Criminal

– LAW 420C – Term 1

Intro to Criminal Law
- Criminal law is important because:
o Interact with concepts of human condition; law prohibits certain conduct by individual
o Law reflects society’s collective morality/values
o Tension between state action and individual liberties (Charter rights)
o Fundamental principles of justice
o Learn how crimes and punishments are defined, and defenses to them
o Principles of statutory interpretation

Criminal Justice System & Criminal Procedure

Intro to Criminal Justice System
-Criminal laws passed by legislative branch, enforced by executive branch and applied by judicial branch
o Exclusive authority for passing criminal law given to Parliament in Constitution: Criminal Code
o Drugs are major source of prosecution: Controlled Drugs Substance Act (CDSA)
o Criminal laws updated by Parliament to address safety, morality or health concerns in nation
- Provincial legislatures have power to pass and enforce laws with prohibitions and penalties, even jail
o Regulatory; not criminal offenses (e.g. Highway Traffic Safety Act)
o Driving offenses represent continuum (prov to fed); e.g. speeding vs dangerous driving
-Enforcement by executive branch: police (municipal and RCMP) and Crown prosecutors
o Police detect crime (or it’s reported), form investigation, lay charges, file report with
Prosecutor’s office, then Crown prosecutes individual until verdict and sentencing
-Judges make laws related to defenses, not offenses (criminal common law); defenses can be in Code
-What is a crime?
o Statute that includes a prohibition and penalty, enacted to serve public purpose such as peace,
order, security, health, morality (SCC)
o Any act/omission deemed injurious to public and prosecutable in criminal proceeding
-3 stages of Canadian criminal law:
1. 1867-1892: Statutes and common law derived from England
2. 1892: First Criminal Code of Canada enacted (came into force 1893)
3. 1955: Major revisions/modernization to Code (now updated regularly, theoretically)
-All criminal offenses are in Code or CDSA
o Only remaining offense for judges to determine = contempt of court (specifically not defined)
-Aspects of adversarial/accusatory system:
1. Triers of law (judge) and triers of fact (judge or jury) relatively passive but make decision at end
o Jury trials: judge gives charge, jury decides what evidence they believe / level of doubt
§ Jury verdict can only be set aside by declaring mistrial (e.g. tainted evidence)
o Judge-only (most): Referees courtroom, hears evidence/ counsel submissions, decides
2. Counsel represents parties and expected to argue their side
o Each responsible for martialing evidence and advancing their own case; not required to
help the other side
3. Proof beyond a reasonable doubt required
o Higher than balance of probabilities (civil standard); not as high as absolute certainty,
but closer to certainty

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 o Prosecutor has onus to prove guilt; accused need not prove innocence (right to silence)
4. Trial by jury available for serious cases
o Indictable offenses (murder, sexual assault); most offenses are hybrid
-Structure and hierarchy of courts:
o Levels of courts that hear criminal trials:
o Provincial Court of Alberta (Criminal Division)
§ Judges appointed by provincial legislatures from bar
§ Hears trials for all crimes but s.469 (murder)
o Superior Courts of Alberta (ABQB and ABCA)
§ Judges appointed by PM with assistance of fed Minister of Justice
§ Decision from ABCA with dissent = right of appeal to SCC, otherwise seek leave
o Federal Court of Canada (trial and appeal division)
§ Judges appointed federally; deal with all fed laws except Criminal Code & CDSA
-Precedent and stare decisis
o Decisions of higher courts binding on lower courts; obiter comments not binding but persuasive
-Criminal lawyers = prosecutors and defense counsel
o Federal prosecutors: CDSA and non-criminal federal statutes (e.g. Food and Drug Act, Fisheries)
o Provincial prosecutors: all Criminal Code offenses
o Prosecutors have wide range of powers including discretion whether or not to prosecute
o Prosecution standard: Reasonable likelihood of conviction (more likely than not)
o Crown must consider: what material evidence is likely to be admissible, weight to be
given to admissible evidence, likelihood of viable (not speculative) defenses
o Prosecutors not seeking conviction but have duty to press case to its natural strength
o Public duty to lay before jury what it considers credible evidence relevant to crime
o Crown must also consider public interest in favour of and against prosecution
o Main differences: Crown must fully disclose evidence/information for case to defense
o Defense lawyers must follow rule of law, rules of ethics and rules of evidence; within
that, fight as hard as possible for client
-R v Nixon (SCC)
o Facts: Crown agreed to pursue lesser charge (fine, not criminal), then reneged; defense asked
court to force Crown to renew deal (both sides rely on other to keep their word)
o SCC provided analysis of Crown’s duties and rights:
o Decision to lay or stay charges, take over private prosecution, or accept plea to lesser
offense lies solely with Crown (not subject to review absent abuse of process)

Overview of Criminal Procedure
-3 types of offenses:
o Straight indictable (‘felonies’ in US): e.g. murder
o Hybrid (crown can elect to proceed summarily or by indictment): e.g. theft
o Summary (‘misdemeanors’ in US)
-General procedure:
o Crime alleged to have been committed
o Police investigate (length of investigation varies widely)
o Police lay charge (swear information before judge/justice of peace)
o Prosecution takes over soon after arrest with Information
o For minor offenses, accused can be released on ‘promise to appear’; for major offenses, may be
released with conditions or on bail
o For 469 offenses (murder), onus on defense to prove why he should get bail

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 o All other offenses; crown must show cause (prove why he shouldn't get bail)
o 3 grounds to oppose bail (Crown’s discretion):
§ Primary - ensure they attend court
§ Secondary - fear of endangering public or impeding case
§ Tertiary - release would bring administration of justice into disrepute
o Set trial date or choose not too; if evidence strong, may resolve before trial (guilty plea)
o If Crown elects indictment, accused has choice between straight to trial or preliminary inquiry
o Hearing conducted to determine “Is there any evidence upon which a reasonably
instructed jury could convict?” – lower standard than beyond reasonable doubt
o Allows both sides to test strengths/weaknesses of case and witnesses
o If no sufficient evidence found, judge decides charge(s) must be dismissed
o Trial is set; function of Information ends and Crown files indictment
o Accused enters plea and election of jury or judge-only is determined
o Judge vs jury: strategic choice depending on offense, who judge is, will accused testify
o Crown can file direct indictment: no prelim, go straight to trial in superior court
-Trial proceeding:
o Crown gives opening statement; defense only gives statement if it calls a case later
o Jury swears oath to stay impartial and do their best
o Crown calls first witness, then following witnesses (all bound by oath) – direct examination
followed by cross-examination by defense for each (different rules/strategies for direct vs cross)
o All supporting documentation filed and real evidence submitted is brought into Crown’s case
o Crown closes case; defense has choice to call or not to call
o Accused’s right to silence cannot be used against them to infer guilt
o Defense’s case follows same procedure; finishes with “the defense rests”
o Both sides give closing arguments (submissions to jury/judge with their theories)
o In jury trial, judge gives charge (applicable law, standard of proof, evidence, etc.)
o Jury deliberates until reaching unanimous verdict; hung jury results in mistrial
o Jury delivers verdict; if acquitted, accused free to go; if convicted, sentencing takes place
o Both sides make submissions for proper sentence (sometimes joint recommendation)
o 30 days to file notice of appeal to higher court, if losing side believes error of law was made
o Vast majority of trials never get appealed

Evidence and the Charter

Evidence
-Crown must prove case beyond reasonable doubt piece-by-piece by introducing evidence
-4 general sources of evidentiary rules:
1. Criminal Code
2. Statute/Canada Evidence Act (pertains to evidence for all federal statutes, Criminal Code, CDSA)
3. Common law (judge-made evidentiary rules that evolve with time)
4. Charter of Rights and Freedoms
o Charter evidentiary rules are entrenched; take precedence over the other 3
o Some common law rules have taken on constitutional gloss (e.g. common law confessions
rule adopted as part of s.7 protections)
-To be admissible, evidence must meet 4 qualifications:
1. Relevant to fact in issue
2. Probative value exceeds its prejudicial effect

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 o Probity is essentially synonymous with relevance; highly probative vs speculative
o 2 kinds of prejudice: moral (draw conclusion about accused because they are ‘bad person’)
and reasoning (process becomes distorted through improper use of evidence)
3. Not excluded under common law or statutory exclusion rule
4. Complies with Charter
o Evidence can be excluded at this stage if obtained in unlawful manner by state
-Examples of admissible/inadmissible evidence:
nd
o Accused’s criminal record is important piece of evidence excluded under 2 test- extremely
morally prejudicial (‘a dog that bites’), and 3rd test- common law rule that Crown cannot
introduced bad character references (unless accused introduces his character first)
o Complainant's sexual history no longer admissible evidence (since 90s); reasoning prejudice
o Some rare exceptions (e.g. recent consensual sex b/n accused and complainant)
o Also excluded under s.276 of Criminal Code (inadmissible if proposed to make
complainant less credible or more likely to have consented)
o Accused’s confession meets all qualifications
o Highly relevant and probative (no one lies to put themselves at disadvantage)
o Not excluded under common law or statute (except common law confessions rule)
o Not excluded under Charter as long as it doesn’t breach a right
o Confession is exception to the general hearsay rule (statement against interest)
-Hearsay rule
o Two defining features:
1. Out-of-court statement introduced to prove contents of statement
2. Absence of contemporaneous opportunity to cross-examine declarant of statement
o Classic hearsay situation involves 4 elements: Declarant, Recipient, Statement, Purpose
o Typically excluded because:
§ Can’t simply accept truth without opportunity to test; cross-examination crucial
§ Witnesses are human beings who can suffer from insincerity, forgetfulness, bias
§ Exceptions: dying declaration, statements against interest
§ Other exceptions introduced in 90s from series of cases (e.g. KGB; young child
told doctor about molestation by family member, later forgot)
o Hearsay admissibility turns on purpose of its being tendered – e.g. is it being used not for
truth of its contents but to explain events in logical fashion or corroborate other evidence
§ E.g. police dispatched on call for suspected impaired driver (not admitted to
determine identity but to explain why next thing happened)
§ E.g. statements/actions by others provoking violence or rage in accused
§ Exceptions: confessions to non-authority figures, overheard confessions

- Common law confessions rule
o Applies to any statement (one word/sentence) or even a gesture (shrugging)
o Whenever Crown wants to tender statement given by accused to person in authority, must
prove it was voluntary beyond a reasonable doubt
o Person in authority: “agent of the state”
o Individual formally engaged in arrest, detention, examination of prosecution of accused
o Subjective and objective elements:
§ Accused must believe it is a person of authority who can influence proceedings
§ Actual relationship between agent receiving statement and police/prosecution
o Accused must prove person receiving statement was agent; difficult if undercover cop
o After person of authority is proven, common law confessions rule engages

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 o Typical circumstances of involuntariness:
1. Inducement (quid pro quo):
§ Statement made as result of officer’s threat or promise
§ Doesn’t matter if officer kept their word; not permitted to “make deals”
§ Individual circumstances of accused considered; may take more to induce some
§ If inducement was a threat, might also fall under category 2
2. Oppression
§ Overbearing action that may raise doubt about voluntariness
§ E.g. physical manipulation (keeping accused in cold cell then bringing into warm
room); actual violence; psychologically overbearing (hard to prove)
3. Operating mind
§ Accused must have conscious mind; aware he is speaking
§ Age and intelligence not relevant; can’t be extremely high or drunk
§ SCC: “sufficient cognitive capacity to understand what he is saying and ability to
know evidence can be used against him”
4. Police trickery
§ May be excluded under confessions rule; trickery is a high standard
§ E.g. Not just undercover but imitating Legal Aid lawyer telling him to confess
o Voluntariness proven in a voir dire
o Held anytime evidence sought to be admitted by a party (usually Crown) is contested
o “Trial within a trial”; conducted by trier of law only
o Evidence introduced, witnesses examined, arguments given, judge decides if Crown has
proven beyond reasonable doubt that evidence is admissible
o If Crown fails to prove voluntariness, remedy is exclusion
o Historically, evidence was rendered inadmissible because inaccurate, but derivative
evidence that corroborated part of statement could still be admitted
o With Charter, breach of common law confessions rule has constitutional status -
considered breach of s.7 (right to silence and right against self-incrimination)
o Any evidence derived from breach may be rendered inadmissible under s.24(2)
o Test: would admission of evidence bring the administration of justice into disrepute?
o Derivative evidence
o Defense must show link between involuntary confession and finding of evidence
§ If sole reason for finding it was unlawful confession, court likely to exclude
§ If evidence is extremely reliable and significant, court likely to admit
o Balancing act; evolves over the years with different makeup of courts
o Constitutional right to silence under s.7 is rooted in two common law concepts:
o Confession rule (properly obtained by authorities)
o Privilege against self-incrimination (not required to speak to police or testify at trial)
o Confessions rule applies whether in police custody or not
o When detained by police, more robust application

-Section 10 of Charter
o s.10: Every individual has the right on arrest or detention to:
a. Be informed promptly of reasons for arrest/detention
b. Retain and instruct counsel and be informed of that right
c. Have validity of detention and be released if detention is not lawful
o Applies only after detention; distinguishing feature from confessions rule
o First 2 rights trigger immediately on detention:

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 a) If charge changes (e.g. complainant dies), must be informed again
b) If not given chance to speak with lawyer within minutes, anything said may be
inadmissible; if jeopardy changes, must be given another opportunity
o 3 types of detention:
§ Physical (handled by officer in some manner)
§ Psychological with legal consequences (comply because legally compelled)
§ Psychological without legal consequences (not legally compelled but person
reasonably believed they were detained)
o Most difficult for court to determine
o Often people assume lawful authority means they must comply
o Consider circumstances: purpose of detainment, nature of conduct,
characteristics of accused
o Burden of proof
o Crown must prove voluntariness of statement beyond reasonable doubt
o Accused carries burden of proof for Charter breaches
§ Must prove on balance of probabilities: 1. Charter right applied, 2.
Right was breached, and 3. Evidence should be excluded
o Once detention/arrest established, accused must show if he was told why;
just enough information to convey reason (not often an issue)
o Right to Counsel: s.10(b)
o For right to counsel to be effective, must have access to lawyer’s advice before being
questioned or required to give statement
§ Balance playing field against overwhelming/coercive power of state
§ Breach commonly results in statement being excluded; connects to right against
self-incrimination and right to silence
§ 'Bridges call': since this case, accused must be given working phone and legal aid
24/7 lawyer to give basic advice
§ Must exercise reasonable diligence; can’t wait until chosen lawyer available
§ Exception: court found in Thompson while pulled over for roadside test
(screening device) you are detained but no right to speak with lawyer
o Informational and implementational components:
§ Informational: tell accused about right to counsel without delay
• Objective - did circumstances exist that should've led police to realize
accused didn't understand their rights? (language, age, capacity)
• Can be waived if a reasonable basis for police to conclude that accused
understood the waiver and how rights can be exercised
§ Implementational: give accused opportunity to exercise right
• Only defeated if accused is not reasonably diligent in pursuing it, waives
it, or exigent circumstances discourage it (Crown must prove)
• If accused is duly diligent but cannot contact counsel, right to counsel
has not been satisfied and protections remain intact
o R v Sinclair (Oct 2010)
o Ratio: It is up to accused to exercise right to counsel diligently; not an ongoing right
o Facts: S arrested for murder; 2 brief phone conversations with lawyer (3 mins each); said
he was satisfied with advice – “don’t say anything important” and “police may lie and
exaggerate to get confession”; when cop brought forward incriminating evidence,
accused asked to speak to lawyer again; told he exhausted his right
o Majority (5):

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 § 10(b) does not mandate defence counsel be present during interrogation
§ Right to legal advice is relevant to situation; your right is temporal, not ongoing
§ "Upon arrest or detention" = discrete point in time (must balance with need for
police investigations to proceed reasonably and efficiently)
§ Once you exercise or waive your right to counsel, it is exhausted
• Exceptions: irregular procedures, change in legal jeopardy, accused not
understanding legal advice (or police undermine it)
§ Detainees have absolute right to silence, so ultimate power; unless situation
changes that initial advice is adequate
o Binnie J (dissenting):
§ Right to counsel must be effective and ongoing (otherwise just play a recording)
§ As information unfolds in investigation, accused may need more robust advice
§ Interviews are a test of wills; police wear them down, build up trust
§ Unless officer is very overbearing, no quantitative limit to repeated questioning
o Fish & Lebel (dissenting):
§ Majority rule recognizes new police power for unlimited interrogation of
detainees who choose to remain silent; undermines presumption of innocence
and implies duty to cooperate with state
§ R v Herbert; s.7 rights should be more robust when detained, not less
§ French version of 10(b): right to ‘assistance’ of lawyer implies throughout
o R v Willier
o Ratio: No duty on police to ensure ‘quality’ of accused’s right to counsel
o Facts: Accused requested to speak with certain lawyer but couldn’t get in touch; spoke
to duty counsel briefly
o Held: If not satisfied with advice, call another lawyer right then; your right is exhausted
once you emerge from phone booth; police need not be concerned with quality
o Reasonable amount of time to contact chosen lawyer depends on case, but time is
essential to police and accused must show due diligence
o Prosper warning: can't contact chosen lawyer, then choose not to contact any other
counsel; police must warn you of circumstances accompanying ceding of legal right
o R v Taylor
o Ratio: Until access to counsel given, police must delay questioning or obtaining evidence
o Facts: car accident, police arrested T for impaired driving causing bodily harm based on
visible signs; informed of right to counsel, T said yes lawyer on stretcher in ambulance;
never given chance to call lawyer in hospital; blood taken was tested, over legal limit
o Issue: Can blood sample from hospital be admitted as evidence for impaired?
o SCC found the officer forgot implementational part of 10(b); no right to counsel given
o Held: Duty to inform arises immediately upon arrest and duty to give opportunity arises
when detainee asks to exercise right; must hold off questioning or obtaining evidence
o Crown bears burden of showing delayed access to counsel was reasonable; if obvious
impediments (e.g. accused is unconscious or doesn’t speak English) must work around it
o Court found serious breach and applied Grant analysis to determine admissibility
o R v Hart
o Ratio: Confessions arising from Mr. Big operations are presumptively inadmissible
o Facts: H’s daughters drowned; Mr. Big undercover operation set up; paid $15K, given
fancy lifestyle, offered protection/friendship as co-conspirator in criminal operations;
confessed to drowning daughters and showed officers how he pushed them into water

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 o Issue: Common law confessions rule doesn’t apply to undercover operations b/c no
belief of speaking to agents of state; Charter 10 (a) and (b) not applicable because not
arrested or detained; concern that statements arise from manipulation or compulsion
o Held: Evidence should be excluded
o Reasons (McLachlin CJ): Confession resulting from Mr. Big operation like this is
prejudicial (bad character evidence) and possibly involuntary (powerful inducements)
§ Currently allowed under exception to hearsay rule
§ New common law rule: these confessions are presumptively inadmissible;
Crown must establish on balance of probabilities that probative value outweighs
prejudicial effect (same test as all other statements, except presumption)
§ Probity/reliability: length of operation, nature of relationship, presence of
threats, police conduct, circumstances of accused, description of mundane
factors, leads to discovery of other elements of crime
§ Prejudicial effect: Moral (evidence of other crimes) and reasoning (distracts jury
from fact-finding)
§ SCC found evidence more prejudicial than probative; H vulnerable, no external
reliability, no proof without confession, months of bad character evidence
o Mr. Big and Undercover Operations
o Reliability: police can mislead accused about factual circumstances or evidence they
have, but NOT about law or legal jeopardy (could lead to breach of 10(a))
o Greater imbalance between accused and police = more likely finding of inducement to
give false confession

