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                                                                                                                      Crim
Category    Category                                             Principle                                                              Case
                                                                                                                      Code
              1867 - Under s. 91(27) of the BNA Act the “Parliament of Canada” was granted the “exclusive Legislative Authority” over
                “Criminal Law.”
               1892 Canadian Parliament enacted first Criminal Code
               modeled after English Draft Code (by English jurist James Stephen) which was rejected in UK
               Crim Code is Federal and applies across Canada (Que included)  Contains – offenses,we ha defenses, procedures
               modeled after English Draft Code (by English jurist James Stephen) which was rejected in UK
  The          Important to know what law is: requirement of fair notice - otherwise potential for uncertainty/unwanted consequences (police
Creation        direction, potential offenders, courts)
of Crim        nullem crimen, nulla poena, sune lege (no crime nor punishment without law that is certain, unambiguous and not retroactive)
  Law                      Ex of problem with common law view of crim law – leaves definition of offences up to                  R v. Sedley (1663)
                           judges =uncertain what type of conduct would be crimes                                                Against King‟ peace
                           No one can be convicted of a crime for engaging in conduct that is not already recognized as          Frey v Fedoruk
                           an offence under crim code. Parli = source of law (not common law)                                    1950 SCC (peeping)
                           Binding-ness of obiter dicta varies. Some are authoritative (Oakes test) while other are              R. v. Henry, (2005)
                           intended to be persuasive and not binding. Need to give law both predictability and flexibility SCC
               Basic
                           Crim Code s. 9 no common law offences in Canada – all from statutes in code or legislation.
             Tenants
                           Crim Code s. 8(3)  common law defenses have been maintained (ie necessity)
                           look at ordinary construction of language, looking at whole scheme of the act and finally looking at the underlying
                           purpose of the provision. If still ambiguity, resolve in favour of the accused.
                           Public place in provision = one has right/invite to be as entering, visiting or using                 R. v. Clark (2005)
                                                                                                                         173(1)
                           that place. Doesn‟t include access by looking or listening from outside.                        (a)
                                                                                                                                 SCC. Man
Statutory
                           Look at ordinary meaning, adjacent provisions and relevant considerations                             masturbates/window
Interpret
                           While committing= sufficient of death and underlying offence form one continuous                      R v. Pare 1987 SCC
  -ation       Against     sequence of events forming a single transaction                                               231(5) 17yr indecently
             doctrine of
                Strict
                           - do not need exact coincidence of death and acts constituting underlying offence                     assault/kills 7yr old
            Interpretation When unclear fair notice only given when meaning is captured by reasonable                            R. v. Mac (2001)
                                                                                                                         369(b)
                           reading therefore doubts resolved I favour of individual liberty of accused                           Ont C.A. credit card
Limits of                  Issue of whether the act was ultra vires the fed jurisdiction – held that it was not.                 Reference Re:
Criminal                   Criminal law if possess: (1) valid criminal purpose (2) backed by prohibition (3) and a               Firearms Act (2000)
  Law                      penalty ie public peace, order, security, health, morality ect                                       SCC
                           - efficacy of a law, or lack thereof, is not relevant to Parli‟s ability to enact it
                              No act should be criminalized unless is incidence (actual or potential) is substantially          Ouimet Report
                               damaging to society                                                                               (1969)
                              No act should be criminal if an be adequately control by other social forces then crim process
            Federalism
                              No law should create more social or personal damages then what it was designed to prevent
                              Should include „attempt to control anti-social behaviour‟ whereby state interference with
                               human freedom is to be justified only where manifest evil would result from failure to interfere
                              Criminal law is a „blunt and costly instrument‟ - should be last resort                           Law Reform
                           To be crime: (1) must cause harm to other ppl, society, or those needing protection from              Commission (1976)
                           selves (2) harm serious in nature and degree (3) harm best dealt with thru crim mechanism -
                           confines to violence/ dishonesty,
                              Charter limits powers of the state – s7, everyone has the right to life, liberty and              R. v. Malmo–Levine
                               security of person and not to be deprived thereof except in accordance with the                   (2003) SCC
                               principles of fund justice                                                                        Upheld marihuana
                              SCC held that the „harm principle‟ (Mill) is not the constitutional standard of what      Ch: s. laws against
                               what conduct may or may not be subjective to crim law for purpose of s.7                     7    allegations that it
                              State can still criminalize conduct that is un-harmful or only harmful to the accused –           violated fun justice
                               bestiality, cannibalism ect.                                                                      harm principle –
             Charter                                                                                                             since mj=un-harmful
              s.7 and
                              So long as parli response is not grossly disproportionate to the interest protected
               harm        Test to determine the harm what types of harm are sought to be curtailed by                          R v Labaye /Kouri
             Principle targeting indecent conduct?                                                                               SCC (2005).
                                                                                                                         210(1)
                           - “conduct which society formally recognizes ad incompatible with its proper                  def in: Case about
                           functioning” (Butler)                                                                         197(1)  „swingers‟ clubs in
                            a. NATURE OF THE HARMharm or significant risk of harm that is “formally                             Montreal. Held that
                                 recognized” harm must be grounded in norms which our society has                               „consensual conduct
                                 recognized in its Constitution or similar fundamental laws-                                     behind closed doors
                                         i. Must significantly interfere affect the autonomy or liberty of the public            doesn‟t jeopardize a
                                         ii. Must predispose people to anti-social behaviour                                     society as vigorous
                                         iii. Must cause physical or psychological harm to members?                                 and tolerant as
                           b. DEGREE OF HARMHarm must be a serious degree must be                                                 Canadian Society‟
                                 incompatible with societal functioning (crown must establish real harm)                            McLachlin failed all
                          both must be proved beyond a reasonable doubt                                                            3 parts of test
                          Dixon J - Should have large liberal interpretation of the charter and interpret what it means
                                                                                                                                     Hunter v. Southam
                          with an eye to the future – “BNA act planted in Canada a living tree capable of growth and
                                                                                                                                       (1984) SCC
                          expansion within natural limits‟ (Edwards v. A.G.) Judiciary Is guardian of constitution
                          s. 1 The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out
                                                                                                                                          The Charter
                          in it subject only to such reasonable limits prescribed by law as can be demonstrably justified
                                                                                                                                              s. 1
                          in a free and democratic society.
 Limits                      s. 1 Oakes sets out test determining when a charter violation can be justified:
   on                          To establish a limit is reasonable and demonstrably justified in a free and demo society
Criminal     The
                             need 2 stages
  Law       Charter
                               o 1) Determine whether a certain prescribed law violates a Charter right
            and the                                                                                                                   R v. Oakes (1982)
                               o 2) where violated, where is pressing and substantial purpose which justifies
            Rule of                                                                                                                         SCC
                                   infringement
             Law:
                                     measures chosen need to be rationally connected to the objective
                                     means should minimally impair the right - as little as possible
                          there must be proportionality between the effects of the measures which are responsible for
                          limiting the right and the objective which has been identified as being sufficient importance
                          s. 7 Everyone has the right to life, liberty and security of the person and the right not to be
                          deprived thereof except in accordance with the principles of fundamental justice.                               The Charter
                           s. 7 crim challenges based on vagueness, overbreadth, arbitrariness and gross                                     s. 7
                          disproportionality are possible but not strong defenses
           Vagueness      Void for vagueness  “Law is unconstitutionally vague if – „doesn‟t provide an                            Canadian
                                                                                                                        s.43 is
            - means       adequate basis for legal debate‟/analysis, „does not delineate any area of risk‟ (show       not un-      Foundation for
             aren‟t       a boundary between crim and non) or is „not intelligible‟ -- A criminal law must             constituti   Children v. Canada
                                                                                                                         onally
             clearly      “delineate a risk zone for criminal sanction”(avoid arbitrary and discriminatory).            vague       (A.G.) 2004 SCC
            defined       The law must offer a „grasp to the judiciary… certainty not required.”                                         McLachlin
           Overbrea       When provision is overbroad it violates principle of justice as it “applies without                       R v. Heywood
             dth -        prior notice to accused, too many places, too many ppl, for indefinite period with no                     (1994) SCC Cory.
            means are     possibility of review” (too restrictive of liberty to accomplish its goal).                   179(1)      A convicted of
                too       Case: s. 179.(1)(b). made it a crime for person convicted of specified sexual offences          (b)       sexual assault and
             sweeping     to be „found loitering in or near a school ground, playground, public park or bathing                     then charged with
            in relation   area.‟ –geographically too wide and can last a lifetime. Fails s.1 min impairment                         sex-related vagrancy
           to objective
           Arbitrary and           Gross Disproportionality – crim law can be disproportionably but only                   United States v. Burns says
           Gross                   offends charter when it is grossly disproportional that it shocks the                  gross p. to extradite suspected
                                                                                                                          murders to death sentence country
           Disproportionality      conscious of Canadians.
