations
- Using objective test could not be said accused had honest belief aboriginals has title to the lands.
- I n Potts rules there was a belief of mixed law and fact, which if it actually had existed would at law have
justified or excused his actions. Fact would have been obstructing roadway belonged to him and his people
- Distinction between an honest belief in a ―moral‖ as opposed to ―legal or lawful‖ right
- Moral considerations irrelevant to ―colour of right‖ Unless it can be demonstrated his honest belief in the
existence of a state of facts is base on a mistake of fact or law, his defence cannot succeed on moral
conviction alone. Though deeply and honestly held cannot transform illegal actions into legal ones only the
―rule of law must prevail‖ Was not conflict between the moral rules of God and rule of law.
- Belief in moral claim cannot constitute a defence of ―colour of right‖ Defence must fail
d) Officially Induced Error of Law
Lévis (City) v. Tétreault ; Levis (City) v. 2629-4470 Quebec Inc. 2006 SCC SD 719-722
Facts: City appealed acquittals on charges against T and a company under Highway Safety Code. T charged with
driving motor vehicle without valid license s.93.1 and raised defence of due diligence that unaware date on license
was expiry date not payment date.
Company charged with operating vehicle for which registration fees not paid s.31.1. Defence was due diligence
and officially induced error, alleging representation of SAAQ had them pay for 15 months and said renewal notice
would be sent before period expired, but it was sent with incomplete address and returned to sender. Municipal
court found both offences were strict liability.
Issue: Was the defence of due diligence available in these cases? What is the nature and availability of the defence
of officially induced error?
Ratio: Defence of officially induced error of law is available for any offence where fault is required.
Accused must prove six elements: 1) Error of law or of mixed law and fact (indicates should be anologized to error
of law) made 2) The person who committed the act considered the legal consequences of his/her actions 3) The
advice obtained came from an appropriate official 4) Advice was reasonable 5) Advice was erroneous 6) The
person relied on the advice in committing the act (subjective).
-Necessary to demonstrate objective reasonableness of the advice and reliance on the advice.
Factors considered: efforts made by the accused to obtain information, clarity or obscurity of the law, the position
and role of the official who gave the information or opinion and the clarity, definitiveness and reasonableness of
the information or opinion. Subjective analysis not sufficient, but that of reasonable person in similar situation.
Unlike colour of right where belief needs to only be honest here, Onus is reversed- onus on accused to prove 6
criteria were met and defence will only succeed in the clearest cases. Policy under s.19.
Conclusion: SCC confirmed offences were strict liability but held defence due diligence not established , both
accused remained passive rather than attempting to discover the nature of their legal obligation to pay. Imposed
minimum fines. Such passive behavior with no attempt to find out what needed to be done could not amount to
due diligence of reasonable person. Respondent was aware date registration due and cease to be valid, could and
should have been concerned when didn‘t get notice. Had duty to do more. (Read along with Sault St. Marie)
Defence of Officially Induced Error: Accused says misled by information obtained from SAAQ regarding
procedure for paying fees. Ignorance of the law not accepted to erase or mitigate liability s.19. applies to
regulatory offenses created by legislation. Rule is cause for concern where error in law arises out of error of
authorized representative of the state and the state then demands though other officials that criminal law be applied
strictly to conduct of the accused, fundamental fairness of criminal process would appear to be compromised.
Jorgensen: Lamer view defence of officially induced error constituted limited but necessary exception to the rule
that ignorance of the law cannot excuse the commission of a criminal offence, effect similar to entrapment accused
entitled to stay of proceedings rather than acquittal. Addition act commited contemporaneously with the reception
of information not necessary.
-Due dillegence has not been made out and all conditions of officially induced error have not been met. Conduct
does not meet standards of due diligence, was aware date fees would be due. Duty to do more than nothing when
no notice arrived. Reliance on official also not made out because did not consider legal consequences or its conduct
and no information about nature and effect of legal obligations had been given, gave administrative practice
-Jorgenson- defence should be recognized as limited but necessary exception to ignorance of the law not defence
whether criminal or regulatory. Wrongfulness
- of act establish, but because of circumstances leading up to the act is not held liable in criminal law –entitled to
stay of proceeding rather than aquital
-Does not mean innocent, but legal proceedings should be halted.
-For limited defence to be successful. Accused must prove 6 elements see ratio.
-Very narrow defence- led to wonder wide principle morally innocent should not be punished should be considered
in cases of MOL
Unlike MOF or MOL exist independently of considerations of actu reus or mens rea exist even when
elements of the AR and MR are present. If any element of MR or AR is not made out the trier of fact does
not get to a consideration of these defences. If negated there is no offence so no need to go on to consider
what if any other defence might be available to an accused. However if they are established the trier of fact
must go on to decide whether the accused was not guilty because actions justified or excused and therefore
should not attract criminal liability.
According to Cinous (presumption of innocence) the judge is only obligated to leave potential defences
with the jury if there is a basis for them. If there is evidence before the tier of fact that gives ``air of reality``
to the defence. Do not have responsibility to charge each and every defence to a jury.
Defences tend to be broken down into different categories: Justifications, Excuses and Incapactiy. Are
different in theory but in practice lead to similar result, if requirements of defence are satisfied or jury has
reasonable doubt as to whether the availability of the defence has been disproven by the Crown beyond a
reasonable doubt the accused will be entitled to an acquittal. Label given to each not really important.
One major exception is defence of mental disorder or insanity. Confers specific status of the accused. If
look at s.16(1): No person criminally responsible for act or omission made while suffering from a mental
disorder that rendered the person incapable of appreciating the nature and quality of the act or omission and
knowing that it was wrong.
o Once this is invoked then specific status put on accused, not aquited but deemed not criminally
responsible and this subjects accused to comprehensive regime. S.21 of the code. Must be assessed
There might be incentive not to declare mental disorder-seen as defence of last resort
Even if leads to straight acquittal- there remains debate as to where various defences fit, should they be
characterized as justifications, excuses or denials of capacity. Only justified if commit offence for
sufficiently good reason ie: being attacked can resort to force. Can claim excuse for offence did not have
good reason to commit but given circumstances should not be blamed or punished for ie duress. Wrong to
cave into demand to kill family live next door because your family threatend, but could be understandable
Denials of responsibility are fundamentally distinct in that accused claims not responsible for his/her acts so
does not need to justify or excuse behaviour ie: automatism or intoxication.
Only justification we consider is self-defence and defence of property. Other justifications such as use of
force by law-enforcement personnel and use of force to correct children. Self-defence is most common
justification available, longest lineage found in earliest legal systems. Preserve oneself against aggression
of others also recognized at common law in Britain. Provisions have remained unchanged essentially since
code enacted in 1892 are s. 34-37. Are unnecessarily complicated and complex. Served as source of
neverending confusion. In last 20 years calls for legislative reform has come from all corners but
Parliament has not responded.
S. 35:Self-defence in case of aggression-Everyone who has without justification assaulted another but did
not commence in the assault with intent to cause death or grievous bodily harm or has without justification
provoked an assault on himself by another may justify the use of force subsequent to the assault if
o A) he uses the force
I) under reasonable apprehension of death or grievous bodily harm from the violence of the
person whom he has assaulted or provoked and
II) in the belief, on reasonable grounds that it is necessary in order to preserve himself from
death or grievous bodily harm
o B) He did not at any time before the necessity of preserving himself from death or grievous bodily
harm arose endeavour to cause death or grievous bodily harm and
o C) he declined further conflict and quitted or retreated from it as far as it was feasible to do so
before the necessity of preserving himself form death or grievous bodily harm arose.
This is very complex and has become dead for all intensive purposes.
S. 36: Provocation: Includes for purposes of s.34 and 35 provocation by blows , words or gestures
S. 37(1) Preventing Assault Everyone is justified in using force to defend himself or any one under his
protection from assault of he uses no more force than necessary to prevent the assault or the repetition of it
(2) Extent of justification: nothing in this section shall be deemed to justify the wilful infliction of any hurt
or mischief that is excessive, having regard to the nature of the assault that the force used was intended to
Simplified Defence: 34: An individual is not liable for using force against another person where a) he or
she honestly believes i) other person is committing or going to commit an assault and ii) the use of force is
necessary for self-protection or to protect a third person from the assault. B)those beliefs are reasonable and
c) the degree of force used is reasonable. –Proposal would follow jurisprudence
R v. Bogue 1976, Ont. CA
Facts: The appellant was found guilty of manslaughter with 5 years in prison. She and the deceased had
consumed a large amount of alcohol and the negibours heard fighting followed by a thud and a women screaming
for help. They went to the apartment and found appellant in defensive position with black eye and discoloured face.
Deceased has gash over eye. The appellant hit the deceased over the head with an iron as the neighbours tried to
break them up. The neighbours went to call the police and when they came back they found the deceased lying on
the bed with stab wounds that he died from. The appellant admits she stabbed him but that it was self defense. She
stated the deceased choked her and threatened to kill her with a knife so she grabbed the knife and stabbed him
with it saying you are not going to kill me I‘ll kill you.
S. 34(1) Self Defence against unprovoked assault- Everyone 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.
(2) Extent of justification-Everyone who is unlawfully assaulted and who (even though he intentionally per R v.
Baxter) 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 purpose and.
b) he believes on reasonable and probable grounds, that he cannot otherwise preserve himself from death or
grievous bodily harm.
Issue: What is required to use the defence of self-defence. Did the trail judge misdirect the jury in relation to the
defence of self defence? What is difference between s.34(1) and s.34(2)?
Ratio: Accused entitled to aquital if there was reasonable doubt whether or not the blow was delivered under
reasonable apprehension of death or grievous bodily harm, and if he believed on reasonable grounds that he could
not otherwise preserve himself from death or grievous bodily harn. He does not have to prove that it was so
Two Criteria for s.2: 1. Reasonable apprehension of death or grievous bodily harm must satisfy objective
standard 2. Belief accused cannot otherwise preserve himself from death or grievous bodily harm to
subjective standard. On “reasonable and probable grounds” to an objective standard.
Question: Should have asked whether accused believed on reasonable and probably ground that it was necessary
to apply amount of force that was applied.
Conclusion: Trial judge misdirected the jury when dealing with the extent self-defence is justified under s.34(2)
of the CC. S (1) applies when harm unintentional s(2) when intentionally kills or intentionally causes harm and
there is no specific requirement that the repelling force used shall be proportionate to the unlawful assault as in s.1
(R v. Baxter) Question not whether accused actually in danger of death, and whether the harm was in fact
necessary to preserve him from death or harm but whether: 1) Cause death or harm under reasonable apprehension
of death or grievously bodily harm 2) He believed on reasonable and probable grounds that he could not otherwise
preserve himself from death or grievous bodily harm.
