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CCC

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									Limits of Criminal Law
        Reference re ss. 193 & 195.1(1)(c) of Criminal Code (Canada) (1990) SCC
* rule of law – doctrine of strict construction – principle of legality – void for vagueness
principle
        R. v. Oakes (1986) SCC
* when is a limit on constitutional freedom(s) justified? – The Oakes Test – evidentiary
burden – evidence to the contrary – presumption of innocence – sufficient to limit
constitutional freedom – proportionality test

The Nature of Punishment
* similar fact evidence – elements of a crime – higher order principles – lower order
principles – semantic arguments
        R. v. Cam (1996) SCC
        R. v. McDonnell (1997) SCC

Interpreting Actus Reus
         Stoke-Graham et al v. R. (1985) SCC
* church – examining elements – ―willfully‖ disturb
         R. v. Lohnes (1992) SCC
* fuelling neighbors – causing a ―disturbance‖
         Hutt v. R. (1978) SCC
* soliciting – ―public place‖ – prostitute gets into a car
         R. v. Grilo (1991) Ont. CA
* living off the avails – ―living parasitically‖

Interpreting Mens Rea
         Canadian Criminal Law: A Treatise
         R. v. Sloan (1994) Ont. CA
* fellatio in secluded but public parking lot – ―willfully‖ – ―public place‖
         R. v. Clark (2005) SCC
* masturbating near a window – ―intent to harm‖ – ―public place‖
         R. v. Buzzanga and Drocher (1980) Ont. CA
* satirical distribution of hate literature – ―willfully promoting hatred‖ – retrial will include
oblique intent (foreseeable and unintended) – precedent that oblique intent is intent
         R. v. Steane (1974) CCA
* ulterior intent – British man broadcasted for the Nazis – modern argument would be
duress
         R. v. Hamilton (2005) SCC

Actus Reus
      A. Omission
                Fagan v. Commissioner of Metropolitan Police (1969) CA
* car on police officer‘s foot – mens rea can be superimposed on actus reus
                Dunlop and Sylvester v. R. (1979) SCC
* biker rape – aiding and abetting – judge tried to lead jury – omission (and analyzing
omission) – party to a crime – common intention
                R. v. Thorton (1990) Ont. CA
* CA attempts to apply Donoghue v. Stevenson‘s neighbor principle (in 1993 SCC rules that
this is too broad into criminal law)
                  R. v. Thorton (1993) SCC
* HIV blood donor trying to purge illness – SCC uses s.16 (a stretch)
                  The King v. Lewis (1903) Ont. CA
* Christian Scientist allows child with Diphtheria to die – reasonable person test – must
prove understanding of circumstances – contemporaneous fault – duties arising out of
common law
         B. Causation
                  R. v. Smithers (1977) SCC
* fight – faulty epiglottis causes death – guilty because of contributing cause of death – thin
skull principle – Smithers test – chain of causation – de-minimus range
                  R. v. Blaue (1975) CA
* Jehovah‘s Witness refuses blood transfusion and dies – an unreasonable or unecpected act
by the victim will not break the chain of causation – thin skull principle
                  R. v. Reid (2003) NSCA
* headlock and kick makes the victim unconscious – botched CPR attempt kills victim –
original trial judge did not properly instruct the jury on intervening act

         C. Capacity and Voluntariness
                  i) Automatism
                  R. v. Rabey (1980) SCC
* psychological blow – reasonable person standard for psychological blows imposed by
majority – draw the line between non-insane automatism and a ―disease of the mind‖
                  R. v. Parks (1992) SCC
* disease of the mind – nature of somnambulism makes it non-insane – shock has to be
significant for automatism defence – should impose preventive powers to protect public
                  R. v. Sone (1999) SCC
* kills verbally abusive wife – automatism – shift in evidentiary burden to accused to prove
non-mental-disorder automatism – internal cause, potential for recurrence, and policy
considerations – upholds Rabey
                  ii) Mental Disorder
                  R. v. Abbey (1982) SCC
* ―normal‖ appearing drug trafficker pleads insanity based on his inability to comprehend
penal consequences – mental disorder test – inability to appreciate the penal consequences
was irrelevant to the question of legal insanity
                  R. v. Oommen (1994) SCC
* paranoid delusions inspire murder – broadens the s. 16 Mental Insanity claim (requiring
understanding the specific act was wrong to ascertain capacity) vs a general ability to discern
right from wrong
                  iii) Intoxification
                  Daviault v. The Queen (1994) SCC
* extreme intoxication akin to automatism – Leary rule must stand and voluntary
intoxication is sufficient mens rea for general intent offences – SCC not yet resolved issue

        D. Consent
                Lemieux v. R. (1968) SCC
* police wait in house to catch burglars
                R. v. Jobidon (1991) SCC
* consensual fist-fight resulting in death – s. 265, dissent argues, shows the notion of
consent applies to all types of touching.
                R. v. Cuerrier (1998) SCC
* HIV transmission, refusal to use protection or inform partners – fraud vitiates consent –
she fears people will stop being tested for STDs
                R. v. Ewanchuk (1999) SCC
* job interview massage – sexual touching – continuing after ―no‖ is willful blindness or
recklessness – touching without express consent is now a crime – silence or any other form
of implied consent does not mean ―yes‖

Mens Rea
          A. Charter of Rights
                  Reference re Section 94(2) of the Motor Vehicle Act (British Columbia)
                          (1985) SCC
* BC government tries to impose jail time for driving on highway or industrial road while
license is suspended regardless of whether or not driver knew of suspension – absolute
liability offenses that contain even the possibility of imprisonment are found to be
unconstitutional – due diligence is the minimum standard of fault
                  R. v. Valliancourt (1987) SCC
* charged with murder because his partner shot and killed someone while they were
committing a robbery – anything less than subjective foresight of death is unacceptable
because of stigma and penalties associated with murder.
                  R. v. Martineau (1990) SCC
* accused (15 yrs old) has companion that kills when they are committing a robbery – stigma
associated with murder should be reserved for those who intend to kill or cause bodily harm
they know will likely cause death
                  R. v. DeSousa (1992) SCC
* dealing with s. 7 outside of homicide - bodily harm – constitutional challenge about the
fault requirement - lower stigma does not necessitate subjectivity – don‘t need mens rea for
every element of the actus reus – no requirement of symmetry as long as main element(s)
proven
                  R. v. Creighton (1993) SCC
* role of objective liability in criminal law – penal negligence – completely objective test vs
modified objective – argument that the reasonable person test should be completely
objective vs must imbue the reasonable person with the unique characteristics of the accused
          B. Recklessness
                  R. v. Blondin (1970) BCCA
* leading authority on willful blindness – willfully blind to narcotics in scuba tank – crown
only had to prove had knowledge of a narcotic
                  R. v. Currie (1975) Ont. CA
* person on street paid $5 to cash stolen cheque – willful blindness is subjective – must be
deliberate ignorance
                  Jorgenson and 913719 Ont. Ltd. v. The Queen (1995) SCC
* video store selling obscene material
                  Pappajohn v. R. (1980) SCC
* air of reality and the subjective honesty threshold – honest but mistaken belief of consent
is a defense to rape as it removes the necessary subjective mens rea
                 R. v. Sansregret (1985) SCC
* breaks in and rapes ex-girlfriend – where accused becomes deliberately blind to the existing
facts, he is seen by law as having actual knowledge and cannot depend on mistake of fact
defence – between recklessness vs civil negligence
                 R. v. Cornejo (2003) Ont. CA
* breaks into co-workers home after golf tournament – alleges she consented because she
lifted her pelvis – reasonable steps to ascertain consent – this objectifies the test
         C. Mistakes
                 R. v. Ladue (1965) YTCA
                 R. v. Kundeus (1974) SCC
                 R. v. Campbell (1972) Alta. DC
                 R. v. Howson (1966) Ont. CA
                 Molis v. R. (1980) SCC
* pre-charter – RCMP has MDMA added to the schedule of illegal drugs – court rules the
defence of due diligence is not available in relation to the ascertainment of the existence of a
prohibition or its interpretation
         D. Negligence
                 R. v. Sharp (1984) Ont. CA
* criminally negligent driving (now a very rare charge) – accused may be convicted on proof
of driving amounting to a marked and substantial departure from the standard of a
reasonable driver – can infer the blameworthy state of mind if there is a substantial and
marked departure
                 R. v. Barron (1984) Ont. HC
                 R. v. Barron (1985) Ont. CA
* friendly push between friends, results in tumble down stairs and death – must be marked
and substantial
                 R. v. Tutton (1985) Ont. CA
                 R. v. Tutton and Tutton (1989) SCC
* McIntyre‘s objective test and Wilson‘s subjective test – boy‘s mother has religious vision
which leads her to withhold insulin, resulting in his death – tie on test for criminal negligence
                 R. v. Canhoto (1999) Ont. CA
* healing with holy water leads to choking death – mother charged with manslaughter on
basis of criminally negligent conduct leading to death – the fault element is measured by
reference to a uniform objective standard

Fault and Defenses
                Punishment and Responsibility (1968)
                R. v. Hill (1986) SCC
* majority and dissent are merely arguing whether or not the judge must explicitly instruct
jury to take unique factors to the accused into account (dissent) or it is enough to leave it
implicit (majority)
                R. v. Ly (1987) BCCA
* Vietnamese culturally-based provocation to murder – the provocation test
                R. v. Young (1993) NSCA
* kills GF when he is moving out of their apartment – suddenness requirement for the
defence of provocation was lacking here – effect on an ordinary person, suddenness, and
dangerous precedent
                Perka v. R. (1984) SCC
* drug smugglers pull over boat in Canadian waters because of inclement weather - leading
case for necessity, test for necessity defence –necessity is an excuse vs a justification
                R. v. Ruzic (2001) SCC
* voluntariness is a principle of fundamental justice (from Daviault) – accused forced to
smuggle drugs into Canada as her mother‘s life is threatened in Belgrade – strict criterion of
immediacy of threat to self no longer generally accepted component
Principles in Criminal Law
Aiding and Abetting
Sec. 21(1): Parties to offence - Every one is a party to an offence who
         (a) actually commits it
         (b) does or omits to do anything for the purpose of aiding a person to commit it,
         or
         (c) abets any person in committing it.
 ―abets‖ = encourages, supports, uphold.
 the phrase ―purpose of aiding‖ implies direct intent to assist.
     1. Accused commits unlawful act where bodily harm was foreseeable, the accomplice gets
         manslaughter (Creighton – McLachlin)
     2. If murderer intentionally killed victim, and the accomplice knew accused would intentionally
         kill the victim and intended to assist or encourage the murder, then the aider/accomplice
         commits 2nd degree murder.
     3. If the accomplice knew the murderer would commit a planned and deliberate murder of the
         victim and intended to assist or encouraged such a murder of the victim, then the
         accomplice commits 1st degree murder.

abetting – (s.21(1)(c)) psychologically putting perpetration in an encouraged state of mind (similar
to s.22 – counseling a crime before the fact)

absolute liability – criminal liability irrespective of fault; once actus reus is proved, there is a
conviction – very rare (speeding is an example in Ontario).

aiding – (s.21(1)(b)) material facilitation (ie. here‘s the gun)

air of reality – more than a mere assertion by the accused

arbitrariness – an issue of gross disproportionality of the law in reference to that which it wishes to
achieve; harm created is much worse than harm preventing
                 an arbitrary law will not pass muster
                 if a law is so far reaching that its impact goes far beyond its intent it is arbitrary
                 court holds that for marijuana the mere possibility of prison is not enough to
                     make it grossly disproportionate – there is always the option to appeal the
                     sentence; courts will hand down proper sentences etc.

but-for test – but for the act, X would not have occurred

chain of causation – from tort law‘s ―thin skull‖ principle, a tortfeasor must take his victim as he
finds him. Even if a victim has a predisposition to injury, and the accused was not aware of this,
which does not absolve the accused of liability. As long as the assault was shown to be outside the de
minimis range, it will be a legal contributing cause of death it would then be proven that the assault
started the chain of causation.

criminal negligence – behavior that takes a marked and substantial departure from the standard of
a reasonable person in the circumstances of the accused.

common intention – Sec 21 (2) among a group of two or more individuals there is a common
intention to carry out unlawful purpose. The party will be guilty of any other crimes committed by
the perpetrator if the party knew, or ought to have known, that commission of this secondary
offense would be a foreseeable consequence of the initial crime.
(e.g. If B is the getaway driver when A robs the bank, B would responsible for the assault A
committed on the bank security guard – extended secondary liability).
     1. formed a common intention to carry out an unlawful purpose and they both reasonably
          foresaw
     2. and if in pursuit of that common design, the murderer intentionally killed and aider knew
          that the murder would probably kill the victim then its 2nd degree for the aider.
and if the aider contributed in a substantial way with the murderer to death of the victim while
committing or attempting to commit a crime from s. 231 (contract killings, kill cop, warden, jailer,
prison authorities, murder while committing one of listen offences in 231(5) – kidnapping, hijacking,
criminal harassment, terrorist activities related death (6.01), explosions relating to involvement with
crime (biker gang provision), intimidating justice personal)

contemporaneous fault – the notion that actus reus and mens rea must occur at the same time.
However, even if you did not have intent as of the time the initial part of the act is committed, as
long as there is some overlap in the mens rea and actus reus you are still liable.

continuing danger theory - any condition likely to present a recurring danger to the public should
be treated as insanity

criminal negligence – a marked and substantial departure from the reasonable person

culpability of choice – being blameworthy because you chose the harmful outcome; not a self
evident resolved debate

defenses – come into to play after actus reus and mens rea have been proven; these people are not
morally blameless

direct intent/purpose – acted with purpose and desired the consequences

disease of the mind – (s. 16) - disease of the mind is an organic pathology which is the transient
effect is brought about by an external factor such as a concussion.

doctrine of strict construction – a statutory doctrine that basically says if you can demonstrate and
ambiguity in law, the ambiguity is solved in favor of the accused

elements of a crime – prosecutor must examine and meet the following three elements beyond a
reasonable doubt in order to obtain a conviction:             act
                                                              circumstance
                                                              consequence
The defense will argue for a narrow interpretation of the act and circumstance elements (e.g. what is
night?), while the prosecution will try to push for a wider interpretation.

evidentiary burden – certain situations where we say to the accused ―show us some evidence to
make issue alive for us‖ (aka air of reality); for every defense the accused has they have an evidentiary
burden; have to point something in the evidence that makes defense a live issue; raise evidence and
throw into Crown‘s persuasive burden

evidence to the contrary – the accused must raise some evidence; once that evidence to the
contrary is raised then the Crown must prove the evil intent
excuse – admitting you broke the law, but can‘t be justly blamed (compared to justification)

factual causation – established by the ―But for test‖ – (―but for this action would the person have
died?‖) if passed, look at legal causation (compared to legal causation)

failure of proof – identify actus reus and mens rea elements, see if they can be proved.

foreseeability – look at competing causes assess whether it was foreseeable

freedom of expression cases
                    does the activity have expressive content?
                           even if the activity has expressive content is the form through which
                              the content is conveyed protected by 2.b of the Charter
                    is the purpose or effect of the government action to restrict freedom of
                     expression?
                           if so it limits freedom of expression
                    if the governments purpose was not to control or restrict attempts to convey a
                     meaning the onus is on the plaintiff to prove that was the effect

general Intent – pure voluntariness with some knowledge, does not require purpose or planning.
Sufficient when elements of a crime consist of a description of a particular act and a mental element
not specific in nature.

harm principle - 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 (JS Mill)
                 Court holds that the harm principle is not a principle of fundamental justice
                 it is a common law principle but it is not something that is generally accepted as
                    being fundamental to justice
                 all that is necessary is for Parliament to demonstrate that the harm caused by
                    whatever Parliament is trying to limit is beyond the de minimis range for it to be
                    acceptable law
                 Arbour in dissent felt that the harm principle should apply prior to the criminal
                    law sanction and imprisonment being invoked; sees little harm from marijuana
                    except for persons driving etc.

insanity test - (a) incapable of appreciating the nature and quality of the act or of knowing that it
was wrong (actus reus) and (b) incapable of appreciating the nature and quality of his act (mens rea)
of the offence

internal cause theory - conditions stemming from the psychological or emotional makeup of the
accused, rather than some external factor, should lead to a finding of insanity.

intra vires – within the legal power or authority of a person or official or body

justification – a lawful response to a trigger i.e. self defense (compared to excuse)

legal causation – is the causal connection strong enough? Examine the potency or strength of the
connection when there is something else that might be seen as an alternative cause. Problems
concerning legal causation (or causal responsibility) arise when there are a number of potential causal
candidates that all pass the "but-for" test‖. Legal causation is an exercise to determine the strength or
significance of one causal connection when measured against other causal factors (compared to
factual causation)

necessity – overwhelming pressure is environment

negligence – objective – you didn‘t have the foresight of the consequence, but you should have had
the foresight that a reasonable person would have had

objective test for criminal negligence – was conduct a marked and substantial departure standard
of a reasonable person in the circumstances?

oblique intent – you didn‘t desire the consequences, but you knew the consequence would result
from your action (foresaw the certainty of consequences)

offence modification – court looks at the terms in a provision and gives them meaning; identify
elements, modify them to suggest the accused did not actually break the law he was charged with
breaking.

party liability (+ aiding and abetting) – s. 21; can be charged as principle or party (ie. robber or
getaway driver); don‘t charge separately and don‘t have different penalty levels; three parties to an
offence: 1. perpetrator (commits actus reus), 2. aiding (s.21(1)(b)), 3. abetting (s.21(1)(c)); s.21(2) –
party liability is called second liability s.21(2) is extended secondary liability (if known or ought to
have known that secondary crime would have occurred) – part of logical common plan (ie. property
damage always a secondary crime to B&E)


parties to offence – s.21(1) every one is a party to an offence who
        (a) actually commits it
        (b) does or omits to do anything for the purpose of aiding a person to commit it,
        or
        (c) abets any person in committing it.

presumption of innocence – two components to the presumption of innocence: (1) persuasive
burden is on the Crown and (2) standard of proof is beyond a reasonable doubt (different from civil
– balance of probabilities)

principle of legality – ―nullum crimen‖ – laws must be certain, accessible, and not retroactive; new
laws can not convict past actions, ambiguity is resolved in favour of the accused, and impermissibly
vague laws have no force in effect.

provocation – can only be used to limit a murder offence to manslaughter, after the actus reus and
mens rea elements are proven; external manifestation of rage; must be sudden and cannot come from
a legal discharge of action
           3 Requirements:
                  1. the provocation must be sufficient to the deprive ordinary person of self
                      control (objective test)
                  2. the actual person must have actually been provoked (subjective test)
                  3. the provocation must be acted on before the passions cool.

provocation test – first part should only consider whether the ordinary person would have been
provoked (unless provocation relates to specific characteristic like race), and second part of the test,
whether or not the accused acted on the provocation, should consider personal characteristics to
discern if it should be considered provocation for this specific person

recklessness – the consequences were not the intention of your actions, but you foresaw the
probability, possibility, or likelihood. (objective or subjective?)

rule of law – Canada takes the abolitionist approach to controlling prostitution; the act itself is not
illegal, but the advertising (talking about prostitution for the purposes of the sale) is banned.
           impact or the rule of law:
                   o general presumption against retroactive laws
                   o doctrine of strict construction

risk theory – consequence will be attributable to the actions of the accused if and only if it is a result
within the risks contemplated by the offence and for which the prohibition was enacted in the first
place.

section 7 of the Charter – (arbitrariness and the harm principle – tangible limits on law making);
―life, liberty, and security‖

self defense – you are justified in responding to an attack

similar fact evidence – take an allegation and use it as proof for a second allegation; very dangerous
because two half cases become a whole

Smithers test – defendants are guilty if they are a substantial operating contributing cause beyond
the de minimus (trivial) range

somnambulism (sleep-walking)- a defence of non- insane automatism.

specific Intent – the elements of a crime include a defendant's intent to achieve some result
additional to the act - analytical thinking going on when acting – preconception and deliberation to
reach illegal goal. (e.g. for burglary, there must be intent to carry out the actions, and intent to
commit the crime and break the law).

strict liability offences – liability based on simple negligence - Crown need no longer prove mens
rea. Prove actus reus and you have a conviction subject to the accused‘s inability to show that he/she
took all reasonable care.

true crimes - offenses in which mens rea, consisting of some positive state of mind such as intent,
knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature
of the act committed, or by additional evidence

ulterior intent – there is a purpose underlying your action; ulterior intent is an excellent method for
you to say the crown must prove direct intent

uniform objective standard – whether the conduct constitutes a marked departure from that
expected of a reasonable person in the circumstances

vagueness - there can be no crime or punishment unless it is in accordance with law that is certain,
unambiguous and not retroactive
       o vague laws offend several important values
                     because we assume that man is free to steer between lawful and unlawful
                      conduct we insist that laws give the person of ordinary intelligence a reasonable
                      opportunity to know what is prohibited so that he may act accordingly
                  if arbitrary and discriminatory enforcement is to be prevented laws must
                      provide explicit standards for those who apply them.
                  a vague law impermissibly delegates basic policy matters to policemen, judges
                      and juries for resolution on an ad hoc and subjective basis with the attendant
                      dangers of arbitrary and discriminatory application
        o    can attack vagueness on two grounds
                  a law that does not give fair notice to a person of the conduct that is
                      contemplated as criminal is subject to a s. 7 challenge to the extent that such a
                      law may deprive a person of liberty and security of the person in a manner that
                      does not accord with the principles of fundamental justice
                  where a separate Charter right or freedom has been limited by legislation the
                      doctrine of vagueness or overbreadth may be considered in determining
                      whether the limit is prescribed by law within the meaning of s.1 of the Charter
            why vague laws are a problem:
                 o can‘t determine what your conduct should be
                 o prejudices and biases emerge
                 o vagueness challenges (will not see very often)

void for vagueness principle - a law is invalid if it does not give fair notice, encourages arbitrary
and erratic arrest/convictions, and offend several important values.
    All judges agreed that there is void for vagueness problem with current prostitution law:
         1. law is in and of itself vague
         2. if a law violates Charter right, the Crown will go to s1.

voluntary intervention - you started the chain in motion and someone finishes the act.

willful blindness – substitutes for the knowledge requirement; looks a lot like recklessness

Checklist of Issues: Analyzing a Crime
For each element of a crime, the Defence can raise issues.
        1. Voluntary Act:
                (a) voluntariness of the act
                (b) interpretation of the verb used in the Code
        2. Voluntary Omission:
                (a) provision contemplates the omission
                (b) was a legal duty owed by the accused
                (c) whether the accused breach the duty owed
        3. Consequences?
                (a) Causal relationship between accused‘s actions and the consequence
                (b) Interpretation of facts
        4. Attendant Consequences:
                (a) Interpretation of the aftermath as a consequence.
        5. Mens Rea as specified:
                (a) Interpretation of words such as wilful, with intent, knowingly, intentionally,
                    means to…
                (b) if recklessness specified as the standard is it subjective (foresight or awareness
                    of the possibility) or objective (ought to have foreseen/been aware)
        6. Implied Mens Rea:
              (a) Deliberate or voluntary act
              (b) knowledge of existence of all attendant circumstances (criminal liability) or
                  wilful blindness
              (c) Foresight or awareness of probability, possibility, or likelihood of consequences
                  (reckless) or foresight of certainty of consequence (oblique intent)
              (d) For some crimes that require proof of consequences, the court will require
                  direct intent (i.e. desiring consequences). Prime candidates are offences that are
                  formulated to require ulterior intent (i.e. doing act with intent to…)
              (e) The above rules are not absolute and may be departed from with respect to
                  non-culpable aspects of the actus reus.
        7. Voluntary Omission:
              (a) provision contemplates the omission
                       i. Does the offence contemplate omission by commission?
              (b) was a legal duty owed by the accused
                       i. Is the accused under a duty to act? In Dunlop and Sylvester, the
                           defendants were not the leaders of the group and had no duty to act.
                           In other words, if you dig a hole and someone falls in, you have a duty.
              (c) whether the accused breach the duty owed.
                       i. If you don‘t help the person who falls in the hole you dug, you
                           breached the duty.