                          Crime detected police investigate and lay charge. Three types of offences Summary, Indictable (serious) and Hybrid
                          (most offences – Crown decides b/t the two). Trial: determines whether accused is (not) guilty if can establish case
                          beyond a reasonable doubt by showing each element of offence established b.a.r.d. Judge alone – decides question of
                          law and fact, Jury trial- judge instructs on law and just concerned with facts and whether they establish offence as
                          explained. Appeal – Accused right to appeal on both legal of factual errors. Crown only appeal on q‟s of law.
                          Golden thread of criminal law is duty of prosecution to prove accused‟s guilt.                        Woolmington v.
                          Defendant only needs to prove there is a reasonable doubt (not prove innocence).                     D.P.P. (1935) UK
           Presumption
              of          Crown needs to prove guilt beyond a reasonable doubt, presumption of innocence                        House of Lords
           Innocence      s. 11 Any person charged with an offence has the right (d) to be presumed innocent until
                                                                                                                                  The Charter
                          proven guilty according to law in a fair and public hearing by an independent and impartial
 Crim                                                                                                                                s. 11(d)
                          tribunal;
Process
            Proof         SCC accepted appeal that „proof beyond a reasonable doubt‟ had specific legal meaning and
                                                                                                                              R. v. Lifchus (1997)
           beyond a       trial judge erred in instructing jury to use ordinary sense. Holds that standard much closer to
                                                                                                                              SCC Cory majority
           reasonable     absolute certainty than balance of probabilities (civil stand.) Logically connected to evidence.
                                                                                                                                   Fraud case.
             doubt        Not proof of just any doubts. Must be more than the accused be „probability guilty.‟
                          Held that though reverse onus is contrary to s. 11(d), it is justifiable under s.1          s. 8
                                                                                                                               R v. Oakes (1982)
                          In case of s. 8 of Narcotics Act, has to prove on a balance of probabilities that was      Narc
           Justifiable                                                                                                                 SCC
                          not in possession of narcotics for purpose of trafficking – established Oakes test.         Act
            reverse
                          Upheld constitutionality of reverse onus. Presumption of innocence infringed when
             onus                                                                                                            R. v. Downey (1992)
                          accused is liable to be convicted in spite of reasonable doubt but if statute states        212
                                                                                                                                       SCC
                          reverse on balance of probabilities then allowable. May infringe 11(d) but s.1allow.
 Actus                    1) a guilty act - actus reus. The accused must have voluntarily done an act or brought about a result that is prohibited
 Reus                     by law.
           Criminal
                          2) the guilty act must be accompanied by a guilty state of mind - mens rea. The accused must have done the act or
           Liability
                          brought about the prohibited result while simultaneously possessing a culpable (blameworthy) state of mind.
                          3) the actus reus and mens rea requirements must be satisfied in circumstances where no legally accepted defence is
                     available. That is, there is no justification or excuse for the conduct at
                     * The actus reus of a particular offence will depend upon the specific statutory language used in the enactment that
                     creates the offence.*
                     Actus non facit reum nisi mens sit rea - “an act does not become guilty unless the mind is guilty"
                     175. (1) Every one who                                                                                  R v. Lohnes (1992)
                     (a) not being in a dwelling-house, causes a disturbance in or near a public place,                      SCC
                     (i) by fighting, screaming, shouting, swearing, singing or using insulting or obscene                   Neighbour yells
                     language,                                                                                               profanities across
         What is
                     For AR: need to show fighting ect AND disturbance. Court holds that disturbances                175     road. Weighing ind
         an Act
                     needs to be „externally manifested‟ – parli intended (look at surrounding statutes-                     liberties against
                     under Disorderly Conduct, French version,) that not about emotional disturbance of                      public interest in
                     other party but rather constitutes an interference with the ordinary and customary                      peace and tranquility
                     use by the public of the place in question
                     Principle of fund. justice encompasses concept that a person should not be punished                     R. v. Burt (1985)
                     in absence of a wrongful act.                                                                   253     Sask C.A.
                     s. 253 of provincial Vehicle Act was found to be unconstitutional (s7) since it                   of    Cop doesn‟t see
                     allowed for vicarious liability and therefore for a conviction of substantive violation        Vehicle driver so charges
                     by lend car and without wrongful act (need element of control –knowledge/consent)                Act    owner w. violation
                     car possession: in actual possession or custody, has in place for benefit, joint
                     Possession: 4.(3) For the purposes of this Act,                                                         Marshall v. R.
                     (a) a person has anything in possession when he has it in his personal possession or                    (1969) SCC.
Actus                      knowingly (personal possession)                                                                   A, 16yrs, went on
Reus                       (i) has it in the actual possession or custody of another person, or                              road trip with
                           (ii) has it in any place, whether or not that place belongs to or is occupied by         Charg friends. Pick up
                           him, for the use or benefit of himself or of another person; and (i+ii=                     e:    weed (against A),
                           construction possession- knowledge beyond acquisance needs level on control)              4(2)    smoked weed (not
                     (b) where one of two or more persons, with the knowledge and consent of the rest,                 of    A), ditched weed
                     has anything in his custody or possession, it shall be deemed to be in the custody             Narc when saw cops then
                     and possession of each and all of them. (joint possession)                                      Act     retrieved (not A)
                     - held that A had knowledge but didn‟t consent to mj in car, only consented to ride                     was found that he
                     - must have some element of control                                                                     was not in
                     - though did pass weed, it was a reflex action                                                          possession.
                     - didn‟t impede investigation, objecting to friend picking it up, had error in judgment
                     4.(3)(b) holds any stolen goods that is in possession of one person with others                         R v. Terrence (1983)
                                                                                                                     4(3)
                     knowing and consenting is found to be all possession. BUT essential element of                          SCC. joyriding
        Possession                                                                                                    (b)
                     possession requires accused have some element of control over substance.                                unaware friend stole
                     Lays out test for constructed and joint possession 4(3)(a- i+ii) (b)                                    R v. Pham (2005)
                     Construction possession: must be knowledge which extends beyond merely                                  Ont C.A. A used
                                                                                                                     4(3)
                     acquiescence and have some level of control                                                             home to traffic
                                                                                                                      (b)
                     Joint possession: knowledge, consent and some measure of control                                        drugs, found to be in
                     Onus on crown to prove beyond a reasonable doubt all essential elements.                                possession
                     Innocent possession- possession of contraband to destroy or deliver to authorities                      R v. Chalk (2007)
                     and is absent a blameworthy state of mind or conduct and therefore no possession                        Ont C.A. Had child
                                                                                                                    163.1
                     for the purpose of imposing crim liability.                                                             porn on his
                                                                                                                      (4)
                     Not applicable in this case since guilty of possessing child porn – had knowledge                       computer and told
                     consent and control (was on computer for months even though claimed unwatched)                          g/f to delete
                     Culpable Omissions
                          General common law principle is that criminal responsibility for omissions is limited to cases where there is a
                           legal and not merely a moral duty to act (In Canada there is no general legal duty to assist)
        Omissions/        Can‟t be crim liability without some sort of illegal act (AR requirement)
        Legal             Culpable Omissions – offences based on omissions make up a relatively small where one has a legal duty to act
        Duty to      Duty imposed by law (see: p14 for more info)
        Act          215.(1) Duty of persons to provide necessaries - Every one is under a legal duty
                     (a) as a parent, foster parent, guardian or head of a family, to provide necessaries of life for a child under the age of
                     sixteen years;
                     (b) to provide necessaries of life to their spouse or common-law partner; and
                     (c) to provide necessaries of life to a person under his charge if that person
                                 (i) is unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw himself from
                                 that charge, and
                                 (ii) is unable to provide himself with necessaries of life.