-Section 8 of Charter
o S.8: Right to be secure against unreasonable search and seizure
o Personal right that protects individuals, not police – not absolute privacy in all situations
o To be applicable: 1. Must have privacy recognized by courts, 2. Activities involved must
be described by search or seizure, 3. Must be carried out by agents of the state
o Searches can be made:
o Generally made under warrant authorized by JP based on sworn evidence; different
levels of search warrant garner higher judicial authorization
o Searches incidental to arrest; upon arrest officer can do pat down and search immediate
vicinity – if subjective and objective belief that it will afford evidence of that crime
§ If arrested at home, cannot search area around you (higher degree of privacy)
o Accused carries burden to prove on balance of probabilities that s.8 was breached and that
evidence should be excluded under 2.42(2)
o R v Collins
o Ratio: Officers need reasonable and probable grounds to conduct search (not hunch)
o Facts: Collins grabbed by undercover officer in bar (identified as cop to her) by throat to
prevent from swallowing drugs he thought were in her mouth; heroin balloon in hand
o Seminal case on recognizing right of privacy under s.8 (also represents first generation
of remedy for exclusion analysis cases)
o SCC held: Search will be recognized as reasonable only if:
i. Authorized by law
ii. Law itself is reasonable
iii. Carried out in reasonable manner
o Officer claimed he had credible hunch based on experience; court said suspicion is not
enough to base a search on; AND carried out in violent manner (breached 1 and 3)

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 o If search done without warrant and not incidental to arrest, presumptively assumed to
be unreasonable - onus on Crown to prove reasonableness on balance of probabilities
o Accused applied to have evidence excluded from trial. Must prove:
i. She had a right of privacy
ii. Right of privacy under s.8 was breached
iii. Remedy favours exclusion of evidence
• This is still good law, but test for exclusion (iii) has since changed
o R v Chubak
o Ratio: As long as officer subjectively and objectively believes search is linked to initial
purpose of arrest and will afford evidence, they can search anything incidental to arrest
o Facts: Officer arrested C on side of road for weapons charge; developed suspicion that
he possessed drugs as well; searched whole vehicle including small tin
o ABCA held: No evidence for officer’s subjective belief that tin could not possibly contain
evidence in support of weapons charge; watered down rule but law in AB
§ Warrantless searches prima facie unreasonable, but can be permissible if done
incidental to arrest in interest of "ensuring public and police safety, protecting
evidence from destruction and discovery of evidence for trial"
o Berger (dissenting): If search for drugs occurs unrelated to reason for initial arrest,
separate purpose should not serve to allow that search without warrant (need to arrest
for both offenses to have proper dual purpose)
o R v Patrick
o Ratio: No right to privacy over garbage (abandoned property)
o Facts: Accused's garbage searched at back of property; readily accessible but officers
had to reach over property line (trying to find evidence for drug lab)
o Held: Accused must establish a legal right to privacy. If abandoned, you've given up
reasonable expectation of privacy; even if evidence can be used against you criminally
§ Test: did accused have subjective belief in continuing privacy interest? Was it
objectively ascertainable?
o Analysis: Unclear whether cop trespassing to get garbage is a breach of right to privacy
-Right to privacy in computer age (4 cases)
o R v Cole
o Ratio: Right to privacy over computers including work ones (level varies); need warrant
o Facts: Teacher downloaded photos of student to his computer; reported by tech
routinely checking school laptops; officer didn't get search warrant; not required then
o Held: Search without prior authorization breached s.8; evidence admissible (good faith)
o Analysis: Consider who computer was owned by and whether waiver of privacy was
signed; on balance, most people do not have fully separate work and personal devices
§ Tech searching computer was not breach of privacy = within school’s rights
§ Handing over to police for non-consensual examination by state = illegal search
§ Good faith Charter breach can be treated leniently especially if law is unclear;
deliberate breaches treated more seriously
§ Discoverable evidence less likely to bring admin of justice into disrepute
o Abella J (dissenting): police knew searching property required a warrant, and no effort made to
determine what private information C might want to protect; serious breach, no exigent
circumstances justifying including evidence
o R v Vu
o Ratio: Separate search warrant required to search computers (heightened right of
privacy)

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 o Facts: Police searched house for evidence of drugs/criminal activity; found marijuana,
two computers and cell phone; typically, search warrant gives officers right to search all
"receptacles" (anything that can hold or receive something); searched laptops
o Held: Warrant to search home didn’t give officers authorization for that specific search
o Now, officer swearing information to get warrant must show credibly-based probability
that search of that particular computer would afford evidence of alleged crime
o R v Fearon
o Ratio: Scope limited for cell phone search; search incidental to arrest must follow
certain parameters
o Facts: Cell phone was searched incidental to arrest; found inculpatory draft message
and photo that helped Crown establish F committed robbery
o Held: Search incidental to arrest is exceptional because no warrant required and no
reasonable/probably grounds needed. The following parameters must be followed:
i. Arrest must be lawful
ii. Search must be truly incidental (valid law enforcement purpose: officer or public
safety, preservation of evidence, or discovery of evidence if investigation
significantly hampered without search)
iii. Nature tailored to purpose of search: only recent messages or calls can be
validly searched (but deeper searches in circumstances of porn)
iv. Officer must take detailed notes of search that was conducted
o R v Spencer
o Ratio: Users of internet have right to keep private their names from being associated
with particular content
o Facts: Police found evidence of child pornography; requested IP address from internet
provider (reasons to believe customer is downloading porn); used to be permitted
o Held: Now police must get search warrant from judge (production order) to compel
internet provider to give name and address related to that IP address

-Section 24(2) of Charter
o Since 1982, there is a remedy available when Charter rights breached: exclusion
o In a trial voir dire, applicant must prove on balance of probabilities that:
o Right was breached (counsel, privacy, etc)
o Evidence obtained from breach must be excluded to preserve integrity of justice system
§ Must show causal relationship b/n breach and discovery of evidence
o S. 24(1): not relied on often in criminal law (breach of rights against discrimination)
o S. 24(2): Any evidence obtained in manner that infringed Charter rights shall be excluded IF all
circumstances lean toward bringing the administration of justice into disrepute
o Ask "whether a reasonable person, informed of all relevant circumstances and the
values underlying the Charter, would conclude that the admission of the evidence would
bring the administration of justice into disrepute"
o 3 generations of exclusion of evidence cases:
1. R v Collins: Factors: type of evidence, seriousness of breach, wilful/inadvertent,
circumstances/urgency, importance to case, other techniques available
o Factors were grouped into 3 categories: 1. Fairness (most impt), 2. Seriousness,
3. Reputation of System)
2. R v Stillman (peak in 1997; started with Melinville in 1992): More robust exclusion
(previously, statements from Charter breach were excluded but derivative evidence was
admitted). In 90s, conscriptive evidence likely excluded. Accompanied by public outcry.

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 3. R v Grant (2009): More Conservative SCC, sharp swing to right. Fairness no longer seen
as distinct branch of analysis but ‘overall goal’ (subtle but major change).
o Grant Analysis (takes place on voir dire):
o 3 branches (all weighed equally and based on circumstances of individual case):
i. Seriousness of breach: flagrant or inadvertent? More serious conduct creates
greater need for court to distance themselves from it by excluding.
ii. Impact of breach on rights of accused: technical or invasive? Breach resulting in
confession or invasion of home/body/computer favours exclusion.
iii. Society’s interest in adjudication of case on merits: Is evidence highly reliable?
Seriousness of crime? Only piece of evidence in case (cuts both ways)?
o Derivative evidence: Before, Crown had to prove on balance of probabilities they would
have found derivative evidence anyway (discoverability). NOW onus is placed on
defence to prove Crown wouldn't have found it - if unclear, it favours inclusion
o R v Harrison
o Facts: Cop followed H, pulled over for missing front license plate (but AB vehicle in ON);
had disqualified license; in search incidental to arrest, found 35kg of cocaine
o Court applied Grant analysis: Reliable evidence and serious crime, but wilful and flagrant
conduct of officer (knew he had no grounds to pull over); impactful breach of s.9
o Held: Evidence excluded; turned on officer’s knowledge that he wasn’t following law
§ Compare to Cole where officer didn’t know he needed warrant to search comp
§ In Vu, cop didn’t know separate warrant needed for laptop so evidence included
§ In Fearon, similar good faith breach (rule hadn’t been established yet)
o R v Morelli (2012)
o Facts: Cops issued warrant to search personal computer for evidence of porn; ITO to get
warrant based on misleading, inaccurate, incomplete information
o Held: Breach of s.8 right; Court applied Grant analysis; evidence excluded
§ Not done in bad faith but highly intrusive search; Crown would have no case
without; admission would bring long-term admin of justice into disrepute
o Duty on police to be full, frank and complete in disclosure; taken on their word at time

Onus of Proof

-3 burdens of proof:
o Legal burden or ultimate/persuasive burden: prove or disprove fact in issue according to
relevant standard before trier of fact
o Prosecution must prove accused’s guilt beyond reasonable doubt
§ No reverse onus on accused to prove innocence (except exclusion in voir dire)
o Crown must prove ALL the essential elements of offense:
i. Occurred within that jurisdiction
ii. Identity of culprit was the accused
iii. Elements of offense: actus reus and mens rea
o Case-to-meet burden: adduce sufficient evidence to raise issue as to existence or non-existence
of fact in issue (warrant trier of fact’s consideration of issue)
o Crown must bring forward at least some evidence on each of elements of offense for
trier of fact to consider it – if not, defense can request directed verdict of acquittal
o For every legal burden, an intermediate CTM burden exists
o CTM burden decided by trier of law - beyond reasonable doubt not required

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 o Quantitative, not qualitative: “is there some evidence on which reasonably instructed
jury could convict?” (air of reality test)
o Tactical burden or practical/common sense burden: falls on party when adverse evidence is
adduced by opponent (shifts over course of trial depending on reliability of each witness)
o Assessment each counsel must make of case to determine tactically whether to call
more evidence on particular issue - “Why am I going to trial?”
-R v Woolmington (1935 HL)
o Ratio: Golden thread runs through common law: burden remains on Crown to prove accused’s
guilt beyond reasonable doubt
o Facts: W’s wife died by gunshot; neighbour heard shot and saw W leave; W claimed accident
o Issue: Trial judge told jury that once Crown proved the deceased died by an act of the accused,
you are to presume he intended to do so (murder unless accused can prove otherwise) - wrong
o Held: Presumption of innocence and proof of guilt beyond a reasonable doubt are two principles
of fundamental justice
o For homicide, must prove both voluntary act and "malice of the accused", either
expressly or through implication where it is "intentional and unprovoked"

-Jury Charges
o Used to be variety of language used to explain burden of proof; resulted in some unfair results
o Now most judges use authoritative scripts to explain reasonable doubt and burden of proof in
jury charge; If these concepts are missing, automatic ground for appeal
o Still many differences b/n jury charges; e.g. how close reas.doubt is to absolute certainty
o 'Sure' is the only descriptor that has been upheld as being acceptable when explaining
reasonable doubt, BUT only after full explanation has been given to jury
o Credibility: Trial judge can never say 'You have to decide who you believe, Crown or accused'
1. Infers accused bears onus of proving his version of events is more likely – not true
2. Implies accused must raise reason why complainant has this story (motive)
3. Ignores the fact that accused might not be believed but still be not guilty
o 3-part test when accused testifies on behalf of himself in criminal trial (R v DW):
1. If you believe accused's evidence, you must acquit
2. If you don't believe accused's evidence but it adds to circumstances of case and brings
up reasonable doubt, you must acquit
3. Even if not left in doubt by accused's evidence, are you convinced beyond a reasonable
doubt on the evidence you have?
- R v Lifchus (1997 SCC)
o Ratio: Proof beyond a reasonable doubt inextricable from presumption of innocence; proper
explanation of reasonable doubt is essential element of jury charge
o Facts: Accused charged with fraud against employer; trial judge erred in charge to jury (no
definition of reasonable doubt - “ordinary, everyday words”)
o Issue: Should concept of ‘reasonable doubt’ be explained to a jury, and if so, how?
o Held: Cannot be a fair trial if jury doesn't understand proof beyond a reasonable doubt
o Jurors must know difference b/n balance of probabilities and absolute certainty
o Reasonable doubt can be held by inarticulate juror, so shouldn't require it to be
something you could give a written reason for
o Cory J set out principles and provided suggested charge for future judges to use
o Proof beyond reasonable doubt should be explained carefully in terms of negatives
(what it's not – e.g. haunting or substantial doubt); can be followed with ‘sureness’

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- R v Layton (2009 SCC)
o Ratio: Where jury asks for clarification on standard of proof, judge must assist them in
understanding what is required of them
o Facts: Sexual assault case hinged on complainant’s credibility; trial judge read model charge but
jury had question about difference b/n absolute certainty and bal. of prob.; fell into error of
rereading original charge, not addressing question, and sent them back to continue deliberating
o Held: Error: must go beyond original instructions; elaborate or invite back for further clarity
o Judges wary to go beyond Lifchus charge and use synonyms/other adjectives to describe
reasonable doubt in fear of misleading jury
o Not only did judge not answer the specific question posed by jury but erred by ending
with: ‘there’s very little I can add to clarify the concept of reasonable doubt’

-Presumptions
o Crown must prove all elements of offense beyond a reasonable doubt, but certain things are
difficult to prove; presumptions operate to ‘presume’ a fact has been proved when it hasn’t
o Presumptions come in various form and are distinguished in 4 main ways:
o No Basic Fact/Basic Fact:
§ Basic Fact: Presumption at law without a basic fact being proven first
• Presumption of innocence
• Presumption of sanity (Crown need not prove everyone in right mind)
§ Basic Fact: Crown proves basic fact which leads to another fact being presumed
• If in driver’s seat, deemed to be in care and control of motor vehicle
o Permissive/Mandatory
§ Permissive/nudging inferences: on proof of basic fact, trier of fact MAY, but not
must, infer that presumed fact is the case
• Doctrine of recent possession (if found in recent possession of stolen
property, may be guilty not only of possession but also theft/robbery)
• Sane and sober person intends natural consequences of actions
§ Mandatory: if basic fact proved by Crown, trier of fact MUST presume second
fact is the case
• Often defined in statute but many struck down for breaching s.11(d)
• E.g. old Narcotic Control Act: once Crown proved accused possessed
narcotic, presumed guilty of possession for purpose of trafficking)
• R v Oakes: SCC struck down s.8 for offending presumption of innocence;
unconstitutional to require accused to prove he wasn’t possessing for
that purpose; could be convicted despite reasonable doubt
o Conclusive/Rebuttable
§ Conclusive: cannot be rebutted by any evidence (rare and statutory)
§ Rebuttable: on proof of basic fact, presumed fact is assumed but accused may
rebut presumption by tendering evidence for trier of fact (2 possible standards)
o Standard of proof for accused
o Balance of probabilities: the word ‘established’ indicates this standard applies
o Evidence to the contrary: must raise a reasonable doubt
o R v Laba (1994 SCC)
o Ratio: Not rational to presume from fact that one has purchased or sold mineral that
transaction was illegal; balance of probabilities is too onerous for accused to meet

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 o Facts: L charged with selling/purchasing stolen precious metal; reverse onus clause in
Criminal Code (if someone is found selling or purchasing rock/precious mineral, deemed
guilty unless he establishes he is owner or agent acting under lawful authority)
o Issue: Does s.394(1)(b) infringe on s.11(d) of Charter and is it a reasonable limit?
o Held: Provision violates s.11(d) because a person can be convicted despite a reasonable
doubt, breaching presumption of innocence; fails Oakes (s.1) test
§ Changed from balance of probabilities (‘establishes’) to evidence to contrary
o R v Keegstra (1990 SCC)
o Ratio: Wilful promotion of hatred is a reasonable limit on freedom of expression and
presumption of innocence
o Facts: Teacher communicated anti-semitic messages to students; charged with willful
promotion of hatred; claimed law infringed his freedom of expression in Charter
o Issue: Does law infringe freedom of expression and presumption of innocence?
o ABCA: infringed s.11(d) and s.2(b), struck down under Oakes test; ONCA (similar case):
no infringement of either; SCC had to settle law for the nation
o Held: Law breaches freedom of expression under s.2(b) and presumption of innocence
under s.11(d) by putting reverse onus on accused to prove hate speech was true on BOP
§ Upheld as reasonable limit in free & democratic society under s.1; injury caused
by hate propaganda (‘not all expression is equally deserving of protection’)

Actus Reus

-Every criminal offense requires: a guilty act (or omission) superimposed temporally at least to some
degree with a guilty mind (intention)
-Actus reus for an offense can be:
o Act: performance of activity (touching) or production of specified consequences (killing person)
o Omission: duty on accused to do something and failing to meet that duty
o E.g. failing to provide necessaries of life for child; failure to appear in court
- R v Dunlop (1979 SCC)
o Ratio: Mere presence at scene of crime is not enough to ground liability
o Facts: Woman gang raped by crowd of people watching; she testified that accused raped her
o Issue: If we conclude that accused were present but didn’t commit rape, would they be guilty?
o Held: A person is not guilty merely because he is at scene of crime and does nothing to prevent
o No duty to prevent a crime, so no actus reus (would be different if accused had actively
done something like holding victim down, kept watch, prevented escape, etc.)
- R v Moore (1979 SCC)
o Ratio: When person is seen by officer committing any offense, they have duty to provide name
and address for purpose of identification
o Facts: M convicted for going through red light on bike and not giving officer name and address;
obstructing police/peace officer (criminal offense)
o Majority: officer has duty to enforce the law; when he sees offender break any law, he must
find out that person's name; failing to provide or lying is obstructing an officer in his duty
o Positive duty on motorists to provide name when caught committing offense
o However, officer must SEE or have reasonable grounds to believe person has committed
offense (mere suspicion is not enough to cause duty to arise)

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 o Dissent: just because officer has duty to enforce law doesn't equal corresponding duty to break
right to silence and give one's name; officer could have arrested and obtained ID through other
means; no violation made by accused (more relevant post-Charter?)

-Voluntariness
o A culpable act or omission must be committed voluntarily
o Distinguish from mens rea (intention)
o R v Theroux [1993 SCC]: actus reus has its own mental element distinct from mens rea
o An act must be voluntary; more than a reflex action
o E.g. of non-voluntary: heart attack or seizure while driving, bee sting, sleepwalking
o Easier to consider whether the act was not voluntary – was it compelled by force or infirmary
that seriously disrupted cognition?
o Act done with gun to head still voluntary; you had cognition even though no real choice
o Duress: morally involuntary but not truly involuntary under actus reus
o Automatism: if drunk to point where mind detaches from reality, actions not voluntary
o BUT Criminal Code now prevents self-induced intoxication from being used as defense
to any offense including assault/sexual assault, “where accused departed markedly from
standard of reasonable care generally recognized in society”
o R v Wolfe (2001 SCC)
o Facts: Complainant told not to come in hotel but entered anyway; ordered to leave and
called police; complainant punches accused; in reflex action, hit complainant with phone
o Held: this was a reflex action = no actus reus and encounter was ‘trifling’

-Causation
o Part of actus reus; difficult to distinguish between an act and its consequences
o Two-part test developed by SCC:
1. Factual: Did the act ‘cause in fact’ the consequence (e.g. ‘but for’ the act, the
consequence would not have occurred)?
2. Legal: Can the accused be held legally responsible for causing the consequence (did the
act contribute beyond the de minimis range to resulting harm)? If so, guilty.
o Now positive language: action must contribute in a significant way to the harm
o De minimis
o An act must be more than trifling to constitute a crime
o Theoretically legal principle exists but never applied by SCC except relating to causation
o R v Kubassek (2004 ONCA)
o Facts: K went to a church, same-sex marriage taking place; started disturbance; pastor
asked her to stop; she shoved him; pastor didn't fall but almost stumbled over pew
o Held: Recognized de minimis principle but did not apply; looking at entire context, shove
represented violent interruption of peaceful marriage celebration (may have been
‘trifling’ in a bar or different setting)
o Crown must prove for every offense: Jurisdiction, Identity, Actus Reus and Mens rea
o For charge with causation element for more serious offense, must prove beyond
reasonable doubt original offense and resulting harm resulted from accused’s act
o Is accused still responsible for unreasonable actions of intervening third parties?
o Three causation issues:
a. How significant must the act be as the cause of the consequential result?
b. What is legal effect of unreasonable action of victim which results in victim
suffering greater harm?