Consequence:
         o       Direct intent – ―doing X with an intent‖ – ulterior intent
         o       Oglique Intent (certainty)
         o       Recklessness (possibility)
         o       Negligence

                                   Mens Rea

Act -------------------------------------------------------------------- voluntary
Circumstances ----------------------------------------------------- knowledge
Consequences ----------------------------------------------------- intent/recklessness/negligence

The Oakes Test
   1. The measures responsible for a limit on Charter right or freedom are designed to serve, must
      be ―of sufficient importance to warrant overriding a constitutionally protected right or
      freedom.‖ (The standard must be high to ensure trivial matters do not gain protection. The
      measure must relate to concerns which are pressing and substantial in a free and democratic
      society).  this part of the test is invariably satisfied because Parliament usually has a reason
      for what it is doing
   2. The party invoking Sec 1 must show that the means chosen are reasonable and demonstrably
      justified through the Proportionality Test:
           i. The measures adopted must be carefully designed to achieve the objective in question.
           Will the means rationally achieve the objective (not arbitrary, biased, unfair, or irrational)
           ii. The means should impair ―as little as possible‖ the right of freedom in question. The
           least restrictive alternative.
           iii. There must be proportionality between the effects of the measures are responsible for
           limiting the Charter right or freedom and the objective which has been identified as of
           ―sufficient importance.‖ (balancing points i. and ii.)
Limits of Criminal Law

Reference re ss.193 & 195.1(1)(c) of Criminal Code (Canada) (1990)
* rule of law – doctrine of strict construction – principle of legality – void for vagueness principle

Facts: The government referenced the Supreme Court to give its opinion on whether the prohibition
against solicitation of prostitution was in violation of the Charter right to ―freedom of expression‖.

Analysis: (Dickson) The Charter does not contain any provisions that protect property or economic
rights. In accordance with s.7 of the Charter (the right to life, liberty, and security of the person, and
principles of fundamental justice), the law must be ascertainable and not vague.

R. v. Oakes (1986)
* when is a limit on constitutional freedom(s) justified? – The Oakes Test – evidentiary burden –
evidence to the contrary – presumption of innocence – sufficient to limit constitutional freedom –
proportionality test

The Oakes Test in Practice (R. v. Oakes):
   1. The means of policing illicit drug use is considered an acceptable cause for limiting
        freedoms.
   2. The first prong (i) of the proportionality test is applied here. The court says it is not just
        whether the means and the objective are tied together; you have to look at the means
        chosen. Is it internally rational to impose a reverse onus?
   The court decided that it did not make sense to ask people to prove they were not traffickers
   if they are found with drugs because you need to look at quantity – if you have one gram of
   marijuana in your possession how could you be a trafficker? The law was later changed (CDSA
   1997).

Presumptions:
                                   Proved Fact
                                        
                                   Presumed Fact

             o crown must prove a basic fact (ie. Oakes – possession of 8 vials)
             o from that basic fact comes a presumed fact (ie. Oakes – sales)
             o might be a rational connection, but the presumption is internally irrational because
               the basic fact does not lead to the presumed fact; no rational connection
             o accused always tried to show that evidence shows suspicion, not proof beyond a
               reasonable doubt

The Nature of Punishment
* similar fact evidence – elements of a crime – higher order principles – lower order principles –
semantic arguments

Actus Reus and Corresponding Mens Rea Chart:
Element         Actus Reus                                            Mens Rea
1) Act             Voluntary?                                          Deliberate
                   Interpretation of verbs (Defence:                   Voluntary
                     restrict meaning, Crown: broaden
                     meaning)
                   If ―act‖ is an omission, ask:
                         Was it contemplated by the
                             provision
                         Was there a legal duty?
                         Was duty breached?

2)                    Interpretive problems?                          Defendant must have had knowledge
Circumstances                                                             or must have been willfully blind
                                                                          (Sansregret – Where there is willful
                                                                          blindness, there is presumed
                                                                          knowledge).

3)                    Causation – was there an intervening            If mens rea specified:
Consequences           cause?                                           Interpretation of words such as
                      Interpretive problems?                               willful, with intent, knowingly,
                                                                            intentionally, means to…
                                                                         If ―reckless‖ specified – objective
                                                                            or subjective?
                                                                       If mens rea implied:
                                                                         Direct Intent/Purpose –Acted with
                                                                            purpose and desired the
                                                                            consequences
                                                                         Oblique Intent – You didn‘t desire
                                                                            the consequences, but you knew
                                                                            the consequence would result from
                                                                            your action (foresaw the certainty
                                                                            of consequences)
                                                                         Recklessness – The consequences
                                                                            were not the intention of your
                                                                            actions, but you foresaw the
                                                                            probability, possibility, or
                                                                            likelihood. (objective or
                                                                            subjective?)
                                                                         Negligence – Objective – You
                                                                            didn‘t have the foresight of the
                                                                            consequence, but you should have
                                                                            had the foresight that a reasonable
                                                                            person would have had
                                                                       The above rules are not absolute and
                                                                         mens rea be departed from with respect
                                                                         to non-culpable aspects of the actus
                                                                         reus

Defenses
* provocation – failure of proof – offence modification – justification – excuse

Two ways of conceptualizing defense claim
      o wasn‘t me – I don‘t act that way – circumstances changed behaviour
      o only human – how would other people respond in the circumstances

1) Departure from first principles
     Discuss constitutionality of lowering to objective standard
       Discuss where one of the elements of the actus reus is not an essential element of the crime

2) Reverse Onus
     Crown must prove beyond reasonable doubt, unless offense passes the Oakes test. If reverse
       onus required, and doesn‘t pass the Oakes test, then violates s. 11(d) of the Charter, ―Any
       person charged with an offence has the right to be presumed innocent until proven guilty
       according to the law in a fair and public hearing by an independent and impartial tribunal…‖
       (Oakes; Reverse onus not supported in the case of possession for the purpose of trafficking).

3) Constitutional Challenges
     In order to see if a law goes against s. 7 of the Charter, there are 2 questions to ask
            1) Does a law violate in some way the life, liberty or security of the person?
            2) Is the deprivation in accordance with the principles of fundamental justice?
       (Malmo-Levine and Caine- dissent supports s.7 violation of harm principle):
     If there is a violation of s.7 of the Charter, is it justified under s. 1 of the Charter (―subject to
       such reasonable limits prescribed by the law as can be demonstrably justified in a freed and
       democratic society‖) (Prostitution Reference- supports justification of s. 2(d) violation under s.
       1).

4) Was there consent?
     Some things cannot be consented to
     There are 4 factors that vitiate consent:
             i. Application of force to the complainant or to a person other than the complainant
            ii. Threats or fear of the application of force to the complainant or to a person other
                than the complainant
           iii. Fraud
                    a) fraud as to the identity of the person,
                    b) fraud as to the nature and quality of the act (Currier – Deceit about having
                        STD is considered fraud under (b))
           iv. Exercise of authority.
     Look for mistaken belief in consent and implied consent

5) Was the act actually an omission?
Is the accused under a duty to act? Did the accused breach this duty to act?
Only certain omissions are covered within the code:
                 1. Some crimes explicitly punish a failure to do something. (e.g. a parent must
                     provide necessaries of life to his/her child (Lewis) (s.215))
                 2. Some offences exclude the possibility of omission liability.(e.g. assault s. 265).
                 3. Some crimes have omission liability built in, but it is still necessary to find a
                     legal duty to act (e.g. aiding or abetting; s.21(1)Dunlop and Sylvester- said there was
                     no legal duty form them to stop an offence from occurring and dismissed s.
                     21(1)):
                               Does the offense contemplate omission by commission?(Thornton-
                                   found that accused was under legal duty to refrain from an act that
                                   could cause harm to others [tort law principle, but they convicted
                                   him under s. 216 in the end], i.e. donating HIV-pos blood)
                               If yes, is the accused under a duty to act?
                                        o s. 215 in the code refers to relationships of care.
                                        o s. 217 discusses ppl who undertake some act and then stop
                                             in the middle (e.g. outstretching a hand to someone
                                           drowning and then randomly pulling it away as the person
                                           reaches out to get it).
                                       o s. 263 is an example of duties arising from the creation of
                                           the peril. (the actual rule is from common law)
                                  Did the accused breach the duty?

6) Causation
     Is there factual causation? – but-for test
     Legal causation – is the causal connection strong enough? Examine the potency or
       strength of the connection when there is something that might be seen as an alternative
       cause, i.e. more than de minimis.
     people are not responsible for acts of God.
     Unforeseeable interventions will generally break the chain except when:
           1. The intervention is an act of the victim
           2. The intervention is a result of a defect within the victim (Thin Skull Principle)
           3. The intervention is a human agent – question then whether it was voluntary and
                 culpable.
           4. The intervention is done by a medical professional, unless you are able to argue the
                 original wound is no longer operative, and this trivial injury only set the stage for the
                 completely outrageous conduct of the doctor.

7) Look for Defenses
     Provocation – FOR MURDER ONLY
    (i) cannot be from normal everyday circumstances (Young),
    (ii) must be looked at from a reasonable person standard (Hill – certain characteristics of the
    accused are ascribed to the ―ordinary person‖ that are relevant to the offence: only sex, age and
    race, and the jury will do this automatically, i.e. no need to be told; Ly- Cannot ascribe subjective
    characteristics until part 2 of analysis, i.e. Was the accused actually provoked?)
                                 1) The provocation must be sufficient to deprive the ordinary person
                                     of self control (objective test)
                                 2) The actual person must have actually been provoked (subjective
                                     test)
                                 3) The provocation must be acted on before the passions cool (i.e.
                                     suddenness)
     Involuntariness – An external or internal mechanism literally forced my hand into doing
         this.
                i. Intoxication – Intoxication is not a ―defence‖ per se, but will negate the mens rea in
                   the case of a specific intent crime, where the intoxication is so extreme it is akin to
                   insanity, but there is a reverse onus on the accused to prove the extreme
                   intoxication. Intoxication is of no relevance in a crime of general intent.
               ii. Non-insane Automatism – (Rabey- Held that the psychological blow must be beyond
                   normal everyday stressors; Parks – sleepwalking is under this category so long as
                   there is no fear of recurrence or any neurological disorder; Stone – changed standard
                   so that the accused now had to show that he acted involuntarily instead of the
                   Crown having to prove voluntariness - REVERSE ONUS)
             iii. Insane Automatism – covered under s.16 (see iv).
             iv. NCRMD (s.16) – (Abbey – Held that it is irrelevant whether the person believes he
                   himself will suffer the consequences so long as he knows what he is doing is wrong
                   at the time he commits the offense; Oomen – Held that the person committing the
                   act must possess the ability to perceive the rightness or wrongness of he act at the
                time of the act, not whether the accused had the ability to distinguish right from
                wrong in an abstract sense.)
       Normative involuntariness – Duress, necessity – (Perka – talks about necessity; must be
        imminent peril, no other legitimate option, and proportionality; Ruzic – held that the
        requirements of immediacy and presence in s. 17 (duress) of the Code were unconstitutional.
        The common law defense of duress is left up to the jury)

Constructing an Argument (Bobbit):
1. Historical - legislative history to provide evidence of intent and purpose
2. Textual - contextual consistency amongst the words (ejusdem generis)
3. Doctrinal - the accretion of judicial precedent
4. Prudential - the search for legislative intent of policy to avoid giving interpretation that would
thwart the purpose of the enactment (reductio absurdum - take what the prosecutor wants and show
that it would lead to absurd results - belittling type of argument - disallowing swearing entirely)
5. Structural - going beyond internal consistency of the provision to ensure that interpretation is
consistent with other code provisions or even provisions in other statutes.
         -like a textual argument - working with the words of the statute
         -take other statutes and show the way the words were used there
         -going beyond internal consistency

Prostitution
* rule of law – vagueness – freedom of expression

           3 arguments presented to try to knock down the law:
                o s.7 of fundamental justice gives fundamental liberty
                o free expression
                o vagueness

1. Escape conviction on a criminal charge by showing:
           a. Failure of proof – evidence doesn‘t support guilt
           b. Offence modification – committed a different crime than the charge
           c. Excuse or Justification – committed the crime to avoid greater harm.

2. Offences are comprised of two elements:
           a. Actus reus: criminal act
           b. Mens rea: criminal state of mind.
   For crimes of commission, Crown must prove both actus reus and mens rea.

Judicial Decisionmaking:
Three types of crimes:
Commission: Crimes of action ―a willed muscular contraction‖. Must be voluntary.
Omission: Failures to act.
Status: Possession of contraband, member of illegal organization.

The Crown must prove all elements of the crime to convict the accused.

The Judge must make the guily/innocent decision by:
1. ascertaining the facts
2. defining the elements (giving them meaningful content, statutory interpretation)
3. applying the law, as s/he has defined it, to the facts.
Higher order principles that underlie the particular law:
1. presumption of innocence
2. no unjust enrichment
3. rule of law/principle of legality – no crime without law
4. responsibility/culpability principle
5. harm principle

Interpreting Actus Reus

Stoke-Graham et al v. R. (1985)
* church – examining elements – ―willfully‖ disturb

Facts: Six Roman Catholic appellants. Practice at Church changed from kneeling at communion to
standing at communion. Protested new standing rule by kneeling. Kneeled and then stood and
moved out of the way when priest refused to give them the host. Sued under s. 172(3) of the criminal
code for disturbing a religious service.

Issues:
1. Whether s. 172(3) is intra vires of the Parliament of Canada pursuant to s. 91, head 27, of the
Constitution Act, 1867.
2. Whether the court below have applied the proper legal standard in determining whether the
accused‘s conduct violated s.172(3). Did the actions of the defendants constitute doing anything
which disturbs the solemnity of the meeting?

Reasons:
Purposive: Constitution Act - s. 172(3) is intended to protect the public interest
Interpretation: Elements of a crime under s. 172(3)
    1. a person must willfully do ―anything‖
    2. at or near an assemblage of persons met for religious worship or a moral, social, or
        benevolent purpose.
    3. that disturbs the order or solemnity of the meeting

Argument – Examining Consequences: (was it really a disturbance?)
Structural argument (Dixon) – looks at heading ―disorderly conduct, sexual offences‖ that is at the
top of the section where 172(3) is. Does failing to kneel really fit in here?
Policy argument (Dixon) – shows implications of an implementation. If disturbed means annoy,
someone could be convicted for failing to take his hat of in church or failing to keep it on in
synagogue.
Prudential (Wilson) - narrow the broad context of the act - ―anything‖ - to ensure that future court
cases are truly about harm.
Historical - In history of the legislation - words initially in the law gives some idea as to what their
intent was (nonetheless, the Parliament changed the words for a reason – Parliament wanted to
broaden it to anything from foul language).

Argument – Examining the Elements under s.172(3)
Willfulness – if you are ignorant of the fact that your act will disturb the service it is not willful.
Doing ―anything‖ that disturbs: - ―anything‖ must be read down so as to extend only to things in the
nature of profane, discourse, rude or indecent behavior or making a noise.
Disturbing the order or solemnity of a religious service – conduct was formal expression of
convictions, not means of disrupting the service. Physical disruption was negligible. They responded
immediately and silently to the priest‘s refusal of communion and instruction to return to their seats.
Even if it is within the literal meaning, their conduct did not breach the spirit of the law.

Ratio:
    1. Section 172(3) is intra vires the Parliament of Canada – the law is valid federal criminal law.
    2. Did not necessarily disturb order and solemnity of the meeting as it was a silent process.
       Appeal judge believes trial judge was wrong in his conviction. The term ―anything‖ has to be
       more narrowly defined in accordance with the intent of the legislation. Dixon concluded that
       the Ds actions did not disturb. Justice Wilson based it on the term ―anything‖ saying that it
       was too widely interpreted.

Decision: The accused can not be found in violation of s.172(3) of the Criminal Code.

R. v. Lohnes (1992)
* fuelling neighbors – causing a ―disturbance‖

Facts: The accused, sick of the loud noise the man across the street makes with his lawn equipment,
steps out onto his front porch to shout obscenities at the neighbour.

Argument:
Textual argument (para 21) – the noun ―disturbance‖ is different than ―disturb.‖ Many types of
conduct disturb, but they do not all cause a disturbance. Parliament added all the different activities,
like screaming and singing, to limit the restriction on freedoms.
Structural argument (para 23) – Since 175(1) is under the heading of ―disorderly conduct‖ shows that
Parliament did not intend to cover the emotionally upsetting but rather public disorder.
    Caused Disturbance – what are the elements of 175.1(a)?
      Circumstance: Near a dwelling house, in or near a public place (yes)
      Act: Fighting, screaming, swearing, shouting, singing, molesting (yes)
      Consequence: Causes a disturbance (questionable)
Trial judge: says disturbance results when you know what you did would disturb others.
SCC wants higher standard: (Para 18, pg 371) – ―disturbance prevents ordinary and customary use of the public
by the place in question.‖
Structural argument (para 25) the police have to describe their conduct – it does not say anything
about how they feel. People have to react to this.
Prudential Argument (para 25) ―conduct of person or persons‖ – goes beyond the two people
involved in an argument.
Policy – free speech not freedom of quiet speech. People need to be able to carry out conversations
within reason.
Purposive – (para 29) - ―it is far from self evident that the goal of peace and order in our public
places requires the criminal law to step in at the sage of foreseeability of mental annoyance.‖

Decision: Therefore, the accused can not be found criminally liable for causing a disturbance.

Hutt v. R. (1978)
* soliciting – ―public place‖ – prostitute gets into a car

Facts: Police officer driving in unmarked police car spots woman standing near street corner in
downtown Vancouver. Woman smiles at him and he smiles back. (by smiling officer encouraged
prostitute to solicit to him) Defendant approached car and got in. Girl called herself a ―working girl‖
and said she would perform sexual acts. Drove with officer to back of hotel where she was arrested.
s.195(1) - Every person who solicits any person in a public place for the purpose of prostitution is guilty of an offence
punishable by summary conviction.

Issue: What is the meaning of the words ―solicit‖ and ―public place‖?

Arguments – Circumstance -―Public Place‖
includes any place to which the public have access as of right or by invitation, express or implied.
Prudential argument Appeal Judge believes trial judge erred in calling the car a public place- if you
invite someone into your home does that make it a public place?!?

Arguments – Act - ―Soliciting‖
Plain meaning argument - Judge uses the Shorter Oxford Dictionary: ―Of Women: TO accost and
importune (men) for immoral purposes.‖ ―Importune‖= pressing or persistent (para 12). The judge
chooses this definition.
Does not fit with plain meaning -The defendant said ―do you want a girl? I am a working girl, I am a
prostitute.‖ The officer responded in kind and said ―OK, yes.‖ There is nothing her to indicate that
the defendant did ―something in addition‖ to make it solicitation. Dissenting judges add that the
police officer‘s duty to make it appear as if he wanted a girl makes the defendants acts fall under the
notion of ―cooperation‖ rather than ―solicitation.‖

Arguments – Examining s. 195.1
Structural-It is part of Pt. V, which is entitled ―Disorderly Houses, Gaming, and Betting.‖
Purposive- prevent disruption of public convenience. The conduct of the defendant did not disturb
public convenience.

R. v. Grilo (1991)
* living off the avails – ―living parasitically‖

Facts: Defendant lived with prostituted, often accompanied her to and from her spot, took her
money for her (for safe keeping) when they walking home, and they ate together at a doughnut shop
at the end of the day. He occasionally purchased a doughnut or coffee with some of her money. They
lived together in an apartment rented by the defendant. She contributed to some of the expenses.
They were likely romantically involved.

Issue: Is living with a prostitute in a non-parasitic roommate arrangement, where each party
contributes, and there is no control or power of one party over another a violation of Section 212(j)
of the Criminal Code?

S. 212
(1) Everyone who…
        (h) for the purposes of gain, exercises control, direction or influence over the movements of a person in a such a
        manner as to show that he is aiding, abetting or compelling that person to engage in or carry on prostitution with
        any person or generally,
        (j) lives wholly or in part on the avails of prostitution of another person, is guilty of an indictable offence and
        liable to imprisonment for a term not exceeding ten years.
S. 212(3)
Evidence that a person lives with, or is habitually in the company of a prostitute, or lives in a common bawdy-house or
in a house of assignation is, in the absence of evidence to the contrary, proof that the person lives on the avails of
prostitution (reverse onus required, being challenged by SCC, not used by crown here).
Arguments - Act
Textual-―Living Parasitically‖  living normally comes to connote living parasitically… if a merchant
sells goods to tradesmen, is he living on the earnings pf their trades?
      occasionally buying a doughnut or a cup of coffee is not considered ―parasitic‖
Prudential- if crown is correct, than it would be virtually impossible to live with a prostitute without
committing an offence; there is bound to be some benefit of sharing of accommodation and
expenses. If a man shares expenses with his spouse or roommate is he living off the avails of her
income?!?!
Purposive-The true parasite the law seeks to punish is someone the prostitute is not otherwise legally
or morally obliged to support (if a prostitute wants to support their sick parent, then their parent
would not be charged for living off the avails).

Analysis: (Arbour)
    The presumption that cohabiting with a prostitute amounts to ―living on the avails‖ is in
       Criminal Code s.212(3): ―Evidence that a person lives with or is habitually in the company of a
       prostitute or lives in a common bawdy-house or in a house of assignation is, in the absence
       of evidence to the contrary, proof that the person lives on the avails of prostitution, for the
       purpose of paragraph (1)(j) and subsection (2).‖
    This provision is currently being challenged at the Supreme Court on its constitutional
       invalidity in creating a reverse onus on an accused cohabiting with a prostitute.

Interpreting Mens Rea
Criminal law assumes free will, and therefore blame must be placed only on conduct of choice; in
other words, actus rea and mens rea must be concurrent.

Mens Rea: must contain one or more of:
           1. Intention to commit the actus reus
                 courts assume the Criminal Code provisions imply voulntariness
           2. Knowledge of the circumstances that constitute the actus reus
                 knowledge means wilful blindness to the consequences
           3. An awareness of the risk of harmful consequences
                 awareness is direct intent (purpose), oblique intent (foresight of consequence),
                    recklessness (foresight of possibility of outcome), negligence (reasonable person
                    would foresee outcome).