                     Also duties based on criminal negligence:
                     219.(1) Criminal negligence - Every one is criminally negligent who (defines crim negligence)
                        (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) "duty" - For the purposes of this section, "duty " means a duty imposed by law.
                        Criminal Negligence based Offences
                            220. Causing death by criminal negligence – Every person who by criminal negligence causes the death of
                              another person is guilty of an indictable offence ....
                            221. Causing bodily harm by criminal negligence -Every person who by criminal negligence causes bodily
                              harm to another person is guilty of an indictable offence ....
                            222(5)(b) [Manslaughter] - A person commits culpable homicide when he causes the death of a human being,
                              by criminal negligence.
                        Held that it is not necessary that MR should be present at inception of AR – it can be super         Fagan v.
                        imposed on the act BUT cannot superimpose MR to convert an acted completed without it.               Commissioner of the
                        - act became criminal Assault when MR formed and car was still on cop‟s foot (AR)                    Metropolitan Police
                        - Bc of continuing act theory coincidence between AR and MR is all needed                            1968 (UK).
                        When a person became aware of the events that occurred as a result of his act, and he does           R. v. Miller (1983)
                        not try to prevent or reduce this risk of damage by his own efforts or contacting authorities,       (UK) bed on fire
                        without a solid reason, makes him responsible. (Either thru continuing act theory (Fagan) or          Arson+ Crim
                        thru a duties analysis= same result. )                                                               damages
                        No legal duty is owed to mistress since accused isn‟t legally required to help her in any way, Ppl v. Beardsley
        Omissions/
                        just a moral duty. Need to look at relationship between parties. Determined that accused isn‟t (1907) U.S.
        Legal
                        protector of woman, just a drinking partner and therefore no duty. Though had there been a           drinking+morphine,
        Duty to
                        duty he would have breached it by not seeking medical help. S. 215, in Canada duty for               man didn‟t call 911
        Act
                        spouse, children under 16 in ur charge.
                        Issue of undertaking within (s. 217 Duty of persons undertaking acts - Every one                     R v. Browne (1997)
                        who undertakes to do an act is under a legal duty to do it if an omission to do the act              Ont. C.A.
Actus                   is or may be dangerous to life. *omission to perform duty can amount to crim                         relationship b/w
Reus                    negligence under 219 or if death/bodily harm then 220/221* Crim negligence                           drug dealers, “I will
                                                                                                                     217
                        causing death is form of culpable homicide for purposes of 222-237.*                                 take you to the
                         Found that nothing short of clear and binding commitment which has can give                         hospital”≠
                        rise to a legal duty. Mere expression of words indicating a willingness to do an act                 undertaking.
                        cannot trigger a duty.
                        Whether father knew mother was abusive to daughter. Need to use „standard of care‟ 215 R v. Popen.(1981)
                        under tort law to determined if father foresaw or ought to foresee the danger then          219 Ont. C.A. Abusive
                        would have duty under s. 215 and would be 219 crim negligence which if violated              222     mother killed
                        would lead to manslaughter under 222(5)(b). new trial ordered                               (5)(b) daughter, q of dad.
                        Held that s.215 “under his charge” could apply to put children under legal duty to                   R v. Peterson (2005)
                        care for aged parents. Elements of charge: (1) where person cannot withdraw from                     SCC
                        that change bc unable to provide for own necessaries. (2) „charge‟ looks at relevant                 Son charged with
                        position of parties, and whether accused explicitly assumed responsibility.3)failure                 failing to provide
                                                                                                                     215
                        Offence is made out when there is a marked departure from the conduct of a                           necessaries of life to
                        reasonably prudent pesron having the charge of another where it was reasonably                       his aged father and
                        foreseeable that failure to provide necessaries of life would risk danger to life or                 thereby endangering
                        health of person under charge.                                                                       his life.
                        Found that donating tainted blood violated a legal duty of s. 216 -medical treatment                 Thornton v R (1991)
                        offence since had a legal duty to disclose status in his performance of an otherwise        216 SCC. Donated
                        legal act. Formed basis of charge 180 Committing a Public Nuisance (endangered               180     knowing blood was
                        life, safety and health of the public).                                                              HIV+
                            There can be no liability unless the accused‟s act was “voluntary.” This means that an accused‟s conduct,
                              including his or her failure to act where an omission is charged, must be “voluntary.” “Involuntary” action
                              cannot ground criminal liability. Involuntariness goes beyond lack of mens rea and is a AR element
                            Involuntary acts:
        Voluntariness
                                o Conscious conduct:
                                       Physical compulsion of one person by another - A grabs B‟s hand and uses it to strike C
                                       Muscular control impaired by disease - A suffers from Parkinson‟s and touches B
                                       Reflex muscular contraction – Bees attack while driving and swerve hitting B
                                o Unconscious conduct:
                                       Sleepwalking / Drunken stupor / Loss of consciousness caused by disease or illness Driving suffers a
                                        stroke and hits B /Automatism or abnormal state of consciousness
                            Definition of involuntary acts from H.L. Hart:
                                o “That is, actions which are not subordinated to an individual‟s conscious plan of action.”
                                o These acts “... do not occur as part of anything that the individual takes himself to be doing.”
                        * need to read voluntariness into all acts
                        Can‟t be blamed of an involuntary act. Conditions of road forced driving a certain way and           R v. Lucki (1955)
                        therefore cannot be blamed for incident. (125 (9) of Vehicle Act                                     Sask prov. court
                        When strike by reflex action show there is no intent and therefore are lacking necessary             R. v. Wolfe (1975)
                        ingredient of assault.                                                                               Ont. C.A.
                        Reaffirmed voluntary conduct is necessary element for crim liability, act must be            91(3) R v. Swaby (2001)
                        voluntary for AR to exist and provision should have voluntariness expressly read in. now             Ont. C.A. Was in
                        If act requires knowledge of illegal weapon cannot have crim liability instantly             94.(3) car with gun but
                        attach, need time post knowledge where can deal with situation.                                      didn‟t know till later
                        Involuntariness was reason why violated traffic offence of requiring sticker. Left home with         Kilbride v. Lake
                        it then removed by another while out- no AR. Canada has strict liability with due diligence.         (1962) N.Zealand
        Voluntariness   Accidentally shot someone when reflex action responding to sudden movement of victim                 R. v. Ryan (1967)
                        caused A to pull trigger. Found that though action involuntary was voluntarily in situation.         Australian Case
                        Consent is not an answer when harm intended and caused. Common law cases can                         R v. Jobidon
                        be utilized (8.3) illuminate and interpret meaning and thus restrict the extent consent              (1991)SCC. fist
                        may be nullified and policy issues (social values). Consent is vitiated (nullified)                  fight death. Held
                        where adults intentional apply force causing serious hurt or non-trivial bodily harm                 that lack of
                                                                                                                      265
                        to each other in the course of a fist fight/brawl. Though can still consent to rough                 consent=assault 265
                        sporting activities so long as intention application of force to which one consents is               = unlawful act under
                        within the customary norms and rules of the game. Doesn‟t apply to                                   222(5) which lead to
         Consent        stuntman/surgical intervention. Don‟t apply to school yard fights between children.                  manslaughter (234)
                        Nondisclosure of HIV status vitiates consent for unprotected sex leading to assault                  R v. Cuerrier (1998)
                        under 264(3)(c)- no consent for assault where consent obtained by fraud.                             SCC. HIV+ had
                                                                                                                      265
                        Deadly consequences of HIV brings positive duty to disclose since not just consent                   unprotected sex and
                                                                                                                     (3)(c)
                        about sex but need to consent to unprotected sex with HIV+                                           was guilty, even
                        Fraud – the greater the risk of deprivation, the higher the duty to disclose                         though didn‟t infect
                        HIV+ had relations with his partner before knowledge of infection then continued              268    R v Williams (2003)
                        after. Found to lacked AR- though had MR, since could have spread before he knew.              (1)   SCC
                        De Minimis Curat Lex (The law doesn‟t concern itself with trifles – even if AR and MR can be established)
                             Doesn‟t mean that the act is justified, it remains unlawful but on account of triviality goes unpunished.