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 c. What is legal effect of third parties which might have intervened or contributed
to resulting harm?
o E.g. Criminal Code ss. 224, 225 and 226 (homicide):
§ Where person does anything causing death of a person, he causes the death
notwithstanding anything that could have been done to save him
§ Notwithstanding any proper or improper treatment applied in good faith
§ Notwithstanding that cause of bodily injury only accelerated a disease/disorder
o R v Smithers [1978 SCC]
§ Ratio: If unlawful act contributes beyond de minimis range to resulting harm,
unlawful act caused it (even though other factors may have exacerbated)
§ Facts: Deceased taunted S in hockey game; after game S punched in head;
deceased doubled over, others tried to pull S away; hard kick to stomach; fell on
back gasping and stopped breathing in 5 mins; death due to choking on vomit
(aspiration of foreign materials); had a rare malfunctioning epiglotis
§ Held: Guilty of manslaughter. SCC set out 3 important causation rules:
o Determination of causation to be made by trier of fact considering all
evidence (expert and lay)
o Rule: accused's action may merely be contributing cause outside de
minimis range of resulting harm/death in order to constitute legal
causation (as opposed to factual causation); two-part question
o But for actions of S, resulting vomiting, choking and death
wouldn’t have occurred; contributed beyond trifling way
o 'Thin-skull' rule applies to criminal law (one who assaults another must
take his victim as he finds him)
o R v Nette (2001 SCC) – clarification of Smithers test
§ Ratio: If an act contributes in a significant way to resulting harm, liability is
established
§ Facts: Tied up 95-yr old woman after robbery; died of asphyxiation from upper
airway obstruction (dentures came loose and clothing wrapped around head
became tight); jury rejected claim that he just ransacked home and left her ok
§ Issue: Is accused responsible for resulting death despite leaving victim alive?
§ Held: Yes, accused caused resulting death
§ Majority: New positive language test is clearer
o Judge can use negative ‘de minimis’ or positive ‘significant’ language
o In determining whether person can be held responsible for causing
something, must be determined both in fact and in law
o How victim came to death and whether they should be held responsible
§ Minority: Agreed with guilt of accused but disagreed with changing language of
test (results in higher threshold)
o R v Maybin (2012 SCC) – culmination of causation law
§ Ratio: 1. Smithers-Nette test MUST be used for determining causation, 2.
Reasonable foreseeability and intervening actor can help apply test but not
replace it, 3. Start with factual causation analysis, then for legal causation ask:
"were actions a significant contributing cause?", 4. Thin-skull rule is not
intervening act or condition - part of taking your victim as you find them
§ Facts: Two brothers playing billiards; deceased touches T's ball; T starts beating
him; M assists; deceased falls on pool table motionless; bouncer intervenes,
punches him in back of head; all 3 charged with manslaughter

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 § Lower court: all 3 not guilty b/c death could've been caused by brothers or
bouncer (reasonable doubt for both); negated legal standard of proof
§ Held: SCC applied test from Smithers and Nette:
o Did brothers’ unlawful act cause in fact death of victim (evidence-based)
o ‘But for’ brothers’ actions he would not be left on pool table in
vulnerable position for further harm to occur
o Did brothers unlawful act cause in law death of victim (responsibility)
o Brothers’ acts were significant contributing cause to death
o Attribute blame/moral responsibility despite later acts occurring
o Two justifications for causation rules:
§ Always starts with an unlawful act (you live with consequences of your actions)
§ Sentencing considers myriad of factors, including ‘to what degree was accused
responsible for consequences?
o Intervening Acts (novus actus interveniens)
o Long-held principle that legal causation not found when accused's acts do not
contribute to consequence, usually because another act intervenes
o If second action overwhelms original illegal act, court may find break in legal causation
o Temporal analysis is part of consideration (victim dies mths later from complications)
o 2 ‘analytical tools’ can help determine causation (NOT replacing test):
§ Reasonable foreseeability test: was general nature of intervening act and
accompanying risk/harm reasonably foreseeable?
o In Maybin, court found when starting bar fight there could be potential
harm by others; it's not precise actions that must be reasonably
foreseeable but general nature of physical intervention by others
§ Intervening act rule: does new event result in accused’s actions not being
significant contributing cause of harm/death?
o Original actor can be absolved of responsibility if act is merely setting or
intervening act is so overwhelming that it makes original act history
o In Maybin, court found act of bouncer didn’t overwhelm original acts
o R v Blaue (1975 Eng)
§ Facts: Stabbing victim refused blood transfusion which would've saved her life
§ Held: Stabbing caused her death factually, and legally her non-intervention due
to religious grounds is similar to thin-skull rule (take your victim as you find
them) - still operative and substantial cause of death
o R v Smith (1955 Eng)
§ Facts: Deceased stabbed, lung punctured; dropped and medical intervention
poorly applied; had he been given proper treatment, 75% chance of survival
§ Held: Stabbing was still operating and substantial cause of victim's death
§ s.225 Criminal Code: where person causes bodily harm resulting in death,
caused death despite immediate cause being proper/improper treatment
o R v Winning (1973 ONCA)
§ Facts: W lied about credit card history; Eaton's didn't rely on this, did separate
investigation and still gave her card; W charged with fraud
§ Held: No causation proven: loss was based on own actions, not W’s unlawful act

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Mens Rea

-Latin maxim: "An act does not make a man guilty of a crime unless his mind also be guilty"
-Subjective orthodoxy: mind of accused (what he was thinking or knew at time of act)
o Vs objective: Guilt for some offenses in Criminal Code can be established by failing to live up to
reasonable person standard (crimes even though no subjective intention)
o E.g. criminal negligence causing bodily harm, dangerous driving, careless storage of
firearm; Parliament decided these acts of negligence should be criminal (deterrence)
o Crown must prove all elements of offense: Jurisdiction, Identity, Actus Reus, Mens Rea
o Confession can be easiest way for Crown to prove mens rea
o Crown can also ask trier of fact to infer guilty mind looking at all circumstances
o 2 routes are available when less than full knowledge or less than full intention exist:
§ True knowledge (gold standard) à Willful blindness
§ True intention (gold standard) -------------à Recklessness (further from true
intention; not same standard as willful blindness)
o Common law concepts; not typically included in the provisions in Criminal Cod
o Crown must prove accused’s personal knowledge or intention, or his personal awareness of the
need to inquire but failed to inquire to remain purposely ignorant (willful blindness), or the
accused’s proceeding in the face of a risk that he became aware of (basic recklessness)
o Willful blindness
o State of mind in which person 1. Becomes aware of need for inquiry and 2. Declines to
make inquiry because he/she wishes not to know the truth or wishes to remain ignorant
o Advertent ignorance; court can only find willful blindness where it can almost be said
the accused knew but wanted to be able to deny knowledge
§ Very close to true knowledge
§ Subjective concept; consider circumstances and cognitive abilities
o Recklessness
o State of mind in which person 1. Becomes subjectively aware of danger or risk and 2.
Proceeds in course of conduct that creates danger or risk
§ Subjective concept; aware that prohibited consequence is likely or probable
o Two distinct concepts: willful blindness refers to knowledge of present circumstances,
recklessness to knowledge of future risks
o In recklessness, act is being done; in willful blindness, more about something not being done

-Knowledge-Based vs Consequence-Based Offences
o For knowledge-based offenses, true knowledge and willful blindness apply
o For consequence-based offenses, true intention and recklessness apply
o Criminal Code may provide signs about mens rea that is required:
§ Terms like “knows” or “knowingly” indicate knowledge-based
§ Some offenses can lend themselves to either willful blindness OR recklessness
o R v Blondin [1971 BCCA]
§ Facts: B convicted for importing narcotics; 23 lbs hash in scuba tank through
customs; tank searched; B said he "didn't know what was in there"; "knew
something illegal, was paid to bring it to Canada, but didn't know it was drugs"
§ Issue: Did Crown have to prove B knew actual substance or simply any
prohibited drug? Did they only have to prove he knew contrary to Customs Act?

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 § Held: Crown not required to prove he knew exact substance, just that it was a
narcotic (to only prove he knew it was illegal would cast the net too wide)
§ Recklessness or willful blindness could apply; B could’ve been aware something
illegal but failed to ask (wanted to be ignorant); importing is also an act which
lends itself to concept of recklessness; proceeded in face of knowing risk/illegal
o R v Sandu [1989 ONCA]
§ Ratio: When offense requires knowledge on part of accused, it is improper to
instruct jury that a finding of recklessness satisfies that
§ Facts: S charged with importing heroin into Canada; sewn into lining of jackets
and small packet in wallet; actus reus established, but Crown had to prove he
knew it was prohibited substance
§ Issue: Did trial judge err in telling jury they could use true knowledge, willful
blindness or recklessness to convict? Yes
§ Held: Willful blindness is substitute for true knowledge; diff. from recklessness
• Onus on Crown to prove knowledge; recklessness is something less
• Serious error; entire defense of honest belief was not put to jury
• If accused is labouring under mistake of fact (believes set of facts which,
had they been true, would not have rendered him liable), no guilty mind
• Common in knowledge-based offenses (‘I thought she was consenting’)
o R v Vinakurov [2001 ABCA] – current law in AB
§ Ratio: Recklessness will not satisfy knowledge requirement on charge for
possession of stolen property
§ Facts: V convicted at trial for possession of stolen property; manager of pawn
shop who received stolen property from customer; denied knowing the items
were stolen (honest belief/mistake of fact)
§ Held: Not guilty. Willful blindness not proven and recklessness not sufficient for
offense. If not aware of the need to inquire, can’t be guilty because you should
have been aware of the risk - either you know something is wrong or you don't.
§ Analysis: s.354(1) in Criminal Code uses word “knowing”; subjective, not
objective mens rea (onus on Crown to prove accused knew property was stolen)
• Willful blindness will fulfill mens rea requirement for knowledge
• Fact in question must be probable; can almost be said V actually knew
• Consider all circumstances in deciding if accused knew or suspected
• Trial judge erred in believing V was not aware items were stolen
(subjective), but because he should’ve suspected jewelry could be stolen
(objective), he was fully conscious of risk and continued to act (reckless)
o Methodology:
1. Determine if offense is knowledge-based or consequence-based
2. See if other route to mens rea may exist in circumstances
§ Will willful blindness suffice? ("knowing" lends itself to willful blindness)
§ Will recklessness suffice? (“willfully" lends itself to recklessness)
§ Some offenses lend themselves to an application of both
o R v Buzzanga and Durocher (1979 ONCA)
o Ratio: For willful promotion of hatred, a consequence-based offense, a heightened
form of recklessness (virtual intention) is required
o Facts: B&D supported building of French Can school; handed out satiric leaflets
expressing anti-French sentiments hoping to stir reaction and create public support;
charged with willfully promoting hatred against an identifiable group (their culture)

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 o Held (Martin J): Trial judge erred; evidence doesn’t prove B&D had requisite intent
o Analysis: Mens rea must form part of all criminal offenses absent clear language
from Parliament (presumption of subjective-based intention)
§ Hate propaganda: s.319(1) does not include "willfully" but 319(2) does:
Anyone who, by communicating statements other than in private, willfully
promotes hatred against identifiable group - must mean more than (1)
§ "Willfully" had been conventionally interpreted to mean "non-accidental"
§ Here, willful means proof of intention to promote hatred
§ Despite noble purpose, B&D may be found guilty if their actions would
result in certain or substantial certainty of result = heightened recklessness
§ Strike a balance; only criminalize intentional promotion of hatred (or
certainty/substantial certainty), not any reckless communication
§ Highest standard is true intention, then virtual intention (awareness of
certainty or substantial certainty and proceeding), then recklessness
(awareness of risk that may result and proceeding in the face of it)
o R v Robinson [1994 BCCA]
o Ratio: A trier of fact may, but not must, infer that a person intends the natural
consequences of his/her actions (permissive inference)
o Facts: Accused convicted of murder; trial judge told jury there is a presumption that
a person intends natural and probable consequences of their actions
o Held: Trial judge erred. Crown cannot see into accused's mind; level of intention or
lack thereof is based on all evidence and circumstances
§ The more likely an act brings about a consequence, the more likely he
intended the natural consequences, but still a possibility he didn’t
o Hebert v The Queen [1989 SCC]
o Ratio: Perjury requires more than a deliberately false statement; it must also be
made with intention to mislead
o Facts: Accused said he lied on witness stand under compulsion of threat; said no
intention to mislead; testified in a way that would result in no one wanting to
believe him (designed only to attract judge's attention to tell him about threats)
o Held: Someone who lies generally does so with intention of being believed (and
therefore mislead), but it is possible to lie without intention to mislead
§ Accused can refute such intention
§ Court believed accused didn't intend to mislead (he was being ironic)
o R v Mathe [1973 BCCA]
o Ratio: If evidence raises reasonable doubt about accused’s intent to commit the
offense, he must be acquitted
o Facts: Accused had been drinking; told bank teller he had a gun; she pressed silent
alarm, then he said 'I was only fooling', shook guard's hand and left
o Issue: Was the intent which is necessary element of attempted robbery established?
o Held: Attempt to rob not proved (joking element negated intent to commit offence)
§ If you believe he was joking, there was no intention to rob (no crime)
§ Inference that it was a farce is as strong as inference that it was change of
plans (if he was serious but abandoned it halfway through, could be a crime)
§ Significance of intoxication to defence; proof of prank but not so intoxicated
as to negate voluntariness of actions (goes to mens rea not actus reus)

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- General Intent vs Specific Intent Offences
o Two types of intent for criminal offences:
o General intent = actor intends merely to commit the actus reus
§ E.g. assault, assault causing bodily harm, aggravated assault, sexual assault,
mischief, manslaughter
o Specific intent = actor intends not only to commit the actus reus, but also for a
specific/higher purpose or intention
§ Typical structure: Everyone who does x with the intention to commit y
§ Additional layer of intention; ‘multiple/extra level’ or ‘ulterior intent’ offense
§ "for the purpose", "with the intention of" ,"willfully" (sometimes), "knowingly"
§ E.g. possession of stolen property, theft, robbery, attempted murder, murder
§ Importance of distinction: If accused is incapacitated (so impaired as to not
foresee further result), this higher mental element is missing
o Both general intent offences and specific intent offences are subjective intent offences; we are
determining what level of intention is required
o If offense is silent on mens rea, the presumption is that it's a general intent offense
o Distinction between intent and motive
o Motive does not form part of mens rea; Crown is not required to prove it
o Motive is reason someone would commit the crime; ulterior purpose beyond intention
o Motive induces person to act seeking an end result; intent is means by which person
seeks to achieve that result
o As evidence, motive is always relevant and admissible; limit to extent which acts can be
introduced as motive; not essential element of Prosecution’s case
o Motive can help the Crown prove either:
§ Identity: evidence of motive can help Crown find suspect in a ‘who dun it’ case
§ Intention: evidence of motive can help to show an act wasn’t accidental
o Absence of proved of motive doesn't mean there was none but Crown couldn't find it
o Proved absence of motive can raise reasonable doubt as to intention (rare for defense)
o R v Bernard (1988 SCC)
o Issue: Is sexual assault a specific intent offense and can drunkenness be a defence?
o CJ (dissenting): Evidence of drunkenness should be left with jury with all other evidence
related to issue of intent; whether general or specific intent, the burden is the same
(Crown must prove intent required by the crime alleged)
§ Distinction where evidence is excluded from jury’s consideration is unnecessary
o R v Lewis (1979 SCC)
o Ratio: When there is absence of proved motive, it is judge's discretion whether to refer
to lack of motive in jury charge (no obligation)
o Facts: L convicted of helping double murder of estranged daughter and husband;
received electric kettle in mail, when plugged in it exploded; case was circumstantial
o Issue: Should jury have been told there was proved absence of motive?
o Held (Dickson J): Based on evidence, it wasn't clear there was proved absence of motive
§ Motive is that which precedes and induces exercise of free will; intention is
exercise of free will to use a particular means to produce result
§ Trial judge must give jury essential matters of evidence; each case turns on its
own circumstances; issue of motive is always matter of degree
o 3 levels of cognition:
o Cognition for actus reus: requires physical voluntariness of act as opposed to reflex

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 o Mens rea: Basic level for many offenses is general intention (different than mental
element for actus reus); specific intention is higher mental element (ulterior purpose)
§ E.g. murder; meant to cause death OR meant to cause bodily harm knowing
death was likely and being reckless as to whether death occurs
o Motive: inducement of person to act in committing actus reus (distinct from intent)
o E.g. cognition required for assault:
o Actus reus: Application of force on another without their consent
o Mens rea (general intention): Intention to touch knowing person has not consented, OR
being willfully blind that they weren’t consenting
o Motive: Reason the person touched another without consent (out of anger, to degrade)
o R v Tatton (2015 SCC)
o Ratio: In determining general or specific intent, three-part test should be used
o Facts: T regularly binge drank; left messages on gf's phone referring to home being on
fire; decided to cook bacon on high and left for coffee; came back to house on fire
o Issue: Is arson a general intent or specific intent offense? Unsettled in law
o Held: Arson is general intent offense requiring no heightened mental element, meaning
intoxication short of automatism may not be considered as defence
o Analysis: Moldaver J set out 3-part test:
• Determine appropriate mental element of offense in question
(subjective or objective; doesn't change based on facts of case)
• Determine whether offense is specific or general intention (consider
jurisprudence and importance of mental element in Code)
• If first two steps are inconclusive, consider policy factors: prevalence of
offense by intoxicated people? Is there a lesser included offense?
1. Arson: damaging of property is actus reus; intentional or reckless intent is mens rea (no
additional intent required); policy would militate in favour of general intent b/c often associated
with alcohol consumption
o R v ADH (2013 SCC)
o Ratio: Child abandonment requires subjective fault and there is a presumption of
Parliamentary intent toward subjective intention
o Facts: Woman delivered baby in Wal-Mart bathroom not knowing she was pregnant;
believed dead; left in bathroom; someone found and resuscitated; baby survived
o Issue: Is abandonment of child assessed objectively (what RP would’ve known) or
subjectively (what accused actually knew)?
o Held (Cromwell J): Mens rea for abandonment of child is subjective (actual knowledge)
o Analysis: Begin with presumption that Parliament intends all criminal offenses to carry
subjective intention (if silent) – presumption not present in Tatton 2 years later?
§ 218 worded quite differently than rest of provisions under heading 'duties
tending to preservation of life'; 215 & 216 involve a legal duty (objective)
§ Difference is 218 entails doing an act (abandoning), not failure to do something
§ Purpose of offence is protection of children from risk even when no harm occurs
§ Criminal offense but we don't want to capture too many people under it
o Minority (Moldaver): mens rea should be based on penal negligence standard (whether
accused- based on understanding of the circumstances- fell below reasonable standard)
o R v Theroux (1993)
o Ratio: Belief that conduct is not wrong or no one will be hurt is not a defence to fraud

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 o Facts: T was director of residential company that contracted for home purchases under
false representations (said deposits were fully insured but knew they weren’t); company
went out of business and people lost money; T charged with fraud
o Held: Accused is guilty of fraud because he had subjective knowledge that his dishonest
actions put property of another at risk
o Analysis: Court rejected honest belief defence (T believed project would be completed
and no one would lose money)
§ Actus reus for fraud: Proof of prohibited act (deceit or falsehood - objective)
AND deprivation or risk of deprivation arising from act
§ Mens rea for fraud: subjective awareness of undertaking prohibited act AND
knowledge that it could cause deprivation or put property of another at risk
§ Where conduct and knowledge are established, accused is guilty whether he
actually intended prohibited consequence or was reckless whether it occurred
§ Crown need not provide mental snapshot of accused's mind; sometimes
inference of subjective knowledge of risk can be drawn by trier of fact


Regulatory Offences
o Any laws that impact public welfare
o Provincial laws passed under s. 92; federal laws passed under s. 91
o Difference between criminal and regulatory:
o Criminal is a penalty, prohibition, and based on peace and property
o Regulatory laws are to maintain some form of public benefit, so have laws requiring
compliance and penalties for non-compliance
o Difference in how offence is proven
o Sault Ste Marie:
o Explains history of regulatory laws and distinction from criminal laws
o Hierarchy: Mens Rea offences -> Strict liability offences -> Absolute liability offences
o Held: True criminal laws require guilty act and guilty mind. For regulation, Crown is
relieved of the duty to prove mens rea - most of the time. Regulatory law can also
require proof of mens rea.
o Reasoning: In a regulatory offence, Crown must still prove the actus reus. However,
Crown need only prove the actus reus beyond a reasonable doubt. If it is a regulatory
law that requires mens rea, Crown need prove mens rea beyond a reasonable doubt
o Mistake of fact in criminal offences vs regulatory offences
o Both will absolve a person, but in criminal must be honestly held but can be
unreasonably held
§ If person charged with offense is honestly labouring under mistake of fact, even
though RP wouldn't be, that person is absolved b/c no mens rea
§ Some exceptions
o For regulatory, it's not just whether accused subjectively honestly believed it but
whether RP would be labouring under same mistake of fact
§ For regulatory offenses involving strict liability, person must honestly hold that
belief, but you must also put RP in shoes of accused and decide if they would
still be under the mistake
o Different onus of proof:

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 o In Criminal Code penal negligence offences. Crown must prove actus reus and mens rea
BRD (i.e. show accused fell below the required standard of care)
o In regulatory offenses, legal onus switches to accused to prove he/she was not negligent

KEY FOR EXAMS
-Presumption is that because it's regulatory, it is in middle category (strict liability). Then, look for
express language taking it out of that category, either up to mens rea or down to absolute liability.