- In considering reasonable degree of force used by accused justified, difference between s.1 and s.2 must be
kept in mind. Under s. 2 belief must be a reasonable one but it may be mistaken
- Evidence in the present case trail judge erred by directing the jury that the amount force used had to be
proportionate to original assault of the deceased
- This should only be considered as evidence accused had a reasonable apprehension of death or grievous
bodily harm and whether she had reasonable and probable grouns to believe that she could not otherwise
preserve herself from death or grievous bodily harm
- Added extra element, no requirement force used by accused be proportionate to nature of attack. Trial judge
concentrated on reasonableness of force, rather than on reasonableness of accused‘s belief. The state of
mind of the accused at the time when the force is applied has to be considered and not merely the type of
weapon ant the severity of the blow
- Should have asked whether accused believed on reasonable and probably ground that it was necessary to
stab him as she did
- Serious misdirection and cannot be said did not result in substantial wrong or miscarriage of justice, appeal
allowed, verdict guilty set aside, new trial ordered.
- Why read in intentionally into s.34(2)? Because if someone happened to die regardless of intent then
individual who used reasonable amount of force with no intention to cause death would likely be convicted.
Unlikely person who kills unintentionally would satisfy requirements of s.34(2)
- In Baxter Justice Martin read the words ―even though he intentionally causes death or grievous bodily
harm‖ into s.34(2). He did so in an effort to make clear that, where an accused does not intend to cause
death, s.34(1) is the controlling provision (even where death results in contracts s. 34(2) only applies in
situations where the accused intended to cause death. The motivation for reasing this language into s.34(2)
was a concern that without it, based on a plain reason of s.34(2) that provision might be held to apply
whenever death resulted, even where an accused did not intend to kill. This might occasion injustice
because it is unlikely that an accused who killed unintentionally would satisfy the requirements of
s.34(2)(a) (reasonably apprehend death) and s.34(2)(b) (subjectively believe on reasonable grounds that he
could not otherwise preserve himself ie: without killing
- If lacked intention s.34(1) controls even if death resulted. If intention to cause harm then s.34(2) controls.
Problem is jury has to make finding either way of requisite intention so must be instructed as to both
provisions. Will be cumbersome and confusing.
- Is there a proportionality limit on force used under s.34(2). NO. No specific requirement it be proportionate
to unlawful assault if other conditions satisfied
o Rationale? If believe about to be killed and have objectively reasonable ground should be entitled to
pull out all stops to preserve life. When life in balance cannot be expected to make same decision as
would on sober reflection. Overall is mixed subjective/objective test
o Reasonable apprehension of death must satisfy objective standard. Belief accused cannot otherwise
preserve himself from death or grievous bodily harm- subjective standard. But must meet objective
standard belief is based on reasonable probable grounds
o What if honestly but mistakenly believe are being assaulted? Would have defence provided belief
was reasonable- if reasonable person would have perceived threat that could not otherwise be
avoided. Belief accused cannot otherwise preserve himself may be reasonable but MISTAKEN. If
as a result of threats or assault believes will momentarily be shot or stabbed and instinctively shot
assailant, reasonable defensive action to save life.
o Provided had requisite reasonable belief, use of force to prevent death is justified
o Preconditions: s.34(2)(a): accused apprehended a risk of death or grievous bodily harm because of
word reasonable must be objectively reasonable b) Accused needs to subjectively believe could not
otherwise preserve himself based on reasonable an probable grounds-objectively reasonable. Then
use of force intended to cause harm or death is justified even where turns out accused mistaken in
apprehension of death or bodily harm or mistaken only available means of defence was to inflict
death or bodily harm
o In measuring accused response to an assault under s.34(1) or (2). The approach to be taken by judge
or jury- standard of review when establishing reasonableness not exacting. In neither case is person
expected to weigh exact measure of necessary action- Seems to follow from relefection of US SC.
Holmes- detachted reflection cannot be demanded in prescence of uplifted knife
o S.34(1) differs in its question of proportionality-only as much force as necessary ie: cannot use gun
to respond to fist. Seems sensible, but if think person using fists going to kill you can use gun to
respond to fist, but justification s.34(2).
o Despited not mentioning beliefs (1) also allows for mistaken beliefs. If mistakenly believe being
assaulted if objectively reasonable and force not more than necessary to respond to threat then have
- Was the trail judge‘s instruction with respect to s.34(2) correct? No. told jury under s.34(2) force had to be
proportionate to assault faced, was incorrect. Should have asked- whether she believed on reasonable and
probable grounds it was necessary. Whether amount used disproportionate was proper to be considered as
item of evidence, if satisfied had apprehension or belief or had reasonable doubt, then entitled to be aquited.
R v. Deegan 1979 (Alta. CA)
Issue: Is there an absolute duty to retreat?
Ratio: If believe in immediate danger of death or grevious bodily harm, may stand ground and if kill attacker has
not exceed bounds of lawful self-defence. Not condition of immunity that pause to consider reasonable man may
not think it possible to retreat safely are to disable assailant rather than kill them.
Conclusion: The house is a person‘s castle and have defence against injuring someone if they invade your home.
Does not have to retreat because that would be giving up house to attacker. Same is true of retreating on general
grounds. Not retreating does not prove guilt, ― Detached reflection cannot be demanded in the presence of an
-Proposition failure to retreat from situation when attacked does not foreclose reliance on self-defence if
assaulted you are entitled to stand your ground. Failure to retreat can still be relevant depending on the
circumstances. To determine if went further than necessary but not categorical proof of guilt. But hard
pressed to show belief force used necessary to enable to defend self. if there was a clear and safe opportunity
s.35- does include duty to retreat. However this section is a bit of a dead letter in Canadian law. McIntosh
majority decided nothing in language contained in s.34(2) that stopped it from being used by initial aggressor,
doesn‘t rule out availability to initial aggressor. Less onerous provisions of it have been held to apply so make s.35
a dead letter
Note: Page 907-908
- Last 10 years there has been active amending of the CC to widen net of criminal sanction but reforms that
might make it easier for the accused of crime are resisted. There have been called to clarify the law of self-
defence but they have been ignored
- -It is time for a flexible defence that abandons the CC present arbitrary and complex distinctions between
situations of fatal and non-fatal self-defence, defence of those under pretection and defence of strangers,
and self-defence by an aggressor and simple self-defence
- R v. McIntosh the majority decided that s. 34(2) is also available to an initial aggressor, the words ―without
having provoke‖ were not read in as would trigger more restrictive s.35
- Pintar a narrower provision must not be put where there is an air of reality in the evidence for a wider
provision s.34(2) not s.34(1) should be put to all murder cases whether or not intention to kill or cause
- Debatable s. 34(2) wider as (1) always interpreted not as strict mechanical test but where a person
defending against attacker not weigh to a nicety the exact measure of necessary defence. R v. Baxter viewed
the sections as ―not mutally exclusive‖
- Need for legislative reform
- Disagreement on how to read s.34(1) and s. 34(2)- (2) should be left in any cased where they is a death
Pintar Justice Maldavour
o Jutice Martin‘s view:makes more sense so treat it as authoritative. (Baxter)
R v. Lavallee 1990, SCC
Facts: The accused was a battered woman in a volatile common-law relationship who killed her partner by
shooting him in the back of the head as he left her room. She was scared he was going to beat her, he had grabberd
her and slapped her and said ―either you kill me or I‘ll get you.‖ Wait until everyone leaves and I‘ll get you. Was
acquitted at trail but CA ordered new trail. Law at the time was it was inherently unreasonable to apprehend death
or grievous bodily harm unless and until the physical assault was actually in progress. Charge not clear-but was
charged with murder. Other evidence confirming battered women‘s syndrome expert testimony
Issue: 1. Was the appellant under reasonable apprehension of death or grievous bodily harm from the deceased as
he walked out of the room? 2. Was the accused‘s belief that she should not otherwise preserve herself from death
or grievous bodily harm except by shooting the deceased based on reasonable grounds?
Ratio: Where evidence exists that an accused is in a battering relationship, expert testimony can assist the
jury in determining whether the accused had a “Reasonable” apprehension of death when she acted, the
attacker does not have to strike first.
Conclusion: Expert evidence on the psychological effect of battering on wives and common-law partners must be
relevant and necessary in this case. In past woman expect to stay in marriage at all costs and serve husband and
accept any ―punishment‖ for failing to please him.
-Imposition of an objective standard of reasonableness on the apprehension of death and the need to repel the
assault with deadly force-strain because ―ordinary man‖ would rarely be in position of battered wife.
-S.34(2) does not actually stipulate that the accused apprehend imminent danger when act, case law has read this
requirement into the defence. Designed to ensure use of defensive force really necessary. If significant time
interval between original unlawful assault and the accused‘s response, begin to suspect accused motivated by
revenge not self-defence3
-R v. Wynot: D shot husband while he was passed out. CA said trial judge erred in presenting s.37 to jury. Opinion
was should apply s.34 and that no person has right to apply force in anticipation of an assault to prevent the
imaginary assault. Implication is inherently unreasonable to apprehend death or grievous bodily harm unless and
until the physical assault is actually in progress, at which point the victim can presumably gauge the requisite
amount of force needed to repel the attack and act accordingly. Expert testimony can cast doubt on these
assumptions when applied in context of battered wife‘s efforts to repel an assault
- Walker Cycle Theory of Violence three phases of recurring battering cycle: 1) Tension Building –minor forms
abuse, aggressor becomes increasingly hostile2) The Acute Battering Incident-tension culminates into violent
explosion 3) Loving Contrition- batterer apologizes. Shows kindness, promises things will get better, women
believes things will get better so stays in relationship. There is a cumulative effect of months and years of brutality
and a degree of predictability to the violence that is absent in an isolated violent encounter between two strangers.
It may be possible for battered spouse to predict onset of violence before the first blow. May be able to anticipate
nature and extent of violence by conduct beforehand. Must go through cycle at least twice to be considered
battered woman. Learned helplessness-disempowers woman and makes her think unable to escape. Façade of
normalcy, tends to lie to conceal the abuse.
-Where evidence exists that an accused is in a battering relationship, expert testimony can assist the jury in
determining whether the accused had a “Reasonable” apprehension of death when she acted by explaining
the heightened sensitivity of a battered woman to her partner‟s acts.
-The issues is not what an outsider would have reasonably perceived but what the accused reasonably perceived
given her situation and experience. The requirement that a battered woman wait until the physical assault is
―underway‖ before apprehensions can be validated in law would be tantamount to sentencing her to ―murder by
-Why not leave? Attachment, beaten so badly loose motivation feel there‘s no power and no energy to do
anything, paralyzed with fear, forgiveness, self-esteem, feeling of worth, reluctance to disclose to others about
beatings. “learned helplessness” “traumatic bonding”
-Traditional self-defence doctrine does not require a person to retreat from their home instead of defending
themselves. Allow appeal restore acquittal.
- most people would not understand battered women‘s reaction without expert evidence-must be both relevant and
necessary in context of the present case. How else understand woman love man who beats her to point of
hospitalization? Why not leave him. Need help from trained professionals. Why does this tie in legally unser
s.34(2)? Why important jury understand mindset battered women? Because much of focus is belief accused facing
death or grievous bodily harm and could only protect by retailiating was reasonable or not.
-Two elements of the defence- temporal connection between apprehension of death and the act taken in self-
defence. Assessment of the magnitude of the force used was the accused belif that could not otherwise preserve
self except shooting based on reasonable grounds.
-Imposition of objective standard of reasonableness on apprehension of death and need to repel with deadly force.