Therefore, Courts must determine what the accused was thinking. When a specific mens rea is not
included in the provision, the court must either apply a mens rea standard established by Common
Law or establish a new standard.

Canadian Criminal Law: A Treatise

R. v. Sloan (1994)
* fellatio in secluded but public parking lot – ―willfully‖ – ―public place‖

Facts: Officers followed driver and woman from street corner into secluded parking. One of the
officers, who followed them, snuck up to the car and looked in and found that the appellant was
performing fellatio on the driver. The Judge agrees that there would be no way to tell what was going
on in the car without deliberately looking into the car from a very close distance for the purpose of
seeing what was going on.
S. 173(1)(a) states that “Everyone who willfully does an indecent act in a public place in the presence of one or more
persons is guilty of an offence punishable on summary conviction.”

Issue: Should the criminal code apply in this case, where it was only in the presence of another
person because of a deliberate act on the part of a police officer?

Arguments - Prudential (Galligan)
Purpose is to prohibit conduct carried out in circumstances which could offend members of the
public. The purpose of this section is not to apply the criminal law to persons engaged in sexual
activity in circumstances where it is highly unlikely that any member of the public would see what
they were doing.
      No Mens Rea-No willful commission of an indecent act in the presence of one or more
          persons. Tried to do everything possible to not be seen by others.
Doctrinal / Textual (Goodman)
           willfully relates only to the indecent nature of the act and not the fact that it is
               performed in a public place in the presence of one or more persons. Crown argues it is
               enough of the perpetrators to intentionally commit an indecent act in a public place
               within sight or view of one or more persons.
Precedent - However, the judge in this case referred to Hutt v. R. where Spence spoke for the
majority judgment and said that the police officer‘s car was not a public place, but in fact a private
place of his sole control.
Historical (Osborne dissenting – wants to convict accused)
           according to wording of the law, Crown should be required to establish the accused
               willfully did an indecent act in a public place in front of one or more persons.
           in the 53-54 amendments to the Criminal Code, the word ‗willfully‘ was moved to a
               position where it continued to modify the indecent act, but no longer modified the place
               of doing the indecent act.
           s. 173(1)(a) is directed at is street prostitution.
           Hutt was limited to the facts of the case-described mere solicitation in a motor vehicle.
               In this case, the severity of the acts committed does not warrant the car a private place.
               And because the parking lot was a public place, the perpetrators violated the law.

Ratio: A person cannot be found guilty for an offense under s. 173(1)(a) of the criminal code if
he/she intentionally tried to find a secluded area and not to be seen be the public or other persons
and did not willfully commit a sexual or indecent act in public or in the presence of one or more
persons.

Decision: Appeal allowed and the conviction overturned.

R. v. Clark (2005)
* masturbating near a window – ―intent to harm‖ – ―public place‖

Facts: appellant masturbating near uncovered window of his illuminated living room. Neighbour
saw act while watching TV with her 2 daughters in their partially lit family room. Neighbour moved
to darkened bedroom for a better view and then alerted her husband, observed the appellant for 10-
15 min, and then called the police. According to the police officers, it did not look as though the
appellant knew he was being watched (from the darkened window).

S. 173(1)(a) states that “Everyone who willfully does an indecent act in a public place in the presence of one or more
persons is guilty of an offence punishable on summary conviction.”
S. 173(1)(b) makes it illegal to “willfully perform an indecent act in any place, with intent thereby to insult or offend
any person.”

Arguments:
The court looks at the issue from several angles:
     examined the French version of the law.
Structural -compare what the code says in other sections. Sec. 174 is the public nudity offense (it says
nude and exposed to public view even while on private property) – we see that when parliament
wants to extend the law to a private location they can be explicit about it. Clearly, the parliament
wanted the home to be a private place – so it turns on what was the intent of the accused.
     Was there Mens Rea?
Textual (Fish)- what does having ―access‖ to a location mean? What is the common usage?
         Not committed with attempt to harm or insult neighbours; seemed to intensify when he
             thought neighbours were not watching.
         Just because you can been seen through the window, does not make it public. Criminal
             code (s. 150) defines public place, ―a place to which the public had access as of right or
             by invitation express or implied.‖ And the term ‗access‘ used here means ―the right or
             opportunity to reach or use or visit.‖ (Canadian Oxford Dictionary).

Ratio: One cannot be accused of s. 173(1)(a) if they are in the privacy of their own home. In order
for a person to be convicted of s. 173(1)(b), there must be a clear intent to harm or insult the public.

Decison: The appellant was acquitted on both charges.

R. v. Buzzanga and Drocher (1980) - CA
* satirical distribution of hate literature – ―willfully promoting hatred‖ – retrial will include oblique
intent (foreseeable and unintended) – precedent that oblique intent is intent

Facts: Defendant‘ opposed some of the policies that were being put into place at French speaking
education board, their employer. Issued pamphlets suggesting hateful language towards French
Canadians, however claim it was not meant to be hateful, rather to bring attention to the real issues
and provoke a government response. They are being charged with s. 281 of the criminal code,
―willfully promoting hatred.‖

s.282.2(2):
Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any
identifiable group is guilty of:
     (a)        an indictable offence and is liable to imprisonment for two years; or
     (b)        an offence punishable on summary conviction.

Issue: Does the satirical nature of the flyers constitute ―wilfully‖ promoting hatred?

 What if there is no intention to harm (mens rea)
 Future cases will include oblique (unintended, but foreseeable) intent as intent.

Arguments:
Textual (Martin): the definition of wilfully in sources consulted is usually ―intentionally‖ but can also
be ―recklessly‖ and ―voluntary‖.
Structural: s.386 (now 429) defines ―wilful‖ as ―recklessness‖, but if parliament had meant the same
thing here they would have said so.
Prudential: This provision was debated as a measure to prohibit breach of the peace, as opposed to
pamphlet distribution. Since it is a pamphlet, there is much less possibility of an immediate riot
resulting. Since such a situation would be more volatile, parliament could lower the standard of
mens rea to convict, but not in this situation. Therefore, ―wilful‖ must mean intent, not reckless or
accidental.
Purposive: 319(1) - promotion of hatred has no mens rea in it. The court would read in recklessness
for the mens rea. It focuses on public place – talks about keeping the public peace. Here, the Ds are
charged 319(2) - parliament had the term ―willful‖ inserted. They know that recklessness could be
read in without ―willful‖ so they must be focusing on intent. S. 319(2) does not have to do with
public place. Need to change our understanding of ―willful‖ to examine the situation properly.

Ratio:  Retrial will have to prove ―willful‖ promotion on the following basis:
Only willful promotion of hatred if:
        a) their conscious purpose in distributing the document was to promote hatred against that
             group,
        b) or they foresaw that the promotion of hatred against that group was certain or morally certain to
             result from the distribution of the pamphlet, but distributed it as a means of achieving
             their purpose of obtaining the French language high school. (There is no difference in
             culpability between direct intent and oblique intent – even if you do not desire, if you
             have foresight of certainty – direct intent is expanded to include oblique intent)

 sets a precedent that oblique intent is intent.

Note: Since direct intent and oblique intent are equally culpable, the Crown will never have to prove
direct intent. In other words, pushing someone off a cliff and claiming you didn‘t intend to actually
kill him is not a valid defence.

Decision: The decision was overturned and the appeal allowed.

R. v. Steane (1974) - CA
* ulterior intent – British man broadcasted for the Nazis – modern argument would be duress

Facts: The appellant was a Brit and the Nazis forced him under threats to create films and broadcast
shows for them. He swears he did this only because of the threats to himself and to his family. It is
unclear whether the films aided the enemy.

Defence (General) Regulations Reg. 2A, 1939 (1): doing acts likely to assist the enemy with intent to assist the enemy.

Issue: Is ulterior intent (acting with the intent to…) as culpable as direct intent?

Analysis: (Lord Goddard) The jury can not assume the criminal intent because the act was not done
of free will. The Crown must prove the criminal intent because the act was done either subject to the
power of the enemy, or with a corresponding innocent intent (of protecting his family).

Ratio: The jury should have not convicted until they were satisfied that the prosecution proved
beyond a reasonable doubt that the intentionality was there and the acts were not committed out of
fear for himself and his family. His purpose was to save himself and his family. In the modern era,
this would not have been a mens rea case – he would have argued duress. Then, duress was ill-
defined.

Note:
        In the case where intentionality is included in the charge, the onus is on the prosecution to
         show that the intentionality of the act was in the mind of the defendant.
        Even with an ulterior intent (saving his family), there are other situations in which the
         Crown need not prove direct intent; for example theft (―doing something with the intent to
         deprive‖), which could easily be defended with a claim that the accused did not intend to
         deprive anyone, he just stole because he wanted it. Therefore, the Crown rarely has to prove
         direct intent but rather the lower mens rea of oblique intent.

Decision: The conviction was quashed and the appeal allowed.

R. v. Hamilton (2005)

         A. Actus Reus – Omission
At common law, there is no duty to prevent or report a crime except in professions that are regulated
by statute, such as a teacher‘s duty to report child abuse, but these are provincial statutes. Such a
duty would infringe on liberty and in setting limits of requirements for affirmative obligations.

Fagan v. Commissioner of Metropolitan Police (1969)
* car on police officer‘s foot – mens rea can be superimposed on actus reus

Facts: Appellant stopped with the wheel of his car on the officer‘s foot. While the officers told the
Appellant to get the car off his foot several times, the Appellant said ―you can wait‖ and proceeded
to shut off the car. Finally, the appellant reluctantly said ―Okay, man, okay‖ and then turned on the
ignition and moved the car off the officer‘s foot. Lower court was satisfied beyond a reasonable
doubt that the appellant knowingly, provocatively, and unnecessarily allowed the wheel to remain on
the foot after the officer said: ―Get off you are on my foot.‖

Issue: If actus reus and mens rea do not begin at the same time, can the act be considered more than an
omission and can the act can be tried as criminal?

Reasons:
Majority Rule:
      To constitute this offence some intentional act must have been performed - a mere omission
         to act cannot amount to an assault.
      For an assault to be committed both the elements of actus reus and mens rea must be present
         at the same time. But, it is not necessary that mens rea be present at the inception of actus reus;
         it can be superimposed on an existing act. But, the subsequent inception of mens reas cannot
         convert and act which has been completed without mens rea into assault.
Majority Application: The applicant‘s may have initially been unintentional, but the time came when
knowing that the wheel was on the officer‘s foot appellant remained seated in the car (and his body
touching the car acted as a medium for his contact with the officer) switched off ignition
maintained the wheel of the car on the foot  Used words that indicated he intended to keep wheel
in that position
 Actus Reus and Mens Rea overlap here. Not just a mere omission. Appeal dismissed.

Ratio: If actus reus and mens rea overlap, regardless of whether the act began before the intention, this
is considered more than an omission and the act can be tried as criminal.
Dissenting Opinion - has a problem with actus reus: after the wheel of the appellant‘s car had accidentally
come to rest on the constable‘s foot, what was it that the appellant did which constituted the act of
assault. It is not, to my mind, a legitimate use of the language to speak of the appellant ―holding‖ or
―maintaining‖ the car wheel on the constable‘s foot.

Decision: Appeal dismissed, but there is a dissenting opinion.

Dunlop and Sylvester v. R. (1979) - SCC
* biker rape – aiding and abetting – judge tried to lead jury – omission (and analyzing omission) –
party to a crime – common intention

Facts: Two men were charged with being parties to a gang rape by a biker gang. They were at the
scene of the crime, but they allege they were just there to bring over some beer and only noticed a
man and a woman engaged in a sexual act from a distance.

S. 613(1)(b)(iii)
Gives court a discretionary power to dismiss an appeal from conviction even where there has been a wrong decision by a
trial judge on a question of law, if there has been no substantial wrong or miscarriage of justice.

S. 21(1): Parties to offence - Every one is a party to an offence who
          (a) actually commits it
          (b) does or omits to do anything for the purpose of aiding a person to commit it,        or
          (c) abets any person in committing it.
 ―abets‖ = encourages, supports, uphold.
 the phrase ―purpose of aiding‖ implies direct intent to assist.

S. 21 (2) – common intention – The party will be guilty of any other crimes committed by the perpetrator if the party
knew, or ought to have known, that commission of this secondary offense would be a foreseeable consequence of the
initial crime. (e.g. If B is the getaway driver when A robs the bank, B would responsible for the assault A committed
on the bank security guard – extended secondary liability).

Issue: Was the trial judge in error when he charged the jury to examine Sec 21(2), Sec 21(1), and
Section 613(1)(b)(iii)?

Did the judge improperly instruct the jury? --- The sequestered jury asked the judge a question: ―if
the accused were aware of a rape taking place and did nothing to prevent or persuade the
discontinuance of the act, are they considered as an accomplice to the act, under the law?‖
 the judge said no. (the graphic scenario of watching someone‘s child drown and doing nothing is
reaffirmed in this case). But, the judge tried to guide the jury here.

Reasons:
     The trial judge should have instructed the jury to decide whether or not the two accused
        participated in the criminal act – but he instructed them on S. 21 and that is where the
        challenge arises (it makes those who commit and those who aid or abet equal). The judge
        seems to be trying to push the jury to see that the appellants were more than innocent
        bystanders.
Two Things that must be proved before an accused can be convicted of being a party:
             1. had knowledge that the principal intended to commit the offence
             2. and that the accused aided and abetted him.
 Where there is no knowledge that an offence is being committed, the presence of accused at the
scene of the crime cannot be a circumstance which could be evidence of aiding and abetting.
However, mere presence at the scene of a crime is not sufficient to argue culpability. Something
more is needed. The evidence only shows presence and passive acquiescence. There is no evidence
that the accused rendered aid, assisted, or encouraged the offence, and there was no positive act or
omission that facilitated the crime.

Decision: Acquitted because they already went through two trials and did time.

R. v. Thorton (1990) - CA
* CA attempts to apply Donoghue v. Stevenson‘s neighbor principle (in 1993 SCC rules that this is
too broad into criminal law)

R. v. Thorton (1993) - SCC
* HIV blood donor trying to purge illness – SCC uses s.16 (a stretch)

Facts: Appellant had knowledge that he was HIV positive, was fully aware of all the risk and
repercussions, and he was aware of the signs and warning at the Red Cross blood donor clinic.
Although he was informed that the Red Cross would no accept donation from the high-risk group to
which he belonged he proceeded to donate blood. He claims that he did this in order to purge some
of the infected blood from his system in the hopes that it would reduce his chances of getting AIDS.

S. 180
(1) Every one who commits a common nuisance and thereby
     a. endagers the lives, safety, or health of the public
     b. or causes physical injury
     is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years
(2) For the purposes of this section, every one commits a common nuisance who does an unlawful act or fails to discharge
a legal duty and thereby
     a. endangers the lives, safety, health, property or comfort of the public; or
     b. obstructs the public in the exercise or enjoyment of any right that is common to all the subjects of her majesty in
     Canada.

S. 219
     (1)Anyone is criminally negligent who
          (a) in doing anything, or
          (b) in omitting to do anything that it is his duty to do
     Shows wanton or reckless disregard for the lives or safety of other persons.
(2) For the purposes of this section, duty means duty imposed by law.

Issue: Is there a common law duty which would prohibit the donating of blood known to be HIV
contaminated?

Analysis: (Galligan)
―unlawful act‖:
There is no law in the Criminal Code that prohibits donating infected blood.
―duty imposed by law‖:
Common Law duties prohibiting the donation of tainted blood: In the Criminal Code, s.219, ―duty
imposed by law‖ forms part of the definition of Criminal Negligence. Therefore, cases in which the
defendant is accused of Criminal Negligence can be used to define ―duty imposed by law‖. Example
is Donoghue v. Stevenson: Neighbour Principle.
―endangers the…public‖:
Since screening tests are imperfect, there is a chance infected blood would get through. Endanger
does not necessarily mean damage; it means the possibility of damage. Donating HIV-infected blood
is high risk.

While there is no general duty to prevent harm in the Criminal Code, the common law does indicate
such a duty.

Decision: ―Unlawful act‖ refers to conduct which is specifically proscribed by legislation (and the
code does not make it an offense to donate contaminated blood). The ―duty imposed by law‖
which forms part of the definition of criminal negligence set out in 2. 219 has been held to be either
a duty imposed by statute or a duty arising in the common law.

Note: The Supreme Court heard the appeal and Lamer J. dismissed it because a common law general
duty to prevent harm would overturn the entire Criminal justice system.

The King v. Lewis (1903)
* Christian Scientist allows child with Diphtheria to die – reasonable person test – must prove
understanding of circumstances – contemporaneous fault – duties arising out of common law

Facts: Appellant did not provide care to his sick child (ill with diphtheria) aside from the silent
prayer of Christian Scientists. He admitted that if it were not for his religion he would have called the
doctor. He saw the child was seriously ill. He had access to top level health care as did all people, no
matter how wealthy, in Toronto in 1903.

S. 209
Every one who has charge of any other person unable by reason of detention, age, sickness, insanity, or any other cause,
to withdraw himself from such charge… is under a legal duty to supply that person with the necessaries of life, and is
criminally responsible for omitting, without lawful excuse, to perform such duty, if the death of such person is caused, or
if his life is endangered, or his health has been, or is likely to be, permanently injured by such omission.

S. 210
Every one who as parent, guardian or head of a family, is under a legal duty to provide necessaries for any child under
the age of sixteen years, is criminally responsible for omitting, without lawful excuse, to do so while such child remains a
member of his or her household, whether such a child is helpless or not, if the death of the child is caused or if his life is
endangered or his health is, or is likely to be, permanently injured by such omission.

Issue:
    1) Whether the prisoner was under a legal duty to provide necessaries for the child, which
       involves the further question whether what was omitted to be provided was a necessity
       under the circumstances.
    2) If such duty existed, whether the prisoner, without lawful excuse, omitted to perform it.

Application:  did the prisoner‘s omission, without lawful excuse, cause the death of the child?
Reasonable Person Test:
     the prisoner neglected to take the steps a reasonable person would have taken.
     reasonable person - What would an ordinary person do, solicitous for the welfare of his
       child, do under the circumstances of the particular case?
    - must show accused understood circumstances that triggers duty
    - must show ability
     prisoner knew of the dangerous character of the child‘s illness and the necessity under the
        circumstances for medical aid and treatment, and the potential consequences of such an
        omission.
Policy:
     although the prisoner provided in all ways for his child, except in this instance of medical
        care, which he did not provide for reasons of religious belief, it is tempting to find him not
        guilty of manslaughter.
     however, if we find this man not guilty, what kind of precedent would that set? Where do we
        draw the line?
Means:
The court also addresses the issue of the person‘s means to supply care. In 1903, in Toronto, top-
notch medical care was available to all people, even the disadvantaged so there is no excuse.

Decision: Upholds the decision of the lower court.

3 Potential Duties Arising At Common Law:
    1. Duty of Relationships of Care: i.e. a duty to provide necessaries of life was a common law
       principle now codified in s.215.
    2. Specifically undertaking to do dangerous activities: ss.216-217 govern the establishment of a
       duty when undertaking an activity that induces reliance by others.
    3. Causal responsibility for dangerous situations you create: ie. if you excavate (dig) on your
       property, you have a duty to put up a fence, etc., to prevent others from falling in.

        B. Actus Reus – Causation
* factual causation – legal causation

Whenever there is a crime with a consequence built into the actus reus (result crime) you must
address causation. In a homicide trial, the question is not what caused the death, but if the accused
caused the death. It is an issue of moral responsibility.

Common Law principles in determining Legal Causation:
   1. Foreseeability – ie. kick someone, they are unconscious, and abandon them on the Yonge
      St, and they are run over – it was foreseeable. But, it was not foreseeable that this person
      would contract flesh-eating disease from the doctor at the hospital
   2. Risk Theory
   3. Voluntary Intervention – ie. if the driver runs over the body lying in the road intentionally,
      it is a voluntary intervention

Statutory Resolution of Difficult Causation Issues W.R.T. Culpable Homicide (so you don‘t have to
merely rely on first principles):
        1. s.222(6) - no causation if death caused by procuring false evidence in a capital murder
        case
        2. s.228 - no causation if death caused by influence of the mind alone (unless fear causes
        death of sick or elderly person - s.222(5)(d)
        3. s.227 - no causation if death occurs more than a year and a day after the incident
        (repealed)
        4. s.222(5)(c) - causation established if your actions cause someone to take their life due to
        your threats and fear of violence
        5. s.224 - causation established notwithstanding that death could have been prevented by
        resort to proper means
        6. s.225 - causation established if you cause an injury of a dangerous nature even though
        the immediate cause of death is proper or improper treatment applied in good faith
        7. s.226 - causation established even if your injury only serves to accelerate the victim's death
        from another subsisting cause