Blameworthiness
-3 aspects: act element, fault (subjective or objective), constitutional fault requirements
1. Actus reus: act or omission
2. Fault: criminally liable only when performing actus reus in circumstances where they can be said
to be at fault (not ‘morally’ innocent)
o subjective (mens rea); accused had intentional mental state in relation to actus reus
o objective (penal negligence); based on what reasonable person would have done in the
circumstances; there must exist a duty of care imposed by law
3. Constitutionalization: subjective orthodoxy vs absolute liability (no fault proved)
o For absolute liability and strict liability, Crown only needs to prove prima facie case
(accused committed prohibited act)
o For strict liability, accused can defend on basis that he was not negligent (took
reasonable care)
o For absolute liability, accused cannot defend on basis of no subjective fault or no
negligence
o Absolute liability offences came under scrutiny in Reference Re Section 94(2) case

Reference Re Section 94(2) of Motor Vehicle Act, BC (1985 SCC)
-Ratio: If an absolute liability offence has potential of depriving accused of life, liberty or security of the
person, fundamental justice requires some fault element to be proved for conviction.
-Facts: BC Lieutenant Governor referred question to provincial CA: Is s.94(2) of amended Motor Vehicle
Act consistent with the Charter? Absolute liability; guilt under the offence is established by proof of
driving whether or not D knew of prohibition or suspension
-Held (Lamer J): violates s.7 of Charter by depriving liberty of innocent persons; not saved under s.1
-Reasoning: Law that convicts a person who has not done anything wrong violates right to liberty under
s.7; an offense requires a fault element
o Innocent are not to be punished; essential element of justice system founded on dignity and
worth of person and rule of law
o Unless statute rules out mens rea as constituent element of crime, court should not find a man
guilty of offence unless he has guilty mind
o Absolute liability does not per se violate s.7 of Charter; only if and to the extent that it has
potential of depriving life, liberty and security of person
o I.e. Absolute liability and imprisonment cannot be combined; not just mandatory imprisonment;
whenever judge can impose imprisonment
o Just b/c absolute liability offense does NOT contain imprisonment doesn't mean it complies with
s.7; may still be found to violate Charter
o Can only be saved under s.1 if justified as reasonable limit to one’s s.7 rights
o May be breached for reasons of administrative expediency, but ONLY in cases arising out of
exceptional conditions such as natural disasters, war (not here)

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 o Possible exam question: epidemic situation - determine if law on mandatory vaccination will
be upheld under s.1 **
-Analysis: After case, stated clearly in legislation that it was an absolute liability offense
o If absolute liability offense comes with fine, no potential imprisonment, but jail time for not
paying fine, some courts have said it can violate s.7 (usually not with small fines)

R v Chapin (SCC 1979)
-Ratio: For strict liablity offences, accused may absolve himself on proof that he took all reasonable care
which RP in circumstances would have taken (not negligent)
-Facts: D shot ducks within 50 yards of pile of bait, contrary to S.14 of Migratory Birds Regulations; court
accepted that D did not know bait was there
-Case History: Trial: provision was not mens rea offence, leaving open defence of reasonable mistake of
fact; County Ct: absolute liability offence, honest mistake defence not available
o ONCA: mens rea part of offence; D did not know of bait = mistake of fact
-Arguments: Crown: Absolute liability offence; any person found hunting within ¼ mile of bait is guilty;
no defence available; would be too difficult to prove reasonable efforts were made
-Results: Appeal dismissed; unreasonable to convict D; strict liability offence
-Reasoning: 3 types of offences (Sault St Marie):
1) mens rea (must prove positive state of mind) – true criminal offences
2) strict liability (act constitutes fault unless accused can prove took reasonable care)
3) absolute liability (accused cannot exculpate by showing free of fault)
o Did not appear to be full mens rea offense (no "willfully", "with intent") - provision in question
didn't use those words although other provisions in statute did
o Purpose expressed in preamble; designed to protect birds from slaughter
o No language implied absolute liability offense; not strict prohibition of hunting
o Given that it is public welfare/regulatory offense, applying direction of St Marie, prima facie in
second category = strict liability
o Not true criminal offense; not subject to presumption of full mens rea
-Analysis: case shows difficulty of distinguishing b/n absolute vs strict liability
o Impt to look not only at provision but context of Act itself and nearby provisions

R v London Excavators & Trucking Ltd
-Facts: Accused's company (subcontractors) hired to perform grading at hospital; advised by assistant
supervisor area clear of services (no live electricity below); discovered concrete block, got go-ahead to
move it out of way; explosion occurred from live wire below block; subcontractors charged and
convicted at trial under s.228 of Occupational Health and Safety Act (failing to ensure excavation area
marked and secured)
-Issue: whether objective component of offense had been proven by accused on BOP
-Results: Appellant liable under Occupational Health and Safety Act; strict liability
-Reasoning: Offence is strict liability; once actus reus proven, conviction must follow unless accused
establishes exercised due diligence to avoid committing offense
o Defence of due diligence in statute: if accused proves that every precaution reasonable in
circumstances was taken (telltale sign of absolute liability; Crown proves you did it, then you
prove you didn't act unreasonably)
o 2 possible defences: accused reasonably believed mistaken set of facts which, if true, would
render act innocent; OR accused took all reasonable steps to avoid particular event
o Here, defense of mistaken fact failed; not objectively reasonable for appellant’s workers to
accept and act upon information without further inquiry

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 o Even though appellant believed no danger, he did not reasonably believe it
o Gravity of potential harm that may arise is a consideration; safety of workers
-Note: Regulatory offences do not result in criminal record (e.g. dangerous driving down to careless
driving)

Penal Negligence
o Usually violation of ‘legal duty’, ‘duty imposed by law’, or ‘unlawful act’
o Everyone is criminally negligent who in doing or omitting anything that is his duty to do
shows reckless disregard or lives or safety of others
o Conduct of accused compared with what reasonable person would have done in circumstances
o Objective not subjective; RP standard is not personalized but is contextualized (e.g. RP in
same circumstances as accused)
o Conduct that is ‘marked departure’ from normal standard of care (reasonably
foreseeable risk of, non-trivial, non-transitory bodily harm, compared to civil negligence)
o Used to be called ‘advertent negligence’; high degrees of negligence
o Dual fault offences have both mens rea and penal negligence elements
o Sault Ste. Marie: "no negligence in true criminal law"
o Penal negligence does not include “guilty act” or “guilty mind” (subjective intent)
o When analyzing crimes of negligence, look at wording in Code to determine a basic standard,
then look at how case law interprets that wording/standard
o Examples of penal negligence offences:
o Often include dangerous activities such as firearms/weapons, driving, flying, boating,
railroad engineers, skydiving, scuba diving, fighting, vulnerable persons
o "Careless use": using in a careless manner w/o reasonable precautions for the safety of
other persons; wording deals with allegations of careless use
o "Criminal negligence causing death”; one way individuals commit manslaughter
(criminal negligence = wanton or reckless disregard for the life/safety of others)
o “Necessaries of life”: can be part of criminal negligence charge
§ Everyone is under a legal duty to provide necessaries of life
§ Legal duty that gives rise to a standard of care (subject of endless jurisprudence)
§ Duty on the accused to explain/excuse conduct (reverse onus)
o “Unlawfully causing bodily harm”: usually involves doing something that isn't directly
related to eventual danger, but objective foresight of the danger is present
§ E.g. man throws bottle against a wall during fight; bottle shatters, shards of
glass severely cut the victim; no assault, but bodily harm caused by an unlawful
act, the mischief of destruction of property
o “Dangerous driving”: 3 sections of punishment - 1) Simpliciter, 2) Causing bodily harm,
3) Causing death

R v Hundal (SCC 1993)
-Ratio: Modified objective standard for penal negligence offences: conduct expected of a reasonably
prudent person in the circumstances (departure must be marked or significant)
-Facts: Accused was driving dump truck on busy wet road in Vancouver. Truck was loaded beyond max
weight, and went through a red light, t-boned deceased's car and death instantaneous. He made no
attempt to brake the truck.

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-Case History: At trial, appellant's actions represented a gross departure from standard of care of
prudent driver. BCCA said proof of a marked departure was sufficient w/o any express finding of
advertent negligence.
o Dissent in CA: Crown must establish subjective negligence, some intention
o Difficult as no advert act that intended to cause death
-Issue: whether offence of DD requires subjective intention OR a failure to adhere to standard of
reasonableness.
-Results: Hundal convicted
-Held (SCC): Established a modified objective test, not just a straight civil objective test
o Actus reus: Manner of driving (how did the driving pattern emerge? In this case, he was driving
in excess of speed limit and went through a red light)
o Mens rea: Was there a marked departure from the standard a reasonable driver in those same
circumstances would employ?
-Reasoning: licencing requirement for drivers, meaning everyone is trained or has qualifications to drive
reasonably to a certain standard
o Automatic and reflexive nature of driving
o Wording of section; ‘in all the circumstances present’, including traffic
o What is "modified" objective standard? Departure must be marked or significant
o Can't ignore actual mental state of the accused; look at context surrounding incident; trier of
fact should be satisfied conduct amounted to marked departure from standard of care that a
reasonable person would observe in the accused's situation.
-Analysis: Does ‘all the circumstances’ include accused’s personal circumstances, medical condition
backed by doctor’s confirmation, weather, whether he saw red light, if he believed truck was loaded
properly and brakes were in good order, etc?
o "I've had several strokes/seizures before" changes character of potential defence (knew he had
a problem, so maybe shouldn’t even be driving)
o **Awareness of risk very important: risk to individual and risk of events itself
o If onset of disease or disability makes act of losing control of a motor vehicle involuntary, then
no actus reus (McLachlin J)

R v Tutton (SCC 1989)
-Facts: diabetic 6 year old denied insulin; parents thought he'd be divinely cured. Doctors put him back
on insulin, then in 1981 withdrew him again and he died. Parents had an honest but mistaken belief in
divine intervention.
-Majority: subjective standard
-Minority: objective standard
-Analysis: Hundal relied on minority, objective standard applied in determining reasonableness (honest
and reasonably held belief in existence of certain facts may be relevant)

R v Beatty (SCC 2008)
-Ratio: Mental requirement for objective mens rea offences: determine whether conduct amounted to
marked departure from standard of care of RP in circumstances
-Facts: D was driving normally but his truck suddenly crossed solid line and hit oncoming vehicle, killing
all 3 occupants; no mechanical failure or intoxicants; said he lost consciousness, doesn’t know what
happened
-Case History: Trial: Lapse of attention in itself could not support finding of marked departure from
standard of care of reasonably prudent driver (only civil negligence)

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 o CA: Conduct could only be viewed as objectively dangerous and marked departure from
requisite standard of care; trial judge should have asked whether RP would have been aware of
risk created by conduct
-Arguments: D: CA created legal presumption that negligent driving causing an accident is dangerous
driving, putting onus on accused to provide satisfactory explanation
o Crown: trial judge erred; momentary lack of attention cannot be determining criterion; moral
blameworthiness is relevant in sentencing but not in determination of guilt
-Issue: Was momentary act of negligence sufficient to constitute criminal dangerous driving?
-Results: Overturned CA decision; wrongly placed burden of proving mens rea on D; should have held
there was no marked departure from standard of care
-Reasoning: Unlike civil negligence, penal negligence aimed at punishing blameworthy conduct; degree
determines if conduct merits punishment (“marked departure”)
o Onus lies on Crown to prove both actus reus and mens rea
o Modified objective test remains appropriate test to determine mens rea for negligence-based
criminal offences; doesn't obviate mens rea requirement
o No one disputes D’s driving fell below standard of reasonably prudent driver
o Modified objective test: 1) Was there a marked departure from civil norm in the circumstances?
2) Was there absence of the requisite mental state of care?
o Licensing requirement impacts mens rea in 2 ways:
1) Driver’s capacity and awareness can be inferred from licensing requirements 2) Those
choosing to engage in dangerous (voluntary) activities who fail to meet standard of care
cannot be said to be ‘morally innocent’
o Criminal fault based on voluntary undertaking of activity, presumed capacity to do so properly,
and failure to meet requisite standard of care
o Mental state relevant in criminal; if RP in position of accused would not have been aware of risk
or unable to avoid creating risk, accused innocent despite objectively dangerous conduct
o Test contextualized but not personalized; short of incapacity to appreciate risk or avoid creating
it, personal attributes (age, experience, education) irrelevant
o Actus reus: Viewed objectively, was driving dangerous to public w/in meaning of s.249?
o Mens rea: Was objective conduct accompanied by required mental state? Was conduct a marked
departure from standard of care? Would RP in similar circumstances be aware of risk?
o Subjective mens rea/intent not required but will suffice
o Fault based on doing proscribed act with absence of appropriate mental state of care
o D clearly performed actus reus but not mens rea; insufficient evidence to find a marked
departure from standard of care of a prudent driver
-Charron J: reasonably held mistake of fact may provide complete defence if accused's reasonable
perception of facts measured up to requisite standard of care; mistake of fact has to be reasonable
-Note: impt not to confuse personal characteristics of accused with context of events surrounding
incident

R v Creighton (SCC 1993)
-Case about unlawful act manslaughter
-Facts: Creighton was high on drugs; injected cocaine into victim, who then died. Not a penal negligence
case but trafficking (injecting her with drugs)
-Charron J noted two uncertainties in the jurisprudence that took place b/n Hundal and Beatty:
o Distinction b/n objectively dangerous driving and marked departure
o When is accused's mental state relevant? At time of marked departure or at time of exculpatory
defence that might exist (i.e. Mistake of fact or involuntariness)?

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 o If trier of fact is convinced BRD that objectively dangerous conduct is marked departure,
actual state of mind of accused should be considered
-McLachlin CJ disagreed with majority, reiterating that actus reus has a mental element; negligence
must be a marked departure from standard of RP in all circumstances of the case.
o Mens rea of the offence is satisfied when person has committed manifestly dangerous act, and
it is reasonable to infer he/she failed to direct their mind to risk of the need to take care
o Willock a good case on criminal negligence
***Bottos prefers this analysis of McLachlin J, but Charron J prevailed

R v Gunning
-Case of "careless use"
-Facts: accused in bunk house with loaded rifle which he knew was loaded, shot friend with the rifle
when he jumped up onto a bunk bed
-Tutton resurfaced, used the subjective standard from majority reasoning

R v Brander
-Ratio: For criminal negligence in operation of motor vehicle, accused's conduct must be marked
departure from standard of care of a reasonable person in both external circumstances and mental
element
-Facts: officer pursuing racers in unmarked police car with sirens and lights but not turned on; driving
120 on Yellowhead, no traffic in area; intersection ahead, green light, saw Ford Tempo in process of
turning left in front of him, put his foot on brake but did not slow down; didn't see car approaching.
o Officer charged with criminal negligence causing death, and three counts of criminal negligence
causing bodily harm. Results change penalties, but don’t change the event
o Criminal negligence requires "wanton and reckless disregard"
-Results: Not convicted of criminal negligence or dangerous driving
-Reasoning: Regardless of driving fast without warning signals, being careful and all he was doing was
speeding; oncoming car had duty not to make left turn except when safe
o Court said they could take into account driving skill of police officer - wrong! Can't take into
account young and inexperienced vs expert driver. Standard is REASONABLE driver.

Necessaries of Life
-R v Choy: failure to provide necessaries of life (kids involved); marked departure from the standard of a
reasonably prudent parent
-R v Stephan: Kid had meningitis, parents told to take him to hospital which they failed to do; convicted
for marked departure of required standard of care of a reasonable person
-R v Lovett: Kid had meningitis, mother didn't get him treated; before court arguing herbal remedies
would cure him; but knowledge that he needed treatment and it would've been easy with antibiotics.
o Capable loving parent; no subjective intent in crime, but facing prison term for neglect; lawyer
arguing honest but mistaken belief; would reasonable parent regard circumstances as
something that could be cured by herbal remedies?