Actus                        1) reserves the application of criminal law to serious misconduct
Reus                         2) protects an accused from stigma of a criminal conviction and from the imposition of serious penalties for
           De                 relatively trivial conduct
         Minimis             3) saves courts from being swamped by enormous number of trivial cases
                        Held that the doctrine de minimis does exist in Canadian law, but wasn‟t applicable                  R v. Kubassek
                        here – ie Canadian foundation for children v. AG (allowing force by way of                    265    (2005) SCC Antigay
                        correction to kids. A‟s conduct wasn‟t trivial since came to church with particular            (1)   pushed Reverend
                        intentions.
                        For many criminal offences, causation will often simply not arise. Question of causation only arise with respect to
                        offences which tie specific prohibited result with prohibited act/omission to a particular consequence or result (ie
                        Assault causing bodily harm – the consequence of bodily harm is an aspect of AR)
                        Types of Causes.
                             Operative cause: This refers to the medical, mechanical or physical cause of some state of affairs.
                             Causal connection between an individual‟s act (or omission) and a particular consequence
                                o Causal connection is usually approached by asking whether or not the result would have occurred but for (ie.
                                   without) the act or omission of the accused?
                             Legal causation. It is only considered once “but for” causation is established.
                        Its focus is on whether or not the connection between the accused‟s act (or omission) and the result is sufficiently
                        strong that the accused can fairly be blamed for it.
                        Original Causation test: act/omission has to be at least contributing cause outside                  Smithers v. R (1978)
        Causation       de min (low threshold)                                                                               SCC. Deceased and
                        *Case where assault led to unforeseeable death – charge of manslaughter.*                            A were hockey
                        Causation q of both fact and law.                                                                    players. A hit then
                             Fact In determining facts jury can take into account all evidence, both expert                struck stomach, died
                              and lay (need to establish before can go to legal)                                             of aspiration of
                             Legal  all crown needs to established is that assault was outside the de                      foreign materials.
                            minimis range.
                              o Thin skull rule applies to criminal law – take victim as u find, so long as
                                 neither trivial not transitory assault                                             222
                                      No defense to manslaughter charge that the death was unexpected              (5)
                                       owing to the fact that physical reactions of the victim of assault were
                                       unforeseen/death would not normally result from that unlawful act
                                      [R. v. Larkin Most trivial assault, if it should, through some
                                       unforeseen weakness in the deceased, cause death, will render the
                                       actor guilty of culpable homicide. The fact that he caused a different
                                       type of harm to that which he intended did not free him from that
                                       criminal responsibility]
                           [R v Garforth.- S stabs Jury just needs to find that act contributed to the result,
                            doesn‟t have to be main factor]
                     *SETS OUT THE CAUSATION STANDARD OF ALL OFFENSES other than                                        R v Nette (2001)
                     1st Murder*                                                                                        SCC. Hog-ties 95yr
                                                                                                                        old lady who dies
Actus                   CAUSATION TEST: acts of the accused need to be a “significant contributing
Reus    Causation       cause” to x‟s death to trigger culpabilities for homicide
                         Revised test of Smithers causation, just saying in positive terms but it does seem
                          to raise threshold. (Majority with L‟Heureux-Dube disagreeing and stating it‟s a       229
                          new test)
                         causation has a factual and legal component.
                            o Fact: inquiry into how victim died in a medical/mechanical/physical sense.
                            o Legal: whether the person should be held responsible in law for the death.
                                    Typically no issue of causation because offence is usually just
                                     unlawful act + requisite MR.
                     Ont CA- affirms Nette test on whether accused actions “significantly contributed”                   R v Talbot (2007)
                     to the x‟s death. Noting that a „but for‟ inquiry answers the factual causation                     Ont. C.A.
                     question in most, but not all situations.
                     1ST Degree Test: prohibited act or omission has to be an essential, integral and                    R v Harbottle (1993)
                     substantial cause of death and usually requires a physical role (inc fighting off                   SCC – Cory. Held
                     potential rescuers) thought not necessary.                                                          that accused legs
                         In upgrading cause from murder to first degree murder, shows higher degree of                  while X strangled
                          blameworthiness and translates into a more serious sentence – 25 no parole -                   after X raped -guilty
                          higher standard test than Nette/Smithers.
                     In order for accused to be found guilty of first degree murder
                        1) accused guilty of underlying crime of domination or attempting to commit that
                        crime
                        2) accused guilty of murder of the victim                                                231
                        3) accused participated in murder in such a manner that was substantial cause of         (5)
                        death of vic
                        4) no intervening act or another which resulted in the accused no loner being
                        substantial connected to the death of the vic (R v Blaue for standard on
                        intervening act)
                        5) crimes of domination/murder were par of same transaction – death caused
                        while committing the offence of domination as part of a series of events (while
                        committing = the continuing illegal domination of the victim which gives
                        continuity to the sequence of events culminating in the murder. This is considered
                        one single transaction and is first degree murder (R. v. Paré)
                     Note: building charge for first degree murder – 231(5)
                     First 222 define homicide, than 222(5) shows culpable homicide manslaughter (Nette causation).
                      After established, 229 defines murder – culpable homicide is murder where a(i) person means to cause death/(ii)
                     means to cause bodily harm that he knows is likely to cause death and is reckless where death or not (Crown just
                     needs to prove bodily harm and recklessness – Nette causation).
                      Turn to s. 231 for 1st degree (Harbottle causation)
                     Intervening Act A victim deciding against accepting a blood transfusion in order to treat          R v Blaue (1975)
                     stab wounds caused by A doesn‟t not break the chain of causation  A is liable for                  UK. Jehovah‟s
                     manslaughter. Take victims as u find them, including religious beliefs ect, whole man not           Witness stabbed.
                     just physical man.
                     Innocent Agent --> Where an individual brings about a particular consequence or result thru R v Michael (1840)
                     the use of an innocent or unconscious agent (case about administering poison at accused             Mother gave poison
                     insistence) then causation attributed back despite the intervention of involvement of the           to give to her child.
                     innocent agent
                     Constitutionality  Causation requires proof that the unlawful act was at least a                   R v Cribbin (1994)
                     contributing cause of death outside the de minimis range in order to accord with principles of      Ont. C.A.
                     fundamental justice as guaranteed by s. 7
                     Actus non facit reum nisi mens sit rea - “an act does not become guilty unless the mind is guilty"
        Strict           Currently, we remove the moral aspect and instead legal mens rea refers to mental element necessary for the
        Liability         particular crime, can either be intention to do an act or bring about the consequence (or in some crimes)
MR      And               recklessness as to such act of consequence – some acts require intention but others can be committed by
        Constituti        intention or recklessness
        onality of       Most crim offences have MR requirement (Sault Ste. Marie & Beaver) and even if stat provision is silence, MR
        MR                will be read in (Beaver).
                         Regulatory offences presumed to be strict liability - conviction on proof of AR unless can show due diligence
                          (Sault Ste. Marie).
                        To have absolute liability, parli must make clear that guilt based purely on AR (Sault Ste. Marie)
                        Objective MR is permissible (except for murder & theft) provision needs to express state is objective
                        Generally crim offenses need subjective MR (intention/knowledge/WB/recklessness) intend or subjectively
                           appreciate the consequences of act (Théroux).