Murder Checklist
1) Homicide       s.222 Definition: ―when directly or indirectly, by any means, causes the death of a
                  human being‖
                     Did someone die?
                     Causation:
                                Whenever there is a crime with a consequence built into the actus reus
                                   (result crime) you must address causation
                                In a homicide trial, the question is not what caused the death or who
                                   caused the death of the victim but rather did the accused cause the
                                   victim's death
                                Homicide is committed upon proof of causation
2) Manslaughter      Culpable or non-culpable?
                     Only culpable homicide is a criminal offence of manslaughter
                   before you prove murder, you must prove manslaughter
                     s.222(5) - Four ways for homicide to be culpable:
                                (a) by means of an unlawful act (e.g. assault, firearms) – at minimum
                                         Need to do the entire element checklist for the unlawful act
                                (b) by criminal negligence - s.219, s. 220 is criminal neg causing death
                                (c) by causing that human being, by threats or fear of violence or by
                                   deception, to do anything that causes his death, causing another person
                                   to take their own life
                                (d) by willfully frightening that human being, in the case of a child or
                                   sick person, does not work for adults.
                   Note s.220 (Criminal negligence causing death) is the same as culpable homicide by
                       criminal negligence
                       Discuss issue of voluntariness here
                  NOTE:
                  For every act, you can find an omission and you can quickly apply Crim Neg test
                  (Tutton) for extra points in reference to the omission – apply Test from Creighton,
                  Desousa, and Tutton – but don‘t analyze
                                 In dealing with predicate offences like manslaughter before you get to
                                    murder, you might have to deal with an unlawful act.
                                 Analyze the unlawful act separately. Most manslaughter by unlawful
                                    acts is from assault.
                                 Always deal with principle and party separately - two people will be
                                    committing the crime. Don‘t try to analyze both together.
3) 2nd Degree      How do you elevate manslaughter to murder? Mens Rea requirement
Murder           Sec 229 discusses the elements that make manslaughter murder (2nd degree)
                   (a) When a person causes the death
                        (i) Means to cause the death (Direct or Oblique intent), or
                        (ii) Means to cause bodily harm that he knows is likely to cause his death and is
                        reckless whether death ensues or not (Recklessness)
                   (b) meaning to cause death or meaning to cause him bodily harm that he knows is
                   likely to cause his death, and being reckless whether death ensues or not, by accident
                   or mistake causes death to another human being, notwithstanding that he does not
                   mean to cause death or bodily harm to that human being; or
                    (c) where a person, for an unlawful object, does anything that he knows or ought to
                    know is likely to cause death, and thereby causes death to a human being,
                    notwithstanding that he desires to effect his object without causing death or bodily
                    harm to any human being. [“or ought to know” is problematic, as it calls for an
                    objective standard – read out to avoid constitutional infringement of s.7]
                       this proves 2nd degree murder. Parole standard at 10 years (can be set up to 25
                      years by judge).
                  s.230 - declared unconstitutional (Vaillancourt ; Martineau ) - Constitution demands
                  subjective proof for murder
4) First Degree    This is a sentencing issue:
Murder              Second degree: Life imprisonment - minimum parole 10 years (can be set higher by
                       judge)
                    First degree - minimum parole 25 years
                     s.231(2) - Murder is first degree murder when it is planned and deliberate.
                     s.231(3) - Without limiting the generality of 231 (2), murder is planned and
                         deliberate when committed pursuant to an arrangement under which money or
                         anything of value passes or is intended to pass from one person to another, or is
                         promised by one person to another, as consideration for that other's causing or
                         assisting in causing the death of anyone or counseling another person to do any
                         act causing or assisting in causing that death.
                     s.231(4) - Irrespective of whether a murder is planned and deliberate on the part
                         of any person, murder is first degree murder when the victim is
                                 (a) a police officer, police constable, constable, sheriff, deputy sheriff,
                                     sheriff's officer or other person employed for the preservation and
                                     maintenance of the public peace, acting in the course of his duties;
                                 (b) a warden, deputy warden, instructor, keeper, jailer, guard or other
                                     officer or a permanent employee of a prison, acting in the course of his
                                     duties; or
                                 (c) a person working in a prison with the permission of the prison
                                     authorities and acting in the course of his work therein.
                     s. 231(5) - Irrespective of whether a murder is planned and deliberate on the part
                         of any person, murder is first degree murder in respect of a person when the death
                         is caused by that person while committing or attempting to commit an offence
                         under one of the following sections:
                                 (a) section 76 (hijacking an aircraft);
                                 (b) section 271 (sexual assault);
                                 (c) section 272 (sexual assault with a weapon, threats to a third party or
                                     causing bodily harm);
                                 (d) section 273 (aggravated sexual assault);
                                 (e) section 279 (kidnapping and forcible confinement); or
                                 (f) section 279.1 (hostage taking).
                     s. 231(6) - Irrespective of whether a murder is planned and deliberate on the part
                         of any person, murder is first degree murder when the death is caused by that
                         person while committing or attempting to commit an offence under section 264
                         and the person committing that offence intended to cause the person murdered to
                         fear for the safety of the person murdered or the safety of anyone known to the
                         person murdered. (Criminal harassment)
                     s. 231 (6.01) Irrespective of whether a murder is planned and deliberate on the
                         part of a person, murder is first degree murder when the death is caused while
                         committing or attempting to commit an indictable offence under this or any other
                         Act of Parliament where the act or omission constituting the offence also
                         constitutes a terrorist activity.
                       s. 231(6.1) - Irrespective of whether a murder is planned and deliberate on the part
                          of a person, murder is first degree murder when the death is caused while
                          committing or attempting to commit an offence under section 81 (using
                          explosives) for the benefit of, at the direction of or in association with a criminal
                          organization.
                       s. 231(6.2) - Irrespective of whether a murder is planned and deliberate on the
                          part of a person, murder is first degree murder when the death is caused while
                          committing or attempting to commit an offence under section 423.1.
                          (intimidation of justice system participant or journalist)
                       s. 231(7) - All murder that is not first degree murder is second degree murder.
5) Defences         Murder can be reduced back to manslaughter under two circumstances (before mens rea
                    is proven):
                       Provocation - s.232
                       Intoxication – negates mens rea (not a true defence) – defence argues Daviault and
                          Crown argues Leary/S.33.1/Sopinka.
                    Capacity – Mental Disorder – Insane Automatism
                       s.16(1) No person is criminally responsible for an act committed or an omission
                          made while suffering from a mental disorder that rendered the person incapable of
                          appreciating the nature and quality of the act or omission or of knowing that it was
                          wrong.
                       s.16(2) - Every person is presumed not to suffer from a mental disorder so as to
                          be exempt from criminal responsibility by virtue of subsection (1), until the
                          contrary is proved on the balance of probabilities.
                       s.16 - (3) The burden of proof that an accused was suffering from a mental
                          disorder so as to be exempt from criminal responsibility is on the party that raises
                          the issue.
                       Non-insane automatism
                     Complete defences may have been discussed earlier: when analyzing the unlawful act:

                    Once mens rea is proven, defence could still raise
                      Duress/Normative involuntariness - Justification and Excuses – necessity and
                        duress

Unforeseeable interventions will generally break the chain except:
       1. when intervention is an act of the victim
       2. a result of a defect within the victim
       3. if the intervention is a human agent – question then whether it was voluntary and
          culpable
       4. if intervention is a medical person it will not break the chain, unless you are able to
          argue the original wound is no longer operative, and this trivial injury only set the stage
          for completely outrageous conduct by the doctors.

R. v. Smithers (1977) - SCC
* fight – faulty epiglottis causes death – guilty because of contributing cause of death – thin skull
principle – Smithers test – chain of causation – de-minimus range

Facts: Deceased had been spewing racial slurs at Smithers during a hockey game. After game
Smithers attacked deceased by punching him twice in the head then kicked him in the stomach after
deceased had doubled over. The doctors discovered that what had killed Cobby was a defective part
in his throat called the epiglottis which prevents material from going into the lungs. He had got
vomit into his lungs due to the malfunctioning of this part, spontaneous aspiration was rare and
unusual cause of death in a healthy teenager.

Issue: Did the blow cause Cobby‘s death, or was it due to the defective epiglottis and therefore not
the fault of the defendant?

Reasons:
   - all 3 doctors felt kick probably caused vomiting though they could not positively state that it
        did
   - important to distinguish causation as a question of fact and causation as a question of
        law…crown had burden of showing factual causation so that jury could consider it.
   - it is immaterial that the malfunctioning epiglottis, to which the defendant may or may not
        have contributed, caused the death. As long as the act is a contributing cause of death, the
        defendant can be held accountable if the crown can show it is contributing outside the de
        minimus range - did not count it as an intervention.
   - only intention necessary was that of delivering the kick…no defense to manslaughter that
        fatality was not anticipated
    must take victim as you find them, thin-skull rule (tort doctrine). Tort law deals with
   distribution of loss to the party best able to bear the loss. Criminal law is about condemnation
   and punishment. This is a very low threshold, because, in criminal law, you will be condemned
   and punished for the death. It is not merely for deciding monetary compensation.

Ratio: All that needs to be established is that the defendant‘s actions are a contributing cause of
death outside the de-minimus range.

Decision: Appeal dismissed. The accused is guilty of manslaughter since his assault was a legal
contributing cause of his death.

Note: From Smithers, it is shown that for an act to be a legal cause of a consequence, it has to begin a
chain of causation and be proven by the Crown to be outside the de minimis range before you can
apply the Common Law First Principles of causation.

R. v. Blaue (1975)
* Jehovah‘s Witness refuses blood transfusion and dies – an unreasonable or unecpected act by the
victim will not break the chain of causation – thin skull principle

 responsible for death from natural and probable consequences of the act, regardless of victim‘s
religious beliefs.
 Smither‘s cited Blaue as an example of the application of the thin skull theory. It is questionable
as to if this really applies.

Facts: The accused sexually threatened an 18-year-old female Jehovah‘s Witness, and when she
refused he stabbed her. The girl made it to that hospital, but needed a blood transfusion to save her
life. Because of her religion, she refused the transfusion in writing and died. It is admitted by the
crown that the girl would have lived had she got the transfusion.

Issue: Was the chain of causation of murder broken when the victim refused to gain life saving
help?

Reasons:
           no duty to mitigate in criminal law (as there is in tort law)- accused takes their victim as
            they find them.
           deemed morally responsible for natural and probable consequences of that act
           physical cause of death was bleeding into the pleural cavity arising from the penetration
            of the lung, this has not been brought about by any decision made by deceased but by
            stab wound itself
           does not lie in mouth of assailant to say victims religious beliefs were unreasonable, her
            decision did not break the chain of causation
           defence argues that reasonable person would have thought treatment. While it was easy
            for the court to find the father in the Lewis (Christian Scientist) case did not act as a
            reasonable person, here, the court was not willing to apply that to the stabbing victim.

Analysis: (Lawton)
Defence:
A reasonable victim would have sought treatment and an unreasonable refusal to take treatment that
would preserve the victim‘s life is an unforeseeable consequence of the crime, which makes the
homicide non-culpable.

Crown:
Victim‘s duty: A victim has no duty to mitigate the harm done to her by accepting reasonable medical
care, and an accused takes their victim as they find them. Therefore, he must bear the responsibility
if she refuses medical help if he caused her to require the medical help in the first place. Therefore,
he initiated the chain of causation.

Ratio: If it can be established that the actions of the accused resulted in the natural and probable
consequences of that act, then the accused cannot rely on the deceased‘s religious choice as a defense
against their death. Causation is established notwithstanding that death could have been prevented
by reasonable acceptance of care, and therefore the accused is guilty.
 An unreasonable or unexpected intervention by the victim will not break the chain of
causation.
 If it can be established that the actions of the accused resulted in the natural and probable
consequences of the act, then the accused can not rely on an unreasonable intervening cause as a
defence.

Decision: Appeal dismissed, accused guilty.

Note: Even if she did seek proper medical treatment - For medical treatment, unreasonable conduct
by physicians is not considered to break that chain, as long as the wound is connected to the death.
(e.g. Smith Case – soldier has lungs pierced with bayonet, and is mistreated by medics and dies,
person who stabbed him negligently held responsible). Gross malpractice is not considered to break
the chain.

R. v. Reid (2003) - CCC
* headlock and kick makes the victim unconscious – botched CPR attempt kills victim – original trial
judge did not properly instruct the jury on intervening act (only cause vs when there is an intervening
act it is insufficient to examine the cause alone)

 intervening acts – has the chain of causation been interrupted?

Facts: Reid and Stratton charged with manslaughter. During the fight Stratton grabbed victim in
headlock and Reid kicked the victim a few times. When it became apparent the victim was
unconscious, others administered CPR. The failed attempts at CPR were the sole cause of the
victim's death; attempts to resuscitate caused victim to aspirate his stomach contents. Trial judge
imposed conditional sentences of imprisonment on each accused.

Reasons: (Saunders)
The trial judge erred in his instructions to the jury on causation.
Using the test established in Smithers:
1. but for test
2. determine if the intervening cause is outside de minimis, thin-skull notwithstanding.
3. if a third party intervened, is the intervention voluntary and culpable.
          medical personnel are the exception, they do not break the chain of causation unless the
             original wound was inoperative (i.e. was healing).

Rule
    1. trial judge properly instructed the use of the correct test of causation – was the act of the
       accused a ―significant contributing cause" in the death? (trial judge focused on Smithers –
       where the was no material intervening cause).
    2. but, trial judge failed to provide instructions to jury on the intervening act or cause of CPR
       efforts.  need to consider whether or not any independent, intervening and therefore
       exculpatory factors occurred after the accused's acts, thereby severing the chain of causation.
Application
       trial judge should have focused the jury on whether the accused were significantly causally
        linked up until the time of death or whether some other act interrupted. He ought to have
        given the jury examples of what the law would recognize as legitimate intervening events.
       headlock by Stratton could have resulted in the victim becoming unconscious. Up to jury
        whether or not to conclude, based on the expert evidence, if the victim had been left alone
        unconscious, he may well have returned to consciousness on his own.
         This is not an appropriate case in which to enter an acquittal. It cannot be said that there
        is "no realistic possibility of a guilty verdict on a new trial".

Ratio: When there is an intervening act, it is not sufficient to examine causation alone, but it is
important to examine whether or not any independent, intervening and therefore exculpatory factors
occurred after the accused's acts, thereby severing the chain of causation.

        C. Actus Reus – Capacity and Voluntariness
All acts and omissions must be voluntary. Voluntary conduct presupposes a choice to act, so
involuntary conduct is always a valid defence, since a consciousness of the crime is required to
convict. Unless the man has the capacity, and a fair opportunity or chance to adjust his behaviour to
the law its penalties ought not to be applied to him.

 There is major overlap with mens rea on this issue.

     HLA Hart - ―A primary vindication of the principle of responsibility could rest on the simple
    idea that unless a man has the capacity and a fair opportunity or chance to adjust his behaviour
    to the law its penalties ought not to be applied to him.‖

Involuntariness – problem of internal capacity or external circumstances weighing heavily on your
circumstances.
Not every example of involuntary conduct is unconscious behaviour:
     epilepsy
     someone else moving your body
         muscular spasm
         reflex muscular action (e.g. bees stinging you while you are driving).
         somnambulism
         drunken stupor (this is questionable)

Capacity and its defences
   – cognition, volition, ability to analyze consequences of your actions.
   Capacity defenses
       1. automatism
       2. mental disorder
       3. intoxication
    Inability to control your choices based on external factors (e.g. an oil slick). The ability to
   ascribe blame to external factors is much simpler than ascribing an internal cause.
    Foresight of external conditions (e.g. hearing about the oil slick on the radio before you get
   there) makes you responsible.
        court is not comfortable in allowing for excuses like kleptomania for theft or pyromania
            for arson in terms of internal causes.
        the one claim the courts seem to be comfortable with is somnambulism.

     e.g. Larsonneur (1933, English case – French spelling).
     French woman deported in England.
     They deported her to Ireland instead of France and she was arrested again and brought back to
     England in handcuffs. She committed the crime in Ireland intentionally in order to be brought
     back to England. She was then charged for being there illegally. Not her fault that she was there?
     Was it beyond her control?

Criminal Code s.16:
    (1) no person shall be convicted of an offence in respect of an act or omission on his part while he was insane
    (2) a person is insane when he is in a state of natural imbecility or has disease of the mind to an extent that
         renders him incapable of appreciating the nature and quality of an act or omission or of knowing that an act
         or omission is wrong
    (3) a person who has specific delusions, but is in other respects sane, shall not be acquitted on the ground of
         insanity unless the delusions caused him to believe in the existence of a state of things that, if it existed, would
         have justified or excused his act or omission
    (4) Everyone shall, until the contrary is proved, be presumed to be and to have been sane

          i) Automatism
Two kinds of automatism:
   1. physical blow automatism: concussions and acting while in a daze
   2. psychological blow automatism: psychological trauma leads to automatism.

R. v. Rabey (1980) - SCC
* psychological blow – reasonable person standard for psychological blows imposed by majority –
draw the line between non-insane automatism and a ―disease of the mind‖

Facts: Male university student viciously attacks and injures girl to whom he was emotionally attached
after emotional shock. The day before the offence he discovered she expressed sexual interest in
another male university student. On the day of the offence, the accused picked up a rock from the
geology laboratory to study and then, by chance, he met the victim and felt "strange" for a second.
While he and the victim were walking together he asked her what she thought of a mutual friend. She
replied that he was "just a friend". He then asked her what she thought of him and she said that he
was a friend too. At this point he struck the victim with a rock and then began choking her. Another
student who came along at this time described the accused as being very pale, sweating, and glassy-
eyed and as having a frightened expression. The accused then left to find a nurse and told her he had
killed the victim. Victim ultimately fully recovered.

Reasons:
"Disease of the mind" – (s. 16) Ordinary stresses and disappointments of life (such as an
infatuation with a girl) do not constitute an external cause, which would take it out of the category of
a "disease of the mind". An example of a psychological blow that would cause automatism is seeing a
loved one attacked by a violent person.
      if accused's state is a result of a‖ disease of the mind‖ then his defence, if any, is that of
         insanity, not non-insane automatism entitling him to a full acquittal.
      defence argues non-insane automatism in order to keep D out of mental-hospital. Crown
         argues he is suffering hysterical neurosis to have him committed.
      rabey could not raise provocation because it only applies for reducing murder to
         manslaughter.

Rabey can only be let off under insanity - Unfair to accused?
Rabey might now end up in a psychiatric facility and he does not display any symptoms of insanity.
Judges justify this saying Criminal Code contains provisions permitting immediate release at the
pleasure of the Lieutenant-Governor if it would be in his best interests and not contrary to the
interest of the public.

Dissent: (Per Dickson, J.. Estey and McIntyre, JJ.)
 Says that real question is not if non-insane automatism is available, but whether accused should
be confined to institution for the criminally insane
     there is no reason why an emotional blow, which can be devastating, should be regarded as
        an external cause of automatism in some circumstances and an internal cause in others –
        trigger is shock and not just for common disappointments of mankind.
     if he is driven into shock and unconciousness by an emotional blow, and he is susceptible to
        this, there is no reason why this external blow should not be counted as a reason for a
        discociative state (thin skull should be applicable here as well).

Decision: Appeal dismissed, only defence could be insanity. Dickson, Estey and McIntyre, JJ.,
dissenting.

Note: Rabey later overturned… Swain, SCC, 1990
Overturns this method of analysis – if you are mentally disordered at the time of the murder, you
should be considered insane. Swain committed some crimes when he was insane. He was then
medicated and cured. As a result of this case, SCC struck down laws dealing with insane offenders.
Parliament came up with part 21 of the code.
     Now, when you are judged sec. 16 (insanity) it is now referred to as NCRMD (not criminally
        responsible because of mental disorder).
     The judge can now hold a hearing to decide what to do with you, rather than waiting in jail
        for months for the government to decide if you should be committed. Or, within a 45 days a
        criminal review board with examine your case.
 The judge and the review board have 3 option – discharge (temporary insanity), discharge subject
to conditions (outpatient), commitment to psychiatric facility.
R. v. Parks (1992) - SCC
* examines ―disease of the mind‖ and argues non-recurring nature of somnambulism makes it non-
insane – court says shock has to be significant to get off on automatism defence – dissent argues
court should impose preventive powers to protect public - somnambulism

Facts: Accused had been under a great deal of stress, had been getting very little sleep, and his family
had a history of sleep disorders. On the night of the offence, the accused apparently went to sleep
and while in a state of somnambulism, drove a considerable distance, entered the home of his wife's
parents where he stabbed and beat both his mother-in-law and father-in-law. His mother-in-law died
and his father-in-law sustained serious injuries.

Issue: Did trial judge correctly assess sleep-walking was not a disease of the mind? (or should D
have been subject to insanity defence)

Reasons:
Sec 16 – insanity defence
     incapable of appreciating consequences of your actions.
     inability to appreciate something is against the law.

somnambulism (sleep-walking) – expert witnesses testified sleep-walking or somnambulism is
not regarded as a disease of the mind but rather as a sleep disorder, in which ability to control
voluntarily even complex behaviour is severely limited or not available. Aggression while sleep-
walking is quite rare and repetition of violence is unheard of.

Majority:
Trial judge did not err in leaving the defence of automatism rather than that of insanity (disease of
the mind) with the jury.
 “Disease of the mind” (s. 16) is a legal concept with two approaches (both focus on recurrence):
              1. continuing danger theory
              2. internal cause theory
               Somnambulism is a condition that is not well-suited to analysis under either theory –
              while on different facts it might be found to be a disease of the mind, here, there is no
              previous medical or family history.

Policy Considerations: whether the condition is easily feigned and whether recognition of the
condition as non-insane automatism would open the floodgates.  no compelling policy factors

Potential use for court’s preventive powers:
                    - Medical evidence points against need for preventive measures
                    - Exercise of the power without limits could not survive Charter scrutiny.
                    - If there are reasonable grounds to fear recurring violence from accused
                        then application may be made pursuant to s. 810 of the Crim Code. Court
                        should not act upon its own motion.

Dissenting in Part: (Per Lamer C.J.C., Cory J.)
    Agrees acquittal of the accused should be upheld
    Argues court should use Judge‘s common law power to make an order to keep the peace -
       concern accused is free without measures to protect the public, or indeed the accused
       himself, from the possibility of a repetition
       matter should be referred back to the trial judge to decide on order to keep the peace on
        certain conditions pursuant to the "preventive justice" power- measures should not violate
        rights guaranteed under s. 7 the Charter.

Decision: All SCC judges dismiss appeal, even those dissenting in part. Trial judge correct - Defence
of non-insane automatism upheld.

R. v. Sone (1999) SCC
* kills verbally abusive wife – automatism issues – shift in evidentiary burden to accused to prove
non-mental-disorder automatism – important elements to examine are internal cause, potential for
recurrence, and policy considerations – upholds Rabey (objectify automatism saying the shock has to
be significant in order to be able to get off on an automatism defense)

Facts: Accused stabbed his verbally abusive wife 47 times after allegedly being overcome by a
―whooshing‖ feeling. He proceeded to stuff her in a toolbox and went to Mexico but returned to
Canada after allegedly having a dream that reminded him of the incident.

Issue: Does accused has right to have defence of non-mental disorder automatism in this case?

Discussion: SCC says appeal should be dismissed (majority).
        must examine voluntariness not just consciousness.
        trial judge referred only to the internal cause factor – internal cause and the continuing
           danger factor, as well as other policy factors, supported the trial judge's finding that the
           condition the accused alleged to have suffered from was a disease of the mind in the
           legal sense.
        trigger in this case was not extraordinary external event that would amount to an
           extreme shock or psychological blow that would cause a normal person in the
           circumstances of the accused to suffer dissociation in the absence of a disease of the
           mind. Accordingly, the appeal must be dismissed.

Ratio: If accused raises evidence that is sufficient to permit properly instructed jury to find
reasonable doubt as to voluntariness, trial judge can put defense of mental disorder automatism or
non-mental disorder automatism to the jury. To distinguish which of the two to be put to jury, use
two-part test below.

Majority:
(Examines steps for looking at automatism; court shifted evidentiary burden to accused, making it
more difficult to argue for non-mental disorder automatism)
    1. Rebutting Presumption of Voluntariness – creates evidentiary burden for accused to
        prove that it was involuntary, raises burden from creation of reasonable doubt to proving on
        Balance of Probabilities; seeking to establish symmetry between automatism and mental
        disorder.
        Note: It is no longer up to the Crown to prove voluntarism, but it is up to the accused to
        prove non-voluntary automatism.
    THEN (After proven involuntary…)
    2. Examine if it is Mental Disorder Automatism or Non-Mental Disorder Automatism:
           ―Judicial Notice‖: Non Mental Disorder Automatism is very rare.
            a. Internal Cause:
                       i. consider cause was a MD – personal history, pathology, family history
                      ii. contextual objective test – accused‘s automatic reaction to objective
                          standard of ‗normal‘ person under same circumstances
            b. Continuing Danger – Psychiatric history and/or likelihood trigger
            (particular/general) will recur, violence. If there is continuing danger, it should be
            treated as a disease of the mind.
            c. Policy Considerations: is it easily faked/feigned? This is part of the reason we need
            the reverse onus on defence to bring evidence.
If accused satisfies this test to get non-insane automatism, then judge allows advance to
jury, which only has to determine if it was voluntary.

What is it the evidence for the defence to meet the threshold of proof:
             1. accused must claim he acted involuntarily (difficult to tell if the court is saying the
                accused must testify)
             2. expert evidence
             3. trigger must be a major shock (confirms Rabey ruling).
             4. corroborating evidence from bystanders (if there are no third parties present, it does
                not say whether or not you can proceed, but it is unlikely the would disallow it
                based on lack of bystanders)
             5. motive – best if there is no motive – inexplicable behaviour (if someone is insulting
                you repeatedly, it would seem as if there is a motive).