R v DeSousa (1992 SCC):
-Ratio: To determine liability for unlawfully causing bodily harm, test is objective foresight of bodily
harm (would RP realize underlying unlawful act would subject another person to risk of harm?)
-Facts: Accused charged for throwing glass bottle at wall in bar fight, bottle shattered, shards of glass
injured victim; constitutional challenge to s.269 of Criminal Code
-Case History: Motion for constitutional challenge granted, indictment quashed

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 o ONCA: motion judgment overturned; order quashing indictment set aside; appeal as of right
-Issues: Does s.269 violate ss.7 and/or 11(d) of Charter? Is mental element constitutionally sufficient,
and is foresight of consequences comprising actus reus a minimum requirement for s.7?
-Reasoning: 2 requirements for mental element of s.269: mental element of underlying offence must be
satisfied, and additional fault requirement supplied by wording of section must also be satisfied
o Unlawful act = offence must be at least objectively dangerous
o Underlying offence must have a sufficient causal connection to injury
o Penal negligence case as underlying offence contributes to the harm
o All but absolute liability offence, but contributes significant harm

Strict vs Absolute Liability
-Absolute liability: no subjective fault requirement
o No mens rea defences or reasonable care defences can be used
-Strict liability: permit conviction without proof of subjective or objective fault, unless accused can
establish defence of reasonable care
o Essentially reverse onus provisions for offences of penal negligence
-For penal negligence, accused need only raise reasonable doubt about whether behavior was
reasonable; for strict liability, accused must prove reasonableness on BOP

Constitutionality of Strict Liability Offences
-SCC held that non-criminal strict liability offenses are constitutional:
1. Distinguished ‘true crimes’ from regulatory offences
2. Conviction for regulatory imports lesser degree of culpability
3. Constitutional standards for crimes cannot be automatically applied to regulatory
context (choice to engage in activity and must protect vulnerable)
4. Proof of negligence satisfies fault requirement for regulatory under s.7
5. Strict liability (imposition of burden of proof on accused) does not violate presumption
of innocence; if it does, limitation may be justified under s.1

Parties and Other Forms of Secondary Liability
o As opposed to those who actually commit prohibited act, parties “in the second degree” are
liable because of participation in or involvement with commission of offense
o Aiding – material facilitation of offence
o Abetting – psychological encouragement during commission of offence (as opposed to
prior encouragement = counselling)
o Mental element is doing or omitting to do anything for the purpose of encouraging or assisting
principal; something more is needed than mere presence at scene of crime or observation
o Crown must prove BRD principal committed offense AND party aided/abetted principal
for purpose of offense; if reasonable doubt they didn't know, they remain innocent
o "Omits" applies when there is a duty on the party to do something and they fail to do so
o Factors to determine aiding/abetting: presence at material times, prior knowledge of offence,
encouragement, control over location or principal, facilitation of offence, prevent interference
o Party to offense is just as guilty as person committing offense; only difference is in sentencing
(usually harsher sentence for principal, lesser sentence for party)
o Sentencing depends on degree of aiding/abetting that occurred (how much Crown can
prove); saying good luck is lower sentence than holding down victim
o S.21(1): Everyone is a party to an offense who commits offense (principal) or:

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 o Does or omits to do anything for purpose of aiding offense
o Abets any person in committing offense
o S.21(2): "where 2 or more persons form intention in common to carry out unlawful purpose and
to assist each other and, in carrying out common purpose they commit offense, which each of
them knew or ought to have known would be a probable consequence, is party to that offense"
o Elements for 21(2): principal, party, intended offense, second offense
o There must be 2 offenses but intended offense doesn't need to take place; commission
of first doesn't affect liability for second offense
o 'Ought to have known' not subjective mens rea but reasonableness standard (objective):
would RP in shoes of the party have foreseen the probable consequences of 2nd offense?
o Standard does NOT account for mental deficiencies/below average cognition

R v Dunlop and Sylvester
-Ratio: Person cannot be convicted of aiding or abetting in commission of offence which he does not
know may be or is intended; mere presence at crime scene does not ground liability
-Facts: D+S (members of motorcycle gang) saw woman being raped by other members of gang; testified
they did not participate; complainant identified them as being involved in attack
-Issue: If jury finds appellants did not rape complainant, can D+S still be liable for commission of the
offence under secondary liability (as parties to the offence)?
-Results: Acquittal; accused not liable as parties to crime
-Reasoning: No evidence of anything more than mere presence and passive acquiescence (no positive
act or omission to facilitate unlawful purpose)
o Trial judge erred in charging jury with alternative biases of principal offender and aider/abettor;
should’ve answered with simple ‘no’
o Also erred in jury recharge regarding question about failing to prevent a crime; accused are not
parties to offence simply because they knew it was being committed and did nothing to stop it
o No duty to prevent a crime; something more is needed; i.e. shouting words of encouragement
(abetting), holding victim down (aiding)
-Analysis: Extremely impt criminal law case re actus reus and secondary liability
o S.23(1): 'accessory after the fact to an offense is one who, knowing person has been party to
offense, receives comforts or assists for purpose of enabling person to escape' (liability)
o Sentence depends on role of person, motive for doing it (altruistic reason, sense of duty
or love, during a drug deal, degree of separation from perpetration of offense)
o 'Comforts' refers to helping someone recover from committing

R v Jackson (2007 SCC)
-Ratio: Presence at scene of crime will ground liability IF presence is consistent only with culpable
involvement in offense
-Facts: Appellant arrested at secluded marijuana plantation; no other legitimate business enterprise in
area; had been there for days and knew others; found in tent with growing equipment; convicted at trial
for illegally producing marijuana
-Arguments: Appellant: mere presence at scene of crime does not prove culpable participation (Dunlop
and Sylvester)
-Result: Appeal dismissed; accused guilty of offense
-Reasoning: Appellant’s conviction does not rest on mere presence at scene of crime, but rather on
cumulative effect of apprehension at scene, rejection of his explanation by trial judge, nature of offence,
context and other circumstantial evidence

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R v Greyeyes (1997 SCC)
-Ratio: If you are truly an agent only for purchaser and not vendor, guilty of possession and not as a
party to trafficking
-Facts: Appellant assisted undercover officer in purchasing cocaine; drove him to building, told him cost,
passed drugs and money under door, etc.
-Arguments: Appellant: Not party to trafficking b/c acting exclusively on behalf of purchaser, not seller
(‘agent for purchase’)
-Issue: Should a person who aids or abets a purchaser of drugs be found guilty as party to transaction?
-Result: Appellant liable as party to offence of trafficking
-Reasoning (L’Heureux-Dube): Higher sentence and social stigma of ‘trafficking’ should not be expanded
to include where assistance rendered is solely to purchaser of drugs
o Should not be guilty of aiding or abetting trafficking simply on basis of purchase; even though
purchaser necessarily facilitates trafficking, Parliament has created other offences under which
purchaser may be charged
o Incidental assistance of sale through providing aid to purchaser should be treated the same -
BUT accused did far more than acts of purchaser – agent to the vendor – so aided trafficking of
narcotics
-Dissent (Cory J): Purchaser of narcotic does not by that act alone engage in trafficking; however, agent
for or assister of purchaser can be found guilty as party to trafficking
o Required mens rea is doing anything for purpose of aiding the offense, and intention to do so;
clear that accused encouraged principal with words/actions and intended to do so
o Policy rule shouldn't apply to agent to vendor; shouldn't be protected
-Note: Poitos 1974 case - if found to be in possession of drugs, shouldn't use 21(1) to found liability for
harsher offense of trafficking
o Before Oakes (pre-1980s), when Crown could prove actus reus of possession, accused presumed
guilty of possession for the purpose of trafficking if accused could not show on BOP she was not
possessing for purpose of trafficking
-Analysis: Example of policy trumping the law; trafficking plus 21(1) combines to mean any
possessor/purchaser or anyone who helped them guilty of trafficking via aiding/abetting

R v Roach (2004 ONCA)
-Ratio: Recklessness does not satisfy mental element of party liability for fraud; only actual knowledge
or wilful blindness will suffice for party liability under s.21(1)(b); to be guilty as party of crime, one must
know he is helping someone commit a crime
-Facts: Appellant (R) charged as party to fraudulent telemarketing scheme orchestrated by D, and
conspiring to commit fraud; R collected money and sent prizes; testified he believed scheme was legal or
wouldn’t have opened account in his own name
-Case History: appellant found guilty of both counts at trial
-Arguments: Crown: appellant aided principal by opening bank account, obtaining mailbox, collecting
mail, depositing money, purchasing merchandise and distributing prizes at D’s request
o Appellant: Direction that recklessness, like wilful blindness, equates with actual knowledge in
constituting foundation for party liability is incorrect
o R was neither reckless, nor wilfully blind, to true nature of D’s activities
-Issue: Does recklessness constitute basis for mental element of accessory to commission of a crime?
Did trial judge err in instructions to jury that appellant had knowledge if he possessed actual knowledge
OR was reckless or wilfully blind as to legality of scheme?
-Result: Appeal allowed; new trial on both counts due to trial judge error
-Reasoning: R’s actions aided principal in scheme, but were they done for purpose of committing crime?

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 o R’s state of mind is sole determinant of whether conduct was criminal
o If he did not know D was engaged in crime or jury is left with reasonable doubt as to state of
mind, cannot convict him
o Recklessness does not satisfy mens rea of party liability for fraud
o ‘does or omits to do anything for purpose of aiding offence’ (purpose synonymous with intent,
doesn’t include recklessness)
o Trial judge correct: Crown required to prove appellant knew or intended his acts to aid D
o Trial judge erred: Repeated reference to Crown’s position that recklessness constitutes mens
rea of party liability left jury with incorrect understanding of mental element
o Aider/abettor need not know all details of crime, but must be aware of type of crime and
circumstances necessary to constitute offence
o Different levels of subjective mens rea; party liability requires highest level (must act with intent
or purpose to achieve result), since he/she can be convicted without committing offence
o Recklessness is a lower form of mens rea than intent, knowledge or willful blindness; to be
convicted as aider, accused must not only assist person but must intend to do so




R v Gauthier (2013 SCC)
- Ratio: For defence of abandonment to succeed when charged with aiding/abetting a crime (s.21(1)),
accused must show:
1) Intention to abandon or withdraw from unlawful purpose
2) Timely communication from person in question to those wishing to continue
3) Communication served unequivocal notice upon those wishing to continue
4) Accused took reasonable steps to neutralize/cancel effects of participation
- Facts: Appellant (G) charged as party (together with spouse) to murder of her 3 children (‘murder-
suicide pact’); children and G poisoned by spouse, G’s left wrist allegedly slit by spouse
- Case History: Trial: G convicted on all three counts of first degree murder; told jury 3 possible verdicts
(first degree, second degree or acquittal); questioned defence of abandonment for s.21(1)
o CA: upheld guilty verdict; trial judge did not err, alternative defence that is incompatible with
defences’ principal theory cannot be put to jury
- Arguments: G: Trial judge erred in not putting defence of abandonment of common intention to kill
children to the jury; she did not form specific intent to commit murders, and alternatively, abandoned
purpose of killing children and clearly communicated this to spouse
o Crown: Appellant was party to murder they planned together; she supplied murder weapon and
did not act to prevent children from being poisoned (therefore aided)
- Issue: In what circumstances must trial judge put defence of abandonment to jury in context of form of
participation in crime under s.21(1)?
- Held: Appeal dismissed; trial judge not required to put defence of abandonment to jury
- Reasoning: In this case, defence of abandonment did not meet air of reality test to be put to jury
o Essential elements: 1) Intention to abandon or withdraw from unlawful purpose, 2) Timely
communication of abandonment from person in question to those wishing to continue, 3)
Notice so communicated to those continuing to participate must be unequivocal
o Policy reasons for defence: need to ensure only morally culpable persons punished, and societal
benefit in encouraging individuals to withdraw from criminal activities and report them
o Difference between forms of participation in crime in s.21(1) and 21(2) – aiders and abettors
treated differently than common intenders

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 o s.21(2): communicated intention to withdraw from common purpose sufficient for defence
o s.21(1): mere communication of intention to cease participating is not enough to break chain of
responsibility; must be accompanied by acts cancelling out effects of acts already performed
o Defence of abandonment should be put to jury only if evidence reasonably supports finding
o In case at bar, communication alone not sufficient; G did more than promise to take part;
therefore required to neutralize effects of her participation or prevent offence

R v Hamilton (2005 SCC)
- Ratio: Mens rea for counselling: accused either intended offence be committed or knowingly
counselled commission of offence while aware of risk that offence likely to be committed; motive and
intent not to be confused
- Facts: Respondent (H) charged with counselling commission of indictable offenses which were not in
fact committed; sold access to fraudulent ‘credit card number generator’ and offered information on
how to commit burglaries over Internet
- Case History: Trial: Acquitted; accused didn’t act with requisite mens rea
o CA: Dismissed Crown’s appeal
- Arguments: Crown: Trial judge erred as to mens rea of counselling; unnecessary to prove person
intended offence to be committed (recklessness is sufficient); if not, judge erred in ‘motive’ vs ‘intent’
o Defence: true intention to commit crime required, not just foreseeability of risk (didn't intend)
- Issue: What is the actus reus and mens rea for counselling provision?
- Held: Appeal allowed; ordered new trial on count for counselling fraud
- Reasoning: Those who encourage commission of crimes by counselling, advising, procuring, soliciting,
instigating or persuading are criminally responsible by way of secondary liability
o Rationale: counselling someone else to act unlawfully is source of potential harm (increases
likelihood of crimes being perpetrated)
o Actus reus: deliberate encouragement or active inducement of commission of offence
o Mens rea: Accompanying intent or conscious disregard of substantial and unjustified risk
inherent in the counselling - accused intended that offense be committed or knowingly
counselled while aware of unjustified risk that offense likely to be committed (probability)
o Trial judge: actus reus of fraud made out, and H had subjective knowledge that it was illegal, but
doubted H had subjective intent to counsel fraud – motivation was monetary
o Trial judge erred in confounding motive and intent; verdict might have been different

Culpable Homicide
-Sections 219 - 227 in Criminal Code
-S.222 is key: person commits homicide when directly or indirectly by any means he causes death of a
human being
o Can be culpable (blameworthy) or non-culpable (not an offense)
• Non-culpable = self-defence, capital punishment (historically), soldier in battle
o S. 222(4) culpable homicide includes murder, manslaughter, infanticide
a. 222(5)(a): causes death by unlawful act (assault with weapon is wrongful act; if death
occurs = culpable homicide) - by far most common cause
b. Criminal negligence (219); in doing anything or omitting to do anything it was his legal
duty to do, shows wanton and reckless disregard
o E.g. someone is driving extremely dangerously, t-bones a car and kills driver; this is
not just dangerous driving causing death; would likely be charged with criminal
negligence causing death = culpable homicide (likely manslaughter)

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 c. Causing death by threats, fear of violence, deception (very rare)
d. Willfully frightening in case of child or sick person (also very rare)
o S.223: When child becomes human being
o Has proceeded in living state from mother's body, even if it hasn't breathed
o When person causes injury to child before or during its birth, they commit infanticide
o E.g. stab woman in final stages of pregnancy; child survives birth but dies shortly after,
cause of death was stab = homicide (Crown would have to prove BRD child was living)
o S.224, 225, 226: causation rules concerning actus reus (very impt)
o Causal connection beyond de minimis level (or ‘significant contributing cause’) must be
satisfied for all homicide offenses - Nette, Smithers, Blaue, Smith
o “Substantial cause” is higher degree of legal causation for first-degree murder
o S.228: no person commits homicide by any influence on mind alone or any disorder or disease
resulting from mind alone; doesn't apply to frightening child or sick person

Murder
-S.229: key provision defining murder in Canada; must fall under this definition for conviction
o Culpable homicide is murder where person who causes death of human being either:
i. Means to cause death, OR
ii. Means to cause bodily harm which he knows is likely to cause death and reckless if it
ensues
o Two ways of establishing mens rea for murder
o Both routes require subjective foresight of death; subjectively intended to cause death
or subjectively intended to cause bodily harm (very close to intention to cause death)
o S.229(b): person meaning to cause death or bodily harm likely to cause death, being reckless
whether death ensues, by accident or mistake causes death to another human being =
transferred intent
o E.g. shoot a bullet at Mr Smith; it misses and kills Mr Jones; still guilty of murder b/c
intention to kill Mr Smith (sufficient mens rea) - relatively rare
o S.229c: person setting out to commit unlawful act/crime; knows or ought to know perpetrating
that unlawful object is likely to cause death = murder
o Ignore phrase 'ought to know'; Vaillancourt and Martineau struck down felony murder
rule; need subjective foresight of death for ANY murder in Canada
o Whenever that phrase appears in Code related to murder, it doesn't apply
o S.230 (murder in commission of offence) = unconstitutional
o Two parts struck down but rest could be constitutional, although court didn't rule on it
o Whole section considered unconstitutional by most lawyers and scholars
o Felony murder rule at common law: if committing crime and someone dies during, that's
murder (your fault for committing crime, whether you intended death or not)
o Zombie provision which should be eliminated; hopefully it will be after Travis Vader case

Classification of Murder:
o Murder is first degree if:
a. Planned and deliberate (both elements required)
o Includes contract killing: pursuant to arrangement under which money intended
to pass from one to another for killing of a person
b. Murder of police officer, constable, sheriff, prison guard, and other persons working for
preservation and maintenance of public peace, acting in course of duties, irrespective of
whether planned or deliberate

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 o Rationale: deterrence purposes (protects those who do dangerous jobs to
protect safety of society)
o 'Other persons’ = security officers, loss prevention officers likely, but not
bouncers; judges and prosecutors possibly included
o Accused must know person is working for state or fits within this category
o If officer is off-duty but targeted by accused because of his role as cop, that
would likely still fall under first-degree murder
c. Murder took place during offence of domination: hijacking, sexual assault, sexual assault
with weapon, hostage/kidnapping, forcible confinement
§ Other ways: criminal harassment, intimidation, etc
o All murder which is not first degree murder is second degree
o Distinction has to do with punishment; automatically life sentence for both first and
second degree murder, but parole eligibility is main difference
o Max sentence for manslaughter is life, but rare; eligible for parole after serving 7 years
o For second degree, eligible for parole b/n 10- 25 years; up to sentencing judge (if
suffering particularly cruel or extensive for victim, or partially planned or deliberate but
couldn't quite make out first degree, will be closer to 25)
o Eligible for parole doesn’t mean they will get out of prison; must show remorse
o For first degree murder, life sentence with no eligibility for parole for 25 years
§ Now Parliament has made it that if you kill 2 people, sentences can be
consecutive (stacked); if accused murders 3 police officers during course of
incident, could get life-25 x 3 = life sentences with no eligibility for 75 years
o S.232: murder may be reduced to manslaughter if caused by:
o Heat of passion caused by sudden provocation
§ Provocation: Conduct of victim that would constitute indictable offense
punishable up to 5 years imprisonment that is sufficient to deprive person of
self-control, if accused acted suddenly before passions could cool
§ Used to be 'wrongful act or insult'; recently changed to more complex and
narrow definition
§ Law recognizing emotional human nature; persons can be provoked to level of
homicidal rage; reduces charge
o S.233: female person commits infanticide where by willful act or omission she causes death of
newly born child if she had not fully recovered from effects of giving birth or by effect of
lactation consequent on birth
o Controversial section; many believe patronizing to women, others believe necessary to
account for postpartum depression
o Infanticide considered offense and defense at same time; if Crown can prove BRD
mother did cause death of child, that could otherwise be murder
o Defense must bring expert evidence to show mother's mind was disturbed, thereby
lowering charge to infanticide
§ No set time limit in provision for "newly born"; depends on circumstances (how
long disturbance remains, and if it was due to effects of childbirth or lactation)
o Note: Person becomes human being when delivered in 'living state' – if Crown cannot
prove baby was born alive, can’t prove she murdered them (but may charge under s.243
of Code - disposing of dead body of child with intent to conceal fact of delivery)
o Akin to specific form of insanity defense; lower form of mental disturbance than insanity
o Punishment: liable for imprisonment not exceeding 5 years (compared to life sentence;
many women don't get jailed at all because recognition she may be unwell)

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 o Culpable homicide that is not murder or infanticide is manslaughter
o S.236: manslaughter by way of firearm carries mandatory minimum of 4 years