Mens
Rea                       Criminal offences with possibility of imprisonment violate the charter (Motor Vehicle Reference)
                          The Charter requires that a conviction for murder or theft, as either a principal or a party, be based on subjective
                           mens rea. In the case of murder, proof of an intention to cause death or an intention to cause bodily harm that an
                           accused knows is likely to cause death. In the case of theft, proof of some dishonesty (Vaillancourt &
                           Martineau).
                          Crim prohibition can violate s. 7 if:
       Strict                o Conduct is entirely insignificant or trivial (Cribbin –de minimis minimum standard of causation)
       Liability             o prohibition are grossly disproportionate to the harm that the law seeks to protect against (Malmo-Levine
       And                   o prohibition is overly arbitrary, vague (Nova Scotia Pharmaceutical/ Spanking)
       Constituti            o overbroad (Heywood)
       onality of    MR is an essential element and will generally be assumed to be a component of a              4(1)     Beaver v. R. 1957
       MR            criminal offence. MR will be read into everything unless parliament says                     (d)      SCC. thought was
                     specifically otherwise. Essence of the drug offence is possession of forbidden               Narc     selling “sugar of
                     substance, possession requires knowledge can‟t just convict bc is in possession.             Act      milk” but was heroin
                     1) True crimes (full MR) - offences for which mens rea, consisting of some positive state of          R v City of Sault Ste
                     mind such as intent, knowledge, WB or recklessness                                                    Marie 1978 SCC.
                     2) Strict liability – (case introduced this category)                                                 City charged with
                          Offences in which there is no necessity for the prosecution to prove the existence of           offence related to
                           mens rea; the doing of the prohibited act prima facie imports the offence (crown only           waste disposal
                           need to prove AR)                                                                               which appeared to
                          open to the accused to avoid liability by proving that he took all reasonable care.             be absolute liability
                             o This involves consideration of what a reasonable man would have done in the                 with a potential
                                circumstances.                                                                             prison sentence.
                          The defense will be available if the accused reasonably believed in a mistaken set of
                           facts which, if true, would render the act or omission innocent, or if he took all
                           reasonable steps to avoid the particular event. (due diligence on a balance of
                           probabilities)
                          Most provincial offences, public welfare, and federal regulatory offences typically in
                           category
                     3) Absolute liability (no MR) –is not open to the accused to exculpate him/herself by
                     showing that s/he was not free of fault. Legislature must make it clear that guilt will follow
                     merely from proof of the proscribed act (the actus reus).
                     Case elevated MR from a presumed element in Sault Ste Marie to a constitutionally required            Refernce Re Section
                     element.                                                                                              94(2) pf Motor
                     - Held that an absolute liability offence that can potentially lead to imprisonment violates s 7 Vehicle Act(B.C.)
                     “principles of fundamental justice‟ – can only be justified under s1 under exceptional                1978 SCC
                     conditions (natural disaster, war, ect)                                                               Dickson,
                     - in accordance with the principle that the morally innocent shouldn‟t be punished (need MR)
                     Found s 230(d) to be unconstitutional - Section held that any culpable homicide                       Vaillancourt v R
                     committed while committing a listed offence is automatically elevated to murder.                      1987 SCC. accused
                     Held that for crimes which have a special stigma (murder/theft) attach to conviction                  and C robbed pool
                     or available penalties, principles of fundamental justice require a MR reflecting the                 hall, A made C
                     particular nature of crime                                                                    Null: remove bullets but
                           - Objective foreseeability of death for the reasonable person is a                      230     still had and killed.
                                constitutional requirement for murder (proof beyond a reasonable doubt              (d)
                     Section would have held that since was committing robbery, in 230 list, and there
                     was „common intention‟ A would be guilty of murder even though thought no bullet
         Const
                     - if parliament wanted to deter use of weapons, should specifically punish weapons
       itutionalit
                     not thru murder
        y of MR
                     Principle of fundamental justice requires that a conviction for murder cannot rest on                 R v Martineau 1990
        Foreseea
                     anything less than proof beyond a reasonable doubt of subjective foresight of death                   SCC accused
          bility
                     (raises objective standard from Vaillancourt).                                                        (armed with pellet
                     - Punishment (stigma and sentence) needs to be proportionate to the moral                             gun) and X (rifle)
                     blameworthiness of offender.                                                                          went to B&E trailer,
                                                                                                                   230
                     - would violate s. 7 if person could be found guilty of such a serious offence                        X shot and killed
                                                                                                                    (a)
                     without requisite MR, therefore murder should be reserved for those who choose to                     ppl. A thought it
Mens                 intentionally cause death or who choose to inflict bodily harm that they know is                      was only a B&E.
Rea                  likely to cause death.
                     - would not be justifiable under s. 1 since would fail the proportionality test
                     therefore, ALL of s. 230 is unconstitutional
                     As a general rule respect to criminal offences, subjective mens rea is a presumed                   R v Theroux (1993)
                     requirement. That is, proof of intention, knowledge, recklessness or willful blindness.             SCC
                             o Courts look to the accused intention and the facts as the accused believed them to be
                          Objective MR is a permissible basis for crim responsibility, statutory provision must
                           expressly adopt an objective standard (otherwise subjective standard will be presumed)
        Subjective
        Mens Rea          Subjective does not related to the accused value scheme/morality, can satisfy MR even if
                           doesn‟t think did anything wrong (psychopath) – only issue is if intended to kill/cause
                           harm causing death
                     In instructing jury about whether accused possessed requisite intent, just should avoid using       R v Ortt (1968) Ont.
                     „presumption‟ and should ask if reasonable inference (using evidence + common sense)                C.A.
                     about whether the accused intended or appreciated the consequences of their actions.
                          Intent: the exercise of a free will to use particular means to produce a particular result  R v Lewis1979 SCC
                           mens rea                                                                                      A+Xmailed bomb to
                          Motive: that which precedes and induces the exercise of the will (reasons for doing           X‟s daughter. Need
        Subjective
                           something). Motive is admissible not required                                                 to prove knowingly
                     Crown just needs to prove intent                                                                    mailed, not motive
                     Whether there was intent in a robbery which was (while occurring) later claimed to                  R v Mathe (1973)
                     be a joke. If had intent, then changed mind=crime. If was always a joke=no                          B.C.C. A. Went into
                     intent=no crime. Found that substantial reasonable doubt so resolve in A‟s favour                   bank, said had gun
                     R v Wilkins (1965)> acquitted from theft charge of police motor cycle because did it                and asked for
                     as a joke (Roach J.A. “intention to perpetrate this joke, stupid though it was, is             343  money. Then just j/k
         Motive/
                     incompatible with the evil intent which is inherent in the crime of theft”)                         and left.
         Intent
                     R v. Kerr (1965)> drunkenly stole a 30lb ashtray from airport as a joke
                       (Evidence of prank no theft, Magistrate would have to have at least reasonable
                     doubt as to the intent of the accused)
                     In willful promotion of hatred, MR element willful= intentional and not lower                       R v Buzzanga and
                     standard of recklessness. A person intends a particular consequence not only when                   Durocher 1979 Ont.
                     conscious purpose is to bring it about, but also when foresees that consequence is                  C.A. Francophone
        Subjective                                                                                                  319
                     certain or substantially certain to result from conduct and still acts to achieve                   distributing hate
                                                                                                                    (2)
                     ultimate goal even when knows it will bring about consequence.
                     If knowledge is specified then also can‟t be recklessness.
                     Laura - If intention is expressly mentioned as standard, then WB may not be enough
        Intention
                     If knowledge/WB/intention specified in provision, then recklessness does not suffice                R v Zundel No.1 –
                                                                                                                   Null
                     as an MR standard. Recklessness only if expressly stated or none of mentioned.                      Ont. C.A. Holocaust
                                                                                                                   181.