Dissent: (this is a dead end dissent, because the SCC has made it clear they will not renege on their
new test)
    Evidentiary Ruling: adopts Dickson's dissent from Rabey; once the trial judge has
        exercised his gatekeeper function to screen frivolous/feigned claims, it is for the jury to
        decide on credibility of the plea of automatism, made too difficult with this high threshold
        test.
    internal cause theory cannot be used to deprive the accused of the benefit of the jury's
        consideration of the voluntariness of his action, once he has met the evidential onus, without
        risking a violation of his right to trial by jury as guaranteed by s. 11(f) of the Charter. It was
        wrong of the courts to require the accused to substitute for his chosen defence of
        involuntariness a conceptually quite different plea of insanity. Accordingly, the appeal should
        be allowed and a new trial ordered.

        ii) Mental Disorder
Mental disorder cases that get to trial are usually on the cusp – the more extreme cases get caught
before going to court when they examine the mental fitness of the person involved.

Mental Disorder:
  1. Incapable of appreciating the nature and quality of your act. (more than just simple
       understanding, but requires a certain analytical ability to perceive consequences, impact, and
       results).
  2. Incapable of knowing the difference between right and wrong.

R. v. Abbey (1982) SCC
* ―Normal‖ appearing drug trafficker pleads insanity based on his inability to comprehend penal
consequences – retrial because trial judge took too broad an approach to the defence – both prongs
of the mental disorder test must be narrowly examined – delusion of some undefined immunity from
prosecution does not bring accused within either arm of the insanity test – evidence was clear that
the accused knew that his act was wrong according to law and his inability to appreciate the penal
consequences was irrelevant to the question of legal insanity
Facts: Accused attempts to smuggle in cocaine for himself and friends and is caught by customs
officials. When he went through customs and when he was arrested, the accused appeared normal.
Accused pleads he had a delusion that he was in receipt of power from a source external to himself
that compelled him to go to Peru to buy cocaine and that this mysterious external force protected
him from punishment. Defence psychiatrist and the Crown psychiatrist agreed accused suffered from
hypomania (disease of the mind), but they differed as to whether he was incapable of appreciating
the nature and quality of his acts. They agreed he knew what he was doing and that it was wrong.
 charged with importing cocaine and possession of cocaine for the purpose of trafficking contrary
to ss. 5 and 4(2) of the Narcotic Control Act, R.S.C. 1970.

Decision: On further appeal by the Crown to the SCC, held, the appeal should be allowed and a new
trial ordered.

Reasons:
    1. Trial judge erred in giving effect to the defence of insanity in the circumstances of this case.
                  delusion of some undefined immunity from prosecution does not bring accused
            within either arm of the following insanity test:
              (a) incapable of appreciating the nature and quality of the act or of knowing that it was
              wrong (actus reus)
              (b) incapable of appreciating the nature and quality of his act (mens rea) of the offence.
 The evidence was clear that the accused knew that his act was wrong according to law and his
inability to appreciate the penal consequences was irrelevant to the question of legal insanity.

Ratio: The trial judge took too broad an approach to the defence - Both prongs of the mental
disorder test must be narrowly examined.

    2. Trial judge correctly recognized that irresistible impulse may be a symptom or manifestation
       of a disease of the mind which may give rise to a defence of insanity but was not a defence
       as such.

    3. Finally, the trial judge erred in admitting hearsay evidence introduced during the testimony
       of the psychiatrists. Testimony as to circumstances upon which the opinion is based cannot
       be introduced in order to establish the veracity of the second-hand evidence. Testimony
       must relate directly to the action (e.g. not from the accused actions weeks before the crime).

R. v. Oommen (1994) SCC
* paranoid delusions inspire murder – making him believe specific act was justified  broadens the
s. 16 Mental Insanity claim, requiring understanding the specific act was wrong to ascertain capacity,
rather than just general ability to discern right from wrong (difficult to tell what implications of this
are going to be).

Facts: Accused suffered from paranoid delusions for years. As a result of this illness, accused
harboured the false and fixed belief that he was the object of conspiracies that endangered him.
Accused became fixated with the belief that his enemies had commissioned the deceased (his
roommate) to kill him, so he shot her while she was sleeping. Psychiatrist testified at trial that
although the accused had the intellectual capacity to understand right from wrong and would know
that to kill a person was wrong, the accused's delusion would cause him to believe that killing was
justified under the circumstances as he perceived them. Accused relied upon the defence of insanity
at his trial for murder.
Decision: On appeal by the Crown to the Supreme Court of Canada, held, the appeal should be
dismissed. The order for the new trial should be confirmed.

Reasons:
Pursuant to s. 16(1) of the Criminal Code, a person who lacks the capacity to know that the act he is
committing is wrong is exempt from criminal responsibility.
 s. 16(1) inquiry must focus not on a general capacity to know right from wrong, but rather on the
ability to rationally know and understand that the alleged particular act was wrong in the
circumstances.
                There was evidence capable of supporting a conclusion that the accused's mental
                   state was so disordered that he was unable to consider rationally whether his act was
                   right or wrong in the way a normal person would – his disorder led him to believe it
                   was justified.
 Accordingly, the order for the new trial should be confirmed and the conviction should be
overturned.

        iii) Intoxification
                If you were involuntarirly intoxicated (unaware of taking a psychoactive
                 substance), the court just examines if the intoxication impaired your ability for
                 mens rea.
                If you were voluntarily intoxicated then the court has different rules. The cases
                 we deal with discuss voluntary intoxication.
                  We have special rules about self-induced intoxication that are born out of
                 policy. There is a notion of ―recklessness in the air,‖ not specific mens rea, when
                 people sit down to over drink. You cannot cause the conditions of your own
                 defence.

Daviault v. The Queen (1994) SCC
* Cory J. opens the door to intoxication excuse for general intent offences (in cases of extreme
intoxication akin to automatism) – Sopinka J. dissents holding that Leary rule must stand and
voluntary intoxication is sufficient mens rea for general intent offences. S. 33.1 of the Code
follows Sopinka – disagreement has yet to be resolved by the SCC.

Cases and Concepts Used:
general Intent – pure voluntariness with some knowledge, does not require purpose or planning.
Sufficient when elements of a crime consist of a description of a particular act and a mental element
not specific in nature.
specific Intent – the elements of a crime include a defendant's intent to achieve some result
additional to the act - analytical thinking going on when acting – preconception and deliberation to
reach illegal goal. (e.g. for burglary, there must be intent to carry out the actions, and intent to
commit the crime and break the law).
 intoxication defence only works for specific intent offences. Convicting someone of a general
intent offence who is intoxicated is convicting them without fault.

Leary Rule (1978):
Intoxication is only a defence for specific intent crimes, but not a defence to general intent crimes
(i.e. rape). The recklessness of becoming drunk is sufficient MR for the commission of the general
intent offence.

Problem: Charter rights are violated (s. 7 & 11d) when convicting intoxicated person by substituting
MR for the particular offence with MR for voluntarily getting extremely drunk. MR is not proven for
the actual offence; voluntary intoxication is the only action for which MR is found, and voluntary
drunkenness is not in itself a crime – might end up imprisoning those who are not blameworthy.
      Justifying controversial decision: allow Mme Justice Wilson advocates exception -
      evidence to go to jury only if extreme intoxication akin to automatism is shown in general
      intent (does not want to unconstitutionally convict anyone without MR) - Only in rare,
      exceptional occasions will evidence of such an extreme state of intoxication be advanced and
      perhaps only in still rarer occasions is it likely to be successful

Beard Case (England, 1920) – relied on in Daviault
    1. Insanity whether produced by drunken or otherwise, is a defence to the crime charged.
       Distinction between defence of insanity caused by excessive drinking, and the defence of
       drunkenness which produces a condition such that the drunken man‘s mind become
       incapable of forming a specific intention has been preserved.
    2. Evidence of drunkenness which renders the accused incapable of forming the specific
       intent essential to constitute the crime should be considered with other facts to
       determine whether he had this intent
    3. Evidence of drunkenness falling short of a proved incapacity to form intent does not
       rebut the presumption that a man intends the natural consequences of his acts.

Facts: Accused an alcoholic who consumed inhuman amount of alcohol. Victim, 65 yr old woman
in a wheelchair; claims accused sexually assaulted her. Accused claims ―blackout‖ and doesn‘t
remember.

Issue: Can extreme drunkenness which is so extreme that an accused is in a condition akin to
       automatism or a disease of the mind as defined in s. 16 of the Code, constitute defence for
       crime requiring only a general intent? (Leary rule told us intoxication is only a defence for
       specific intent crimes).

Decision: Appeal allowed, conviction is set aside, and new trial is ordered.

Ratio: opens the door to an intoxication defence for general intent with limited scope:
     to deny that even a very minimal mental element is required for general intent offences,
       including sexual assault, committed under extreme intoxication offends Charter and
       principles of fundamental justice and cannot be justified under s.1 of Charter (recall
       constitutionalization of MR).
     extreme intoxication is found to be akin to automatism or insanity, should, like insanity,
       should be established by the accused on a Balance of Probabilities using expert evidence
       (unfair to force Crown proof Beyond a Reasonable Doubt when evidence uniquely in
       accused‘s mind and when giving accused a break - so a reverse onus is warranted)

Note: it is only available in rare, exceptional circumstances where his intoxication is as extreme as
akin to automatism or insanity; for ordinary intoxication, apply the Leary rule.

Minority: Reaffirms the Leary rule.
    principles of fundamental justice merely require a blameworthy state of mind, but not
       specified (so it can refer to the blame pinned of one who deliberately gets extremely drunk
       to the point where his actions can no longer be controlled.
    people who render themselves that intoxicated voluntarily are not morally innocent; policy
       considerations- We cannot allow that the drunker a person gets, the greater his chance of
       acquittal >> otherwise the principle of moral responsibility would be violated. Leary rule
       must stand. MR- proof of voluntary intoxication
s 33.1 – this is a reinstatement of Leary, follows Sopinka
       response to the moral panic after Daviault - Limits the applicability of intoxication to specific
        intent offenses
       33.1(3): cuts out the chance of getting off of any assault in the event of self-induced intoxication.
       33.1(2): has to be a situation where the accused departs markedly from the standard of a reasonable person
        voluntarily or involuntarily.
       33.1 is constitutionally vulnerable. Constitutionality has been challenged; SCC has not
        considered the matter yet. The government is completely contradicting the SCC ruling
        (Daviault) which said people cannot be held responsible for pervious drinking.

Note: R. v. Penno
SCC held that intoxication is not a defense to a crime that, as one of the elements, the crown must
prove beyond a reasonable doubt, the accused intoxication. Eg. Intoxication is not a defense to
having care and control of a motor vehicle while impaired.

        D. Actus Reus – Consent
s. 265 – Assault
      Intentional application of force without consent
      Apply force – voluntary (mens rea)
      Without consent – knowledge/willful blindness

Issues to Consider when Examining Assault
     The first issue to consider is identity
     Consent – did the victim consent to the touching?
     Mistake as to consent (this is a defence negating mens rea)

Three levels for Assualt
           1. Simple Assault – 265, 266, 267 – rising levels
           2. Aggravated assault – 268, disfiguring
           3. Rape used to require penetration, but the context has since been changed as it is a
                crime of violence. It is a 265 assault within a sexual context.
                - Simple sex assault 271,
                - 272 add a weapon, add bodily harm, threatening 3rd parties
                - aggravated sex assault – maiming and disfiguring.

s. 265(3)
      lists 4 factors that vitiate (unravel) the consent – for regular assault
      ie. if someone is threatened and responds with assault, then the threat is seen as vitiating
        consent.
      to unravel the consent for sex assault you can use the factors from 265(3) as well as special
        factors from 273(2).

Lemieux v. R. (1968) SCC
Facts: Police ask homeowners to allow burglars who had been on a rampage of break-ins to break
into their house so the police could catch them. The police were waiting there when they broke in to
catch them.

Decision: Burglars get off because there was consent! The owners consented to allow the burglars to
break in so the police could catch them.
What is a valid and effective consent?

R. v. Jobidon (1991) SCC
* consensual fist-fight resulting in death – majority disallows consent defence in this situation and
situations where the fighting is violent and has no social utility – dissent says convict based on the
nature of consent rather than social utility in the eyes of the judge and public policy – s. 265, dissent
argues, shows the notion of consent applies to all types of touching.

Facts: Accused charged with manslaughter as a result of the death of the victim in the course of a
fist fight. Accused and the deceased agreed to a fight as a result of a prior altercation in a bar in
which the deceased had beaten the accused. Accused believed deceased consented to fair fight, that it
was a fight in anger, and that physical injury was intended. Cause of death was one or more severe
blows to the head when deceased was unconscious. The accused believed deceased was merely
stunned and was capable of fighting back and trying to fight, when he was in fact unconscious.

Issue: Was there consent to the fight which would negate blame?

Decision: SCC, held, Accused was properly convicted by the Court of Appeal of manslaughter.

Reasons:
Majority:
Consent
        s. 265(1)(a) - person commits an assault when "without the consent of another person" he
        applies force intentionally to that other person, directly or indirectly.
        s. 265(3) - no consent is obtained where the complainant submits or does not resist by
        reason of, inter alia, threats or fear of the application of force or fraud.
 if consent is a defence to the charge of assault in this case, then the accused would not be
considered to have committed assault and, therefore, cannot be convicted of the unlawful act of
manslaughter as defined by s. 222(5)(a) of the Criminal Code.

Reasons why consent does not apply in this case and he should be convicted:
    public policy - consent to a fist fight limited in s. 265 for public policy reasons. (It is not in
      the public interest that adults should willingly cause harm to one another without a good
      reason).
    social value - limitation on consent demanded by s. 265 does not affect validity of freely
      giving consent to participate in rough sporting activities, so long as the intentional
      application of force to which one consents is within the customary norms and rules of the
      game. Unlike fist fights, sporting activities and games usually have a significant social value.
    limited to violent fighting - restricting the limits on effectiveness of consent to cases
      involving adults means that the ordinary school yard scuffle, where boys or girls immaturely
      seek to resolve differences through fighting, will not come within the scope of the limitation.

Minority:
Convict based on the nature of consent rather than social utility and public policy. Consent cannot
be read out of the offence of criminal assault. The language of s. 265 does not indicate Parliament
intended to outlaw consensual fighting in the interests of avoiding breaches of the peace or to allow
it if a judge thought it occurred in circumstances that were socially useful.
       Section 265 makes the absence of consent a specific requirement and provides that it applies
           to all assault without exception.
       examine nature of the consent - trial judge found consent given by deceased did not
        extend to a continuation of the fight once he had lost consciousness. By striking the
        deceased when he was unconscious, the accused acted beyond the scope of the consent of
        the deceased and, thus, commited the actus reus of assault.
       the trial judge misconstrued the evidence with respect to the accused's belief that all the
        blows were struck prior to the deceased losing consciousness. The accused's own evidence
        shows that he knew that the deceased was unconscious at the time he inflicted further blows.
        Accordingly, the appeal should be dismissed.

R. v. Cuerrier (1998) SCC
* HIV transmission, refusal to use protection or inform partners – fraud vitiates consent – majority
says crown must prove 1) accused‘s acts endangered lives of complainants and 2) intentionally
applied force without consent and explains fraud is proven when there is 1) proof of dishonesty and
2) the dishonesty results in deprivation - dissenting LHDB says all the matters is consent, regardless
of consequences - dissenting McLachlin says it anything that exposes to serious risk of bodily,
worried about using the term ―anything‖ with relation to bodily harm –she fears people will stop
being tested for STDs.

Facts: After the accused tested positive for HIV, a public health nurse instructed the accused to use
condoms and to inform all prospective sexual partners that he was HIV- positive. Accused angrily
rejected this advice and complained. In the course of an 18-month relationship, the accused and the
first complainant had sexual intercourse, for the most part unprotected, at least 100 times. The
accused had sexual intercourse with the second complainant on 10 occasions, for the most part
without a condom. Both complainants testified that if they had known the accused had HIV, they
would never have engaged in unprotected sexual intercourse with him.

Issue: What type of of fraud which will vitiate consent to sexual intercourse - BC CA said it is that
which goes to the ―nature and quality of the act‖ or the identity of the offender.

Decision: On further appeal by the Crown to the Supreme Court of Canada, held, the appeal should
be allowed and a new trial ordered.

Reasons:
Majority:
There is no offense relating to the specifically of the transmission of STDs or AIDS. There are three
different judgments here all trying to fit the act into existing offenses.

The charge of aggravated assault required the Crown to prove:
    1. That the accused's acts endangered the lives of the complainants
            yes, because he exposed them to HIV, regardless of whether or not they contracted
               it
    2. That the accused intentionally applied force without the consent of the complainants.
            Before 1983, indecent assault provisions of Criminal Code provided consent was
               vitiated where obtained "by false and fraudulent representations as to the nature
               and quality of the act.‖  (sex becomes Russian roulette when you are having
               unprotected sex with someone who has AIDS).
            In 1983, ―nature and quality of the act‖ are dropped. The rape and indecent assault
               provisions were replaced by the offence of sexual assault. Section 265(3)(c) of the
               Criminal Code simply states that no consent is obtained where the complainant
               submits or does not resist by reason of "fraud" alone.
 Parliament's intention was to provide a more flexible concept of fraud in assault and sexual
assault cases.

Requirements for Fraud:
   1. proof of dishonesty - Dishonest action or behaviour must be related to the obtaining of
       consent to engage in sexual intercourse, in this case unprotected intercourse.
        Failure to disclose HIV-positive status can lead to a devastating illness with fatal
       consequences. In those circumstances, there exists a positive duty to disclose.
   2. dishonesty results in deprivation, which may consist of actual harm or simply a risk of
       harm. The Crown will have to establish that the dishonest act had the effect of exposing the
       person consenting to a significant risk of serious bodily harm. The risk of contracting AIDS
       as a result of engaging in unprotected intercourse would clearly meet that test.

     The Crown must also prove beyond a reasonable doubt that the complainant would have
    refused to engage in unprotected sex with the accused if she had been advised that the accused
    was HIV-positive.

Dissent:
     broad view of fraud  dropping the words ―nature and quality‖ means that any fraud will
         act to nullify consent. Focus on consent, regardless of how extreme the consequences are.
     Section 265(3) of the Criminal Code provides further protection to ensure that when
         consent is obtained, that consent is a true reflection of a person's autonomous will.
     does not like terms ―serious bodily harm‖ used by the majority.
     says a communicable disease vitiates consent – nobody should be able to consent to
         transmission of deadly bodily fluids – invoking the old standard of ―the nature and quality of
         the act‖ on a more liberal level.
     worried about going to far and saying ―anything that exposes you to risk of bodily harm‖ –
         she is worried that people will no longer go for STD tests so they won‘t known if they are
         sick and then they cannot be charged.

Proving Fraud:
    The dishonesty of the submission- inducing act would be assessed based on the objective
       standard of the reasonable person.
    The Crown also would be required to prove accused knew, or was aware, that his or her
       dishonest actions would induce complainant to submit to the particular activity.

R. v. Ewanchuk (1999) SCC
* job interview massage, sexual touching – majority says continued sexual touching after someone
has said ―no‖ is willful blindness or recklessness – touching without express consent is now a crime
– previously a man could forge ahead if there was no opposition, now, there needs to be full consent
and communication, otherwise it is assault - L‘Hureaux Dube add that silence or any other form of
implied consent does not mean ―yes‖ – attacks the notion that women are presumptively sexually
accessible until they resist

Facts: In the course of a job interview, the accused, invited the complainant, who was 17 years of
age, to look at some of his work which was kept inside a trailer. The complainant left the door to the
trailer open, but the accused closed it in a way that made the complainant think he had locked it. As
the conversation got more personal, at the accused's request, the complainant massaged the accused's
shoulders for a few minutes. The accused begin to touch the complainant in increasingly sexual areas.
Oftentimes, the complainant allowed the touching to proceed for a few minutes, then told the
accused to stop which he did. He also moved his hands on the complainant's inner thigh inside her
shorts, and took out his penis. The complainant again asked the accused to stop, which he did.

Issue: Was there consent? Implied or express?

Decision: On further appeal by the Crown to the SCC, held, the appeal should be allowed, the
acquittal set aside and a conviction substituted.

Actus reus of sexual assualt established by:         Mens rea of sexual assualt established by:
   1. proof of touching,                               1. intention to touch
   2. the sexual nature of the contact and             2. knowing of, or being reckless of, or
   3. absence of consent                                    wilfully blind to, a lack of consent.
                                                            (mens rea for the circumstance).


Reasons:
Majority: Accused relies on implied consent.

Actus Reus
                Lack of consent on the part of the plaintiff was clearly established (actus reus): If
                 the trier of fact accepts the complainant's testimony that she did not consent, no
                 matter how strongly her conduct may contradict that claim, the absence of consent
                 is established.
                Trial judge erred in further examining plaintiff‘s consent once none was found:

Mens Rea - willful blindness in relation to circumstance, and recklessness in relation to
consequences.
            An accused cannot rely upon his purported belief that the complainant's
                expressed lack of agreement to sexual touching constituted invitation to more
                persistent or aggressive contact.
            Accused cannot rely on the mere lapse of time or the complainant's silence or
                equivocal conduct to indicate that there has been a change of heart and that consent
                now exists, nor can he engage in further sexual touching to "test the waters".
            Was there an air of reality in the interim periods that resembled consent: trial judge
                ought to have considered whether anything occurred between communication of
                non-consent and subsequent sexual touching which the accused could honestly have
                believed constituted consent – ―air of reality‖
 accused satisfies all the mens rea requirements for sexual assault.

Ratio: Continued sexual touching after someone has said ―no‖ is willful blindness or recklessness.
Touching without express consent is now a crime. Before, a man could forge ahead if there was no
opposition, now, there needs to be full consent and communication, otherwise it is assault.

Concuring:
    reasons of Major J. were generally agreed with on most issues.
    Adds that Section 265(3) is not restricted to instances where the complainant chose to
       participate in or ostensibly consented to the touching - It should also apply to cases where
       the complainant is silent or passive.
        attacks the myth that women are presumptively sexually accessible until they resist.
               s. 273.2(b) - precluded the accused from raising the defence of belief in consent if
                   he did not take reasonable steps in the circumstances known to him at the time to
                   ascertain that the complainant was consenting.
               s. 273.1(2) (d) - no consent is obtained where the complainant expresses, by words
                   or conduct, a lack of agreement, restricts the circumstances in which an accused
                   can claim that he had a mistaken belief in consent.
     need active consent from complainant; passive consent does not suffice.
     when a woman says "no" she is communicating her non-agreement, regardless of
    what the accused thought it meant, and that her expression has an enforceable legal
    effect precluding the accused from claiming that he thought there was an agreement.
     adds that erroneous defence of implied consent rested on the assumption that unless a
        woman protests or resists, she should be deemed to consent. Such stereotypical assumptions
        have no place in Canadian law.