** Methodology for Culpable Homicide **
1. Was there death of a human being (not merely brain dead, in coma)?
2. Was it culpable or non-culpable homicide (s.222(5))?
3. Which form of culpable homicide (murder, manslaughter or infanticide)? S.222
4. If murder, look at s.229 - is it a, b, c?
(a) both (i) and (ii) have subjective foresight of death
(b) transferred intent; trying to kill one person and end up killing another
(c) rare; phrase 'ought to know' is no longer operative
(d) *Do NOT use 230 (zombie provision; felony murder rule)
5. If murder, is it first degree or second degree?
o First degree includes:
i. Planning and deliberation
ii. Contract killing
iii. Death occurs during terrorist activity
6. If not murder, is it manslaughter or infanticide?
o If Crown can't prove subjective foresight of death for murder, culpable homicide falls to
manslaughter (i.e. high degree of intoxication can prevent foreseeing natural
consequences of actions; may raise reasonable doubt re subj. foresight)
o S.232: If murder emanating from sudden provocation at law, that can reduce verdict
from murder to manslaughter
o If killing of child by mother, must prove 'disturbance of mind' to reduce to infanticide

Constitutionalization of mens rea
-In Vaillancourt and Martineau, SCC declared s.230 of Code unconstitutional, b/c no requirement for
Crown to prove killer had subjective foresight of death
-mens rea for murder (most serious offense) requires subjective foresight of death
o Within s.230: (d) struck down and repealed; (a) struck down and not repealed; (b) struck down
o Only one provision remains but commentators agree it would suffer same fate; all of s.230 fails
to make grade of requiring subj.foresight

R v Vaillancourt (1987 SCC)
- Ratio: It is a principle of fundamental justice that before a person be convicted of murder, there must
be proof beyond a reasonable doubt of at least objective foreseeability of death.
- Facts: V and accomplice committed armed robbery in pool hall; agreed to knives only but accomplice
arrived at scene with gun; V took his bullets (3) and believed gun was unloaded; accomplice went to
back, struggled with client, shot fired, client killed; V arrested on scene, accomplice fled; 3 bullets found
in V's gun (corroborated his story);
- Case History: V’s testimony was believed, but convicted of murder b/c combination of s.230(d) and
s.21(2), common intention to commit offence
o QBCA: Accused’s appeal dismissed from conviction on second-degree murder
- Arguments: V: Principles of fund.justice require that degree of subjective mens rea made out before
Parliament can impose criminal liability
- Issue: What is the constitutional validity of s.213(d) alone, and in combination with s.21(2) of Charter,
with s.7 or 11(d)) of Charter?
- Held: Appeal allowed, new trial ordered; s.213(d) infringes s.7 and 11(d) of Charter; not saved by s.1

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- Reasoning (Lamer J): Progression of mental state through ss. 212 and 213:
o 212(a)(i): accused has subjective foresight of likelihood of causing death and intention to cause
death; most morally blameworthy state of mind
o 212(a)(ii): accused has subjective foresight of likelihood of death but no longer must have
intended to cause death; need only want to cause bodily harm and be reckless
o 212(c): general recklessness (accused does anything he ought to know is likely to cause death);
eliminates requirement of subjective foresight, replaces with objective foreseeability
o 213 (felony murder): causes death while committing/attempting certain offenses, whether he
meant to or knew death was likely to result; proof of performing one of specified acts is
substituted for proof of subjective or even objective foresight
-Absolute liability offends s.7; minimum mental state is essential element of any offense that restricts
liberty (i.e. imprisonment); at least negligence is required
-Conviction for murder cannot rest on anything less than proof BRD of subjective foresight
-s.7: Need special mental element giving rise to moral blameworthiness which justifies higher stigma
and sentence (a few crimes b/c of special stigma attached require certain mens rea)
-s.11(d): murder provision that allows conviction in absence of proof BRD of an essential element
infringes ss. 7 and 11(d)
-s.213 substitutes proof BRD of objective foreseeability (if that is essential element) for proof of certain
forms of intentional dangerous conduct causing death
-Possible for conviction to occur under s.213(d) despite jury having reasonable doubt whether accused
ought to have known death was likely to ensue = prima facie violation of s.7 and 11(d)
o V thought he was party to a robbery and court said RP in his shoes would have believed that
(objective belief no death would have occurred)
-s.1 analysis: 1) Parliament’s intention to deter commission of offences while carrying weapon
(sufficiently important); 2) measures rationally connected to objective; 3) measures unduly impair rights
and freedoms in question (not necessary to convict those who did not foresee death; stigmatizing crime
as murder unnecessarily impairs Charter right)
- Dissent (McIntyre J): perhaps illogical but doesn’t offend principle of fundamental justice to
characterize unintentional killing (involving committing serious crime of violence) as murder
o If legislation is too harsh, that is a matter for Parliament to determine, not the courts

R v Martineau (1990 SCC)
- Ratio: Principle of fundamental justice demands that proof beyond a reasonable doubt of subjective
foresight of death is required before a conviction for murder can be sustained.
- Facts: Bodies of James and Ann McLean found in bathroom of their trailer; M and T, age 15 at time,
charged with murder; M testified he thought they were going to commit b&e only; after robbing trailer,
T shot and killed McLeans b/c he said ‘they saw our faces’ but M had mask on
- Case History: Trial: convicted of second-degree murder; charged jury on 213(a) and (d),.21(1) and (2)
o ABCA: applied R v Vaillancourt ruling to s.213(a) of Criminal Code
- Issue: Does s.213(a) of Code also infringe s.7 and/or s.11(d), and if so, is it justified by s.1 of Charter?
- Held: Appeal dismissed, new trial ordered; s.213 infringes s.7 and 11(d) of Charter; not saved by s.1
- Reasoning: Added to ratio in Vaillancourt; subjective foresight of death must be proven for murder
-s.213(a): murder when person causes death while committing/attempting range of listed offences,
whether meaning to cause death or knowing death likely, if for purpose of facilitating commission of or
flight from offense – removes burden of proving subjective foresight
o This section is an anomaly in light of common law presumption against convicting person of a
true crime without proof of intent or recklessness (Sault Ste Marie)

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 o Violates principle that punishment must be proportional to moral blameworthiness; those
causing harm intentionally should be punished more severely than those causing harm
unintentionally
o Rationale: subjective foresight of death linked to general principle that criminal liability is not
justified except where actor possesses culpable mental state in respect of that result
o B/c conviction for murder carries most severe stigma and punishment, mens rea reflecting
particular nature of crime must be required
o 213 expressly eliminates proof of subjective foresight requirement; infringes s.7 and 11(d)
-Oakes: 1) Sufficiently important objective (deterring infliction of harm during offences b/c of increased
risk of death); 2) Rationally connected (murder punishment may discourage harm; 3) Not proportionate
(unnecessary to convict persons who did not intend or foresee death)
- Analysis:

R v Logan (1990 SCC)
- Ratio: As constitutional requirement, attempted murder cannot require of accused lesser mental
element than that required for murder under s.212(a)(i) = subjective foresight of consequences. The
same minimum degree of mens rea is required to convict a party to the offence.
- Facts: L charged with attempted murder resulting from incident during one of a series of robberies;
clerk shot in neck by co-accused (principal), L not physically involved, but boasted about involvement in
planning; made inculpatory statements to undercover officers; J (other respondent) testified he had no
intention to shoot anyone, no discussion of use of guns
- Case History: Trial: Explained s.21 in jury charge: “must be established BRD that accused knew or ought
to have known someone would probably shoot with intention of killing”
o ONCA: Allowed appeals for attempted murder convictions; substituted for armed robbery;
principle of fundamental justice that party to any offence cannot be found guilty based on lower
standard of requisite mens rea than that required to convict principal
- Issue: Does s.21(2) of Criminal Code contravene s.7 and/or s.11(d) of Charter? If so, is it saved by s.1?
- Held: “Ought to have known” in s.21(2) inoperative where there is a constitutional requirement of
subjective foresight for conviction of party; infringes s.7 of Charter; not saved under s.1
- Reasoning: Disagreed with CA; Vaillancourt does not say Parliament can never enact provisions
requiring different levels of guilty for principal offenders and parties; sentencing process flexible
o But for certain ‘stigmatic’ offences (those for which s.7 requires minimum degree of mens rea),
objective component of s.21(2) will restrict accused’s s.7 rights
o 2 steps to determine whether party to offense had requisite mens rea under s.21(2):
1. Is minimum degree of mens rea required as principle of fundamental justice for
conviction as principal of this offence?
2. If so, that minimum degree of mens rea is constitutionally required to convict party to
that offense as well.
o Elements of mens rea for attempted murder identical to those for most severe form of murder;
accused must have specific intent to kill; stigma same (more impt than sentence)
o Constitutionally required minimum mens rea (subjective foresight) applies to both principal and
party to attempted murder; to extent that s.21(2) would allow conviction of a party to
attempted murder on basis of objective foresight, it restricts s.7 of Charter
-Differential treatment of parties and principals charged with attempted murder must undergo s.1 test:
1) Sufficiently important objective (deter criminal enterprises and encourage parties to limit offences to
planned purpose), 2. Rational connection (conviction will make parties more responsible for actions of
accomplices), 3. Not proportionate (‘ought to know’ allows for possibility that party, through just

39
negligence - not considering/accepting risk that accomplice may do something with intent to kill - could
be found guilty of attempted murder)
o For few offences which Constitution requires subjective intent, stigma renders infringement too
serious and outweighs legislative objective (therefore cannot be justified)
- Note R v Davy: Party to murder by common purpose and intention; Davy would be guilty as a party
under 21(2) if he foresaw death, not if the reasonable person foresaw it.


R v Briscoe (2010 SCC)
- Ratio: Willful blindness substitutes for actual knowledge when knowledge is a required component of
mens rea of offence; under 21(1) (b or c); one can be guilty as party to offence if he knew (or was WB)
that principal intended to commit the offence; party need not desire that the offence happen
(probability, not just possibility of offence
occurring)
- Facts: 13-year-old victim N lured on premise of a party into car with B and 4 others; B watched rape
and murder; charged jointly with kidnapping, aggravated sexual assault, first degree murder
- Case History: Trial: Acquitted on all charges; actus reus for being party to offences was proven, but B
did not have requisite knowledge (no mens rea)
o ABCA: Overturned acquittals, ordered new trial; trial judge failed to consider willful blindness
- Arguments: Crown: B’s actions, carried out with knowledge or wilful blindness of plan, made him a
party; even apart from assistance, presence coupled with knowledge of plan made him abettor
o B: Wilful blindness inconsistent with high mens rea standard for murder under s.229(a); should
not be used to determine requisite knowledge for murder, either as principal or party
- Issue: Did criminal liability flow from B’s level of involvement?
- Held: Appeal dismissed; legal error by trial judge (not considering wilful blindness) necessitates new
trial on all charges
- Reasoning: B’s involvement: driving to/from, choosing location, providing weapons, taking ‘active role’
by holding and shushing victim, threatening
-S.21(1) does not distinguish b/n principal and parties to offence in determining liability; however actus
reus and mens rea are different
o Actus reus: doing or omitting something that assists or encourages perpetrator to commit
offence; mens rea: Assistance must be rendered for the purpose of aiding principal offender to
commit crime (includes intention and knowledge)
o Aider must know perpetrator had intent required for murder; need not share in desire
-Wilful blindness substitutes for actual knowledge; distinct from recklessness
o Only where it could almost be said D actually knew but wanted to deny knowledge
o B’s statements show he deliberately chose not to inquire about what members of group
intended to do because he wanted to remain ignorant

R v Nygaard and Schimmens (1989 SCC)
- Ratio: Murder may be classified as first-degree (planned and deliberate) on the basis of the secondary
intent (reckless whether death ensued) in s.229(a)(ii).
- Facts: Hammond murdered by being hit repeatedly in head by baseball bat (perpetrator unclear from
evidence); both N and S charged; N did not call evidence, argued he was not ‘party’ to offense under
s.21; S put forward defence of alibi (attended races)
- Arguments: Appellant: wrong to label s.212(a)(ii) as murder; mens rea is such that it is not as grave of a
crime as intent to cause the death of someone
- Issues:

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 1) Is planning and deliberation required by s.214(2) incompatible with mens rea for 212(a)(ii)?
(No) Can first degree murder conviction be based on combined effect? (Yes)
2) Was reversible error made by trial judge in permitting Crown to cross-examine witness on
statements made in phone conversation without complying with s.178.16 of Code?
- Held: Appeal allowed; new trial directed on other grounds
- Reasoning: Liability for murder per se:
o Vital element of requisite intent for s.212(a)(ii) is causing bodily harm that perpetrator knows is
likely to cause death and persisting in the assault
o Rejected appellant’s contention; varies so little in degree of culpability from murder
o Only slight relaxation of requirement from s.212(a)(i) to s.212(a)(ii); actual subjective foresight
of likelihood of death is required, but Crown need no longer prove accused intended to cause
death, only that he was reckless whether death ensued or not
-‘Planned and deliberate’ first degree murder:
o Planned means scheme was conceived, carefully thought out and consequences weighed before
being carried out; deliberate means considered/cautious, not impulsive
o These elements make first-degree murder more culpable and justify harsher sentence
-Combination of s.212(a)(ii) with s.214(2):
o Person can plan and deliberate to cause bodily harm that he knows is likely to cause death (e.g.
plan to beat someone within an inch of their life, and reckless about whether death ensues)
o Recklessness mens rea requirement for 212(a)(ii) can be coupled w/ planning and deliberation,
making it first degree murder


R v Pritchard (2008 SCC)
- Ratio: s.231(5)(e): Second degree murder will be elevated to first degree where murder and predicate
offence are distinct but linked together both causally and temporally in circumstances that make the
entire course of conduct a single transaction
- Facts: Drug supplier received large marijuana shipment at farm; went away leaving wife (S) behind;
when he returned, she was missing and all marijuana gone; customer (W) had told appellant (P) of stash;
police intercepted P’s communications; P denied knowing of stash or being there when victim
disappeared; later P promised to cooperate and show police location of body, which he buried in order
to assist W (“real” murderer) in exchange for no first degree murder charge; body never found, W
denied any involvement; Crown continued with first degree charge, allegedly P and W confined victim in
committing the robbery
- Case History: Jury accepted Crown’s argument and returned verdict of first degree murder
- Arguments: Appellant: No evidence for jury, if properly instructed, to reach conclusion; not enough for
Crown to adduce evidence of confinement ancillary to robbery, which is not predicate offence
o Crown: If for any time S was coercively restrained/directed there was unlawful confinement
- Issue: Does s.231(5)(e) raise murder from second degree to first degree if committed in course of
unlawful confinement of victim by appellant contrary to s.279(2)?
- Held: Appeal dismissed; judge did not err and jury entitled to return verdict of first degree murder
- Reasoning: For s.231(5) to raise murder from second to first degree, Crown must prove killing occurred
as part of continuing series of events constituting single transaction that establishes not only the killing
but also the distinct offence of unlawful confinement
o “while committing or attempting to commit” requires killing to be closely connected, temporally
and causally, with enumerated offense (crimes of domination)
o First degree murder is not distinct substantive offence; aggravated form of murder

41
 o After concluding accused caused death of victim, trier of fact must determine whether such
circumstances under s.231(5) exist; high degree of blameworthiness beyond murder
o Transitory restraint inherent in threatened violence of every robbery does not trigger this;
however, unlawful confinement may be established with events also disclosing robbery
o Q: whether crime of domination was separate from act of killing; if act of confinement and
killing are co-extensive (one and the same), cannot convict for first degree
o Brief physical struggle will not suffice; must be significant period of time of unlawful
confinement
o Here, ample evidence of unlawful confinement; fact that accused confined victim for purpose of
committing non-enumerated offence (robbery) does not alter operation of s.231(5)(e)
o Open for jury to conclude offences were linked temporally and causally, but the confinement
was independent of killing

R v Wallen (1990 SCC)
- Ratio: Jury charge must distinguish between degree of intoxication necessary to negate intent to kill
and that necessary to negate planning and deliberation.
- Facts: Accused charged with first degree murder of wife; series of escalating incidents before murder;
W threatened to kill deceased; police found guns in his car; on day of killing, entered her office with
guns, wife pleaded for her life, then shot her; in defense, accused’s judgment impaired by alcohol and
Ativan, and suffered from delusional/paranoid jealousy
- Case History: Trial: Jury convicted on charge of first degree murder
o CA: Majority dismissed appeal; dissenting judge found in favour of accused
- Arguments: W: Jury charge deficient; failed to compare effect of intoxication on issue of intent to
effect on issue of capacity to plan/deliberate required for first degree murder
- Issue: Did judge properly charge jury on potential effects of intoxication on planning and deliberation?
- Held: Trial judge erred; appeal allowed, first degree murder conviction set aside, new trial ordered
- Reasoning: Lamer J: Disagreed with McLachlin; instruction that lesser degree of intoxication may
negate planning/deliberation than intent to kill IS essential to jury charge
o Trial judge failed to expressly instruct jury of this; equated intention with planning
o Use of ‘very intoxicated’ with effect of drunkenness on planning/deliberation may have misled
jury into believing lesser degree of drunkenness than that required to negate intent to kill could
not negate planning and deliberation
o Without this error, not convinced jury would have returned first degree murder verdict
-La Forest J: Would dispose of appeal as Lamer, but agreed with McLachlin that, while preferable, no
rule that trial judge MUST give explicit instructions distinguishing between degree of intoxication for
intent and for planning/deliberation
o Charge must be read as a whole; in present case, language may have misled jury
- Dissent (McLachlin): Intoxication of accused relevant to: 1) Whether he had capacity to form intent to
commit murder, 2) Whether he had capacity to form and carry through plan to commit murder
o Jury charge on 1) not questioned; jury charge on 2) questioned
o Judge must instruct jury to consider issue of intoxication separately when considering planning
and deliberation (Mitchell)
o Not absolute rule that judge MUST expressly instruct jury that lesser degree of intoxication may
establish incapacity to plan murder than to negate intent to kill; this is question of fact for jury;
failure to tell jury is insufficient to vitiate charge
- Analysis: When an intoxicant is at play, this must be put to jury as being able to raise reasonable doubt
both on first degree and second degree murder

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 o Self-induced intoxication can be used as defence for specific intent offenses (murder, theft) but
NOT general intent offenses (sexual assault, assault, etc); intoxication is a partial defense for
murder but only reduces to manslaughter which is general intent offense

R v Borowiec (2016 SCC)
- Ratio: “Disturbance of the mind” for infanticide carries its ordinary meaning; the disturbance must be
connected to the effects of birth or lactation, but no causal connection is required between disturbance
and decision to cause death of child.
- Facts: respondent convicted of two counts of infanticide for killing her newborns delivered in 2008 and
2009; respondent’s descriptions of not being in control, not being unable to think clearly and observing
from outside her body were consistent with depersonalization; Dr’s opinion that respondent’s mind was
disturbed. Due to respondent’s coping mechanism of denial, all three deliveries were unexpected,
resulting in high levels of panic and anxiety which triggered depersonalization
-Trial: reviewed the conflicting evidence in light of the Code provisions and case law and found Borowiec
not guilty of murder but guilty of infanticide
-ABCA: upheld the trial decision
- Arguments: Crown contended defense applies with very loose language (‘disturbance of mind’);
wanted stricter standards imposed
- Issue: what is the meaning of “disturbance of the mind” for infanticide?
- Held: SCC sided with defense; disturbed carries its ordinary meaning
- Reasoning:
o Actus reus: “requires a mother-child relationship between the perpetrator and the victim”
o “mental state of the perpetrator/mother must be disturbed and that disturbance must
be connected to the effects of giving birth or lactation”
o But “infanticide does not require any causal connection between the disturbance of the
mother’s mind and the decision to do the thing that caused her child’s death”
o The phrase “mind is then disturbed” should be applied as follows:
o “Disturbed” in its grammatical and ordinary sense
o Can mean “mentally agitated”, “mentally unstable” or “mental discomposure”
o Need not constitute defined mental or psychological condition or a mental illness
o Disturbance must be present at the time of act or omission causing “newly-born” child’s
death, and act or omission must occur at time when accused not fully recovered from
effects of giving birth or lactation
o No requirement to prove act or omission caused by disturbance (part of the actus
reus of infanticide, not the mens rea)
o Disturbance must be “by reason of” fact that accused not fully recovered from effects of
giving birth or from effect of lactation consequent on birth of child
- Analysis: Important sections: Paras 13-16, para 35 (summary of key features of infanticide)
o Unique offense b/c it is also a defense; often Crown is arguing second or even first degree
murder and defense is arguing infanticide
o On exam, might have infanticide scenario or question re history of infanticide - READ CASE **