It may not be ―reasonable man‖ behavior postion of battered spouse, not typically in this positon. Definition of
What is reasonable must be adapted to the circumstance of a world largely foreign to hypothetical reasonable man.
Mixed subjective/objective test. What believe and was this reasonable?
-Court is not saying- individual‘s peculiar idosycrancies can be built into reasonable person- recognition what one
reasonably apprehends can appear quite different when viewed in light particular history rather than viewed in
isolation. Cannot know if belief reasonable unless know history of abuse. Expert testimony can assist jury in
finding if accused had reasonable apprehension of death. Issue not what outsider would have reasonably perceived
but what accused would reasonably perceive in her situation.
-McConnel- allowed expert evidence of prison environment syndrome.
-Historically: Has it been necessary for danger of gerivous of bodily harm or death to be iminant to rely on s.34(2).
Historically answer is yes. Has read requirement apprehend imminent danger, sense of image of uplifted knife or
pointed gun. Rationale- law self-denfence ensure use of force necessary-had no alternative but take life. If
significant time interval suspect accused motivated by revenge. Makes sense in bar brawl, but does this preclude
defence in circumstances like this case? NO. Evidence showed appellant got worst of fights, shouldn‘t have to
wait until man attacking her to react. If satisfied had reasonable apprehension of death and felt incapable of escape
must ask what would do in situation. Hostage (if say I will kill you in 3 days- can you kill on day 1 or wait till 3
day) Given history, circumstances and perception- belief would be killed unless killed him first was reasonable
-Jury must asses number of things: Was the accused in fact abused? Must be evidence of abuse. Must be evidence
of expert she suffered batter spoused syndrome. Must be evidence had impacat on accused mind. Evidence to
event in question as to whether accused subjective apprehended death or grievous bodlity harm and if was
reasonable belief and subjectively believed could not otherwise preserve self. In light of background history.
Finally was belief reasonable given history of abuse and accused suffered from the syndrome.
Note: Page 922-923
- Grant: Risks pushing women who are abused into two categories 1) reasonable like man 2) Reasonable like
battered women, no room for the reasonable women
- Dursherwitz: Battered women defence thin wedge defence try to justify unjustifiable. (could extend to tv
violence or prison violence) Defence starts on slippery slope this case first step
- DavidPacoho: Some concerns about reliability of expert given based on so much hearsay evidence.
Particular research is suspect and unduly restrictive. Potentially medicalizes the problem and discounts the
voice of the particular women. The Walker theory had been denounced by some as ―junk science‖
- Everyone has hardships-but should this be justification for breaking the law- how should this be
distinguished from other justifications?
- Accused did not testify- not cross-examined about what thinking at time only evidence available was police
statement where said killing accidental not self-defence
- In practice defence made stronger if accused testifies.
R v. Petel 1994, SCC
Facts: Accused was charged with second degree murder of R who was involved in drug-trafficking with E. E was
always angry, threatening her and his girlfriend (the D‘s daughter). D tried to get him out of her house but was
unsuccessful. One day E came to house with gun and told D to hide it, he told her he would kill her, her daughter
and granddaughter. D consumed some drugs, fired and E who fell, R lunged at he so she shot at him too. Trail
judge told jury had to base decision on accused‘s assessment of the situation- jury asked if self-defence concerned
threats or acts over several months or only that evening. Trial judge said threat or act giving rise to self-defence has
to occur the evening of the crime.
Issue: Did the trial judge err in his answer to the jury‘s question in differentiating the threats made on the evening
of the incident form the previous threats and by relating the previous threats only to whether there had been an
assault? What is relevance of past threats directed by the accused?
Ratio: Imminence is only one of the factors the jury should weigh in determining whether the accused had a
reasonable apprehension of danger and reasonable belief that she could not extricate herself otherwise than by
killing the attacker.
Conclusion: LamerD was convicted at trail but SCC held trial judge erred in answering jury‘s question. Accused‘
s state of mind must be examined, must be give benefit reasonable doubt. Jury must ask ―did the accused
reasonably believe she was being unlawfully assaulted?‖ Not ―was the accused unlawfully assaulted?‖ Lavelle
rejected requirement apprehending danger be imminent. Evidence may be presented to rebut presumption,
imminence is only one of the factors the jury should weigh in determining whether the accused had a reasonable
apprehension of danger and reasonable belief that she could not extricate herself otherwise than by killing the
- Judge erred by directing jury to guilt of the accused, by suggesting only relevance of prior threats was to
determine if there was actually assault. But should have been considering accused reasonable belief of a
the existence of an assault. They also go to if she had reasonable apprehension of risk of death and belief in
need to use deadly force. Events before incident can be intergral part of circumstances on which perception
of the accused might have been based.
- Appeal dismissed.
- Why is focus on s.34(2) not (1)? Accused admitted wanted both men dead. Clearly intended to kill the
- Accused state of mind is key- burden is on Crown to demonstrate accused did not have right state of mind
or belief it was reasonable- rejected danger imminent (Lavelle) assumption but not specifically in code
- How did trial judge instruct jury with respect to evidence of past threats? CA Asses only whether boyfriend
had threatened on night in question. Problematic because diverted jury from real issue of the accused state
of mind. Not if actually assault, but honestly and reasonably believed had been assaulted. Also relevant if
accused had reasonable apprehension of danger of grievous bodily harm.
- Reasonable person has to be positioned in situation of accused- threats prior to day are intergral parts of the
cirmcumstanace- might have disregarded entire atmosphere of terror.
- Could self-defence successfully be invoked here? S.686(1)(b)(iii) Powers: on the hearing of an appeal
against a conviction the CA B) may dismiss the appeal where iii) notwithstanding that the court is of the
opinion that on the ground of a wrong decision on a question of law the appeal might be decided in fabour
of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred.
- Undisputed evidence attacker handed over weapon and asked to hide it- conduct odd for someone intending
to kill. Suggesting if Crown had argued s.686 appeal should have been dismissed. Appeal of the Crown
against the court could have succeeded dispite the trial judges error in law because result could likely have
been the same. Since did not plead it, ordered a new trial, but strong indication self-defence should not
succeed in case like this.
Gonthier: Belives the judge‘s answer did not overlook the important element of the accused‘ belief. Reread s.
265(1)(b) three times. Would allow the appeal and restore the guilty verdict. Dissent thing here instruction was
R v. Cinous 2002, SCC
Facts: Charge is first degree murder. Was convicted of second degree murder- CA allowed appeal and ordered
new trial based on erroneous instruction on basis of self defence. Accused was involved in computer theft and
resale ring- victim Mike also involved in ring. His gun disappeared from residence thought Mike and Ice were
responsible and decided to have no more contact with them. They continued to call on him and tried to involve him
in thefts. He also heard they were trying to kill him. After 3 weeks met up with them, they arrived at D apartment,
but they kept jackets on and Ice constantly placing hand in coat and made him think armed. No evidence Mike had
previously assaulted him. According to D gloves wearing convinced him he was planning to kill him (latext gloves
and different from ones wearing in apartment) Usually wore cloth gloves and latext gloves were worn to carry out
burns- attacks on criminals by other criminals- had seen this twice before. D testified number things unusual about
drive and convinced him they were going to kill him, avoided eye contact and no one spoke. Sure was going to be
killed and shot would come from behind- mike drove along well lit streets went into purchase washer fluid but had
no money so went back to van to request money from Ice. Returned to van opened back door- saw opportunity
pulled out gun and shot Mike in back of head. Reaction was instinctive and did not occur to him to call police-
would have to be informant and would have to leave van. Then chased Ice, but did not shoot him because danger
gone. Knife found on Mike no gun, no indication Ice armed. Main discussion is about ―air of reality‖ for defences
Issue: Was there an air of reality to the defence of self-defence in this case? What is the extent of the trial judge‘s
discretion to keep from a jury defences that are fanciful or far-fetched? What is the correct evidential standard to
be applied in determining whether there is an air of reality to the defence of self-defence?
-Was objective reasonableness of the claim subject to the requirement of leaving defences to the jury? If no ―air of
reality‖ should not have been left to the jury. If erroneously instruct on it would have no consequence. S. 686
Ratio: The test is whether there is evidence on the record upon which a properly instructed jury acting
reasonably could acquit if believed it to be true.
Basic Features: 1. The trail judge must put to the jury all defences that arise on the facts, whether or not
they have been specifically rasied by the accused. Where there is an air of reality to a defence it should go to
the jury. 2. A trial judge has a positive duty to keep from the jury defences lacking an evidential
foundation. A defence that lacks an air of reality should be kept from the jury. Even when it is only chance
Conclusion: There was no air of reality: a properly instructed jury acting reasonably could not acquit the accused
on the ground of self –defence even if it is accepted his testimonial evidence as true. Defence should have never
been put to the jury any error made in the charge are irrelevant. S.686(1)(b)(iii) should be applied and the
conviction upheld. No need to invent a new test or apply different test to different cases. Practical concern in
allowing a defence to go to the jury in evidence of an evidential foundation would invite verdicts not supported by
evidence and would confuse the jury.
-Air of reality test only concerned with whether or not a putative defence should be ―put into play‖ this is
consistent with the presumption of innocence s.11(d) of the Charter. When applying the test judge considers the
totality of the evidence and assumed the evidence relied upon by the accused is true. Not aimed at deciding the
substantive merits of the defence, that is for the jury, the question is whether the evidence discloses a real issue to
be decided by the jury and not how the jury should ultimately decide the issue.
-Test is question of law subject to appellate review.
- If air of reality must instruct, but if no air of reality judge not permitted to put test to jury even if only chance for
accused. Must be evidentiary foundation for defence. Allowing otherwise would invite verdicts not supported by
the evidence- would confuse the jury. All defences that arise must be put to the jury whether or not specifically
raised by the D. Exception is mental disorder and Automatism there is reverse onus
-In making this assessment trial judge may make findings about credibility of the evidence, assumes all evidence
true then asks whether if believed there is reasonable foundation to support defence.
-Clear D intended to kill, claimed was in kill or be killed scenario. Focus of self-defence is on s.34(2).
-Majority says- ―air of reality‖ analysis must be applied to both subjective and objective component of each
element of self-defence. Difficulty is whether there is evidence accused actions reasonableness could be inferred
-Proplem was with second part- subjective element satisfied because accused testified believed was going to be
killed. Need for belief that no other choice but to kill must be objectively reasonable- there is not ―air of reality‖ to
this claim. No objective justification for just remaining in the gas station or fleeing. No expert evidence on criminal
subculture and how may have affected his actions.
-Difference may be chooses to be criminal not choice to be battered women- but is this really true? May be pushed
Dissent: Arbour- Sought to revise the approach of the SCC ―no evidence‖ test had been replaced by ―sufficiency
of evidence‖ Believed ―no evidence‖ test should be adopted for defences such as self-defance especially where
there we no technical or policy consideration, no alternative defences and where it was the accused‘s only defence.
-justice Arbour is prepared to consider criminal subculture. Test requires situation must be considered from
reasonable person of person in similar situation with awareness of background and his characteristics. Would
extend beyond battered women and diminish objective reasonableness substantially.