                     Section held that willfully publishing material knowing …                                           denier pamphlets
        Subjective   Knowledge= WB. Williams: knowledge if party has a suspicion aroused then deliberately               Sansregret v. R 1985
                     omits to make further inquires because he wishes to remain ignorant.                                SCC.
        Recklessn    Willful blindness:                                                                                  Sexual assault case –
        ess/WB            Arises when a person becomes aware (knowledge) of the need to make some inquiries             also under Mistake
                           but doesn‟t because they don‟t want to know the truth and prefer to remain ignorant           of Fact
                     Culpability is justified by the accused‟s fault in deliberately failing to inquire when he knows
                     there is reason for inquiry
                     Recklessness:
                          found in attitude of one who, aware that there is danger that his conduct could bring
        Subjective
                           about the result prohibited by criminal law, nevertheless persists, despite the risk
                          Culpability is justified by consciousness of the risk and by proceeding in the face of it
Con‟t                WB is subjective standard - not that should have been suspicious but rather only WB            368  R v Currie (1975)
        Recklessn    if are suspicious then omit to make further inquires. Given $5 to cash stolen cheque           (1)  Ont. C.A.
        ess/WB       Accessory after the fact to murder: can still be guilty bc of WB even where Crown             230/ R v Duong 1998
                     fails to establish that suspicions would have been confirmed if make inquiries.              23 (1) Ont. C.A.
                     NOTE : Recklessness is the lowest standard (Buzzanga). WB=Knowledge (Sansregret)
                     Objective MR is constitutionally sound in Canada but only applies in cases where parliament makes it explicitly clear
                     its endorsing that standard. “ought to”, “reasonable care”, “good reason”, reasonable ground”, “reasonable steps”.
                     Used for criminal negligence. S. 219-222, 234. 236
                     219. (1) Criminal negligence – Every one is criminally negligent who
                     (a) in doing anything, or
                     (b) in omitting to do anything that is his duty to do,
        Objective
                     shows wanton or reckless disregard for the lives or safety or other persons
          MR
                     S.219 is only provides us with the definition of criminal negligence. Criminal negligence-based offences are:
                     - criminal negligence causing death (s. 220);
                     - criminal negligence causing bodily harm (s. 221);
                     - manslaughter (ss. 222(5)(b) / 234 / 236 – “causes the death” “by criminal negligence”) – cf. s. 220.
                     reckless disregard for the lives or safety of other persons.
                    McIntyre (L’Heureux-Dube+Lamer?): objective standard of „contextualized                            R. v. Tutton and
                    reasonable person approach‟                                                                        Tutton (1989) SCC
                      Proof of conduct which reveals a marked and significant departure from the
                       standard which could be expected of a reasonably prudent person in the                          Standard for Crim
                       circumstances will justify conviction                                                           negligence (219)
                      Decision made on consideration of the facts existing at the time and in relation to             divided into 2
                       the accused perception of those facts- taking into accused‟s perception of facts ec             approaches.
                      An honestly belief in the existence of certain facts may be a relevant
                                                                                                                       Mother stops giving
                       consideration in assessing the reasonableness of the accused‟s conduct (but needs
                                                                                                                       5yr old son insulin
                       to be a reasonably mistaken belief)
Mens                                                                                                                   bc believes he is
Rea                   If have subjective, then collapsing gradation offences – manslaughter into murder               cured by divine
                    Lamer                                                                                              intervention.
                                                                                                               219
                        Thinks that context should also include age, education ect
                    Wilson (Dickson, La Forest): subjective approach                                          (1) as
                                                                                                               basis
                      Requires proof of some minimal blameworthy state of mind                                 of
                      Majority has turned crim neg into an offence of absolute liability which could          222
                       allow for imprisonment without a guilty state of mind (contra Motor Vehicle)           (5)(b)
         Crim
       Negligence     „wanton, reckless‟ indicate subjective
                      ambiguity of provision= statutory interpretation, See Pare.

                    Nova Scotia Pharmaceutical and R v. DeSousa Declared that objective
                    standard was constitutional
                        rejected the notion that every element of AR required a subjective MR as a
                         constitutional requirement
                        objective standards were constitutionally permissible as a basis for criminal
                         liability in Canada in except in two offences
                           o Theft and Murder (Vaillancourt and Martineau)
                           o Though Theroux still the rule that absent of language which important an
                              objective standard we read in a subjective one
                    SET OUT THE OBJECTIVE TEST FOR DANGEROUS DRIVING (later                                            R v Hundal (1993)
                    revised in BEATTY)                                                                                 SCC. Dangerous
                    - majority endorses McIntyre‟s definition of crim negligence from Tutton:                          driving case
                    - Requisite MR for negligent conduct can be based on an objective test (modified
                                                                                                               249
                    objective) and this alone doesn‟t violate the principle of fundamental justice
                    negligence must constitute a “marked departure” from the standard of a reasonable
                    person (in the accused‟s situation)

                    SET OUT STANDING OBJECTIVE TEST FOR DANGEROUS DRIVING                                              R v Beatty (2008)
                    Affirms Creighton. Objective is not merely negligence, but a marked departure of                   SCC.
                    the reasonable person. (beyond a mere departure)                                                   Dangerous driving
                        Personal factors need to be weeded out (Rejects Lamer‟s Subjective-Objective          249     case where accused
                         from Hundel)                                                                                  claimed loss of
                        AR requires proof b.a r.d. that when viewed objectively A drove in dangerous                  consciences b/c heat
                         manner (nature, condition, place, time, traffick)                                             stroke.
                    REQUIREMENTS OF UNLAWFUL ACT MANSLAUGHTER 222(5)(a)                                                R v Creighton 1993
                        Held that MR of unlawful act manslaughter 222(5)(a) requires only „objective                  SCC. injecting
                         foreseeability of the risk of bodily harm which is neither trivial nor transitory‟            cocaine into
                         and does not demand „foreseeability of the risk of death‟ in order to be in           222     deceased=trafficking
                         accordance with s. 7 of the charter.                                                 (5)(a)
                        Principle: standard should not be personalized (age, education) but should take
                                                                                                              4(1)
                         into account capacity to appreciate (mental development not intoxication)
                                                                                                              Narc
                         within the modified objective standard (marked departure from standard of
                                                                                                              Act
                         reasonable)
                        to appreciate (mental development not intoxication).
                        Note: having special knowledge/experience doesn‟t raise the standard
                     OBJECTIVE REQUIREMENTS OF CRIM NEGLIGENCE in 222 (5)(b)                                           R. v. F. (J). (2008)
         Crim
                     Three degrees of objective fault requirements                                                     Justice Fish
       Negligence
                     1) regulatory offences - due diligence with reverse onus, standard of simple
                     negligence                                                                                222
Mens                 2) Crime with objective fault requirements – (when standards specified) marked           (5)(b)
Rea                  departure from the objective norm (Beatty) (gross negligence) (higher then
                     negligence) (dangerous driving ect)
                     3) Criminal negligence – a marked and substantial departure from the objective
                       norm (worse than gross negligence) (unlawful act manslaughter)
                      defense of mistake of fact remains available against crimes of objective mens rea
                      standards but has to be reasonable mistake of fact
                      Theroux  when an offence is silence on MR we need to read in a subjective MR to each of the AR‟s
                         However, with predicate offences, u only need AR and corresponding MR for the underlying offence and just the
                         AR (consequence) of the overlapping offence
                              o Though underlying offence cannot be an absolute liability offence
                              o Act in question must give rise to an objectively foreseeable risk of bodily harm that is more than trivial or
                                 transitory (reasonable person would have foreseen this level of harm)
                      commission of predicate offence (conduct that merits the a.r. and m.r. of predicate offence leads to conviction of
                      these offense if there is some sort of particular harm/consequence that follows)
                      Applies to:
                          manslaughter - s.222(5) / criminal negligence causing bodily harm - s. 221/ Criminal negligence causing death -
                            s. 220 / Assault causing bodily harm – s. 267(1)(b) / Aggravated assault – s. 268/ Sexual assault causing bodily
                            harm – s. 272(c) / Aggravated sexual assault (see page 40 for list)
                      In general, mental element of an offence is attached only to the underlying                         R v DeSousa (1992)
                      offence and not to the aggravating consequence                                                      SCC.