Mens Rea – Basic Principles
Stuart, The Fault Requirement (Mens Rea or Negligence):
     Fault requirement differs from crime to crime in Canada – no general definitions of
         various forms of fault. ―Intent‖ or ―willful‖ appear in some, but by no means all offences.
     Fundamental principle underlying the mens rea concept: in criminal law there should
         normally be no responsibility without personal fault - Without the concept of moral
         culpability, there would be little protection against the powers of the state.
     We generally avoid negligence in criminal law – after Vaillancourt and Matineau, criminal
         negligence is becoming more pervasive because it is not a crime with a bad stigma. If we
         are going to have negligence in criminal law, we have to ask ―do you have the capabilities
         of acting like a reasonable person? Could you have taken the precautions?‖ – We will
         punish you for not being reasonable if you have the ability to be reasonable.
     subjective standard- whether the accused was actually aware of a risk – aware state of
         mind, guilty mind – a personalized standard.
     objective standard – whether the accused failed to measure up to the external standard
         of the reasonable person, irrespective of awareness – carelessness, inadvertence (if the
         reasonable man would have foreseen the consequences of his act, the mental element is
         proven).
     distinction between subjective and objective - will not matter when the conduct was
    deliberate with full awareness, but, in borderline cases, the distinction will be crucial (e.g. drug
    possession – one who was aware of the risk of having a drug must be distinguished from
    someone who did not think about it when reasonable person would have).
     The Canadian courts had, for a long time, adhered to the subjective standard. Now, a low
    level objective standard is pervasive in public welfare offences, and, while the subjective
    approach is still required for many crimes, for a significant number of crimes, there are now
    less demanding standards of fault.

4 Types of Mens Rea:

For circumstances and/or consequences:
    1. intent
    2. knowledge
    3. recklessness
    4. wilful blindness
negligence - used for fault based on mere inadvertence – objective test, carelessness, inadvertence.

Distinction between the use of the objective and subjective test is important in borderline cases (e.g.
drug cases – did they know of the risks of carrying a drug? Should be reflected in the trial.

Subjective fault required by SCC for:
    murder (Martineau)
    attempted murder, access
    accessory liability to an offence constitutionally requiring a subjective test
    and war crimes and crimes against humanity.
    There is also obiter recognition that theft requires subjective awareness (Vaillancourt and
        Martineau).

Note: In all these cases we are examining what is wrong with objective liability (negligence) in
criminal law.

R. v. City of Sault St. Marie (1978) SCC
        pollution case – pollution is not a criminal law issue

This case is famous because Justice Dickson decided to create 3 categories.
    1. True Crimes (usually offences which are criminal in the true sense) - Offences in which
        mens rea, consisting of some positive state of mind such as intent, knowledge, or
        recklessness, must be proved by the prosecution either as an inference from the nature of
        the act committed, or by additional evidence.
         Dickson says negligence will never suffice for criminal liability, but now, we are moving
        away from this.
    2. Strict liability offences (usually public welfare offences) – Liability based on simple
        negligence - Crown need no longer prove mens rea. Prove actus reus and you have a
        conviction subject to the accused‘s inability to show that he/she took all reasonable care. An
        offence of negligence. It is easy to shift the persuasive evidential burden to the accussed to
        show he was not negligent – this is a reduced fault requirement – objective standard.
    3. Absolute liability – criminal liability irrespective of fault; once actus reus is proved, there is
        a conviction – very rare (speeding is an example in Ontario).

 there is a presumption that everything in the Criminal Code is in category 1 (true crime), and
everything outside the Criminal Code falls in category 2 (strict liability, not subject to full mens rea),
unless Parliament explicitly says no mens rea, and the crown only has to prove actus reus (absolute
liability – category 3).

      A. Mens Rea – Charter of Rights
Reference re Section 94(2) of the Motor Vehicle Act (British Columbia)
      (1985) SCC
* BC government tries to impose jail time for driving on highway or industrial road while license is
suspended regardless of whether or not driver knew of suspension – court overturns and says
absolute liability offenses that contain even the possibility of imprisonment are found to be
unconstitutional, offends s. 7 and only can be salvaged if protected under s. 1…but not salvageable
under s. 1 here - elevates mens rea from presumed element to a constitutionally required element,
fundamental justice is substantive - due diligence is the minimum standard of fault required by the
Charter for any type of offence threatening liberty interest.
Note: This is post charter - before the Charter, the government could make an absolute liability
offense with imprisonment as long as it is done clearly

Facts: B.C. Motor Vehicle Act provided for minimum periods of imprisonment for the offence of
driving on a highway or industrial road without a valid driver's licence or with a licence under
suspension. Section 94(2) of the Act, moreover, provided that this offence was one of absolute
liability in which guilt was established by the proof of driving, whether or not the driver knew of the
prohibition or suspension (mens rea)
 this is an explicit creation of absolute liability (Sault St. Marie case).

Issue: Is an absolute liability offence with the possibility of imprisonment constitutional? Does this
violate s. 7? Is s. 7 restricted to procedural protections?

Reasons: Motor vehicle reference (McIntyre): S. 7 goes beyond procedure.
       Section 7 You have to show there is a deprivation of life, liberty, or security of the
          person to violate s. 7. Imprisonment denies your right to liberty, and is considered the
          most extreme measure of punishment, after death, once all other avenues have been
          expired.
       Section 1 - permits reasonable limits to be placed on the citizen's s. 7 rights provided
          the limits are "prescribed by law" and can be demonstrably justified in a free and
          democratic society. The phrase "except in accordance with the principles of fundamental
          justice" restricts the government's power to justify limits using s. 1 – principles of
          fundamental justice are not limited to procedural issues, although many of the
          protections of fundamental rights do deal with procedural issues.
       Application: Here the violation of s. 7 is that the morally blameless (no mens rea) can
          still be punished. Mandatory imprisonment for an absolute liability offence committed
          unknowingly and unwittingly and after the exercise of due diligence is excessive and
          inhumane. Such sanction offends the principles of fundamental justice embodied in our
          penal system and accordingly is inconsistent with s. 7 of the Charter.
       A limit imposed on the s. 7 right in accordance with the principles of fundamental
          justice must still meet the tests in s. 1 (i.e. can it be justified in a free and democratic
          society?) There would be other, less extreme and effective, ways to keep suspended
          drivers off the road than imprisonment – not justified under s. 1.
       Actus non facit reum nii mens sit rea; should not find guilt of an offence against criminal law
          unless he has a guilty mind
       So, absolute liability offenses that contain even the possibility of imprisonment are found
      to be unconstitutional, offends s. 7 and only can be salvaged if protected under s. 1…but not
      salvageable under s. 1 (8-018) (or the legislature would have to resort to the Notwithstanding
      clause under s. 33).
       Elevates mens rea from presumed element to a constitutionally required element,
      fundamental justice is substantive. Due diligence is the minimum standard of fault required
      by the Charter for any type of offence threatening liberty interest.

R. v. Valliancourt (1987) SCC
* charged with murder because his partner shot and killed someone while they were committing a
robbery – finds s. 230 (d) unconstitutional – in s. 230 (d) there was not even a requirement for
objective foresight of death – we cannot label someone a murderer unless the conduct is sufficiently
morally repugnant to our value system to warrant the imposition of social stigma – anything less than
subjective foresight of death is unacceptable because of stigma and penalties associated with murder.
Facts: Accused convicted of murder of a person during the commission of an armed robbery.
Victim actually shot by the accused's accomplice. Accused testified he was unaware gun in the
possession of his accomplice was loaded. Accused himself was in possession only of a knife.
The accused's liability for murder depended upon the combined operation Section 230(d) –it used to
be 213 - of the Criminal Code. (no longer in force – repealed in 1991)

Section 230(d) - "culpable homicide is murder where a person causes the death of a human being while committing
or attempting to commit ... robbery ... whether or not the person means to cause death to any human being and whether
or not he knows that death is likely to be caused to any human being, if ... (d) he uses a weapon or has it upon his
person during or at the time he commits or attempts to commit the offence ... and the death ensues as a consequence".

Issue: Is s. 230(d) enforceable and constitutional?

Decision: s. 230(d) is unenforceable in that it violates ss. 7 and 11(d) (presumption of innocence) of
the Charter of Rights.

Reasons:
     Murder is distinguished from manslaughter by the mens rea.
     Motor Vehicle (elevates mens rea to constitutional requirement).
     Principles of fundamental justice dictate that proof of a subjective mens rea with respect to the
      prohibited act is necessary in order to avoid punishing the morally innocent. There is also the
      notion of presumption of innocence until proven guilty.
             s. 230(d) prima facie violates ss. 7 and 11(d), and s. 230(d) is not a reasonable limit
             within the meaning of s. 1 of the Charter of Rights.
              These measures unduly impair the rights and freedoms in question. It is not
             necessary to convict of murder persons who did not intend or foresee the death and
             who could not even have foreseen the death in order to deter others from using or
             carrying weapons.
Ratio:
 constitutionalized the mens rea requirement for murder: anything less than subjective foresight of
death is unconstitutional b/c of the severe stigma and penalties associated with a murder conviction.
Therefore: need to either intend to cause death, or have knowledge that death is likely to occur. You
can get the same level of deterrence by instituting tougher penalties for manslaughter with a gun.

Common Intention Crimes:
21(1) – aiding and abetting – mens rea is high for the purpose. To be a party to murder the party has
to know that the principle has the intent to kill. If the party does not know, the party will get
manslaughter and the principle will get murder
21(2) extended secondary liability – going to convict the party for a crime in which they did not aid
or abet. If you knew or ought to have known the other crimes would occur (common plan to break
into a house, and the principle breaks a window on the way in – the assisting party will be responsible
for the property damage too). If the charge is murder, because of Martineau, you need objective
foresight and you cannot use the phrase ―ought to have known.‖
Counselling a Crime:
22(2) - counsel crime X and you should have known crime Y would be committed.

R. v. Martineau (1990) SCC
* accused (15 yrs old) has companion that kills when they are committing a robbery – majority says s.
230(a) violates sec. 7 and 11(d) and cannot be saved under s. 1 - stigma associated with murder
should be reserved for those who intend to kill or cause bodily harm they know will likely cause
death (need to use subjective foresight standard for murder) – more flexible sentencing scheme for
manslaughter is in accord with principle that punishment correspond to level of moral
blameworthiness – dissent says intent to commit dangerous act that could cause death is enough –
objective – argues notion of stigma is over-emphasized – majority added that s. 230 (a), (b), and (c)
and 229(c) were also unconstitutional

Facts: accused and companion robbed a trailer and companion shot and killed two people when
leaving. Accused was 15 at time and had no intent to shoot victims.

Issue: Does 230(a) and 230(d) infringe s. 7 and/or s. 11(d)? If so, is it protected under s. 1?
 230(a) expressly removes from the Crown the burden of proving beyond a reasonable doubt that
the accused had subjective foresight of death – focuses on actus reus.

Section 230(a) - defines culpable homicide as murder where a person causes the death of a human being while
committing or attempting to commit one of the listed offences, including robbery and breaking and entering, whether or
not the accused means to cause death and whether or not he knows that death is likely to ensue, if the accused means to
cause bodily harm for the purpose of facilitating the commission of the offence or flight after committing or attempting to
commit the offence.

Decision: 230(d) then 230(a) were both held unconstitutional, thus accused‘s appeal was allowed and
a new trial ordered.

Reasons:
Majority: defense argued that it is a high stigma crime where it is moral equal of intended killing, and
punishment is disproportional considering no intent

Lamer outlines 3 important higher order criminal law principles:
   1. The stigma attached to the offence, and the available penalties require a mens rea reflecting
       the particular nature of the crime;
   2. The punishment must be proportionate to the moral blameworthiness of the offence; and
   3. Those causing harm intentionally must be punished more severely than those causing harm
       unintentionally.
Lamer’s Rules Applied:
        as s. 230 expressly eliminates the requirement for proof of subjective foresight it
           infringes ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms. Nor could s.
           230 be upheld as a reasonable limit within the meaning of s. 1.
        stigma and punishment of murder must be reserved for those who choose to
           intentionally cause death or who choose to inflict bodily harm that they know is likely to
           cause death.
        s. 1 does not protect the violation – while the objective of deterring the infliction of
           bodily harm is of sufficient importance to override a charter right, it is not necessary to
           convict of murder those who do not intend/foresee death in order to achieve this
           objective.
        the more flexible sentencing scheme upon conviction for manslaughter is in accord with
           the principle that punishment be meted out with regard to the level of moral
           blameworthiness of the offender.

229 (c) – dedicated to criminal path, and do something which escalates the danger of the situation. (e.g. Basil case –
lights girlfriend‘s carpet on fire without realizing her children were asleep upstairs – vandalism and
mischief were his objective, he carried it out with arson and arson leads to death. Under the new
regime, he did not know the likelihood of the fire causing the death of the children – no objective
foresight – and he would not be convicted).
Dissent: subjective foresight, intent, is not necessary because the law intentionally requires the Crown
to prove the intent to commit a dangerous crime – a crime so dangerous that the resulting death is
foreseeable – she suggests the notion of stigma is over-emphasized.
         Before the accused can be convicted of murder on the basis of s. 230 (a) the Crown
             must prove an exacting combination of factors:
                 1. that death was caused while committing or attempting to commit one of a
                      limited number of very serious crimes all of which are by their very nature
                      inherently dangerous; and
                 2. that the accused intentionally inflicted bodily harm while committing one of
                      these inherently dangerous offences.
                 3. bodily harm must be done purposefully in order to perpetrate the dangerous
                      underlying crime or for the purpose of facilitating his flight

Ratio: Principles of fundamental justice required that there be subjective foresight of death, intent,
before a murder conviction can be sustained.

R. v. DeSousa (1992) SCC
* dealing with s. 7 outside of homicide - bodily harm – constitutional challenge about the fault
requirement – to satisfy s. 7 of the charter you need the mens rea of the unlawful act (need objective
foresight of bodily harm) + the consequence needs to be objective – lower stigma does not
necessitate subjectivity – don‘t need mens rea for every element of the actus reus – no requirement of
symmetry as long as main element(s) proven

Facts: At a party, the accused smashed a bottle against the wall during a fight, victim was a bystander
who was injured by the glass.

Issue: Is s. 269 Constitutional? (unlawfully causing bodily harm–unlawful act causing bodily harm –
it is an offence with objective foresight).

Mens rea for 269 – the mens rea for the underlying offense, the unlawful act, and objective foresight for the bodily
harm (regardless of your foresight, would the reasonable person have known?).
         Common law gloss on “unlawful” - unlawful act should be inherently dangerous. This broadens the mens rea
         that attaches to the consequence of bodily harm.
          Does there have to be foresight (mens rea) of each or any of the consequences that compromise the actus
         reus?

Decision: appeal dismissed, does not violate the charter

Reasons:
Majority:
Symmetry in mens rea is not necessary - there must be an element of personal fault in regard to a
culpable aspect of the actus reus – which elements of the actus reus are the absolute minimum
necessary to express a pure evil, the essence of the wrongdoing? Not every element needs to show
mens rea, just the core ones.

e.g. of no symmetry in elements - loitering and prowling – voluntary.
Circumstances: near dwelling house, on another‘s property, at night  for all these 3 circumstances
we know the accused must knowingly be present or be wilfully blind. We know that we don‘t need all
of them because of this case. Night, although it looks like an essential element because people are
more scared at night, it is not necessary. The fact that the accused thought it was not night – we
define night as 9pm-6am. If his watch says 8:55 and he argues it is not night that doesn‘t matter – the
actus reus aspects that prove evil are at or near someone‘s dwelling house, on someone else‘s
property. All we need to prove is that he knew or willfully blindly went onto someone‘s property.

   ―Unlawfully" in the context of s. 269 requires that the unlawful act be at least objectively
    dangerous, whether that underlying act is a criminal or non-criminal offence.
   No additional stigma and penalty attached to S. 269 (unlike murder) necessitating proof of fault
    based on a subjective standard
   There is no constitutional requirement for subjective foresight of all consequences which
    comprise part of the actus reus of an offence - Provided that there is an actus reus to which a
    comparable mental status is attached, there is no constitutional requirement other elements of
    the actus reus be linked to this mental state.
   Treating crimes with grievous consequences more harshly than crimes with lighter consequences
    does not upset the principle that the morally innocent should not be punished (a principle of
    fundamental justice).
     Neither basic principles of criminal law, nor principles of fundamental justice require
    intention in relation to the consequences of a blameworthy act. It matters if they intended the act
    not the consequences.
   S. 269 achieves what legislature desired in Martineau, to deter bodily harm resulting from certain
    offences (except here, we are not dealing with murder and there is no stigma attached, so the
    punishment stands).

Ratio: the term ―unlawfully‖ requires an act which is at least objectively dangerous.
To satisfy s. 7 of the charter you need the mens rea of the unlawful act (ie need objective foresight of
bodily harm) + the consequence needs to be objective. You do not need mens rea for every element
of the actus reus.

R. v. Creighton (1993) SCC
* court explains role of objective liability in criminal law, examines penal negligence - majority
McLachlin (completely objective test) says foreseeability only attaches to lesser consequence of
bodily harm, a lower threshold, with the only exception being incapacity, while Lamar (modified
objective) would read up the mens rea requirement of manslaughter to the objective foreseeabilty of
death (consequence of the crime) - McLachlin argues that the reasonable person test should be
completely objective, while Lamar says we must imbue the reasonable person with the unique
characteristics of the accused

Note: Penal negligence – offences with a predicate offence, except where the predicate offence is
one of criminal negligence - marked and substantial departure from the standard of the reasonable
person with the only exception being incapacity.

Criminal negligence – a marked and substantial departure from the reasonable person. e.g
Manslaughter by unlawful act is a crime of penal negligence. You have to show accused‘s actions
were a marked departure from the standard.

Note: Creighton does not resolve whether criminal negligence is an objective result crime, it only
focuses on penal negligence. Negligence in a criminal setting, or what I shall hereinafter refer to as
―penal negligence‖ to distinguish it from offences involving a fault element of criminal negligence
under s.219 of the Code, subjects those convicted to the possibility of imprisonment. (Gosset)

Creighton (majority) divides CCC determination of fault offences into 3 categories:
                1. Subjective Mens Rea – aware of risk, all individual factors
                   e.g. Murder, assault, break and enter, theft, possession offences
                2. Objective – marked departure from objective norm, no individual short of
                   incapacity
                   e.g. dangerous driving, careless firearms, failure to provide necessaries. (e.g
                   Tutton)
                3. Offences based on predicate offences (penal) – objective foresight of harm,
                   no individual factors, no marked limit except for predicate offences of
                   negligence.
                   e.g. Unlawful act manslaughter, unlawfully causing bodily harm, aggravated
                   assault. (e.g. Creighton - Here, the underlying unlawful act was trafficking
                   cocaine).

Facts: Accused injected a girl with drugs, she died of an overdose when he failed to notify the
authorities. He was charged with unlawful act causing death.

Issue: What is constitutional status of s. 222(5)(a)…what is the mens rea attached to the
consequence of death? 222(5)(a) – cause death by committing an unlawful act.

Decision: appeal dismissed, found guilty

Reasons:
Majority:
Objective Reasonable Person Test – creates a very harsh standard for manslaughter.
      Commit culpable homicide, manslaughter, if you cause death
       a) By means of an unlawful act
       b) OR by criminal negligence…here only dealing with (a) unlawful act

           McLachlin argues use of Objective Person Test without any account for individual
            characteristics to avoid subjectivity in an objective test.
             There is a subjective mens rea for the unlawful act, the means rea as to death
            however is not subjective…follow DeSousa (need objective foresight of bodily harm).
            Must prove Creighton knew it was a deadly drug, foreseeability of bodily harm.
                     argues manslaughter is not a high stigma crime.
                     thin skull rule (torts-based) – take victim as you find them - if bodily harm
                          or death occurs you are still liable for the underlying unlawful act and the
                          consequences that stem from it
                     follows DeSousa – symmetry - as long as there is mens rea in the other
                          components, you do no need to achieve perfect symmetry to satisfy s. 7.

           One exception - Incapacity- the accused will not be held to the objective test alone if
            they did not have the capacity to appreciate the risk. - ―incapacity‖ is not clearly
            explained, while she does say they reject experiential and educational aspects in
            determining capacity.
            o McLachlin sees this as strong deterrent (torts-based) for dangerous conduct which
                may injure or kill.
            o She also argues that her approach is most straight forward as it doesn‘t require
                distinction between risk of bodily harm and risk of bodily harm that would lead to
                death.
                      No distinction on basis of actor, just on basis of activity, experience is not
                         accounted for
                        (question) - But who is the objective person?

Dissent – modified objective test
   o takes individual characteristics into account
   o At least objective foresight of actual consequence of death in a manslaughter case.
                    Argues manslaughter is high enough stigma to ensure fault attaches to the
                       death and not a lower threshold.

Lamer sees two classes of offences:
                 1. Where the consequence is not important because culpability is built into the act
                     (impaired driving causing death – once you drive impaired, any consequences
                     are possible).
                 2. Where the mental element in relation to the consequence must be established –
                     while manslaughter is not considered a high stigma, there is enough stigma to
                     require objective foresight of death (according to reasonable person test).
 Under Lamar, if someone is unable to know of the consequences given his education and
experience then they are not held responsible (Creighton would get off according to his test).

There are two disagreements between McLachlin and Lamar which split the court
La Forest begrudgingly agrees with McLachlin, arguing that, because not enough factors are present
in Lamer C.J.‘s test to make it fully subjective, he decides to just jump ship and side with
MacLachlin‘s objective test.

                                     Summary of Creighton
                                      MacLachlin (majority)                 Lamer (Dissent)
Foreseeability                    Attaches to lesser consequence     Attaches to actual consequence
                                  of bodily harm.                    of death (stigma necessitates
                                                                     that fault attach to death).

Standard                          Complete objectivity (abstract),   Subjective (realistic) - Imbue
                                  limited only in cases of           reasonable person with
                                  incapacity.                        characteristics of the accused.
Types of Crimes                   Sees three types of crimes:        Sees two types of crimes:
                                  1. consequence built into          1. consequence built into
                                  wrongdoing (subjective)            wrongdoing
                                  2. consequence as an               2. consequence as an
                                  afterthought (objective,           afterthought
                                  incapacity)
                                  3. Penal based on predicate
                                  offence. (completely objective,
                                  subject only to a poorly defined
                                  incapacity exception)
Creighton?                        Convicted – foreseeability of      Walks - a reasonable person
                                  bodily harm based on               who has been heavily using
                                  completely abstract reasonable     drugs for years without serious
                                  person.                            bodily harm, would not
                                                                     reasonably foresee bodily harm
                                                                     that would result in death.



R. v. Naglik
   mother has child who bruises easily – charged with s. 215, failure to provide necessaries of life
    resulting in endangerment. Jury convicts and CA orders new trial saying that Naglik would have
    to subjectively see the risk of endangerment from her bad parenting. SCC reverses saying:
   s. 215 has objective fault – the CA was wrong in suggesting a subjective fault. SCC applies
    McLachlin‘s test where no individual factors short of incapacity are accounted for – mother‘s
    inexperience and lack of education were not accounted for. SCC finds her to have had foresight
    of death and finds her guilty

Gosset (1993) — summary of penal negligence v. criminal negligence
Police officer‘s gun went off accidently while he was chasing a fleeing individual. Crown argued
unlawful act – careless handling of a firearm – to get to manslaugter. That was a charge of civil
negligence (which is generally concerned with apportionment of loss). SCC said the careless there
meant penal negligence and added in the notion of a marked departure from the standard of care
(moral blameworthiness) – based on Objective Mens Rea – applied Creighton and did not consider
his personal experience in gun training.