-Do you think this would be reasonable? Do you think majority goes to far and exceeds gatekeeping function?
Where there is some basis for claim isn‘t it best to leave to jury to decide? Ordinary people form community can
be standard of reasonable person
R v. Fontaine 2004, SCC
Ratio: Is there in the record any evidence upon which a reasonable tire of fact, properly instructed in law
and acting judicially could conclude that the defence succeeds? “Reverse onus” and “ordinary affirmative”
defences are subject to different evidential burdens
For all affirmative defences the evidential burden will be discharged where there is some evidence that puts
the defence “in play” and the defence will be in play whenever a properly instructed jury could reasonably,
on account of that evidence conclude in favour of the accused.
Conclusion: Judge decided all the question of law and delimits the issues of fact to be considered and determined
by the jury. To avoid manifest unfairness and under confusion no issues will be put to the jury in the absence of a
sufficient evidential foundation. Must consider the incidence and the nature of the burden of proof on the issue
concerned. ―sufficient evidence‖ must mean sufficient evidence to sustain a verdict of guilt beyond a reasonable
-In the case of ―reverse onus‖ defences it is the accused who bears both the persuasive and evidential burdens.
Persusasive burden is discharged by evidence on the balance of probabilities (lesser standard than proof beyond a
-For ―affirmative‖ defences, including alibi, duress, provocation, etc. the persuasive and evidential burdens are
divided. Accused no persuasive burden at all, one defence ―put in play‖ the accused will succeed unless disproved
by the Crown beyond a reasonable doubt. But still only left to jury where sufficient evidential basis found.
Foundation cannot exist where tenuous, trifling, insignificant or manifestly unsubstantive nature.
-Must give jury opportunity to pronounce on every factual issue for which the required evidential foundation has
been laid. The ―air of reality‖ test adds nothing to this well-established standard and should not be used to raise the
governing evidential threshold or to introduce a persuasive requirement.
- Air of reality test should not be used to raise governing threshold or introduce persusive thresehold. As
saw when presumption of innocence- defences do not create reverse onus- only evidential burden to
discharge then for jury to determin if Crown disproved defence beyond reasonable doubt.
Defence of Property Pages 933-939
Self-defence dealt with right to repel physical assault on self or someone under your protection
Defence of property relates to ones right to protect own property
S.37 seems to be clear proportionality requirement but courts still unclear and more likely will follow
Relevant provisions break down according to type of property involved. Personal property-everything other
than real property. S.38 and s.39. In contrast use of force to defend real property (places) s.40-42 the
sections are antiquated and unnecessarily complex
s.38: Defence of Personal Property- Everyon who is in peaceable possession of personal property and
eberyone lawfully assisting him is justified A) in preventing a trespasser from taking it or b) in taking it
from a trespasser who has taken it, if he does not strike or cause bodily harm to the tresspassr. 2Assualt by
trespasser-Where a person who is in peaceable possession of personal property lays hands on it, a
trespassed who persists in attempting to keep it or take it from him or from any one lawfully assisting him
shall be deemed to commit an assault without justification or provocation.
S. 39 Defence with claim of right/without claim of right
S.40 Defence of dwelling: everyone who is in peacable possession of a dwelling-house and everyone
lawfully assisting him or acting under his authority is justified in using as much force as is necessary to
prevent any person from forcibly breaking into or forcibly entering the dwelling house without lawful
S. 42 Assetion of right to house or real property-justified by day to take passion if is lawfully entitled to
take possession of it. (2) Assualt in the case of lawful entry- (3) Trespasser provoking assault
R v. Baxter 1975, Ont. CA
Issue: Did the trial judge err in instructing the jury that killing or causing grievous bodily harm to a trespasser was
not justifiable unless the circumstances were such as to give rise to the defence of self-defence under s. 34(s)?
Should he have left s.41(1) authorizing the use of force to prevent any person from trespassing an a dwelling house
or real property if he uses no more force than is necessary, with the jury?
Ratio: s. 41(2) does not alter the common law.
Conclusion: Use of force is subject to restriction that the force used is necessary and the harm sought to be
prevented could not be prevented by less violent means and that the injury or harm done is not disproportionate to
the injury or harm it is intended to prevent. Use of firearm is justified even though death ensues in order to prevent
burglary or arson in house. There is an element of personal danger which may justify the use even of extreme force
-S. 27 authorizes use of force to prevent commission of any offence for which the offender may be arrested without
warrant and would be likely to cause immediate and serious injury to person or property. No evidence in this case
this exisited in this case right was dealt with under self-defence.
-Firing at a mere trespasser is not justifiable. Trial judge correctly charged the jury that killing or causing grievous
bodily harm to a trespasser could only be justified in self-defence.
-s. 41(2) : trespasser who resists attempt by a person on their property to prevent entry or remove him is
deemed to commit an assault without justification or provocation. If any force used by wrongdoer, the force
is unlawful and hence an assault. Amount of force that may be used to prevent or defend against any assualt
depends on the ordinary principles of self-defence.
Does not apply until overt act.
-Common theme in all provisions authorizing use of force have something in common- in general express in
greater detail the use of force is necessary. Harm sought to be prevented could not be done by less violent
means and should not be disproportional to threat. Proportionality important. Necessity (only way to avoid
breaking leg is to push off cliff- necessary to prevent breaking leg but not proportionate because good
chance will die if pushed of cliff).
-courts tend to take deferential approach to amount of force used so focus is on accused state of mind, issue
is whether accused reasonably believed force was necessary and proportionate.
-No evidence to satisfy preconditions for availability of s.27 threat of injury to D was dealt with under self-
defence provision. Does s.41 entitle use of lethal force on trespasser? No. using lethal force can only be
justified in self defence.
-What if not just trespasser but forcibly breaking into home? Would seem if killing trespasser is necessary
to prevent from forcibly breaking in arguably could use lethal force. Martin alluded to this in mentioning
preventing burlary or arson. Element of personal danger may justify use of extreme force
-after say “get out” to some breaking into house making clear not there with lawful authority and is
trespasser don‟t have to wait to see what plans are before resorting to lethal force. If persists in breaking in
even after aware of prescene can be considered reasonable threat to life. S.34(2) would apply. Kill or be
killed. Wording of s.40 might be slightly wider but has not been tested.
-While break-ins inherently violent, trespassing is not. What qualifies as resistance so as to trigger deemed
assault? Passive resistance is not resistance under s.41(2) ie: just sitting there. But if resist attempt to be
removed can be considered assault
-What if you ask them to leave and they don‟t so you push them off and they push back? Can this be
considered assault and use lethal force? NO once deemed assault occurs force used must still agree with s.41
so necessary force still at play, but all other provisions still at play-reasonable belief of threat.
R v. Gunning 2005, SCC
Facts: Accused hosted a party to which an uninvited guest showed up. D asked C to leave but he refused,
responding in an insulting and intimidating fashion. D who had drunk a lot of alcohol, obtained and loaded his
shotgun and asked C to leave again. Gun went off killing C. D charged with murder based on committing unlawful
act of careless use of a firearm. D said not guilty of murder because gun had gone off by accident. Also sais not
guilty careless use of firearm because use of it was to scare C away and was justified on basis of defence of
property. Trial judge misunderstood this argument and directed the jury that the accused had committed the
unlawful act of careless use of a firearm.
s. 41(1): Everyone who is in peaceable possession of a dwelling-house or real property and everyone who lawfully
assisting him or acting under his authority, is justified in using force to prevent any person from trespassing on the
dwelling-house or real property or to remove a trespasser therefrom, if he uses no more force than is necessary.
Issue: Did the trail judge err in stating that careless use or a firearm had been committed and not leaving it for the
jury to decide?
Ratio: It is never a function of the judge to assess the evidence and make a determination that the crown has
proven one or more of the essential elements of the the offence and to direct it to the jury.
Conclusion: Trial judge erred in removing decision from the jury. The Defence of House or Property- was
intrinsically connected to underlying offense of careless use of a firearm.
4 Elements of s.41(1): 1. Possession of the dwelling house (doesn‘t have to own-can rent) 2. Possession must be
peaceable (not squatting) 3. C must have been a trespasser (cannot have been there with lawful authority)4. Force
used to eject the trespasser must have been reasonable in the circumstances. Onus is on the Crown to prove
beyond reasonable doubt D did not act in defence of property
-Intentional killing of a trespasser could only be justified where the person in possession of the property is able to
make out a case of self-defence. D did not raise this defence he raised defence of accident.
The Respective Functions of the Judge and the Jury: Judge should withdraw a defence from the consideration
of the jury when there is no evidence upon which a properly instructed jury acting reasonably could find in the
accused`s favour. No need to direct on issue not raised in the case. It is never a function of the judge to assess the
evidence and make a determination that the crown has proven one or more of the essential elements of the the
offence and to direct it to the jury.
Application: D did not offer plea of guilty to manslaughter and made no admission to underlying offence of
careless use of a firearm. The trial judge erred by ruling on the careless use of a firearm which should have been
left to the jury to decide. Also erred by failing to instruct on defence of property All of the events preceding the
shooting had to be taken into account in determining whether D used reasonable force.
-appeal allowed, new trail ordered.
-unlawful use of firearm s.86. Culpable homicide when commit death by means of unlawful act. unlawful act was
careless use of firearm- now guilty of manslaughter. For murder-further elements must be established.
-D said wasn‘t careless use of firearm because had it to defend property-if that defence successful then D would
not be guilty of careless use of firearm and would not be guilty of culpable act based on that act.
-Trail judge misunderstood that argument-interpreted it as admission by Gunning and he directed jury the act of
careless use of firearm had been commited.
-Important to note D did not enter plea of guilty-up to Crown to prove beyond reasonable doubt all elements of AR
and MR sastisfied and disprove beyond reasonable doubt any defence there was an air of reality for. Was for jury
as trier of fact ot assess merits of the case and disprove affirmative defences that had air of reality.
-Defence must be left whenever jury could reasonably conclude in favour of the accused- air of reality not about
substantive merits or likelihood of success- just if there is a real issue that must be decided by jury
-was air of reality to defence of property. 4 elements above
-D does not raise self-defence- raises defence of accident. Defence of property is justification for use of shotgun
prior to it going off. Jury could reasonably conclude this on the evidence.
-No question was in possession of house and after told to leave C trespasser-this does not mean every person who
merely steps on your land is a trespasser. Resonableness of force used more contentious but question is whether
evidence discloses real issue but not how will be decided.
-in determining whether there was air of reality becomes clear trial judge overstepped role and decised substantive
merits of the case.
Intoxication and Automatism
Sometime categorized as excuses and sometimes as denials of responsibility because do no negate the
wrongfulness of the action but to effect blamworthiness especially in case of automatism the ability of
individuals to answer to reason. Act as reasonable human beings
Alcohol consumption impairs physical coordination, perception, judgement and reduces inhibitions.
It can lead to aggressive or anti-social behavior. Alcohol and other intoxicants have had constant
presence in the course.
Historically have been policy concerns regarding extent it should serve as a defence. Too easy a
defence for criminally behavior as far to prevelant in society. This has lead to judicial restriction as
availability of a defence to a criminal charge.