                      Underlying offence:                                                                                 Accused threw a
                         unlawful act needs to be at least objectively dangerous (R v. Smithers) – an act                bottle during a fight
                          that a reasonable person would inevitably realize would subject another person to               which broke against
                          risk of bodily harm that is neither trivial nor transitory                                      a wall and injured a
                         cannot be an absolute liability offence – ie provincial speeding                                bystander. Charged
          Predicate
                         AR needs to correspond with MR                                                                  with unlawfully
          offences                                                                                                        causing bodily harm
                      Additional consequences:                                                                    269
                         have caused bodily harm to another as a result of committing that underlying
                          offence (AR)
                         test: MR requirement  whether a reasonable person (objective foresight)
                          would inevitably realize that the underlying unlawful act would subject a person
                          to an unreasonable risk of bodily harm
                         Don‟t need MR of intention to cause that consequence.
                         Parliament can decide to mandate more severe punishment where the same
                          intention/action results in more serious consequences
                      Found that objective test for unlawful act manslaughter required merely reasonable foresight        R v Creighton 1993
                      of bodily harm which is neither trivial nor transitory (McLachlin for majority) rather than         SCC
                      reasonable foresight of death (Lamer for minority)
                          There if no principle of fund justice which requires absolute symmetry between AR and          injecting cocaine
                            MR                                                                                            into
                              o No requirement for proof of MR of consequences following from predicate offences, deceased=trafficking
                                 AR is enough – ie death in the case of manslaughter
                      Modified objective standard: conduct must constitute a marked departure from standard of
                      reasonable person within the circumstances of the accused, should not include personal
                      factors (age, education ect) but should include in relation to capacity to appreciate (mental
                      development not intoxication). See notes 41for response to Martineau
Mens                  S. 265, 271-273.2
Rea and   Mistake         Defense of mistake of fact is based on absence of MR
Mistake   of Fact             o Made out if then MR is absent
                              o Leading cases (Pappajohn v. R. and Sansregret v. R) associated with this defense are rape cases, but since
                                 was changed to sexual assault in 1982 the rules which come out of these cases do not apply to sexual
                                 violence (rather what parliament has now specifically set out in new regime is section 265 (4) , 273.1 and .2)
                                 BUT it apples to all other cases
                          Not a positive defense but rather a negation of an element in the offence (lack of MR)
                      Consent outlined in 265.(3) For Assault and 273.(2) and 273.2 adds more for sexual assault
                      Mistake of fact does not need to be reasonable (subjective MR) but it does need to                  R v. Pappajohn
                      be honestly held.                                                                                   (1980) SCC
                                                                                                                 Now
                       MR: must be intentional (knowledge, WB) or recklessness must be applied to all                    Rape of real estate
                                                                                                                 null:
                      elements to both intercourse and the absence of consent                                             agent, rejected that
                                                                                                                  143
                      Issue of lack of consent the accused must subjectively be aware that the                           A believed consent
                      complainant is not consenting, accused must have knowledge/wb/recklessness
                      Can have honestly held but mistaken belief in consent even if charge is predicated                  Sansregret v. R.
          Mistake     on 143(b) – consent thru fear/fraud/ect (even if unreasonably held) BUT cannot be          Now (1985) SCC
          of Fact     willfully blind. Accused found to be WB – this negates the defense of mistake of           null:
                      fact since WB is akin to knowledge. BUT recklessness does not negate mistake of             143
                      fact– if proceed when reckless can still me mistaken and that can be full defense
                      - 1982 Parliament changes to Sexual assault 271.(1) under Assault – left to court to        265     Chase, 1987
                     decide what needs to be present in order for an assault to be elevated to sexual                    (1) to
                     assault. SCC held that is sexual when sexual integrity of the victim is violated when                 271
                     objectively determined.                                                                                (1)
                     - factors incld. of part of body touched, nature of contact, situations, word/conduct
                     - AR: application of force which when viewed objectively violate sexual integrity
                     MR: not needed, Crown doesn‟t have to prove sexual basis of MR
                     No defense of implied consent. If complainant has honestly held fear then does not                         R v. Ewanchuck
                     need to communicate lack of consent.                                                                       (1999) SCC
                     Consent in relation to MR (mistake of fact) limited by common law and explicitly                      271.
                     by s. 273.1(2) and 273.2, No defense if: belief in silence/passivity/ambiguous
                     conduct. (273.2) self induced intoxication, WB or recklessness.
Mens                     Generally speaking mistake of law is not a defense
Rea and                  At common law: ignorance of the law is no excuse - the latin maxim: ignorantia juris non excusat.
Mistake
                         CrimCode: s.19. Ignorance of the law – Ignorance of the law by a person who commits an offence is not an
                          excuse for committing that offence.
                         If allowed for otherwise would:
           Mistake           o Court would be able what the accused thought the law was / encourage ppl to remain ignorant of law / could
           of Law               make the law apply to different ppl differently / law represents moral values of communities and its
                                blameworthy in itself
                     There are two exceptions which allow for Mistake of law as an excuse
                          1) colour of right – statutory exemption that applies to certain property offences like theft
                                     a. states exemption (if it exists) within the statutory provision itself
                          2) officially induced errors of law
                     Honest but mistaken belief in law is not a defense – cannot be as a matter of public                       R v. Campbell v.
                                                                                                                           167
                     policy. Relied on appeal court judgment but should know can be appealed. Irony that                        Mlynarchuk (1972)
                     ppl in society are expected to have a more profound knowledge of law than are Judges
                                                                                                                           .(2)
                                                                                                                                Alberta C.A dancer
                     Colour of right: (429.2) is a defense of mistake of law which is included in a                             R v. Dorosh (2004)
                     number of theft provisions. If A had an honest but mistaken belief (no need to be                     322  Sask C.A.
                     reasonable) in a fact relate to legal entitlements it affords a defense to the charge               429(2) „Bought‟ van and
                     would justify/excuse behaviour                                                                             thought was his
                     Officially induced error of law: Defence of officially induced error is a full defence with                Levis (City) v.
                     reverse onus and must prove 6 elements = results in a „stay of proceedings‟ – not acquitted or Tetreault (2006)
                     guilty (from Lamer in Jorgensen)                                                                           SCC. vehicle
                     1) an error of law or mixed law and fact was made                                                          without license since
                     2) person who committed the act consider the legal consequences of his or her actions                      no reminder sent.