        B. Mens Rea – Recklessness
willful blindness – substitutes for the knowledge requirement; willful blindness looks a lot like
recklessness; accused suspects that the circumstance exists; accused does nothing to confirm or
dispel the suspicion; with failure to do anything once you had the suspicion fixes you with the
knowledge in the eyes of the court
     wilful blindness - MR for circumstance
     recklessness - MR for consequences.

R. v. Blondin (1970) BCCA
* leading authority on willful blindness – willfully blind to narcotics in scuba tank – crown only had
to prove Blondin had knowledge of a narcotic knowledge corresponds to willful blindness, and
therefore he was correctly found guilty

Facts: Blondin returned from Japan. He was caught with hash inside of a scuba tank he returned
with. He did not know what was in the tank, but he did know that it was probably something illegal.
He was paid to bring over the tank – he said this when the inspectors caught him, indicating
suspicion of illegality.

Issue: was there sufficient mens rea to justify conviction; is willful blindness a defense?

Decision: appeal allowed, new trial granted because trial judge made mistake in regards to mens rea

Reasons:
    he could have been convicted due to willful blindness, having drawn the inference that he
      suspected it might be a narcotic
    willful Blindness: suspects contents are illegal, but doesn‘t check because he didn‘t really
      want to know the truth. This satisfies the knowledge the crown has to prove as to mens
      reus, and it is still a subjective standard.
    when someone makes a mistake it is important to ask if it goes to an essential element – if
      the facts were as the accused believed them to be, would the accused be innocent?? If the
      court concludes you are not wholly innocent, they will find some way to convict you (they
      do this in Ladue, where he though he was committing rape rather than disturbing a dead
      body)
          if Blondin believed it was an illegal substance, that is enough – he just has to know
         generically that it was a narcotic.

Ratio: Crown only had to prove Blondin had knowledge of a narcotic. Knowledge corresponds to
willful blindness, and therefore he was correctly found guilty.

R. v. Currie (1975) Ont. CA
* person on street paid $5 to cash stolen cheque – willful blindness is subjective, it does not matter if
the reasonable person would have made further inquiry, what matters is that this person was not
suspicious (he did not think it was a stolen cheque) – it has to be deliberate ignorance

Facts: Appellant was paid $5 to cash a cheque by someone on the street. He cashed the cheque and
gave over the money. The other man had actually stolen the cheque, and the appellant was charged
with uttering a forged document. He was convicted at trial due to being willfully blind.

Issue: Was the defendant actually wilfully blind (trial judge imposed objective standard - do you need
a subjective standard for wilful blindness)?

Decision: Appeal allowed, accused acquitted

Reasons:
            Mens reus (willful blindness) is subjective. The trial judge said that he should have been
             suspicious, ie reasonable person test. But this is not the standard in criminal law.
          Fact that a person ought to have known that certain facts existed does not constitute
             knowledge for purpose of criminal liability
Dissent: agrees willful blindness is subjective, but believes appellant knew it was suspicious and
intentionally did not inquire – therefore willful blindness was found and appellant should be guilty.

Ratio: willful blindness is subjective, it does not matter if the reasonable person would have made
further inquiry, what matters is that this person was not suspicious (he did not think it was a stolen
cheque) – it has to be deliberate ignorance.

Note: Legace (2003, Ont. CA) – unclear how far you have to go to clear yourself of a suspicion.
Selling car parts from a distributor who is under criminal investigation. Distributor assures him car
parts are legitimate. When the car parts seller gets in trouble it was found that he dispelled the
suspicion by calling the distributor. Also, car parts were not being sold at unreasonably low prices to
raise suspicion.  it is unclear how far you have to go to clear yourself of a suspicion and thus
exposure to willful blindness.

Jorgenson and 913719 Ont. Ltd. v. The Queen (1995) SCC
* video store selling obscene material.

Facts: Accused charged with the offence, contrary to s. 163(2) (a) of the Criminal Code, of
knowingly selling obscene material without lawful justification or excuse. The accused operated a
video store and was charged after undercover police officers purchased eight videotapes. All eight of
the tapes had received approval from the Ontario Film Review Board, which attempts to apply a
Canadian community standard of tolerance test in determining whether or not to approve the videos
for distribution.

Issue:
Two issues in this case:
        1) what is the MR for this crime? (Sopinka‘s judgment) - it must be shown that the accused
        was aware or willfully blind that the video being sold contained this scene (must prove accused was
        aware of ―undue‖ qualities or contain the specific scenes which render such material obscene
        in law).
        2) Are there any defences based on mistakes for ignorance of the law? (Lamer‘s dissenting
        judgment) – officially induced error.

Decision: further appeal the accused to SCC, held, the appeal should be allowed and acquittals
entered.

Reasons:
Majority:
    unlike s. 163(1) which relates to the publication and distribution of obscene materials and
        which creates a strict liability offence, the offence in s. 163(2)(a) of "knowingly" selling
        obscene material requires proof of knowledge with respect to all aspects of the actus reus.
    for 163(2) it was not sufficient that the accused was aware that the dominant characteristic of
        the material was the exploitation of sex. The sale of such material is perfectly lawful.
         The Crown must show that the seller of the obscene material was aware of the relevant
        facts that made the material obscene. It cannot easily be inferred that those selling the
        materials know their contents.
         it must be shown that the accused was aware or willfully blind that the video being sold
        contained this scene (must prove accused was aware of ―undue‖ qualities or contain the
        specific scenes which render such material obscene in law).

Application:
    in this case, there was no proof that the accused knew of the presence of the subject-matter
        which, as a matter of law, rendered the exploitation of sex undue.
    crown could not rely upon the principles of willful blindness - the accused was not shown to
        have suspected that the materials were obscene but refrained from making necessary
        inquiries; to the contrary, the accused believed that the material had been approved by the
        provincial film classification board.
         crown was concerned about this for policy reasons – then the retailers will never watch
        the movies – court suggests that police can inform them to check, or customers requests will
        require them to watch the movies.
    had it been shown that the accused knew of the presence of the ingredients of the subject-
        matter which rendered the exploitation of sex undue and thus obscene, the fact that the
        material had been approved by the provincial film review board would not constitute a
        lawful justification or excuse nor negative the necessary mens rea.

Lamer C.J.C (disagreement in part): Introduces notion of officially induced error - by virtue of
the film review board's approval of the films in question. Ont. Film review board is understood to be
the public body which would be the logical choice for someone seeking advice about whether a film
can be legally sold in Ontario.
 In these circumstances, had the accused been shown to have the requisite mens rea for the
offence, they would nevertheless have been entitled to a judicial stay of proceedings as a result of
officially induced error of law (Film Board rating) - who else but a film review board could tell
Jorgensen whether these films met the community standard - it is a similar concept to estoppel in
contracts.
Only 3 ways you can avoid s. 19 – Ignorance of the Law
    officially induced error
       impossibility – applies to regulatory offences
       sometimes, the MR requirement of an offence, properly interpreted will require an
        understanding of the law – classic example is theft (MR is (1) intent to deprive (2)
        fraudulently (3) without colour of right.

Pappajohn v. R. (1980) SCC
* air of reality and the subjective honesty threshold – court held that an honest but mistaken belief of
consent is a defense to rape as it removes the necessary subjective mens rea – it does not involve the
accused in a burden of proof, but only involves him in introducing sufficient evidence to put the
mistake to the jury – in order to put the mistake of fact to the jury there must be some evidence that
conveys an ―air of reality‖– more than a mere assertion by the accused – dissent argues that because
the standard is subjective, the mistake should be considered by the jury

Note: While the law has been partially reversed by Parliament regarding sexual assault, in contexts
other than sexual assault Pappajohn is still the leading authority. This is because the court views the
defence of mistake of fact as a denial that the Crown has properly proved fault. For subjective mens
rea offences, the mistake merely need be honestly held, if the offense is one of negligence the mistake
to excuse must be honest and reasonable, and if the offense is absolute liability, the mistake of will
not benefit the accused.

Facts: She said he repeatedly raped her against her will. He said she consented but freaked out
when he tried bondage. Undisputable facts indicate she escaped house naked, bow ties around neck,
wrists tied and ran frantically to neighbour‘s

Issues:
    1. When does a mistake of fact have to be left to the jury?
    2. What is the proper test for mistake of fact (subjective/honest, or must it also be reasonable)?
    3. Did the evidence in this case require the judge to put the mistake of fact defense to the jury?

Decision: appeal dismissed, conviction upheld

Reasons:
    This case has two diametrically conflicting stories - we shouldn‘t leave mistake of fact to jury
      just because cause defense makes a bare assertion, there must be an air of reality to the
      defence.

air of reality threshold – to require putting of mistake of fact defence to the jury, there must be
some evidence beyond the mere assertion of belief in consent. The evidence must appear from or be
supported by sources other than the appellant in order to give it an air of reality.

Ratio:
Majority:
     An honest but unreasonable mistaken belief in consent will negate the subjective MR in
        sexual assault - The belief does not have to be reasonable, just honestly held – requirement
        of subjective fault.
     Mistake of fact needs some air of reality to go before a jury. There has to be some evidence
        to satisfy the defense. There has to be more than an honest belief, which often is a bare
        assertion by the accused. In this case, according to the majority, there was not.
Dissent: Dickson feels there was enough of a possibility to put it before the jury.
     There was ample evidence in his testimony supporting his defence of belief in consent
        (undamaged clothing, length of time in the house, no evidence of struggle, no severe
        physical injuries).
     Further, the purpose of the subjective honesty standard is to allow the jury to consider if
        the evidence indicates that the belief was honestly held; McIntyre and company are
        effectively removing that defence option.
         if there is any evidence that there was such an honest belief, regardless of whether it is
            reasonable, the jury must be entrusted w/the task of assessing the credibility of the plea
            - defence rests upon an accused‘s subjective perception of that factual situation
 Parliament ended up overruling Pappajohn when they created the new provisions for consent in
1992.

R. v. Sansregret (1985) SCC
* breaks in and rapes ex-girlfriend - where accused becomes deliberately blind to the existing facts, he
is seen by law as having actual knowledge and cannot depend on mistake of fact defence – distinction
between recklessness and civil negligence

civil negligence – fails to see risk; ted by the objective standard of the reasonable man
criminal negligence – sees risk and takes the chance; requires an attituted of one who is
subjectively aware that there is danger his conduct will cause the result prohibited by criminal law,
and nevertheless persists despite the risk

Facts:. The accused broke into the victims house on two occasions and raped her. They had been
previously going out. She went along with the acts to calm the appellant down because he had a
knife. Because mens rea is a subjective standard, the trail judge found that the appellant really
thought that there was consent and was therefore not guilty. Court of appeal of Manitoba found him
guilty.
 (based on the previous criminal code offense of rape. The mens rea was knowledge of non-
consent, subjective standard).

Issue: Was the mens reus really satisfied, or was mistake of fact sufficient defense in a rape case?

Decision: appeal dismissed, CA decision uphled (guilty)

Reasons:
            SCC: needs knowledge of this non-consent
             accused was willfully blind to consent, and therefore the mens rea of the offense was
             satisfied.
            Where accused asserts an honest belief in consent, honest belief must encompass more
             than the fact of consent, must include belief it has been freely given
            Recklessness: It is found in the attitude of one who, aware that there is a danger that his
             conduct could bring about the result prohibited by the criminal law, nevertheless
             persists, despite the risk. Seeing the risk and taking the chance. (Not reasonable man
             test, must have an element of the subjective).
            He knew she had complained prior, he would have known her consent on 2nd occasion
             was not freely given
Ratio: Where accused becomes deliberately blind to the existing facts, he is seen by law as having
actual knowledge and cannot depend on mistake of fact defence. Recklessness has an element of
subjectivity to it and is distinct from the concept of civil negligence. Civil Negligence is tested by the
objective standard of the reasonable man, while recklessness requires an attititude of one who is
subjectively aware that there is danger his conduct will cause the result prohibited by criminal law,
and, nevertheless, persists despite the risk (civil – fails to see risk, criminal = sees risk and takes the
chance).

R. v. Cornejo (2003) Ont. CA
* breaks into co-workers home after golf tournament – alleges she consented because she lifted her
pelvis – the excuses of testing the waters (Ewanchuck) or mistaken consent no longer apply

Facts: Accused charged with sexual assault and with breaking and entering and committing sexual
assault. Complainant and the accused were co-workers and the complainant had previously told the
accused that she did not want to have a sexual relationship with him. On the day the alleged offence
took place, the accused and the complainant were at a company golf tournament, but did not speak
to each other and left separately. They had both been drinking and both had different stories as to
the events that transpired. The accused alleges he she gave him permission to come over late at night
and seemed to consent when he started initiating intimacy by lifting her pelvis.

Decision: On appeal by the Crown, held, the appeal should be allowed and a new trial ordered.

Reasons:
    no air of reality (reflects what is known as the evidentiary burden) – rather a giant leap of
      imagination on his part that accused believed she consented and invited him over - the lifting
      of her pelvis by a woman who had been drinking, was asleep, and was totally uninterested in
      any kind of intimate relationship could not give rise to an assumption that she was
      consenting to sexual activity.
    s. 273.2(b) of the Criminal Code - an accused cannot raise the defence of mistaken belief in
      consent unless he took "reasonable steps, in the circumstances known to [him] at the time, to ascertain
      that the complainant was consenting" – this objectifies the test (post-Papajohn)
       accused knew complainant had never given indication she was interested in a sexual
      relationship, had a boyfriend. He decided to drive to her apartment on the strength of an
      ambiguous groan on her part. She did not answer the door. When he woke her up, she said:
      "What the hell are you doing here?" = no reasonable steps for consent.
       there is no testing the waters – we saw in Ewanchuck that just touching someone‘s cheek
      or hair is even unacceptable without consent.
    Despite the current clarity on the issue of sexual assault and consent since Ewanchuck and
      Cornejo, this is a very heavily litigated matter in criminal law. You cannot rely on the older
      cases like Pappajohn anymore.

s. 349 – Being Unlawfully in a Dwelling House
Act – enters or is in --- with intent to commit is the MR
Circumstance – without lawful excuse, in a dwelling house
Consequences – none
(2) Presumption
There is a reverse onus on the accused to prove that he had a reason to be there. If he cannot meet
this reverse onus, it is assumed that he intended to commit the indictable offence.

         C. Mens Rea – Mistakes
R. v. Ladue (1965) YTCA
* sex with a person who is dead, thought it was rape – intention to commit a crime, although not the
precise crime charged, will provide the necessary mens rea under a statute in the form of s. 167(b)
which only requires a general criminal intention, as distinct from a specific knowledge or intention

Facts: Accused was intoxicated and attempted to have sex with his female friend. He thought she
was unconscious while in fact she was dead. He was charged was convicted under s. 167(b) of the
Criminal Code of "indecently interfering with a dead human body"interfering with a dead body. If
she had been alive he would not have been ―acting lawfully and innocently‖.

Decision: conviction reaffirmed on the basis that the mens rea for rape was applied to the general
intent crime of 167(b)

Reasons:
although mens reus is necessary to constitute a crime under s. 167(b), and an accused is not guilty of
this offence if his mind is innocent, the accused was not acting innocently because he would be guilty
of committing rape (if she was alive but unconscious as he thought)
 an intention to commit a crime, although not the precise crime charged, will provide the necessary
mens rea under a statute in the form of s. 167(b) which only requires a general criminal intention, as
distinct from a specific knowledge or intention

R. v. Kundeus (1974) SCC
R. v. Campbell (1972) Alta. DC
R. v. Howson (1966) Ont. CA

Molis v. R. (1980) SCC
* pre-charter – RCMP has MDMA (a derivative drug) added to the schedule of illegal drugs.
Published in Canada Gazette and the RCMP go after Molis 2 months later – he has not yet seen the
notice in the Gazette although he was semi-regularly in touch with Health Canada – court rules the
defence of due diligence is not available in relation to the ascertainment of the existence of a
prohibition or its interpretation

Facts: The accused was charged with trafficking a restricted drug, MDMA. When he started
manufactuirng MDMA it was not a restricted drug. In June it was added to the restricted drug list
and published in the Canada Gazette. In august the accused was charged s. 42(1) of the Food and
Drugs Act, R.S.C. 1970. RCMP had MDMA added to the schedule of illegal drugs. It was not
debated in Parliament, it was passed by cabinet and put in the Gazette.

Decision: On further appeal to the SCC, held, the appeal should be dismissed.

Reasons:
    s. 19 of Criminal Code - "Ignorance of the law by a person who commits an offence is not
      an excuse for committing that offence" – law does not distinguish between ignorance of the
      existence of the law and ignorance of its meaning, scope or application and has made it clear
      that such ignorance is no defence.
    The only relaxation of this rule is provided by s. 11(2) of the Statutory Instruments Act,
      1970-71-72 (Can.), c. 38, which provides that no person shall be convicted of an offence consisting of a
      contravention of any regulation where the regulation has not been published in the Canada Gazette unless
         certain conditions as to notice have been met – has no application in this case because notice was
         given.

Note: the defence of due diligence is not available in relation to the ascertainment of the existence of
a prohibition or its interpretation (it is recognized for certain offences in relation to the fulfillment of
a duty imposed by law)

         D. Mens Rea – Negligence
Negligence – e.g. failure to provide the necessaries, dangerous driving, careless use of a firearm,
being party to a crime which results in a murder.

        The courts in our era have warmed up to the notion of objective liability - we want
         objective liability to be understood as separate than torts.
        Penal negligence – marked and substantial departure from the standard of the reasonable
         person with the only exception being incapacity.
        Buzzanga – minimum mens rea for a consequence is intention or recklessness
          intention is invariably defined as foresight of certainty and recklessness is foresight of
         a possibility (projecting into the future).
        Difference between recklessness and negligence – both about taking unjustifiable risks.
         Recklessness - the taking of a known risk
         Negligence - taking the risk without knowledge or foresight.
        Recklessness is largely a common law creation, with very few references to recklessness in
         the code.

 if the activity the accused in undertaking is perceived as one of high social value, we will set the
standard for recklessness high (need high foresight).
 if the court does not want to encourage the activity, they will set the standard for recklessness very
low – if any tiny bit of risk should have been foreseeable then the court will convict on recklessness.

R. v. Sharp (1984) Ont. CA
* criminally negligent driving (now a very rare charge) – Sharp tells us that in the case of criminal
negligence, accused may be convicted on proof of driving amounting to a marked and substantial
departure from the standard of a reasonable driver in circumstances where the accused – can infer
the blameworthy state of mind exists if there is a substantial and marked departure

Facts: accused driver hit a tree and four of his passengers were killed - charged with four counts of
criminal negligence and a trial proceeded before a jury. In his charge to the jury, the judge repeatedly
referred to "deliberate" conduct on the part of the accused as being necessary to convict for criminal
negligence causing death and dangerous driving. The accused was acquitted of all charges and the
Crown appealed, objecting to the charge to the jury.

Issue: Was use of the word "deliberate" (or "deliberately") in connection with the accused's driving
charge correct? (If that word meant "considered and not impulsive", then the charge in several places
would have been in error in importing an element of intention not required for either the offences of
criminal negligence or dangerous driving).

Reasons:
     s. 203 - criminal negligence causing death
     dangerous driving s. 233(4)
  both require proof of fault, but it is open to the trier of fact to find the requisite fault in the
 nature of the accused's driving if, objectively viewed, it amounts to that which is defined in the
 statute.
       no necessity of proof of intention or deliberation, indifference being sufficient (they are
        punishing those who do not think about other people).
  in the case of criminal negligence, the accused may be convicted on proof of driving amounting
 to a marked and substantial departure from the standard of a reasonable driver in circumstances
 where the accused:
 (1) either recognized and ran an obvious and serious risk to the lives and safety of others
 (2) or, alternatively, gave no thought to that risk.
 can infer the blameworthy state of mind exists if there is a substantial and marked departure.

Since Sharp, criminal negligence as a charge will rarely be used in driving cases. Driving is too
habitual and reflexive, not reflective. Criminal negligence is hard to get juries to convict under. There
are now other charges used - impaired, impaired causing bodily harm, impaired causing death, and
dangerous driving, dangerous driving causing bodily harm, dangerous driving causing death.

R. v. Barron (1984) Ont. HC
R. v. Barron (1985) Ont. CA
* friendly push between friends, results in tumble down stairs and death – push was clearly not
assault, but court wants to determine if it was criminally negligent – trial convicts, and on appeal,
conviction overturned on the basis that the departure from the conduct of the reasonable person was
present but was not marked and substantial (they did not want to ruin this young man‘s life for a
stupid mistake) – must be marked and substantial

Facts: Accused and deceased, both teen-agers, were friends. Both had consumed lots of alcohol and
both were standing at top of steep staircase. Accused pushed deceased in jest; deceased fell down
staircase (later died). Accused prevented call to ambulance; ordered deceased taken outside; fled
scene. Denied at first, then falsely claimed someone pushed him from behind. Ont. H.C. found
accused guilty under the test of the average 16-year old (Mod. Obj. Test) would have adverted to risk
of death/serious injury.

Decision: Appeal allowed - Accused acquitted on appeal.

Issue:
    1. Was push assault? NO. While the accused intended to apply force, there was implied
       consent (push was part of the normal give-and-take between the 2 friends), SO no assault
       and no responsibility under the unlawful act of manslaughter.
    2. Was accused ―criminally negligent‖ in any way? (i.e. wanton/reckless disregard for lives &
       safety of others)
       “wanton”=ungoverned, undisciplined, ―reckless‖=heedless of consequences, irresponsible

Objective Test for Criminal Negligence – was conduct a marked and substantial departure
standard of a reasonable person in the circumstances?

Here, standard of a reasonable, sane, sober 16 yr old. Court said guilty because an average 16 yr old
would have adverted to the risk given their intoxication, position on steep stairs.
        >> A higher standard than a mere departure from reasonable person standard (because of
        high stakes area of criminal law AND statutory wording of wanton and reckless disregard),
        but lower than subjective MR.
Ratio:
―Criminal negligence‖ is behaviour that takes a marked and substantial departure from the
standard of a reasonable person in the circumstances of the accused.

Appeal to Ont. C.A. - Not guilty.
Evidence not capable of supporting a finding of criminal negligence: Minimal force & Momentary
Inadvertence = sufficient to constitute departure from standard of reasonable man = negligence in
civil tort.
But evidence, (push was of minimal force & temporary) not capable of supporting finding of
criminal negligence. The departure from the conduct of the reasonable person was present but was
not marked and substantial (they did not want to ruin this young man‘s life for a stupid mistake).

R. v. Tutton (1985) Ont. CA
R. v. Tutton and Tutton (1989) SCC
* McIntyre‘s objective test and Wilson‘s subjective test – boy‘s mother has religious vision which
leads her to withhold insulin, resulting in his death. 3-3 tie on test for criminal negligence

Note: distinguish from Lewis case, where he knew son was sick but tried to cure him with prayer.
Here, accused thought son was cured.