Can‟t always claim lacked mens rea because too drunk or stoned-tried to limit because blameworthy
in getting your self intoxicated and inflicting harm on others. Putting yourself in this state should not
provide a blanket defence for all the wrongdoing you engage in as a consequence. Rules are mostly
premised on voluntary or self-induced intoxication. More forgiving if not self-induced.
Self-induced intoxication long been considered defence however where it does not render person in a
state akin to automatism-ie Deaviult It is only a partial and not a complete defence.
R v. Bernard 1998, SCC (pg. 805-826)
Facts: The accused was charged with sexual assault causing bodily harm contray s.246.2(c) now 272(1)(c).
265(1)(a) Assault- A person commits an assault when without the consent of another person, he applies force
intentionally to that other person, directly or indirectly
272(1)(C) –Sexual assault causing bodily harm- Every person commits an offence who, in committing a sexual
assault, caused bodily harm to the complainant.
-predicate offence premised on assault. Additional actus reus element: caused bodily harm to the complainant.
Creighton and Desouza may not mandate same level of mens rea as rest of the predicate offence.
Complainant testified she had been forced to have sexual intercourse in her apartment without consent and had
been seriously injured. Evidence she had been punched twice and he had threatened to kill her. Testified accused
had been drinking but was able to walk and see everything , talk clearly and put albums on the record player. A
friend of the accused testified he had been drinking and though had become rowdy was walking straight and
talking. When police arrived he was awoken from deep sleep and seemed to be suffering from his drinking, said
his drunkenness caused the attack, when he realized what he was doing he got off her. Trial judge said no evidence
of drunkenness except D‘s statement and even if was drunk this was no defence. CA confirmed conviction holding
defence of drunkenness did not apply to sexual assualt because offence of general intent.
Issue: Is sexual assualt causing bodily harm an offence requiring proof of specific or general intent? Is evidence of
self-induced drunkenness relevant to the issue of guilt or innocence in an offence of general intent?
Ratio: - Drunkeness in a general sense is not a true defence to a criminal act, but where in a case which involves a
crime of specific intent, the accused is so affected by intoxication that he lacks capacity to form the specific intent
required to commit the crime charged it may apply, but has no application in offenses of general intent. Proof of
voluntary drunkenness can be proof of guilty min in general intent offences (recklessness)
Conclusion: McIntyre: Difference between offences that require proof of specific intent-involves the
performance of the actus reus coupled with an intent or purpose going beyond the mere performance of the
questioned act ie: poisoning with intent to kill and those that require general intent -relates soley to the
performance of the act in question with no further ulterior intent or purpose ie: applying force for assualt.
-Difference is like relationship between manslaughter and murder. Intoxication could prevent formation of
necessary intent for murder, but would be irrelevant in manslaughter.
- Criticisms: 1. Distinction between specific and general intent is artificial 2. Illogical because allows defence of
drunkenness in certain situations but not others. It is merely a policy decision not based on principles or logic. But
no good law can be inconsistent with or depart from sound policy. If policy behind present law is that society
condemns those who by the voluntary consumption of alcohol render themselves incapable of self-control so that
they will commit acts of violence causing injury to their neighbours, then no apology for the policy is needed.
-SwietlinskiL Indecent character of assault should be judges upon objective view of the facts, not on mental state of
the accused. Therefore s.246.2(c) the element of the offence is only the intention to commit the assault so is
general not specific intent.
-Unable to agree with CJ defence of intoxication should be a relevant consideration in determining whether the
mens rea of an offence has been proven, Effect would be the more drunk a person becomes, more extended his
opportunity for successful defence against conviction for offences caused by such drinking regardless of the nature
of intent require for those offences.
-D argues Leary rule relieves burden of Crown in proving mens rea in cases of general intent and imposes strict
liability on the actus reus. Contends rule violates s.7 and 11(d) of the Charter. Both must be rejected, crown still
have to prove all elements but removing defence of drunkenness prevents the accused from relying on self-imposed
drunkenness as a factor showing an absence of any necessary intent. Relaxation of rules for specific intent
recognizes the more complicated mental processes requires for crime of special intent and the penalties involved.
- There is a general proposition triers of fact may infer mens rea for the actus reus, presumed to have intended
natural and probable consequences of actions. Second, evidence of self-intoxicaion can in extreme circumstances
be used as evidence of the guilty mind. If manged to get self so drunk did not know what was doing the reckless
behavior in attaining that level of intoxication affords the necessary evidence of the culpable mental condition.
-Policy: Prevent a major cause of violent crime instead of encourage it and excuse crimes. Leary rule does not
offend Charter. It recognizes that accused persons who have voluntarily consumed drugs or alcohol thereby
depriving themselves of self-control leading to the commission of a crime are not morally innocent and are indeed
-conclude the court did not make and error and appeal dismissed.
-MacIntyre‘s judgement subject to caveat of justice Wilson- Wilson‘s view ends up controlling in Daviault.
-According to what MacIntyre establishes in his opinion-what is the difference between specific and general intent
offences? General intent offences are where the intent involved relates soley to performance of the act in question
with no further intent or purpose, the minimal intent to apply force in offence of common assault is example.
Specific intent offence involves performance of actus reus coupled with intent or purpose going beyod the mere
performance of the questioned act. Ie: striking blow or administering poision with intent to kill, assault with intent
-General intent only mens reas requirement is intention to do act in question with no further ulterior purpose
-Specific intent- Intention of act that constitute actus reus coupled with further intention going beyond the mere
performance of the act in question. Invovle intention to do act intentionally and also further purpose or ulterior
-Was rape considered crime of specific or general intent? Leary general intent. Historically- Beard intoxication no
defence with respect to general intent offences no matter how drunk accused had been. Drunkeness could not be
taken into accout to assess mens rea and would tell jury about common sense inference people intent natural
consequences of their actions
-Where do offences premised upon objective standard of liability fit? Reasonable person always presumed to be
sober so no such defence of intoxication on objective standards. Question is negation of intent-negation of specific
-Specific intent offences: how does intoxication operate as a partial defence? Pg.806-where in case that involves
crime of specific intent accused so intoxicated lacks capacity to form specific intent required to commit the crime
charged, defence of intoxication may apply-no application in crimes of general intent
-Accused may still be convicted for underlying general intent offence-so only partial defence. Ex. Intent to maim
or wound, could still be convicted of assault.
-Critique: distinction between general and specific is artificial distinction-MacIntyre rejects this. Difference
between frustration and angry strike with no purpose and other hand strike with intent to cause death or injury
-Despite his claim: given how different offences have been classified over the years experience seems to
suggest otherwise. In practice in trying to dicern if particular offence is general or specific must research what
court said in past.
2nd Critique: Distinction not principled or logical but pragmatic-made for policy reasons. He Does not dispute this,
but says it is sound social policy. If policy behind the present law is that society condems those who by voluntary
consumption of alcohol render themselves unable to control violence against neighbours, no apology needed .
When policy underlying defence of intoxication is that there is something blameworthy in getting yourself drunk to
point where engage in acts that harm others we should attempt to discourage this behaviour. Making drunkenness a
wholesale offence available in all circumstances would have opposite effect. Would encourage people to get drunk
to act with impunity.
-Is sexual assault general or specific? Points to case of Chase which says don‘t have to intend to violate sexual
integrity of victim. To commit sexual assault just have to intend to apply force. In addition to mens rea requirement
of absence of consent. For sexual assault causing bodily harm is just like sexual assault. It is a general intent
offence. Surronding circumstances must be considered for sexual element,.
-Implications of this? Intoxication is not a defence to this offence based on rule in Leary from mens rea issue
remains if intended to apply force-must also have violated sexual integrity- and harm more than trival or transitory
was objectively foreseeable
-jury will be told not to take self-induces intoxication into account, will be told people intend the natural and
probable consequences of their actions
-Argument of Bernard is failiure to allow intoxication as defence for general intent offences violates the Charter
s.7 and 11(d). Rule allows for accused to be convicted even though due to drunkenness may have lacked required
intent. This creates strict liability offences. Proof of act coupled with drunkenness leads to conviction. Dispite
actual abscence of intention, punishing the morally innocent
-MaIntyre does not think this is true- drunken accused can just not rely on intoxication to negate mens reas,
Crown still needs to prove mens reas by relying on common sense inference intended consequences of actions
-What if so drunk actually incapable of forming intent- even general intent. Thses types of cases will be rare, and
blameworthiness of getting yourself that drunk will be substituted for mens rea of the offence.
-Even person who unable to form necessary intent are not morally innocent- If manage to get self so drunkd
did not know what doing-reckless behaviour is evidence of culpable mental condition. Logically impossibly for
accused person to throw up his voluntary drunkenness as defence to charge of general intent proof of drunkenness
can be proof of guilty mind
-It is this last point Wilson takes exception with. The conventional limits on defence of intoxication should be
Wilson: Agrees that sexual assault causing bodily harm is an offence of general intent requiring only the minimal
intent to apply force and Crown will be able to establish blameworthy mental state by inference from their acts.
Clear from the facts there was an intentional and voluntary application of force, no evidence dealing with extreme
intoxication verging on insanity or automatism.
-Not confident about proposition self-induced intoxication may substitute for the mental element required to be
present at the times the offence was committed. Would keep Leary rule as is allowing evidence of intoxication for
general intent offences only when akin to state of insanity or automatism.
- Do not think Crown is relieved of proving minimal intent and do not think it violates s.11(d) by allowing the
accused to be convicted even thought there is a reasonable doubt as to the existence of the essential mental element
of the offence or as to the availability of a defence which could raise a reasonable doubt as to the guilt of the
accused. Crown still must prove that the accused applied force intentionally and the evidence of intoxivation is
withheld from the jury only because it is incapable of raising a reasonable doubt as to the accused‘s guilt.
- In rare cases where accussed extremely drunk to point of mental disorder or automatism, result may have to be
different in order to accord with the requirements with the charter. Where the accused is so drunk as to call into
question ability for voluntariness of action, the substitution of getting oneself that drunk for actual minimal intent
will likely violate s.11(d) the presumption of innocence. No evidence of extreme intoxication in this case so issue
left pending. Is picked up in Davidault
-SO: Intoxication is not defence to offences of general intent, might be partial for offences of specific intent. In
extreme cases could be used as defence even in offences of general intent
Dickson (Dissenting): Drunkeness and Mens Rea: The court should put evidence of self-induced intoxication to
be considered along with any other relevant evidence in determining whether the prosecution has proved beyond a
reasonavle doubt the mens rea required to constitute the offence. Intoxication affects one‘s mental state, the ability
to perceive the circumstances in which one acts and to appreciate possible consequences, therefore relevant to the
mental element in crime. Not suggesting that should escape being liable from crimes because drunk, but as
whether the Crown should be relived of the burden of proving the requisite mental elemenet for the offence
because the accused was intoxicated. Should th judry be entitled to assess all the evidence relevant to intent and
decide based on it? Specific v. general is artificial device where otherwise relevant evidence is excluded from jury
constideration. If law to be altered for policy not principle it is task for parliament. No evidence artificiality of
specific intent requirement actually required for social protection.