                     3) the advice obtained came from an appropriate official                                                   Defense exists but
                     4) the advice was reasonable                                                                               not applicable in this
                     5) the advice was erroneous; and                                                                           case
                     6) person relied on advice in committing the act (subjective reliance that is objectively reasonable)
                     Judge is only obligated to leave potential defenses with the jury of there is an „air of reality‟          R v. Cinous (2002)
                     evidential basis for them. Have a positive duty not to bring up defenses which lack an                     SCC
           Air of    evidential foundation. [Evidence from totally of case – cross-examination of
Defenses   Reality   accused/witnesses, facts or other relevant info]
                     Test: whether there is evidence upon which a properly instructed jury acting reasonably
                     could acquit if believed to be trial – not how the jury should ultimately decided on the issue
                         Applies to all defenses, including honest but mistaken belief in consent, intoxication,
                          provocation, self defense ect
                         Air of reality test does not raise threshold governing evidential threshold or introduce a            R v. Fontaine (2004)
                          persuasive requirement                                                                                SCC
                        Once defense is put in play, the defense will succeed unless it is disproved by the Crown
                          beyond a reasonable doubt – but defenses will only be put to jury if sufficient evidence
           Air of
                          which isn‟t “tenuous, trifling, insignificant or manifestly un-substantive
           Reality
                     Cases of reverse onus – accused bears burden of persuasive and burden of evidence which
                     only needs to be proved to the lower threshold of „on a balance of probabilities
                         Only justification we‟re considering that displaces the wrongfulness that would otherwise be a crime
                         34- defense against unprovoked assault Main section we‟re dealing with*
                         35 – cases where initial aggressor then becomes defendant
                         36 – defines provocation fro the purposes of 34/35 added specification that can also be provoked by words ect
                         37 – preventing assault – its possible to invoke self defense when coming to the defense of certain others (chid)
                     34(1) only invoked if there is no intention to cause death/grievous harm and no more              R v. Kong SCC 2006
                     force is used than necessary - has 4 necessary elements                                   34(1)
                     1)an unlawful assault (Petel - doesn’t need to be an actual assault if accused              vs    Note: air of reality
                     believes is or will attacked)                                                             34(2) test must be applied
                     2)the assault was not provoked (s. 36 provocation: blows, words or gestures)                      to each of the
           Self         3) lack of intent to kill or cause grievous bodily harm (intent by evidence or                        elements set out in
           Defense      inferred)                                                                                             both sections
           (s. 34)      4) the force used be no more than is necessary for self-defense
                            subjective – if accused believed force used was necessary
                            objective – whether accused’s belief was a reasonable belief                                     Difference: lack of
                        Once determined that force used in self defense is necessary, the resulting                           intention to cause
                        unintended death will not be a culpable homicide. Affords justification of non-                       bodily harm/death
                        excessive force (can mistake about force necessary)                                                   not whether death
                                                                                                                              resulted
                         34(2) invoked where death or g-harm has resulted but (i) the accused reasonable
                         apprehended his own death of g-harm and (ii) believes on reasonable grounds he had                   Lack of excessive
                         no other means of avoiding his death/harm- has three elements                                        force
Defenses                 1) unlawful assault(Petel - - doesn’t need to be an actual assault if accused believes
                         is or will attacked)                                                                                 Evidence whether
                         2)accused has a reasonable apprehension of death or grievous bodily harm                             accused is under
                         (Implicitly as Baxter or intention)                                                                  reasonable
                         3) reasonably believes that he cannot otherwise preserve himself from death or                       apprehension of
                         grievous bodily harm unless he repels the unlawful assault in kind                                   bodily harm
                         * Provides for an acquittal
                         If assaulted, can stand ground – no failure to retreat isn‟t mandatory to invoke self-defense        R v. Deegan (Alta
                         True on general grounds and property – not expected to give up home to adversary                     C.A) 1979
                                o But, failure to retreat can still be relevant depending on circumstances – if went
                                   further than necessary to defend self would be hard-pressed to show belief force
                                   used was necessary to defend self if there is a clear and safe opportunity for retreat
                         General rule is danger needs to be imminent but: where evidence exists that an                       R v. Lavallee (1990)
                         accused is in a battering relationship, expert testimony can assist the jury in                      SCC (battered wife
                                                                                                                     34(2)
                         determining whether the accused had a „reasonable‟ apprehension of death when she                    syndrome)
                         acted, the attack doesn‟t have to strike first. p54 for list of requirements
                         Past threats are relevant in determining whether the accused had a reasonable                        R v. Petel 1994 SCC
                         apprehension of death or bodily harm and that the only solution was to kill the                      Abused by
                         assailant. Not important whether the accused had been an assaulted or whether there                  daughter‟s bf who
                         was going to be an assault – it‟s whether the accused reasonable believed there                      threatened her and
                                                                                                                     34(2)
                         would be an assault. There is no requirement that danger be imminent- only one                       family.
                         factor which the jury should weigh in determining whether the accused had a
                         reasonable apprehension of danger and a reasonable belief that she could not
                         extricate herself otherwise then by killing the attacker
           Defence       s. 41 does not entitle use of legal force on trespasser unless it can be justified under            R v. Baxter 1975.
           of             self defense of s. 34                                                                               Ont. C.A.
           Property      41.(2) – any force used by the wrongdoer in resisting an attempt to prevent his entry               In defending
           (Dwelling)     or to remove him, such force is unlawful, and hence an assault – the amount of                      property cannot use
                                                                                                                     41.(2)   lethal force unless
                          force that may be used to prevent/defense against any assault actually committed
           (s. 41)                                                                                                            self defense under
                          depends on the ordinary principles of self-defense set out in 34 – proportion his
                          efforts to the violence the wrongdoer uses                                                          34
                         Different for burglary or arson is different since those are inherently violent
                         Principle: there are 4 elements to s. 41(1)                                                          R v. Gunning (2005)
                             Must have been in possession of the dwelling-house                                              SCC
                             Possession must have been peaceable                                                    41(2)    A hosted a party
                                                                                                                              where X crashed and
                             C must have been a trespasser - – asked to leave and was a trespasser
                                                                                                                              refused to leave. A
           Defence           Force used to eject the trespasser must have been reasonable in all                             drunkenly got
           of                 circumstances – should be left to jury to decide if constituted a marked                        shotgun and
           Property           departure from standard of care of a reasonable person in A’s circumstances                     accidentally shot.
           (Dwelling)    Air of reality defenses applies to affirmative defenses but its it not the function of
                         the judge to assess evidence and make determination about substantive merits of             41(2)
           (s. 41)
                        defense
Con‟t                       Canadian law has come to recognize some sort of defense of necessity
                            Unlike self-defense it isn‟t in the crim code, so any recognition has to be from common law
                            1970s was pleaded in first Morgentaler case as defense to crime of abortion without the approval of a committee
                              o Dixon – defense of necessity might exist though ill-defined and illusive
           Necessity          o If defense of necessity exists it could go no further than to justify non-compliance in situations of imminent
                                 peril where compliance with the law is clearly impossible
                        No defense of necessity available in English law for murder. Any defense of necessity              R v. Dudley v.
                        appears to be dangerous, immoral and opposed to all legal principle – would rather uphold          Stephens (1884)
                        the law and have the Queen excuse convicted                                                        UK
             SCC held necessity is available as a defense in Canada                                          Perka v. R. (1984)
          Not a justification but rather an excuse “rooted in the idea of a moral or normative                SCC.
          involuntariness” -- Limited to:
                 1) imminent peril and danger (modified objective: Latimer)                                   Boat trafficking
                 2) no reasonable legal alternative (modified objective: Latimer)                             marijuana coming
                 3) proportionality required between harm inflicted and harm avoided (objective:Lat)          from Columbia to
          Elements of Necessity: (Dickson for majority) (see pg 56 for full list)                             Alaska had to moor
             This involuntariness is measured on the basis of society‟s expectation of appropriate and       in Canada because
              normal resistance to pressure                                                                   of weather
Defense                                                                                                       conditions. Found
             Negligence or involvement in criminal or immoral activity does not disentitle the actor to
                                                                                                              that didn‟t intend
              the excuse of necessity
                                                                                                              Canada and had to
             the existence of a reasonable legal alternative disentitle uise – to be involuntary the act     out of necessity
              must be inevitable, unavoidable and afford no reasonable opportunity for an alternative
              course of action that does not involve a breach of law
             the harm inflicted must be less than the harm sought to be avoided
             where the accused places before the court sufficient evidence to raise the issue, the onus is
              on the crown to meet it beyond a reasonable doubt
          Criteria for invoking necessity: (need to have ALL three elements)                                  R v. Latimer (2001)
          1) imminent peril and danger (modified objective standard – objective evaluation which takes        SCC. Father killed
          into account the situation and characteristics of the particular accused person)                    severely handicap
          2) no reasonable legal alternative – Modified objective standard                                    daughter
          3) proportionality required between harm inflicted and harm avoided – objective standard
          facts of the case held that that upcoming surgery of daughter isn‟t imminent peril, that
          existing legal alternatives (even if undesirable) should be pressured and that killing a person
          with non-life-threatening injuries is disproportionate

				
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