R v Effert (2011 ABCA)
- Ratio: If evidence leaves trier of fact with reasonable doubt that accused’s mind was not disturbed in
killing of child, must convict of infanticide instead of murder
- Facts: E gave birth in secret, unattended, strangled and threw over fence; charged with murder;
admitted to killing infant and offered to plead guilty to infanticide; two expert witnesses testified her
mind was disturbed at time of birth; Crown declined to accept plea

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- Case History: 2nd trial: jury convicted appellant for second-degree murder
- Arguments: Appellant: 1) This case should be exception to precedent in Ng; 2) verdict should be set
aside because not one a reasonable jury, properly instructed, could reach on the evidence
Crown: Expert evidence supporting infanticide suffered from frailties; jury free to reject it
- Issue: 2 grounds above
- Held: Appeal allowed; guilty verdict cannot be supported on evidence; infanticide substituted
- Reasoning: Ng is binding precedent holding that Crown does not have to give reasons for refusing to
consent to re-election by trial by judge alone, absent abuse of process (burden on accused)
o Appellant argues abuse of process by Crown (wanted “rural jury”); argument fails; no positive
evidence of improper motives or other abuse (only speculation)
o Infanticide is partial defence to murder; to convict for murder, Crown must prove no reasonable
doubt that accused did not kill child by reasons of her mind being disturbed
o Expert evidence was uncontradicted, although qualified (neither Dr’s had extensive experience
with infanticide because offence rare)
o Impossible to say there was not at least a reasonable doubt about appellant’s state of mind
- Obiter: Martin JA (concurring in result) - Unrestrained and intemperate prosecutorial conduct further
inflamed emotions of jury, instead of assisting them to adjudicate dispassionately

R v Creighton (SCC 1993) – also see Penal Negligence *
- Ratio: Mens rea for unlawful act manslaughter (in addition to mens rea of underlying offence) =
objective foreseeability of risk of bodily harm, which is neither trivial nor transitory, in context of
dangerous act (standard should not be individualized for particular accused person)
-Facts: Appellant injected cocaine into deceased’s arm with consent (but hadn’t determined quantity or
potency first); she experienced cardiac arrest and stopped breathing; appellant convinced other party by
verbal intimidation not to call 91; charged with trafficking
- Case History: Trial: appellant convicted of manslaughter, 4 years in prison; ONCA affirmed conviction
- Arguments: Crown: appellant guilty of manslaughter; death caused by unlawful act of trafficking
o Appellant: manslaughter is unconstitutional because it requires only foreseeability of risk of
bodily harm and not foreseeability of death
- Issue: Does s.7 of Charter mandate a subjective mens rea for crime of manslaughter? (No)
- Held: Conviction should not be disturbed
- Reasoning (Majority): Unlawful act manslaughter conforms with s.7 of Charter; no need to ‘read up’ to
include requirement of foreseeability of death as Lamer CJ contends
o Standard of care for objective test (manslaughter and criminal negligence) does not vary with
experience, education and other personal characteristics; RP in circumstances of case
o Manslaughter requires: 1) Conduct causing death of another, 2) Fault short of intention to kill
o For manslaughter, accused need not have foreseen death; rather, objective RP standing in shoes
of accused at time of unlawful act must have been able to foresee bodily harm
o Mens rea = Intention to commit predicate offense (in this case, trafficking) + Objective
foresight of risk of bodily harm in context of dangerous act (likely to injure another or
put bodily integrity of another at risk)
o ‘Dangerous act’ is required; harm must be more than trivial or transitory
o For s.222(5)(a), Crown must prove actus reus and mens rea associated with underlying act, AND
reasonable foreseeability of risk of bodily harm
o Uniform standard of conduct, subject to cases where accused unable to recognize or avoid risk
o Penal negligence: 1) actus reus= marked departure from standards of RP; 2) mens rea= objective
foresight of risking harm; 3) if prima facie case made out, ask ‘Did accused possess requisite
capacity to appreciate risk flowing from conduct’? If yes, moral fault established

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 o In case at hand, C committed unlawful act of trafficking and guilty of criminal negligence;
reasonable person in circumstances would have foreseen risk of bodily harm, so guilty

Assault

Elements of Assault
-3 defn's of assault in Criminal Code (s.265):
a. Intentional application of force, directly or indirectly, to a person (most common)
b. Attempt or threat by act or gesture to apply force (e.g. cocking a fist)
c. Accosting, impeding or begging another person while openly wearing/carrying weapon
-Mens rea: 1) Subjective mental state, not objective - fault requirement not satisfied by proof of
negligence; 2) Act and mental element must co-exist or intersect at some point
o Intent to apply force on another person, knowing or being willfully blind or reckless as to
whether that person is consenting
o Mens rea for assault, assault bodily harm, aggravated assault AND if person dies, unlawful act
manslaughter = objective foresight of risk of bodily harm
o Defense merely has to raise reasonable doubt as to lack of mens rea; if accused honestly
believed person was consenting, mens rea cannot be established
-Actus reus: 1) Act must have been voluntary; 2) Intentional touching of another person without that
person’s consent
o Absence of consent must be proved by Crown BRD
-Consent is relevant in 2 ways: 1) Actus reus: whether accused in fact had consent to perform act; 2)
Mens rea: whether accused believed she had consent to perform act in question
o There are statutory restrictions and common law restrictions on recognition of consent; law also
disregards what might otherwise appear manifest consent if product of coercion

Types of Assault
-4 types or ‘levels’ of assault:
o Assault simplicitor or simple assault - no harm caused or nothing beyond trivial or trifling
o Assault causing bodily harm (s.267(b)) - bodily harm which is more than trivial or trifling
• E.g. several serious bruises that last more than a few days; broken nose
o Aggravated assault (s.268): highest form of assault without killing person
• 4 ways of committing: wounding, maiming, disfiguring, or endangering life of
complainant
• Straight indictable offense
• Usually serious injuries: broken bones, cracked skull, person left unconscious for series
of hours/days and requires medical intervention to save their life
• Can involve injuries by weapons such as punctured lung, deep slash, non-fatal shot
o Assault with weapon (267(a)): same section as assault causing bodily harm
• Possible to commit assault with weapon AND assault causing bodily harm or aggr assault
o E.g. typical stabbing case: accused charged with assault w/ weapon and either
assault bodily harm or aggr assault (depending on severity of injuries)
• Weapon can be essentially anything foreign to accused's body
• Can also apply to sexual assault
-Situations in which Code deems a person not to have consented:
o Consent by application of force
o Consent by threat of fear of application to another person

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 o Consent by fraud
o Consent by exercise of authority
*These apply to all assaults and sexual assaults
-Situations in which Code deems lack of consent for sexual assault:
o Touching one part of body does not mean consent to touching another part of body
o Automatic lack of consent if:
o Complainant is incapacitated by intoxication or due to age
o Consent is by third person
o Inducement to engage in sexual activity by abusing position of trust, power, authority
o Expressed disagreement to sex by words or conduct
o List is NOT exhaustive; possible other ways of vitiating consent
-Other assault provisions:
o S.265(4): accused believed complainant was consenting (mistake of fact defence)
o Judge is to tell jury to consider presence or absence of reasonable grounds for accused’s
belief that complainant consented (if there is sufficient evidence)
o Consider whether there were reasonable grounds for that belief (credibility test)
o S.268(4): Aggravated assault by circumstances of female circumcision
o No female under 18 can consent except for medical purposes

R v Dewey (1999 ABCA)
- Ratio: Objective foreseeability of risk of bodily harm in general (not specific type of harm) is included in
mental element for assault causing bodily harm
- Facts: D forcefully shoved complainant who hit head on jukebox, fell and was seriously injured
- Case History: Convicted at trial for assault causing bodily harm; found unprovoked push was
proceeded by significantly more force than would cause stumble
- Arguments:
- Issue: Is objective foreseeability required for conviction for assault causing bodily harm? (Yes)
- Held: Appeal dismissed
- Reasoning: Prior to DeSousa, conviction for assault causing bodily harm required only actus reus and
mens rea for assault with consequence of bodily harm
o DeSousa: objective foreseeability of risk of bodily harm constitutionally required for conviction
o Result of cases: objective foreseeability of risk of harm included in mental element for offence
of assault causing bodily harm; foreseeability of specific type of harm not required
o RP standing in shoes of accused need not see risk of subject falling and hitting head on juke box,
but merely risk of bodily harm occurring in some way
o Q: is it objectively foreseeable that push in bar setting with great force will cause bodily harm? If
so, whatever the outcome, it is responsibility of offender

R v Jobidon (1991 SCC)
- Ratio: Consent is vitiated between adults intentionally applying force causing serious/non-trivial bodily
harm to each other in course of fist fight or brawl
- Facts: J charged with manslaughter for unlawful act of killing H by assault; H was inebriated but
‘appeared fine’, J had drinks but not inebriated; victim larger and trained as boxer; H initiated fight in
bar, resumed in parking lot; J struck H with great force on head, knocked onto hood of car unconscious;
brief flurry by J of another 4-6 strikes; punches were part of ‘one continuing transaction’ (trial finding); H
died of severe contusions to head

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- Case History: Trial: Found not guilty of manslaughter; found J did not intend to kill H or cause him
serious bodily harm; honestly believed H was still capable of fighting back after hitting hood of car; H’s
consent negated assault and J not criminally negligent
o ONCA: Substituted guilty verdict on charge of manslaughter
- Arguments: Appellant: ONCA erred in interpretation of s.265 of code; court should have accorded full
effect to H’s consent rather than apply common law understanding of role of consent; Parliament chose
not to insert policy-based limitations on role of consent
o Respondent: “Consent” should be read in light of common law which limits applicability as
defence to assault; in public interest that people cannot validly consent to intentional bodily
harm in circumstances such as brawls; provision does not oust common law
- Issue: Primary issue: Is absence of consent essential element of assault which must be proved by
Crown when it relates to fist fight where bodily harm is intentionally caused, or do common law
limitations restrict/negate legal effectiveness of consent in certain cases?
o Secondary issue: could J be convicted of manslaughter on basis other than unlawful act of
assault?
- Held: Appeal dismissed; manslaughter conviction upheld
- Reasoning (Gonthier J): Court limited consent for assault
o If consent acts as defence to assault it will indirectly act as defence to manslaughter based on
assault; ss.265(1) and 265(2) prima facie support appellant’s position
o General rule: one cannot commit assault if other person agrees to application of force (all forms
of assault but s.265 does not define situations where consent not legally effective)
o Parliament could have specified but chose not to, so common law has set limits on types
of harmful actions to which one can validly consent
o s.8 of Code: common law principles apply to extent that they are not inconsistent with Code
o s.265(3) 4 factors that may vitiate consent were only intended to make explicit basic limits on
legal effectiveness of consent, not remove existing body of common law
o Even if s.265(3) negated common law rules, it did not erase policy-based limitations
o Consent is technically part of offence, not defense, but function remains same; indiv
accused of assault can rely on consent of complainant to bar conviction
o Policy considerations are fact-specific, difficult to list all exceptions in Code; courts more
suited to balancing individual autonomy with societal interest
o s.14 (no one can consent to death) does not apply to consent to other consequences
o Prov CA’s mixed, but authority weighs against validity of consent to bodily injury in fight
o Policy considerations: social uselessness of fist fights and need for deterrence; permitting
aggressive indiv’s to get into consensual fist fights could lessen social taboo against it; morally,
sanctity of human body militates against validity of consent to bodily harm in fight
o All criminal law is paternalistic to some degree; autonomy not only value law seeks to protect
o Limit ONLY extends to adults intentionally applying force in course of fight; NOT to
consenting to participate in sports, medical treatment, stunts, minor/trivial bodily harm
o 3-part mens rea: i) Accused must intend to commit predicate offense, ii) must intend to cause
bodily harm, and iii) risk of harm is objectively foreseeable by reason of conduct
o Bodily harm must be intended AND caused, not one or other, for liability to result;
accused then responsible for any non-trivial injury that occurs
- Dissent (Sopkina J): Agreed with results but not reasons; consent cannot be read out of offence
o Consent is fundamental element of many criminal offences incl. assault
o Provision creating offence explicitly provides for element of consent
o Parliament did not intend to outlaw consensual fighting; rather, intended to restrict consent to
situations where victim is free of coercion or misrepresentation

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 o The more serious the assault the more difficult it should be to establish consent
o Absence of consent cannot be removed by robust application of judge-made policy
o Effect of majority decision: create new common law offence where it does not exist in Code
o Contrary to s.9(a); social utility test creates uncertainty
o By striking unconscious H, accused acted beyond scope of consent and committed actus reus of
assault; honest belief defence fails b/c J knew he was acting beyond H’s consent
- Analysis: Case controversial; did majority in fact create a new offence for assault by limiting consent?
o Majority argues just 'reading in' to 'without his consent' the limitation that one cannot consent
to bodily harm for policy reasons; but lack of consent has always been part of actus reus
o Common law principles continue to apply to extent that not inconsistent with Code, BUT S.9
rules out judges creating offenses (very diff than modifying a defence)
o Most commentators believe majority didn't succeed in defeating Sopinka's points; J could've
been found guilty through DeSousa-Creighton route, with no new route needed
** Both decisions very important; for exam, majority analysis is the law but we may need to
discuss reasoning of both (and where they differ) **

** 2 Routes to Liability for Assault **
(*applies to assault causing bodily harm, aggravated assault and unlawful act manslaughter)
1. DeSousa/Creighton route: focus on lack of consent and objective foreseeability of risk of harm
o Actus reus: 1) unlawful act (lack of consent to the touching/application of force must be
proven as part of offense by the Crown for any assault case); 2) resulting bodily harm
(anything b/n non-trivial harm and death)
o Mens rea: 1) Accused intended to commit predicate offense (unlawful act) - includes
true intent, willful blindness and recklessness; 2) objective foresight of risk of bodily
harm (RP in accused's position would have foreseen some/any bodily harm)
2. Jobidon route: de facto consent given but accused still liable for resulting harm
o Actus reus: 1) intentional application of force to complainant (touching directly or
indirectly with another object); 2) resulting bodily harm (same as first route)
o Mens rea: 1) subjective intention to cause non-trivial bodily harm (Crown must prove
accused intended to cause harm, or was willfully blind, or reckless as to result); 2)
objective foresight of risk of bodily harm (RP would have foreseen risk of bodily harm)
-Differences b/n the two routes:
o DeSousa/Creighton requires predicate/underlying offense; Jobidon does NOT
o If there is underlying criminal offense (e.g. Crown proved accused applied force to
another person without consent - unlawful act) use DeSousa route rather than Jobidon
o Use Jobidon where there is factual consent to application of force, or Crown failed to
prove lack of consent; if Crown can prove accused intended to cause bodily harm he can
still be convicted (consent is vitiated)
o DeSousa/Creighton does not require accused subjectively intend resulting harm; so long as
accused intended to commit unlawful act (mens rea), liable for resulting bodily harm so long as
risk of bodily harm was objectively foreseeable

R v McSorley (2000 BCPC)
- Ratio: Consent to assault in context of a game can be vitiated if assault goes beyond rules and
customary norms of game.
- Facts: M slashed B in head with hockey stick in hockey game; preceded by fight between the two, with
M also trying to incite another fight; video showed entire incident

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- Arguments: Crown: evidence permits only 2 possibilities; 1) that M deliberately struck to head without
consent OR 2) that he recklessly struck, not necessarily aiming for head directly
o M: only intended to slash B on shoulder to get attention to instigate another fight
- Issue: Was slash by M, although against written rules, nevertheless within customary norms of the
game (and consequently did B consent to it)?
- Held: Accused guilty of assault
- Reasoning (Kitchen J): M guilty via DeSousa/Creighton route for intentionally swinging stick
o Recognized Crown’s discretion to proceed with laying charges; prosecution believed public
policy issue justified criminal law’s involvement in this case
o Hockey players accept some assaults but criminal law still extends to hockey arena
o Players govern themselves by: i) written rules, ii) unwritten code of conduct impliedly
agreed to by all, and iii) guidelines set by officials in games
o Slash was of considerable force and B clearly suffered bodily harm
o If blow to head was intentional, parties agree that it was an assault (B did not consent to it); B
likely would have accepted accidental blow to head, aimed elsewhere, as risk of game
o Slash intended for shoulder to start fight would be within common norms of game
o But if he was aiming for shoulder, saw risk of missing and proceeded, could be reckless
o Was the risk too great to be consented to? Legal test for vitiating consent in Jobidon and Cey;
public policy test leads to conclusion that consent to accept such risk must be overridden
o Care must be taken to avoid drawing conclusions from video frame-by-frame analysis; can be
misleading as to deliberateness; repetition more useful than slow motion to analyze intention
o M’s intention: hands drawn together not significant (didn’t show intention to use stick as
weapon); movement of B and M’s injured shoulder not factors affecting M’s aim
o Cannot be said M not aware of impact of stick and B falling to ice; continued aggressive
behaviour inconsistent with someone realizing he accidentally injured a player
o Concluded that swing was intended for head; therefore 2 unlawful acts - assault and
assault with weapon - with resulting bodily harm
- Analysis: Later decision R v Bertuzzi informed by Kitchen’s analysis in McSorley (and SCC analysis in
Jobidon); B tackled M from behind during game; grabbed with both arms, put own body on his back and
drove into ice surface; M left with nothing to break fall; serious injury resulted
o B pled guilty and received discharge (no criminal record); joint recommendation

Implied Consent – Assault
-There is general implicit consent to minor forms of touching that are presumed in daily life
o Includes smallest degree of personal contact, necessary for customary usage
o E.g. Tapping another on shoulder to attract their attention is not battery, even if intention is to
tell person to go away (or a total stranger) - part of group living
o Applies only to assault simpliciter
o Sexual contact is different (any touching that violates sexual integrity of a person is sexual
assault, and NO implied consent)

Sexual Assault

Criminal Code Provisions - Sex Crimes
-150-153: sex crimes against children (below age of 16)
o Age of consent used to be 14, now no one until age of 16 can consent to any sexual activity
o Exceptions:

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 § If complainant is 12 or 13 (under 14), it is a defence that person consented IF
accused less than 2 years older and not in position of trust or authority
§ If complainant is 14 or 15 years old, it's a defense that person consented IF
accused is less than 5 years older and not in a position of trust or authority
§ If complainant is 16 (at time of incident), they are able to consent at law
o Mistake of age (S.150.1(4)): Not a defense under these sections that accused believed
complainant was 16 or more, unless accused took ALL reasonable steps to ascertain age
• i.e. ask for ID, her friends told me, saw her at high school; must take ALL steps
o Sexual Interference (S.151): everyone who for a sexual purpose directly or indirectly touches
body of person under 16 is guilty of offense
• Must be for sexual purpose; parents bathing young children not included
• NOTE: Sexual assault does not have to be for a sexual purpose
o Invitation to sexual touching (S.152): accused told young person to touch them
o Sexual exploitation (S.153): any person, if in position of trust or authority or young person in
is relationship of dependency, commits offense if she touches person for a sexual purpose
• Applies to young persons aged 16-17
• age of consent is 16; this provision protects teens, who are now able to consent
to sex generally, from exploitation by those in authority (step-parents, teachers)
o Incest (S.155): knowing other person is of blood relationship and having sexual intercourse
with that person (requires actual sex)
o Anal Intercourse (S.159): still illegal in some circumstances
• Offense does not apply to any act in private b/n husband and wife, or any two
persons at least 18 years of age, both of whom has consented
• Discriminatory towards gay males either of whom is under age of 18; likely
would be rendered unconstitutional if it came to court (rarely used)
o Bestiality and bestiality in presence of child (S.160): Reflective of purpose of criminal law to
establish standards of moral behavior