STARE DECISIS: Certainty in law important consideration must be compelling circumstances to justify departure
from prior decision. Since Leary was decided the Charter has come into force. Sanction of imprisonment without
proof of guilty mind violates guarantee of fundamental justice s.7 also violates s.11(d) presumption of innocence.
Cannot be upheld by s.1 does not meet ―proportionality inquiry‖ Leary rule treats the deliberate act of becoming
intoxicated as culpable in itself but inflicts punishment measured by the unintended consequences of becoming
intoxicated. No evidence it deters the commission of unintended crimes, so no warrant for violating funfamental
principles. Leary is attenuated by subsequent cases, an honest but unreasonable mistaken belief will negate mens
rea. Seems contradictory must negate consideration of intoxication when finding a mistake of fact. Complicated to
follow combination of Leary and Pappajohn. This creates uncertainty, arbitrary which offences are considered
general and which are specific. Leary is also unfavourable to the accused expansing the scope of criminal liability
beyond normal limits.
-Would shatter the distinction between specific and general intent offences. The conclude the rule creates a form of
absolute liability in context general intent offences that cannot be maintained under s. 7 of the charter
-What is it that requires them to take this postion philosophically speaking? Dickson and Lamar are both
committed subjectivists who believe full subjective mens rea must be present for all true crimes and presumptions
discussed by MacIntyre violate this principale
La Forest (concurring in result only): The requirement of mens rea in true crime offences is so fundamental it
cannot since the Charter be removed on the basis of judicially developed policy. On the particular facts of this case
no substantial wrong or miscarriage of justice has occurred it is a proper case to apply s.613(1)(b)(iii) of the Code.
-Points to take away: 1) For purposes of intoxication defence all offences broken down into one of two
categories-general intent offence where mens rea only to underlying act and specific intent offences where
mens rea for underlying act coupled with additional requirement going to further intent or purpose. With
exception of murder- most offences we have looked at (assault, assault causing bodily harm, aggravated
assault, sexual assault, sexual assault causing bodily harm, aggravated sexual assault) all general intent
2) Generally intoxication no defence to general intent offences subject to Davidault caveat. Even when thre
is evidence accused intoxicated, jury will not be instructed to consider what impact it would have had in
forming mens rea of intent for the offence. Presumption accused had capacity to form basic mens reas
3) With specific intent offences- intoxication is a partial defence. If there is evidence that gives rise to an air
of reality that the accused was intoxicated. When there is air of reality, jury will be told to take into account
in assessing whether the accused formed the specific intent required the issue of intoxication. IE: attempted
murder. Specific intent to kill. But even if have reasonable doubt, guilt for underlying genral intent offence
will follow. IE: murder to manslaughter.
4) For offences that depend on objective standard of mens rea intoxication never defence subject to
Davidault exception. If so intoxicated to be in state akin to automatism actions are not voluntary. So even if
object standard of mens reas is present, Involuntary conduct not guilty conduct because element of actus
reus which if not present negates criminal liability.
5) Same is true for evaluation of reasonableness in the context of defences. Ie: Self-defence when asses if
accused belief life endangered or needed to take steps did to preserve life were reasonable it is the
reasonable sober person who is the yardstick.
b) Charter Standards
R v. Daviault 1994 SCC (826-838): The majority adopted the Wilson compromise that extreme intoxication akin
to automatism or insanity had under the Chater , to be a defence to general intent crimes such as sexual assault.
The onus of proof was reversed (likened to defence of insanity).
Facts: The accused was charged with sexual assault, the complainant was a 65 year old partially paralyzed woman
confined to a wheel chair. The D was 69 and a chronic alcoholic, he brought a 40oz. bottle of brandy and had
already consumed 7-8 beers. During the night the D grabbed the complainant‘s chair wheeled her in the bedroom
and sexually assaulted her. He said he had no recollection of the events. It was found the amount of alcohol he had
in his system would cause death or coma in an ordinary person and in this state he might have suffered an episode
of amnesia-automatism or ―blackout‖. In this state an individual loses contact with reality and the brain is
temporarily dissociated from normal functioning , the individual has no awareness of his actions and likely no
memory of them the next day. It is difficult to distinguish between a person in a blackout and one simply acting
while intoxicated, but is more likely if the person has departed from his normal behavior to act in a gratuitous or
violent manner. Trail judge found D had committed offence reasonable doubt if at point of automatism. CA
overturned this did not think self-induced intoxication akin to automatism should be a defence.
Issue: Can a state of drunkenness which is so extreme that an accused is in a condition that closely resembles
automatism or a disease of the mind as defined in s.16 of the Code, constitute a basis for defending a crime which
requires not a specific but only a general intent? Does the rule that precludes intoxication for providing a
defence to general intent offences even when accused is in state akin to automatism violate s.7 and 11(d) of
Ratio: Only where there is a case of extreme intoxication akin to a state of insanity or automatism can the defence
be used in general intent offenses. Accused must bear the burden of establishing on a balance of probabilities was
in extreme state of intoxication.
Conclusion: Appeal allowed, new trial ordered.
Cory: Dealing with the limited situation of very extreme intoxication and the need under the Charter to create an
exception in situations where intoxication is such that the mental element is negated. Does the decision in Leary
contravene s.7 or 11(d) of the Charter? Sexual assault causing bodily harm is an offence of general intent which
requires only a minimal intent to apply force. Ordinarily the Crown can establish the requisite mental state by
means of the interferences to be drawn from actions of the accused. Wilson J. found Leary was perfectly consistent
with an onus resting on the Crown to prove the minimal intent which should accompany the doing of the prohibited
act in general intent offences, but would have applied in more flexible form, with intoxication going to jury if it
demonstated such extreme intoxication that there was an absence of awareness akin to a state of insanity or
The Alternative Options: -Continue to apply Leary but this violates the Charter. Or follow O’Connor evidence of
drunkenness go to jury will all other relevant evidence in determining whether the mental element is met-unecssary
and rejected in Bernard.
How The Leary Rule Violates S.7 and 11(d) of the Charter: Leary says even in situation where level of intoxication
is sufficient to raise reasonable doubt as to capacity to form the mental element required for a general intent
offence, still cannot be acquitted. Self-induced intoxication substituted for mental element of the crime. But- rare
comsumption of alcohol and events following could be seen as a single transaction. And the mental element cannot
necessarily be inferred from the actus reus when the voluntariness or consciousness of the act may be put in
question by extreme intoxication. Mental aspect intergral part of crime, only if the existence of the substituted fact
leads inexorably to the conclusion that the essential element exists with on other reasonable possibilities, will the
statutory presumption be constitutionally valid. –Leary does not meet this intoxication does not lead to conclusion
had mental element for assault, deprives accused of fundamental justice.
-Voluntary intoxication is not a crime so cannot be ``blameworthy`` cannot be justified under s.1. Only rare
occasions evidence of extreme state of intoxication can be advances and rarer will be successful.
-Person in state of automatism cannot perform a voluntary willed act, and an act must be voluntary to pass actus
rea. Charter could be complied with if accused permited to establish that at time of offence was in state of extreme
intoxication akin to automatism or instantiy. Accused must bear the burden of establishing on a balance of
probabilities was in extreme state of intoxication. Will require testimony of an expert, and has not significantly
increased used of defence in Australia or N.Z.
-Majority does not undo distinction between general and specific intent offences? NO distinction is maintained but
they recogonize one option would be to do away with the distinction and allow intoxication to be weighed by trier
of fact in considering whether mens reas is proved regarless of the charge. Majority rejects this,
-Add caveat for cases akin to automatism. They depart from rule in Leary and Bernard that intoxication never a
defence when general intent offence. Majority feels Leary/Bernard violates the Charter. There is an impermissible
mens rea substitution-self-induced intoxication being substituted for mental element of the crime when akin to
automatism. This is a true substitution of mens rea.
-In extreme cases of intoxication where accused lacks capacity to form minimal mental element required for an
offence of general intent. The traditional rule substitutes the intentional act of the accused to voluntarily become
intoxicated for the intention required to commit the offence
-Ie: intention to drink substituted for intention to commit sexual assault or for the recklessness of the accused with
regard to the assault. Mens reas substitutions are constitutionally permissible Vallincourt pg. 434 legislature rather
than eliminating any need to prove element may substitute proof of a different element. Constitutionally valid but
only upon proof beyond a reasonable doubt of the substituted element it would be unreasonable for the trier of fact
not to be satisfied beyond reasonable doubt of the existence of the essential element. What is the problem of the
- It is only where substuted fact leads inexhorably to conclusion essential element existed with no other
reasonable possibilities that the statutory presumption will be constitutionall valid. Rule from Leary and Bernard
does not meet this test. It violates s. 11(d) and s.7 of the Charter.
-Mental aspect of offence has long been recognized as interagal part of a crime may be minimal... requisite mental
element is intention to commit sexual assault or recklessness as to actions will be considered assault. Can normally
be inferred by fact assault commited by the accused, but substituted mens rea of intention to become drunk cannot
establish intention to assault
-Violation cannot be upheld under s.1. Defence will be available in only the rarerest cases so no urgent policy or
pressing objective that needs to be addressed. Due to absences of conclusive link that alcohol consumption
enevitably leads to violence, court doubts proportionality or minimal impairment requirements could be sastified.
Thinks defence will rarely be successful-only for cases of extreme intoxication to point akin to automatism. Reare
tires of fact will act on the claims. Expert evidence required
-Who bears the burden of proof? The accused on balance of probability. In the case of this defence like in case of
mental disorder and automatism the evidential burden and the legal persuasive burden are on the accused. Not the
case for wider defences- accused only has evidential burden for ―air of reality‖
-If flexible Wilson approach taken-will be rare must be akin to automatism or insanity. Chaulk burden could be
justified under s.1. Only accused can give evidence on amount of alcohol consumed and its effect.
-Someone so intoxicated as in state of automatism- lacks mens rea and actus reus (act would be involuntary) so
could also be applicable to objective standard offences and strict liability and absolute liability offences
-Further basis for this conclusion is would allow for criminal liability despite absence of voluntary act.
-SUMMARY: 1) general rules about limits of intoxication as a defence continut
2) exception to general rules exists where the accused is able to establish on the balance of probabilities he was in
sxtreme state of intoxication akin to automatism and insanity
3) then entitled to acquittal goes to actus reus and mens rea. This defence applies to all offences as to specific and
general intent as well as objective standard liability including strict liability, absolute liability and criminal
negligence. Even with these offences as with all other offences voluntary action prerequisite for liability
4) accussed must present evidence to nature and amount of alchol consumed, its effect and coupled with expert
Lamer: Views go further as per decision in Bernard. Prefers characterizing mental element involve more to actus
reus than mens rea so the defence can be available in strict liability offences.
La Forest: Although dissenting in Bernard if have to choose between the majority in that case and Cory will
concur with Cory.