Facts: Accused, husband and wife, were deeply religious; had child who was diabetic. Both Ds
explicitly informed by doctor that there was no cure for the disease and that their son would never be
able to discontinue insulin treatments. Yet, on two different occasions accused withheld insulin
because of religious vision informing wife that their son was cured. First time, child ended up in
hospital and second time he ended up dead.

Issue: Is the test for criminal negligence subjective or objective? (if she really did have the vision and
there is a subjective standard, she would have to be convicted).

Decision: new trial sent up to SCC from CA – they sat 6 judges at the SCC so there is no resolution.
Every time there is a criminal negligence case, it is subject to appeal as to which test should be used.
 they did agree, however, that the test for criminal negligence should be the same whether the act
was one of ommission or omission.

Ratio(s): No clear Majority [3-3-1], BUT McIntyre's decision is taken to be most persuasive &
Objective Test Used.

McIntyre (L'Heureux-Dubé): Objective Test
Test: Proof of conduct, which reveals marked and significant departure from standard which could
be expected of reasonably prudent person in circumstances, will justify conviction (R. v. Barron),
subject to defence of mistake of fact (new trial would deal with issue of whether or not Tutton,
within reason, believed her actions to be not dangerous given the circumstances).
       It is conduct of accused, the conduct of mindless action, as opposed to his intention or
           mental state, which is being punished; points to culpability for consequences. - Code -
           "One is criminally negligent who, in doing anything or in omitting to do anything that it is
           his duty to do, shows wanton disregard for the lives or safety of other persons."
       There is a defence of mistake of fact – you have a reasonable belief as to the
           dangerousness or lack thereof of the conduct. (e.g. welder sets fire to work area under
           assurance from the owner of the building that there was nothing flammable in the room).
     Distinguishes Pappajohn: No mistake of fact b/c objective MR, therefore mistaken belief had
    to be "reasonable".
Lamer (modified objective test) – says he agrees with McIntyre, but argues that human frailties
and characteristics be taken into account.

Wilson (Dickson, LaForest): Subjective Test
Test – had to be an awareness of the threat to the lives or safety of others, or alternatively, willful
blindness. Advertent Negligence [prima facie AR of negligence AND burden shift]
1. Conduct that displays reckless disregard for lives and safety of others will constitute AR of
    criminal negligence; prima facie evidence of blameworthy state of mind. Assumed either aware or
    wilfully blind to risk (there is an objective element to this part of the test, because we are
    assuming the reasonable person in the circumstances must have realized will lead to danger).
2. Proof of conduct will cast evidential burden on accused to explain why normal inference of
    conscious awareness or willful blindness should not be drawn (defence of honest though
    mistaken belief as in Pappajohn) – up to the accused to demonstrate what was in his/her mind.
 Criticism of the Wilson approach: Wilson‘s approach is one of doublespeak – there is a
    commitment to the aware state of mind approach but, when it does not achieve a satisfactory
    result, the concept of willful blindness is distorted to achieve a conviction. The frankness of the
    McIntyre approach appears preferable.
 Follows Pappajohn: Not Objective Standard of Reasonableness BUT degree of guilty knowledge.
 Modified Objective less precise than Subjective Test

Recap:
         No definitive answer was rendered re: manslaughter by criminal negligence. Three judges
          held that a subjective test was required for criminal negligence manslaughter, this is proof
          of the mental element of advertance to the risk of harm, or willful blindness. The other
          three judges concluded that only an objective test was needed, that a reasonable person in
          his shoes would have seen the danger of death. Lamer agrees with McIntyre on objective,
          but asks that the personal attributes of the accused be taken into account (modified
          objective).
         General principle of no conviction without specific moral blame motivates the court to
          push subjective MR; McIntyre and the other camp hold that the purpose of criminal
          negligence is to extend the net of criminal punishment when the Crown would have
          difficulty punishing those whose actions are still blameworthy.
         Manslaughter by unlawful act does not require subjective awareness of the risk (Creighton
          – reasonable person test with one exculpatory claim of incapacity), there is a good chance
          that the SCC would now hold according to McIntyre in a criminal negligence situation.

R. v. Canhoto (1999) Ont. CA
* healing with holy water leads to choking death. Mother charged with manslaughter on basis of
criminally negligent conduct leading to death – the fault element is measured by reference to a
uniform objective standard in asking whether the conduct constitutes a marked departure from that
expected of a reasonable person in the circumstances (while it will always be harder to prove for
omissions, the same standard applies here as commissions).

Facts: accused was charged with manslaughter on the basis of criminally negligent conduct
contributing to the death of her two-year-old daughter. Child died from an inability to breathe and
aspiration of water which occurred while her grandmother forced water down the child's throat as
part of a ritual to expel evil spirits from the child. The child resisted, kicking strenuously and
screaming. The trial judge found that the accused, the child‘s mother, was present during some of the
force-feeding of the child, provided water and held the child's feet to restrain her.
Decision: On appeal by the accused from her conviction, held, the appeal should be dismissed.

Reasons:
    Accused knew child was in real distress on basis that, as child's mother, she could distinguish
      between crying which suggested discomfort, and crying which suggested a more serious
      problem.
    Trial judge negated any suggestion that he found the accused was incapable of appreciating
      the risk to the child on account of her religious beliefs.
    While accused argued that the fault component of crimes of criminal negligence must vary
      depending on whether liability arises out of conduct or out of an omission, liability did not
      rest solely on the accused's failure to act, but also rested on fact that accused participated to
      some degree in the activity that caused the child's death.
    The fault element is measured by reference to a uniform objective standard in asking
      whether the conduct constitutes a marked departure from that expected of a reasonable
      person in the circumstances.
       standard applies uniformly and is as important where the law imposes a duty to act and
      no action is taken, as it is in cases where a person engages in conduct which creates that
      same risk.
       In some situations, it may be that a failure to act where there is a duty to do so will not
      fall below the standard, whereas actions which actually create a risk will fall below the
      standard.

Court recognizes that they will not create a different standard for omissions when evaluating mens
rea, but it will always be harder to prove for omissions – a court will more easily conclude that you
did not substantially and markedly breach reasonable standard by omitting – it is much easier to find
marked and substantial departure in breach.

Ubhi (1994)
       Driving truck full of hot asphalt and breaks on truck were not checked. Truck crashes and
        kills two people.
     Yes, this is negligent, but was it a marked departure? Was is a case of gross enough to be
        penal negligence?
     in Barron we see how sensitive the issue of marked and substantial departure is.
    Psychological testing was done on appeal and it showed the Ubhi was mildly retarded. They
    admitted this evidence because it is so central to the analysis – it is an organic, internal problem
    and it is prone to recur.
     MacLachlin wants to examine capacity as the only exception – people will be forced into s.
    16. Lamer, on the other hand

Fault and Defenses
                                               Defences
Dudley v. Stevens (1884) – cannibalism. Shipwreck, they are in a lifeboat for 20 days. Kill a kid in
the lifeboat and eat him. Four days later, they are rescued.

Defenses – come into to play after actus reus and mens rea have been proven. These people are not
morally blameless.
    The list of defences is continuously growing.
    The old approach to defenses was to leave it as a normative judgment (should the accused
        be blamed for their actions?), now we make defences look more like offences and there is a
        checklist of elements.
         necessity – overwhelming pressure is environment. Urgency, inability to comply with the
          law. Once you have proven actus reus and mens rea, the defence can be analyzed on the
          basis of voluntariness in Perka.

Justification – a lawful response to a triggering condition
     self defense – you are justified in responding to an attack. By saying you are justified, we are
       saying we approve of your actions. As long as the trigger is there, every person has the
       justification. It is a codified defense in s. 34.
      based on our notions of the social order and we do not create a lot of them – very limited.

Excuses – An overwhelming external condition leading to the inability to control your behavior.
Your are not really choosing your course of conduct.
    This is an evolving area The more we learn about human behavior, the more we will modify
        excuses - an internal or external disabling condition – physical or cognitive impairment.
    e.g Defect in perception, ignorance of criminality, impairment of control. If the cognitive
        impairment is internal you have insanity and you will be put away.

Punishment and Responsibility (1968)

                                                  Provocation
     1. Provocation only applies to murder, no other offenses
     2. Partial defense: reduces to manslaughter, it is an excuse, applies after actus reus proved
     3. Statutory offense s. 232(2): objective component (ordinary person), subjective component
        (action on the sudden)
     4. Air of reality to defense, crown has to raise a reasonable doubt
     5. Because penalty for murder is mandatory, this defence allows for flexibility/mitigation of
        extreme/serious penalty

2 parts to the air of reality:
    a. wrongful act or insult has to deprive an ordinary person of the power of self control
    b. accused has to act on the sudden, before passions cool

s. 231 - sudden provocation
i) Provocation occurs if the offence was committed:
               in the heat of passion
               caused by sudden provocation

Section 232:
i) A qausi-defence to murder (not for attempted murder)
      can reduce murder to manslaughter
      provocation should be taken into account to mitigate the sentence for murder (minimum of
         life imprisonment)
          provocation is NOT considered a legitimate motive, whereas duress, necessity and self-
         defence ARE legitimate motives.
ii) provocation DOES NOT negate mens rea - the accused still knew what he was doing, he is merely
saying that he could not control himself

s. 232(2): A blend of objective and subjective factors is used to determine whether a wrongful act or insult amounted to
provocation:
objective component of the test - must first pass the threshold of the objective test before
considering the subjective test: was the wrongful act or insult sufficient to deprive an ordinary man of
self control?

s. 232(3):
i) whether a wrongful act or insult amounted to provocation sufficient to deprive an ordinary person
of self control are questions of fact -
      the jury will ultimately determine these issues,
      BUT, it is for the judge to first consider as a question of law, whether there is any evidence
         upon which a properly instructed jury could find that the wrongful act or insult would have
         deprived the ordinary person of self control and that there is evidence to suggest that the
         accused was actually deprived of his self control by the act or insult (ie he acted before his
         passion cooled and that he acted on the sudden)

ii) There is no provocation when...
                     a. when the accused alleges that he was provoked by someone who was
                          exercising a legal right - ie legal authorization was provided for performing
                          the activity -BUT: ability to invoke provocation defence does NOT require
                          the act/words used to be prohibited by law
                     b. when the accused incited the other person to do something that would give
                          him an excuse for causing death or bodily harm
                     c. cannot plead provocation when you became voluntarily drunk

R. v. Hill (1986) SCC
* majority and dissent are merely arguing whether or not the judge must explicitly instruct jury to
take unique factors to the accused into account (dissent) or it is enough to leave it implicit (majority)
– majority says jury will intrinsically consider these factors, so they don‘t have to be overtly stated in a
judge‘s charge for fear of creating unnecessary confusion – dissent says detail makes it more
fair/equitable to accused?

Facts: Testified that the deceased had made a sudden and uninvited homosexual advance which
caused the accused to strike the deceased. Accused alleging sexual assault by deceased. Trial judge
only stated to consider the ―ordinary person‖ not the ―ordinary person of the age and sex of the
accused‖ for a defense of provocation.

Issue: Can factors such as age and sex be accounted for in the measure of an ‗ordinary person‘

Decision: appeal allowed

Reasons:
Majority
    ordinary person - within the meaning of s. 215 is an ordinary or reasonable person who has
       a normal temperament and level of self-control who is not exceptionally excitable,
       pugnacious or in a state of drunkenness. Here, we are explicitly using criminal law to set a
       moral standard for Canadians.
    important to consider circumstances - For a jury to assess what an ordinary person would
       have done if subjected to the same circumstances as the accused the young age of the
       accused will be an important contextual consideration.  Limits it to age, race, and sex
       (visual cues).
    simplicity in the charge is not misleading - Whenever possible the court should attempt
       to retain simplicity in charges to the jury and have confidence that the words of the Criminal
        Code will provide sufficient guidance to the jury.
         The simplicity of the charge was not misleading. The jury will still apply the subjective
        test, taking important factors of the accused into consideration.

Dissenting
    Lamer J.: it is not mandatory that trial judge instruct jury that the ordinary person, for the
       purposes of the objective test or provocation, is to be deemed to be of the same age and sex
       as the accused. He did err, however, when he gave instructions to the juries which were
       tantamount to excluding age as a relevant factor in the consideration of the ordinary person
       test. Cannot convict.
    Wilson J.: Must examine objective standard - an ordinary person similarly situated and
       similarly insulted. Jury must be instructed to put themselves, as the embodiment of the
       ordinary person - the standard of the 16-year-old male subjected to a homosexual attack.
       Accused was measured against a higher standard - accordingly, the conviction cannot stand.
    Le Dain J.: implication of trial judge's direction to jury on subjective test was that age of the
       accused should not be considered in deciding whether there had been a wrongful act or
       insult sufficient to deprive an ordinary person of the power of self-control. Accordingly, the
       appeal should be dismissed.

Ratio: not necessary to mention these particulars; jury will intrinsically consider these factors, so they
don‘t have to be overtly stated in a judge‘s charge for fear of creating unnecessary confusion; the
dissent says more details make it more fair/equitable to accused?

R. v. Ly (1987) BCCA
* Vietnamese culturally-based provocation to murder – the provocation test – not necessary to
discuss individual characteristics (at least explicitly in the first part of the test)

Facts: Common law wife came home late and husband asked here where she was - she said none of
his business. Husband strangled and killed her and pleaded provocation on the grounds that the
wife‘s conduct/words amounted to an insult to his honour from the perspective of his culture.
Accused was arguing there are enormous social and cultural pressures to react with violence having
been a recent immigrant from Vietnam.

Provocation Test:
             1. whether or not an ordinary person would have been provoked (the jury was not to
                take into account the peculiar character or personality of the accused)
             2. whether or not the accused actually acted on provocation (they were to take into
                account his character, background, his history and ancestry and the community in
                which he lived.

Issue: Did the trial judge properly instruct the jury in not considering personal features of the
accused in the ordinary person test, but then instructing the jury to consider personal features of the
accused in determining whether the accused acting on the provocation?

Decision: appeal dismissed – trial judge correctly instructed the jury

Ratio:
     Part one of the test: Trial judge properly instructed the jury to consider the effect of the
       words ascribed to the deceased on the ordinary man without regard for the accused
       background in determing whether an ordinary person would be provoked.
                The fact that the husband was Vietnamese and came from a certain cultural
               background might have been relevant to this first question if a racial slur had been
               involved, but that was not the case.
     Part two of the test: Effect of the insult upon the accused can be measured only at the
       second test at which stage the jury is entitled to take into account the mental state and
       psychological temperament of the accused including the accused's cultural background, his
       history of emotional instability and his propensity to act in a violent fashion when suspecting
       his wife of infidelity.
                Adultery does not amount to an act or insult capable of giving rise to provocation
               but, on different facts/different context, there might be provocation
    The trial judge correctly instructed the jury with regards to the provocation test.

Note: Thibert Case (adopts Dissenting opinion from Hill, goes against Ly case)
    adopted Mme Justice Wilson‘s test for provocation (dissenting opinion from Hill). Instructs
       jury if that in light of the past history, would it deprive the ordinary person of the same age
       and sex, and in light of the other special features of the accused, of self-control?‖

R. v. Young (1993) NSCA
* kills GF when he is moving out of their apartment – convicted. – suddenness requirement for
the defence of provocation was lacking here, so little evidence to sustain the defence of
provocation – effect on an ordinary person, suddenness, and dangerous precedent (if this sort of
occurrence is considered provocation) are all discussed

Facts: The appellant's girlfriend ended their relationship and told him to move out of their
apartment. The appellant removed some of his belongings and later returned to pick up some other
items. The appellant begged the victim not to end the relationship. She responded that she hated
him and wanted to have nothing to do with him. The appellant then stabbed her 20 times with a
hunting knife, killing her. At the time of the incident the appellant had consumed more than the
daily maximum dosage of a tranquillizer.

Issue: Was the jury properly instructed on the charge of provocation in taking the accused‘s personal
factors into account and was provocation properly examined by the jury?

Decision: The appeal was dismissed and the conviction and sentence were upheld.

Ratio:
     proper charge to the jury - trial judge properly charged jury – and a properly instructed
       jury, acting judicially, could not have concluded that the appellant was provoked within the
       meaning of section 232.
     ordinary person - victim's words did not constitute the type of wrongful act or insult that
       would be sufficient to deprive an ordinary person of his power of self-control. The
       appellant had heard much of what the victim finally said to him for several hours before she
       was killed.
     no act in the heat of passion - in addition, there was nothing in the appellant's testimony
       to indicate that he acted in the heat of passion caused by sudden provocation, or that he was
       deprived of his self-control by the victim's remarks; he consciously returned to her house
       hours later, to the scene of the provocation.
     dangerous precedent - it would set a dangerous precedent to characterize the termination
       of a relationship as an insult or wrongful act capable of constituting provocation to kill - a
       common type of trauma that everyone has to learn to deal with.
Balancing Act of Provocation  It is a difficult balance between how much subjectify the
objective test – if we take all people‘s unique idiosyncrasies into account, then all kinds of people will
get off on provocation based on occurrences that are particular to them and bother them, not
necessarily an ordinary person. On the other hand, we have to take some things into account in
order to understand how the person was provoked.

Note: Daniels Case
A woman is constantly mistreated by her unfaithful husband. She constantly asks him about his
cheating, and, each time she asks, he beats her up. When the wife goes to the mistress‘ house to find
her husband, the mistress tells the wife to ―fuck off‖ and the wife kills her.
 In this case, the suddenness requirement for provocation is taken within context – not just
immediately before the act. The proper way of instructing the jury is: ―would a reasonable person
lose control when searching for her husband at his mistress‘ house after being told by the mistress to
‗fuck off‘ at Christmas time.‖

Perka v. R. (1984) SCC
* drug smugglers pull over boat in Canadian waters because of inclement weather - leading case for
necessity, test for necessity defence – court says there needs to be retrial based on test for necessity –
majority says necessity is an excuse, not a justification, while dissenting Wilson says it‘s a justification

Facts: Smuggling drugs by boat, not going into Canada but have to stop in Vancouver due to
extreme weather. They said they acted out of necessity, otherwise they would not have docked there.

Issue: What are the elements of the necessity defense?

Necessity Test:
necessity – urgency as an excuse for non-compliance with the law.
3-part test:
             (1) The situation has to be so urgent and the peril so pressing that following the law
                 would be unreasonable (modified objective standard)
             (2) There can be no reasonable legal alternative available - no legal way out of the
                 emergency (modified objective standard)
             (3) There must be proportionality between the harm caused and the harm that is
                 avoided or sought to be avoided (objective standard)

Decision: Appeal allowed, new trial granted in which jury will be instructed to examine the 3-part
test for necessity.

Reasons:
Dickson, J.:
    Covers all cases where non-compliance is excused by emergency or justified by pursuit of
       greater good.
    Necessity is a residual, excuse defence: concedes wrongfulness of action but asserts
       circumstances under which it was done are such that it ought not to be attributed to the
       actor.
    Criminal conduct does not disqualify - Mere negligence or the fact that the accused was
       engaged in illegal or immoral conduct when the emergency arose will not disentitle him from
       relying on the defence of necessity.
    Did the accused’s actions cause the emergency? - If the accused‘s fault consists of
       actions whose clear consequences were in the situation that actually ensued, then he was not
        really confronted with an emergency which compelled him to commit the unlawful act he
        now seeks to have excused. You cannot cause the reasons for your own defence.
       Trial judge erred – Trial judge charge to jury left implication that crucial consideration was
        whether the accused acted reasonably in coming into shore with their load of cannabis rather
        than facing death at sea. - This dealt with the reality of the peril, its imminence and the
        proportionality of putting into shore as a response to it, but it did not deal at all with the
        question as to whether there existed any other reasonable responses to the peril that were
        not illegal.

Ratio: we don‘t want to punish acts which are not morally voluntary (even thought he actus reus and
mens rea may be made out). Necessity is an excuse, not a justification.

Per Wilson J.:
   Necessity should be available as a defence not only as an excuse through the concept of
       normative involuntariness but also should be recognized as a justification.
   justification must be premised on a right or duty recognized by law which would exclude
       conduct attempted to be justified on the ground of an ethical duty internal to the conscience of
       the accused as well as conduct sought to be justified on the basis of a perceived maximization
       of social utility resulting from it.
 if there are conflicting duties and you choose one over the other, you may be justified.
e.g. Southwark London (1971).

R. v. Ruzic (2001) SCC
* voluntariness is a principle of fundamental justice (from Daviault) – accused forced to smuggle
drugs into Canada as her mother‘s life is threatened in Belgrade strict criterion of immediacy of threat
to self in s. 17 is no longer generally accepted component of the defence because it would be
unconstitutional for a morally involuntary act to be punished – s. 17 is struck down and the common
law defence of moral involuntariness remains

Facts: accused threatened by a drug dealer in Belgrade that if she does not smuggle drugs into
Canada he will hurt her mother. Police were thought to be corrupt in her country so she could not
go to them for help. She flies into Canada with packages of heroin taped to her and is caught.

Issue: under s. 17 she would not be acquitted, but should this still apply because her act was not
morally voluntary? (s. 17 - compulsion by threats, duress defence –a person who commits a crime
under the threat of death or bodily injury is excused – there is an implication of immediacy in this act
– duress to your person).

Decision: Appeal dismissed, accused acquittal upheld

Reasons:
            the accused was not threatened herself, but her loved ones were - the court acquitted on
             the common law defense, even though she would have been convicted under statute
         this is an example of where the court overlooks immediacy of presence – you have to
             put the reasonable person in Ruzic‘s shoes, from a country where there is no reasonable
             police protection to help her – there was no save avenue of escape
         s. 17 was found to be unconstitutional because it permits the conviction of an accused
        whose actions are not morally voluntary (not in accord with the principles of fundamental
        justice, breaches s. 7 of the Charter)…thus the threat does not have to be to the accused or
        present with the accused.
          voluntariness is of critical importance in attribution of criminal liability – the notion that
           morally involuntary conduct should not be punished is a principle of fundamental
           justice.
         the critical element of the common law defence is if you had an avenue of escape.
         ―Life, liberty and security of the person‖ suggests the morally blameless should not be
           punished – here, she is not morally blameless as the accused has full mens rea. BUT, the
           notion that morally involuntary conduct should not be punished does apply (as there
           was duress).

Ratio: Strict criterion of immediacy is no longer generally accepted component of the defence
because it would be unconstitutional for a morally involuntary act to be punished.

 s. 17 is struck down and the common law defence remains.

Duress and necessity are the same defences, but the origins of these defences are different. All
excuses must be consistent with the principle of normative involuntariness.

Hibbert
           helped gang member get someone out of an apartment building in order to kill them.

 charged with being a party to a murder. Here, contrary to the narrow majority in Creighton, the
SCC went against itself and adopted an individualized objective standard in assessing the defence of
duress.
           in examining involuntariness, says purpose does not mean desire – foresight of certainty
            of what the perpetrator is going to do is enough to make you a party
           when it looks like someone is acting under pressure – first prove actus reus, mens rea,
            and then look at defence.

								
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