-LaMer and LaForest say they would have gone further and eliminated the distinction between specific and general
Sopinka (Dissenting): To allow generally an accused who is not in afflicted by a disease of the mid to plead
absence of mens rea where he has voluntarily caused himself to be incapable of mens rea would be to undermine,
indeed negate the very principle of moral responsibility which the requirement of mens rea is intended to give
effect too. Sexual assault does not fall into the category of offences which either the stigma or available penalties
demand as a constitutional requirement subjective intent to commit the actus reus. If Intoxicated moral
blameworthiness similar and effects of conduct on victim and society are same as other cases. Sentence not fixed,
intoxication may be considered during sentencing.
-Fact that the Leary rule permits an individual to be convicted despite the absence of symmetry between the actus
reus and the mental element of blameworthiness does not violate the principle of fundamental justice.
Voluntariness as required element not absolute ie: non-insane automatism: automatism does not apply to excuse of
an offence if the accued`s state is brought by his own fault. If drink or do drugs should ne in same position.
-General intent offences are those which reqire the minimal intent to do the act which constitutes the actus reus.
Proof of intent usually inferred from commission of the act, on basis person intends natural consequences of their
acts. Specific intent offences are more serious and require `Ulterior intent`` and failure to prove added element will
often result in conviction of a lesser offence
- court should reaffirm tradition rule that vouluntary intoxicaton does not constitute a defence to an offence of
general intent. Otherwise up to parliament to change. Would dismiss the appeal.
- Condut of those who cause harm after becoming intoxicated is sufficiently blameworthy that does not
violate principles of fundamental justice to find them guilty they are not morally innocent.
-There was public uproar following this decision- concern floodgates had been opend and getting voluntarily
drunk would create immunity.
-This did not happen. Only 3 defences were successful. Despite this perception became reality and a justice
committee was convenyed. Was conflicting views in automatism do to alcohol even scientifically possible.
Note: Pages 837-841
New trial resulted in stay of proceedings, complaintant was deceased and to proceed would be denial of
MOJ was deeply troubled by the decision in this case and said it gabe wrong message to those who drink
A study showed defence was rarely used and rarely succeeds.
Bill C-72 of HOC provides ``extreme intoxication is not a defence to crimes of violence``
o Act to amend criminal code
o Close association between violence and intoxication and concerned self-induced intoxication may
be used as an excuse to violence. Should be held criminally accountable for their violent conduct
o A person who in a state of incapacity by reason of self-induced intoxication commits an offence
involving violence against another person departs markedly from the standard of reasonable care
that Canadians owe to each other and thereby criminally at fault.
o Self-Induced Intoxication: When defence not abailable
33.1: It is not a defence to an offence reffered to in subsection (3) that the accused by reason
of self-induced intoxication, lacked the intent or the voluntariness required to commit the
offence where the accused has markedly departed from the standard of care as described by
sub section (2)
Criminal Fault by reason of intoxication
(2) For the purposes of this section a person departs markedly from the standard of
reasonable care generally recognixed in Canadian soceitey and is thereby criminally
at fault where the person whike in a state of self-induced intocivation that renders the
person unaware of or incapable of consciously controlling their behavior vouluntarily
or invouluntarily interferes or threatens to interfere with the bodily integrity of
(3) This section applies in respect of an offence under this act of any act of
parliament that includeds as an element an assault or any other interference or threat
of interference by a person with the bodily integrity of another person
Uses a deemed fault provision to remove the Daviault defence to most general intent offences. Dord
not affect the common law defence of drunkenness available to specific intent crimes such as murder
and robbery. Whether s. 33(1) will survive Charter review remains to be seen. Lower courts in Ont.
Now accept it is unconstitutional, Ont. CA and SCC have declined to rule on it.
S.33.1 removes drunkeness to point of automatism as a defence. Where accused in this state engaged
in assualtant or violent behavior. Is s.33.1 Constitutional? Parliament did not invoke s.33
notwithstanding clause when inacting it. Would have allowed it to be enacted validly notwithstanding
would violate rights. Hope was preamble to amendment would lead to provision being upheld under
s.1. This kind of in your face move is significant. Is direct challenge to authority and legitimacy of the
SCC. Ont. Courts have fallen on both sides of the debate. Argument with respect to claims of
intoxication akin to autonamistsm. Make sure to argue both sides. This section still on the books.
There is ambiguity with respect to the provision. Note how quick parliament was to act in this area of
criminal law- but does not act in messy areas such as self-defence.
R v. Robinson 1996 SCC (841-846)
Facts: The accused was charged with second degree murder. He had struck the victim with a rock after the victim
has said something to him. He then fatally stabbed him. The accused was convicted at trial but the CA allowed
appeal on basis of misdirection as to the defence of intoxication.
Issue: Should the court overrule the Beard rules of intoxication incorporated in MacAskill and its progeny? How
should juries be instructed on the use they can make of evidence of intoxication?
Ratio: Beard is unconstitutional and should be overruled. Judge must be satisfied the effect of intoxication
was such that its effect might have impaired the accused‟s foresight of consequences sufficiently to raise a
reasonable doubt. Must make it clear issus is whether the Crown has satisfied them beyond a reasonable
doubt the accused had the required intent.
1. A MacAskill charge which only refers to capacity is constitutionally infirm and constitutes a
2. A Canute-type charge which only asks the jury to consider whether the evidence of
intoxication along with all other evidence in the case impacted on whether the accused
possessed the requisite specific intent is to be preferred.
3. In certain cases in light of the particular facts of the case or expert evidence it may be
appropriate to charge both with regard to capacity and the need to determine whether the
requisite intent was in fact formed. Jury might be instructed overall duty is to determine
whether or not the accused possed the requisite intent for the crime. If left with reasonable
doubt accused had capacity to form the requisite intent that ends the inquiry and the accused
must be acquitted of the offence and consideration must be given to any included lesser
offences. If not must consider all surrounding circumstances and the evidence pertaining to
those circumstances in determining whether or not the accused posses the requisite intent for
4. If a two-step charge is used with “capacity” and “capability” and the charge is subject of
appeal then determination will have to be made on case by case bais of whether there is a
reasonable possibility that the jury was mislead into believe that a determination of capacity
was the only relevant inquiry the following factors should be considered:
The number of times reference to capacity used
Number of times reference to the real inquiry of actual intent used
Whether there is an additional “incapacity” defence
The nature of the expert evidence
The extent of the intoxication evidence
Whether the defence requested references to “capcity” be used in charge to jury
Whether during the two-step charge it was made clear the primary function of the jury
was to determin whether they were satisfied beyond a reasonable doubt that the
accused possessed the requisite intent to commit the crime. This will often be sufficient
to make the charge acceptable and appropriate.
Conclusion: Appeal Dismissed.
Lamer: Beard: The 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. The evidence of drunkenness falling short of proved incapacity in the accused to
form the intent necessary to constitute the crime and merely establishing that his mind was affected by drink so that
he more readily gave way to some violent passion, does not rebut the presumption that a man intends the natural
consequences of his acts. – SCC ruled word ``proved`` should be removed from its rules, evidentiary burden
capable of raising reasonable doubt instead.
-Beard no longer followed by any provincial appellate court. Ontario MacKinlay: Intoxication causing a person to
cast off restraint and act in manner would not if sober is no excuse for commission of a crime if had intent. Where
specific intent, the crim not commited if the accused lacked the specific intent essential to constitute the crime.
Can consider intoxication with other evidence if accused was incapable of forming the required intent then
obviously could not have it. BC CA in Canute agreed Beard rules were unconstitutional because they created a
form of constructive liability that violated s.7 and s.11(d) of the Charter and did not constitute a reasonable limit
under s.1, recommended all references to capacity be removed and just consider actual intent.
-In the case of murder the issue is whether the accused intended to kill or cause bodily harm with the foresight that
the likely consequence was death. Omit reference to ―capacity‖ and focuses the jury on ―intent in fact‖
-Foreseeability under s.229(a)(ii) of CC, determining whether accused foresaw his actions were likely to cause the
death of the victim. A level of impairment falling short of incapacity will often be sufficient to rasie a reasonable
doubt on question of foreseeability. In most cases will rarely raise a reasonable doubt in minds of jurors. Two-step
charge may be appropriate in some cases, but role of CA to determine whether there is a reasonable possibility that
the jury may have been misled into believing that a determination of capacity was the only relevant inquiry.
-Beard is English decision that provided framework-where intoxication was to be considered only where
specific intent charge. No relevant fact to consider in removing ability to form the requisite intent. SCC
makes clear no presumption of intent. Intoxication should be treated as any other defence, where
evidentiary burdern. Preseumption of intent should only be interpreted and refered to as a common sense
inference the jury can or does not have to make. (not talking about Davidault)
-Court says: Having reached conclusing rules are constitutionally infirm need to determine what new rule
should be put in its place.
-Before trial judge required by law to charge on intoxication, must be satisfied effects were such that might
have impaired accused foresight sufficiently to raise a reasonable doubt. Once satisfied this threshold is met,
must make it clear Crown has satisfied them beyond reasonable doubt the accused had requisite intent. In
case of murder issue is whether accused intended to kill with likely consequence with death.
-When offence charged is specific intent offence and there is evidentiary basis to suggest the accused was
intoxicated “air of reality” jury should be told if they conclude the accused was intoxicated they can take
that consideration into account in assessing whether or not he/she did form specific intent to do what was
-ex: Murder- did the accused intend to cause death or bodily harm that knew was likely to cause death and
was reckless to whether or not death ensued following s. 229(a)(2) . References to Capacity to form the
intent not out of question as oppsose to intent. Not out of realm of possibility jury to have reservation the
accused had requisite intent to form basis where falls short of incapacity.
-ex. Where accused points shotgun-difficult to concive of successful intoxication defence unless didn‟t have
capacity to form intent.
-although it is formation of requisite intent. Reference to capacity and intent may be appropritate in some
cases. 2 step charge. Ie: expert evidence in relation to capacity. Or specifically request it.
If 2 step charge used and later challenged on appeal- role will be to review charge and determine if jury
mislead into believing whether it was capacity that must be found
-It is intent that is primary. Although sometimes capacity might determine if there was intent.
-What about invouluntary intoxication?
-under the approach of Leary and Bernard may be convicted if voluntarily becoming
intoxicated. What do if not your fault intoxicated. If held at fault for general intent, seems
only fair not be convicted if not fault. SCC not applied traditional rule of only using
intoxication for specific intent offences where accused became intoxicated involuntarily. The
SCC has refused to substitute automatically fault of involuntarily intoxication for fault that
may not be present for genral intent offence while severly intoxicated. In 1962 SCC case R
v.King indicated accused impaire by drug given by dentist should not be convicted of
impaired driving when became impaired through no act of his own and could not be
expected to know his actions were impaired or would become impaired. Seems to
acknowledge could be degree of intoxication that is inconsistent with formation of intent for
general intent offence impaired driving. Suggests that involuntary intoxication can negate
mens rea or actus reus of an offence even before Davidault threshold crossed. Evidence of
either involuntary intoxication or voluntary intoxication can be conisered for specific intent
offence as to wheter accused had necessary mens rea. Invouluntary intoxication goes beyond
voluntary intoxication- more lienient. Policy reasons for prevent defence might not apply.
Why is it a controversial defence?
Is a legal term that refers to unconscious or involuntary behavior Rabay 1980 “unconscious
involuntary behavior the state of a person who though capable of action is not conscious of what he is
doing” unconscious involuntary act where the mind does not go with what is being done.
Disassocitate state between what mind does and what body does
Stone: accused acting as an automotone may not necessarily be actually unconscious. Consciousness
must be so impaired has no voluntary control over action ie: sleepwalking or dazaed state after
Is difference between defence of automatism and defence of mental disorder s.16, non criminally
responsible, not acquittal. Automatism is related to mental disorder defence because both involve
conditions where accused cannot be held criminally responsible for actions owing to lack of mental
capacity. If accused leads evidence of automatism- crown can counter it was result of mental
disorder. Crucial issue is often whether the cause is mental disorder or some other factor. Disease of
the mind or cause was other factor. Mental disorder automatism v. non mental disorder automatism.
If cause is disease of the mind Parks neurological/phsycological condition there might be a treatment
for than the accused is held not criminally responsible by reason of mental disorder and subject to
disposition hearing and may be subject to detention
If not by disease of the mind then there is an aquital BletaThe SCC affirmed acquittal while in
dazaed condition due to severe blow to head killed another person. Parks stabbed 2 people killing
one of them-sleepwalking. Not disease of the mind.accused was aquited and not subject to disposition
hearing. Lamar expressed concerns about setting the accused free without free without measures to
protect the public or himself from repetition of the occurrance. But majority held in abscene of
verdict of not criminally responsible court did not have jurisdiction to make preventative orders
In 2001 Parent The SCC speculated that anger and perhaps other emotional blows could in some
circumstances cause someone to enter state of automatism in which person does not know what doing
thus negating voluntary component of actus reus. Appropriate disposition was acquittal
Federal proposals to amend code in 1993 but not implemented would have made accused aquitted on
non-mental automatism subject to detention hearing in same way as person convicted under mental
disorder automatism. Would have eliminated distinction between mental/non mental by eliminated
Stone SCC narrowed difference by requiring accused to establish the defence of non-mental
automatism on balance of probabilities. Ie: intoxication Automatism would be presumed to be caused
by mental disorder unless the accused proved otherwise. Accused now have evidential and persuasive
burden. Automatism will be presumed to be caused by mental disorder unless proved otherwise.
As late as 1992 SCC held accused who raised defence of non-mental disorder
automatism was entitled to aquital if evidence raised reasonable doubt accused acted
in voluntary or conscious manner because would raise reasonable doubt whether the
accused acted with required fault element, included capacity to live up to objective
fault element. Or alternatively consciously and voluntarily commited actus reus
1999 Stone must establish on balance of probabilities acted in voluntary manner.
Concerned might be easily faked so long as pointed to some evidence that if believed
would raise a reasonable doubt about actions. Also concerned about consistency
inallocating burdens of proof. Since have burden of proving on balance of probabilities
for automatism by extreme intoxication and for mental disorder Chaulke
New persuasive or legal burden to establish defence on balance of probabilities also
influenced threshold decision by trial judges about whether there was sufficient air of
reality for instructing jury about the defence. Trial judge justified in not instructing
because no evidence could find acted involuntarily on balance of probabilities. Accused
will not have to assert involuntariness but also produce coorberating psychiatrist
evidence. And even this two factors will not suffice must also consider the severity of
the triggering stimulus, corroborating evidence of bystandars, cooberating evidence of
accused being in state of automatism at other times, motive for offence, whther alleged
trigger of automatism was also victim of the crime, if the crime could be explained
without reference with automatism.
Strong dissent Binne noted benefits of traditional law of reasonable doubt about
voluntariness of actions. Stringent test of majority would reduce number of claims of
non-mental automatism that can be considered by juries. All these factors go not only
to persuasive burder, but also whether air of reality sufficient for defence to be put to
jury. Fontaine SCC qualified Stone for evidentiary burdern but not for
persuasive/legal burden on the accused to establish automatism
Fish- is languages in stone that may be understood to invite assessment as to likelihood
of the defence. May cause the judge to weigh the evidence on whether it establishes on
balance of probabilities that the accused purprotated the crime in state of automatism.
Trial judge who followed such an approach erred. The factors set out in stone were
better set out to guide the judge in whether the defence had be established in fact on
balance on probabilities and not evidential air or reality burden.
Fontaine lowers evidential burden but leaves intact perusuasiver burden toestablish on
balance of probabilities and the factors it requires the jury to consider and the kind of
evidence the accused would need to put forward.
Success of defence will often hang that will hang on expert evidence.
R v. Stone 1999 SCC (787-794)
Facts: Accused visited sons from previous marriage, new wife objected, raised the issue of divorce, told him she
had falsely reported to the police he was abusing her and they were ready to arrest him the she would stay in the
house and have him support her and their children. Said felt a ―whoosh‖ sensation and when his eyes focused he
was staring straight ahead and felt a knife in his hand, he had killed his wife. She had been stabbed 47 times, put
her in his truck toolbox and fled to Mexico. While there awoke to having sensation of throat cut, he remembered
stabbing his wife twice before experiencing a ―whoosing‖ sensation. When he returned to Canada he surrendered
to the police and was charged with murder. Defences were insane automatism, non-insane automatism, lack of
intent and provocation. Trail judge found evidence of unconsciousness throughout the commission of the offence
but ruled the defence had laid a proper evidentiary foundation for insane but not non-insane automatism. Was
found guilty of manslaughter and sentenced to 4 years in jail.
Issue: How do you distinguish a case of sane automatism from those of insanity which are subsumed by the
defence of mental disorder under s. 16? How can an accused demonstrate that mere words caused him to
enter an automatistic state such that his actions were involuntary and thus do not attract criminal law
Ratio: Legal burden for claim of automatism must be on defence to prove involuntariness on balance of
probabilities to trier of fact (same as intoxication and mental disorder). Limitation of s.11(d) can be
justified under s.1. Court should not elemintate non-mental disorder automatism, but rare. Must use holistic
approach of internal cause theory, continuing danger theory and policy factors to determine if there is
evidence of disease of the mind.
Conclusion: SCC accepted this was proper case for provocation to go to jury and dismissed Crown appeal against
sentence. Divide on issue of whether sane automatism should have been left with jury. Determined was correct and
reversed the onus of proof.
Bastarache: Nature and Origin of the Burdens Applied in Cases Involving Claims of Automatism: Only voluntary
acts will attract findings of guilt. Voluntariness, not consciousness key legal element of automatistic behavior as
the defence amounts to a denial of the voluntary component of the actus reus. Evidentiary burden on accused to
rebut presumption of vouluntaryness, Crown has legal burden of proving voluntariness beyond reasonable doubt.
Distincition between non-mental disorder and mental disorder automatism is problematic and should be
avoided.Appropriate legal burden to all cases of automatism must reflect policy concerns, necessary to futher
objective behind presumption of voluntariness.
Determining Whether to Leave Mental Disorder or Non-Mental Disorder Automatism with the Trier of Fact:
- Mental Disorder will result in verdict of not criminally responsible on account of mental disorder and
receive qualifies acquittal discharges absolutely or conditionally or detained in a hospital. For non-mental
automatism will result in abosolute acquittal.
- What mental conditions are included in term disease of the mind is question of law. Question of if accused
actually suffered is question of fact. So mixed question of law and fact.
- Suggestion all automatism results from mental disorder and all claims should be classified as mental
Determining Whether the Conditions the Accused Claims to Have Suffered From is a Disease of the Mind:
-Two distinct approache the internal cause and the continuing danger theory. Internal cause theory cannotbe
universal classifatory scheme for ―disease of the mind‖ Must be more wholistic approach
Other Policy Factors: Other policy concerns must be taken into account such as: severity of triggering stimulus,
corroborating evidence of bystanders, corroborating medical history, evidence of motive,whether the alleged
trigger of the automatistic behavior is also the victim of the automatistic violence.
Binnie (Dissenting): Accused argues was intitled to have issue of voluntariness put before the jury, trial judge
found evidence of involuntariness was only relevant to a defence of not criminally responsible by reason of mental
disorder and D did not suffer from disease of the mind. Argued this violates s.11(d) presumption of innocence.
My view is D was entitled to jury‘s verdict on whether or not his conduct though sane was involuntary and is
entitled to new trial. Appelant was entitled to have a plea of non-mental disorder automatism left to the jury: It
offends s.7 and s.11(d). Impositiion of persuasive burden of prod to establish ―involuntarinees‖ on balance of
propabilities in substitution for the present evidential burder same charter problems. ―internal cause‖ theory cannot
be used to deprive appellant of benefit of jury‘s consideration of the voluntariness of his action once has met
evidential onus. Wrong of court to substitute insanity for invoulntariness. There are states of automatism where
perfectly sane people lose conscious control over their actions it was up to jury not judge to decide if appellant had
brought himself within the physical and mental condition identified.
Application to the Presnt Case: Evidence in this case raised only one allged cause of automatism. The internal
cause theory, the continuing danger theory and other policy factors all point to mental disorder of disease of the
mind. Trail judge did not err.
R v. Fontaine 2004, SCC (795-799)
Facts: Accused charged with first degree murder of D. He had recived call from R saying ―We‘re coming to get
you pigs‖ and he heard that D had been offered contract to kill him. He later felt was being watched and followed
and purchased a gun. One night thought heard someone breaking in and fired his gun, the next morning D came to
the garage to pay a debt the accused saw him grabbed his gun and shot him twice, D tried to flee but the accused
followed him and fired 5 more shots. Defence was mental disorder automatism, testifies acted involuntarily. It was
difficult to determine whether his story was real or delusional and the D psychiatrist said he was in a psychotic
state triggered by excessive marihuana use and was unable to distinguish right from wrong P psychiatrict said had
not been and was not psychotic. Apply R v. Stone judge refused to put mental disorder automatism defence to the
jury on ground no evidence that would allow jury to conclude on balance of probabilities that the accused has acted
involuntarily. Accused‘s evidence contained contradictions. Also refused to charge on defence of no criminal
responsibility on account of mental disorder under s.15. CA quashed conviction, trail judge should have put
defence of mental disorder automatism.
Issue: What is the evidential burden to put forward a defence of automatism in light of R v. Stone?
Ratio: If there is a defence raised by the accused, supported by expert opinion have met the evidentiary
burden and must be put to the jury, but must go beyond mere allegation of existence of a defence.
Conclusion:Fish: The Evidential Burden Applicable to Automatism in Light of Stone: Trail judge was not
entitled to weigh the evidence in order to determine whether it establishes on a balance of probabilities that the
accused perpertrated the criminal act charged in a state o automatism, only find the evidential burden was met.
Where mental disorder automatism is raised as a defence, an assetion of involuntariness on the part of the accused,
supported by the logically probative opnion of a qualified expert will normally provide a sufficient evidentiary
foundation for putting the defence to the jury.
Application of the Law to the Facts: CA did not err in finding evidentiary burden met through accused‘s and his
psychiatrist‘s testimony. Evidence clearly went beyond mere allegation of the existence of a defence. Testified
seriously distorted perception of reality. Whether the respondant‘s acts were in fact voluntary was matter for the
jury to decide. Respondant‘s defence of mental disorder automatism should have been put to jury.