Elements of Sexual Assault
= Assault violating sexual integrity of victim; this aggravating aspect is assessed objectively
-Issues include: how to distinguish from other forms of assault, recognition of consent and
differentiating from mere submission, application of conventional mens rea principles, evidential
difficulties posed by application of principles and statutory responses
-Crown must prove lack of consent as part of actus reus of sexual assault
-Statutory provisions have evolved to recognize to increasing extent complexities of sexual relationships;
doesn’t permit accused in all circumstances to rely on express consent
• CC 265(3): consent to sexual relations may be vitiated if obtained through fraud
• No consent obtained where accused induced complainant by abusing of position of trust, power
or authority (tort, contract and fiduciary law assist in determining scope)
• Also see 150.1, 151, 152, 153, 160(3), 173(2)
-Specific ways consent can be vitiated for sexual assault (273(1)(3)):
o Third person consented on behalf
o Person is incapable of consenting (under age of 16)
o Person incapable of consenting b/c:
o Incapacitated due to intoxication (alcohol or drugs)
• Consent while drunk not vitiated if she can appreciate what is happening, knows
she is being touched and has ability to say yes or no
o Induced to engage in sexual activity by abusing position of trust, power, authority

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 • Expressed disagreement to sex by words or conduct
• Once there is a NO by words or conduct, other person put on notice and cannot
proceed until he/she gets a clear, unadulterated YES by words or conduct
o Complainant engaged in some sexual activity but changed his/her mind to continue
-Actus reus = Application of force without consent that violates sexual integrity of a person
-Mens rea = Intention to touch that person knowing they were not consenting, or being willfully blind,
or being reckless whether person was consenting (foreseeing risk that person may not be consenting but
proceeding in face of that risk)
o Mistake of fact = believing in existence of a fact that, if true, would render the accused innocent
o Common law defense; belief must be honestly held, need not be reasonably held
o Not whether RP would have been mistaken but if accused truly was mistaken
o S.265(4) - ALL assault provisions apply to sexual assault, including any additional factors
Parliament has added
o When accused alleges mistaken belief, jury must consider whether there is reasonable
basis for that mistake (credibility test)
o S.273.2- not a defence to sexual assault that accused believe complainant consented, IF that
belief arose from:
o Self-induced intoxication
o Recklessness
o Willful blindness
o Accused did not take reasonable steps in circumstances known to accused at time to
ascertain complainant was consenting (creates evidentiary burden on accused)
§ Steps must be subjectively reasonable to that accused, not objectively
-Sexual history law (S.276): prohibits use of complainant's sexual history (inadmissible in court) IF:
• It pertains to one of the twin myths:
o b/c complainant consented to sex with accused or other persons in past she was more
likely to consent to sex at the time in question (e.g. reputation/past relationship) OR
o b/c she engaged in prior sex she was less likely to resist
o Eradicates Victorian notion that an unchaste woman was not credible - extremely prejudicial
o Sexual history of complainant may be admissible, if it doesn't go to one of twin myths
o Evidence of some sexual activity (from emails or texts) b/n the parties can be introduced
to discredit complainant's claim under oath that she had no interest in accused, or
where form of sexual activity in question at trial had been engaged in before
§ E.g. past history may corroborate belief in consent IF he took reasonable steps
o Very difficult depending on judge for defence to cross-examine complainant on
sexual history, or adduce evidence and have it be admissible
o Defence must file notice of motion ahead of time, argue that probative value of
evidence outweighs its prejudicial effect and show it does not go exclusively to
twin myths - must be another legitimate reason for bringing in evidence

** Sexual Assault Analysis **
o Actus reus:
§ Was there application of force?
§ Was it of a sexual nature? (violated complainant's sexual integrity, not merely bodily)
§ Was complainant consenting to sexual activity?
• If trier of fact concludes BRD complainant was not consenting, actus reus has
been made out; jury moves to next part in analysis
o Mens rea:

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 § Did accused intend to touch or apply force to complainant? (accused need not have
motive of sexual gratification in mind)
§ Did accused touch complainant knowing she was not consenting? (includes
knowledge, willful blindness or recklessness, or failure to take reasonable steps)
• Must show SOME reasonable steps taken to ascertain consent (unlike mistake of
fact, where ALL reasonable steps must have been taken)
• Accused cannot have formed belief due to self-induced intoxication, willful
blindness, recklessness or reliance on one of two myths

R v KBV (1993 SCC)
- Ratio: To determine if assault was a sexual assault, objective test must be used: Would a RP, in light of
all the circumstances, view the assault as being of a sexual nature? Motive is only one factor; not
determinative.
- Facts: Appellant convicted of sexually assaulting his 3-year-old son; grabbed his genitals and squeezed,
for punishment purposes
- Case History: ONCA dismissed accused’s appeal from conviction on sexual assault charge
- Issue: Was the assault a sexual assault within meaning of s.271(1) of Code?
- Held: Appeal dismissed
- Reasoning (Iacobucci J): In R v Chase the SCC defined sexual assault as assault within any of definitions
in s.244(1) that is committed in sexual circumstances such that victim’s sexual integrity violated
o Objective test: viewed in all circumstances, was sexual or carnal context of assault visible to
reasonable observer? Factors include: part of body, nature of contact, situation, words/gestures
including threats or force, intent or purpose, motive of sexual gratification
o It was open for trial judge to conclude from circumstances that assault was of a sexual nature
and violated appellant’s son’s sexual integrity
- Dissent (Sopinka J): Trial judge failed to accord weight to absence of any motive or intent on accused’s
part to seek sexual gratification should be weighted according to circumstances of case
o Here, assault was cruel and misguided form of discipline, deserving of punishment, but other
than part of body attacked it was non-sexual in nature; not a sexual assault

R v Ewanchuk (1991 SCC)
*Extremely important case for law of sexual assault*
- Ratio: There is NO defence of implied consent to sexual assault in Canadian law
o Actus reus: Consider i) whether complainant wanted touching in her mind, ii) credibility, iii) if
consent is an issue, whether she consented b/c of fear, fraud or authority
o Mens rea: Consider i) whether evidence supports claim that accused honestly believed she
communicated consent; belief cannot be reckless, willfully blind, or tainted by s.273.1 factors
- Facts: Accused charged with sexual assault; touched complainant, 17, in sexual way in his trailer during
purported job interview; complainant said "no" 3 separate times as intimacy escalated; each time, he
immediately stopped but then resumed; she tried to appear calm to avoid violent assault; afraid to resist
- Case History: Trial; relied on defence of “implied consent”; complainant’s conduct was such that it
could be objectively construed as constituting consent to sexual touching despite her subjective feelings
o CA: Majority dismissed appeal - fact-driven, Crown had failed to prove accused possessed
requisite intent to commit assault; his advances were "far less criminal than hormonal";
complainant "did not present herself in a bonnet and crinolines" to job interview
• Dissent found trial judge erred in interpreting consent
- Issue: Did trial judge err in understanding of consent in sexual assault and was conclusion that defence
of “implied consent” exists in Canadian law correct? (No)

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- Held: Appeal allowed; conviction entered
- Reasoning: Not only does "no mean no", but “only yes means yes" – affirmation in words or actions
-Actus reus of sexual assault is established by proof of 3 elements: i) touching, ii) sexual nature of
contact, iii) absence of consent (i and ii are objective, iii is subjective)
o Actual internal state of mind of complainant at time of touching is determinative of consent
o As in this case, if trier of fact believes complainant did not subjectively consent, Crown has
discharged obligation to prove absence of consent (matter of credibility)
o Either complainant consented or not; no 3rd option of implied consent despite her conduct
o Trial judge erred in treating ambiguous conduct as raising reasonable doubt about consent
o There is no consent as matter of law where complainant believed she was choosing between
permitting herself to be touched or risking being subject to application of force
o Subjective; fear need not be reasonable or communicated to accused to vitiate consent
-Mens rea of sexual assault consists of 2 elements: i) intention to touch complainant and ii) knowing,
being reckless or willfully blind to lack of consent of person touched - general intent
o Can also be established by failure on accused’s part to ascertain positive communication of
consent (take reasonable steps)
o Defence of honest but mistaken belief in consent considered from accused’s perspective
o Accused’s speculation that complainant, in her own mind, wanted sex is not defence
o Question is whether accused believed he obtained consent (i.e. complainant affirmatively
communicated by words or conduct agreement to engage in sexual activity)
o Belief that silence, passivity or ambiguous conduct constitutes consent is error
o Trial judge should have considered whether anything occurred b/n communication of non-
consent and subsequent touching which accused could have believed constituted consent
o Trial judge erred in not considering honest belief defense b/c accused didn’t raise it
o But no air of reality to defence; nothing to support claim that he continued to believe
her to be consenting or re-established consent before resuming touching
-State of mind of complainant and accused
o Actus reus: consent means complainant in her mind wanted the sexual touching to take place
o Mens rea: accused believed complainant affirmatively communicated by words or conduct her
agreement to sexual contact
o Once unwillingness established, accused must show he honestly believed consent re-
established; clear and unequivocal yes before he touches her again in sexual manner;
can’t rely on belief that lack of agreement was invitation to more aggressive conduct
o Affirmative body language can absolve accused from mens rea so long as he honestly believed it
and reasonable steps were taken:
o I.e. series of steps b/n kissing and sexual intercourse; if he shows she kissed him back,
took off clothes, touched him, this would go to affirmative conduct
o Both objective and subjective components: based on accused’s own mental state) but
must be reasonable (based on what accused knew at time, did he take reasonable steps)
-L’Heureux Dube J (concurring in result): not a case about consent, but rather myths and stereotypes
o Complainant’s unwillingness to engage in sexual activity was clear, and s.265(3)(b) applies to
further establish lack of consent
o Major J restricts application to when complainant chooses to participate in or ostensibly
consents to touching; should also apply to cases when silent or passive
o Trial and appeal judges rely on rape myths, i.e. complainant invited sexual assault; woman who
is not of 'good moral character' (based on way she dressed) more likely to signal consent
o Judiciary's impartiality cannot be compromised by these biases
o Court must denounce this conduct which perpetuates stereotypes and ignores law

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 o Honest belief defence had no air of reality; unless and until accused takes “reasonable steps” in
circumstances to ascertain complainant was consenting, no defence arises
o s.273.1(2) also relevant; complainant expresses by words/conduct a lack of agreement
-McLachlin (concurring in result): defence of implied consent relies on assumption that unless woman
protests or resists she is deemed to be consenting
o It's not just 'no means no'; logical extension of this is that women are walking around in a state
of constant sexual consent until they say no
o The law is the opposite; constant state of non-consent until YES is obtained

R v A(J) [2011 SCC]
- Ratio: Complainant must provide active consent through every phase of sexual activity. Any sexual
activity with individual who is incapable of consciously consenting is not consensual.
- Facts: KD and JD, long-time partners, were engaging in foreplay; JD choked her until unconscious (for
less than 3 minutes); awoke on her knees, hands tied, with JD inserting dildo in her anus followed by
vaginal intercourse; KD testified that she consented to choking and loss of consciousness, conflicting
testimony about anal play
- Case History: Trial: Not guilty of aggravated assault (KD consented to choking); guilty of sexual assault
(KD had not consented to dildo; in alternative, can’t consent to activity while unconscious)
o CA: Insufficient evidence to conclude KD did not consent to dildo; majority held individuals could
consent in advance to sex while unconscious; dissent held individual must have active mind
throughout sexual activity and prior consent not effective (Ewanchuk)
- Arguments: Crown: unconscious person does not have operating mind; incapable of consenting
o Respondent: can engage in sex with unconscious person provided he doesn’t exceed bounds of
what was expectations/ consented to
- Issue: Can a person perform sexual acts on an unconscious person if he/she consented to those acts
before being rendered unconscious?
- Held (Majority): Appeal allowed; restored respondent’s conviction for sexual assault
- Reasoning (McLachlin CJ): Criminal Code requires individual to be conscious throughout sexual activity
in question to provide requisite ongoing consent
-Statutory interpretation:
o Actus reus of sexual assault: touching another person in sexual way without consent (= actual
subjective consent in mind of complainant at time of sexual activity in question)
o Mens rea of sexual assault: person knew complainant was not consenting to sexual act in
question, or was reckless or willfully blind to absence of consent
o Consent must be directed to each and every sexual act at the time it occurs
o S.273.1(2) list of circumstances in which consent is vitiated: mental incapacity which can arise
from unconsciousness; Parliament intended conscious consent of operating mind
o For mens rea, consent means whether accused believed complainant communicated consent;
for actus reus, whether complainant was subjectively consenting in mind
o s.273.1(2)(d): no consent if complainant expresses lack of agreement to engage in activity
(suggests present, ongoing conception of consent, rather than advance consent)
o s.273.1(2)(e): error to presume consent after she expresses lack of agreement (indicates
Parliament wanted people to be capable of revoking consent at any time)
o Mens rea defence: accused cannot take reasonable steps to ascertain whether person was
consenting to act in question if person is unconscious
o Accused’s reliance on her prior consent was not a mistake of fact but a mistake of law
(you cannot legally have sex with unconscious partner); not a defence

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 o To hold that advance consent can be given to acts taking place while unconscious runs counter
to Parliament’s intent that person can revoke consent to any act at any time
-Meaning of consent:
o Absence of consent determined by reference to complainant’s subjective internal state of mind;
complainant not required to express lack of consent
o Only relevant period of time for complainant’s consent is while touching is occurring
o Since there is no defence of implied consent to sexual activity, accused cannot argue consent
was implied by circumstances or relationship
o Impossible to claim honest but mistaken belief if complainant is unconscious
o Not sufficient for accused to believe complainant subjectively consenting; evidence must
show he honestly believed complainant communicated consent to act in question
(established by going through reasonable steps analysis)
o Appeal judge argued law should create exception to general requirement of conscious, ongoing
consent similar to doctors performing surgery on unconscious patients; but consent to other
activities is very different than consent to sexual activity
o Inappropriate for court to carve out exceptions that undermine Parliament’s intent; concept of
consent produces just results in vast majority of cases
- Dissent (Fish J): Crown’s position would deprive women of freedom to engage by choice in sexual
activities that involve no proven harm to them or others
o It would also make it sexual assault for cohabiting partners to kiss/caress each other while
sleeping, even with express prior consent – absurd consequence
o Real question is whether conscious person can voluntarily consent in advance to agreed sexual
activity that will occur while briefly rendered unconscious; yes, with qualifications
o defn of consent – “voluntary agreement to engage in sexual act in question” – does not refer to
timing of consent or exclude advance consent to unconscious sexual contact
o s.273.1(2)(b) – no consent where complainant is incapable of consenting - does not exclude
complainant giving free and knowing consent in advance, while capable
o s.273.1(2)(e) – no consent where she expresses lack of agreement – suggests consent can be
given in advance, and remains operative unless or until subsequently revoked
o Policy reasons not persuasive; the right to make decisions about one’s own body comprises both
right to say no and right to engage in private sexual conduct that doesn’t harm
o Majority decision results in criminalization of broad range of conduct that Parliament cannot
have intended to capture in definition of sexual assault
o Consenting adults should be able to engage in activity even if it doesn't comport with
‘typical’ sexual relationships
o 2 “safeguards” (prosecutorial discretion and de minimis) don’t compensate for overbreadth of
law
- Analysis: Main source of disagreement b/n majority and defense: whether one can ever consent to
sexual activity while unconscious
o Takeaways: consent must be specifically directed to each and every sexual act, must be
communicated by complainant to accused, must be given while conscious and during time of act
o Dissent raises valid points about absurd consequences of majority’s judgment
o Note: no statute of limitations in Canadian criminal law (complainant can wait months or years
before charging with sexual assault)
o Worrying part of JA: less obvious applications where innocence of mind as to consent and
complainant only brings it forward much later for ulterior motives
o McLachlin said de minimis would probably not apply in sexual assault, but principle may
apply in prosecutorial discretion when deciding not worth prosecuting

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 o Two common defence strategies in typical he said/she said sexual assault cases:
o Point to behaviour beforehand and on the day of incident to get trier of fact to question
her credibility; claiming non-consent now for ulterior motive
o Claim accused had honest belief in consent; took reasonable steps to ascertain consent

R v Darrach (1998 ONCA)
- Ratio: Sexual assault carry sufficient social stigma to require subjective fault requirement
- Case History: Appellant convicted of sexual assault at trial; defence was complainant’s consent and,
alternatively, honest belief in consent
- Arguments: Appellant: s.273.2(b) breaches Charter in two ways: i) creates objective standard to judge
accused’s conduct by contrary to s.7; ii) breaches s.11(c) by placing onus on accused to testify
- Issue: Is “rape shield” provision (reasonable steps to ascertain consent) constitutional? (Yes)
- Held: Appeal dismissed; sexual assault ‘reasonable steps’ provision does not offend Charter
- Reasoning: Does sexual assault carry sufficient social stigma to require subjective fault requirement?
o Stigmatic offense theory is haphazard at best
o Provision introduces objective component, but personalized according to subjective awareness
of accused at time; issue is what accused knew, not ought to have known
o Accused must take "reasonable steps in the circumstances known to accused at time to
ascertain complainant's consent" (does not require ALL reasonable steps be taken)
o Belief need not be reasonable; accused could come to unreasonable conclusion and still
be acquitted (no mens rea), as long as he took reasonable steps
o Wrong to punish the “morally innocent”; but difficult to imagine a man who had sex with a
woman who didn’t consent, without taking reasonable steps, as morally innocent
o If companion's conduct seen as ambiguous, duty to abstain or obtain clarification
o No testimonial compulsion; does not shift onus onto accused
o May have effect of placing evidential or tactical burden on accused to adduce some
evidence capable of raising reasonable doubt; this is not unconstitutional

Mens Rea for Sexual Assault
-Fault requirement is objective in part: “sexual” aspect of the assault
-Fault requirement is subjective in part: standard doctrines of mens rea apply, subject to statutory
modifications
o Evidential difficulties: accused could refute mens rea by asserting honest (but not necessarily
reasonable) belief in consent, if supported by some evidence, even if diametrically opposed to
testimony of complainant

R v Malcolm [2000 MBCA]
- Ratio: Reasonable steps analysis (s.273.2(b)) must be considered where there is an air of reality to
accused’s assertion of honest belief in consent, and accused is neither willfully blind or reckless, but
circumstances call into question reasonableness of accused’s actions.
- Facts: Complainant and accused kissed at least once at NYE party; complainant went to bed when her
husband left, accused came in and engaged in sexual activity; she turned to face him, realized not her
husband, ordered him out of room
- Case History: Trial: Acquitted of sexual assault (concluded complainant was not consenting – actus reus
– but had reasonable doubt as to mens rea)
- Arguments: Crown alleged error in law was failure to refer to reasonable steps analysis; evidentiary
burden on accused to show reasonable steps taken and perception of consent not based on willful
blindness, recklessness, or impairment due to self-induced intoxication

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- Issue: Did the trial judge err in failing to consider s.273.2(b) – reasonable steps analysis?
- Held: Acquittal set aside; new trial ordered
- Reasoning: mistake of fact did not arise from drunkenness, willful blindness or recklessness, but trial
judge failed to address 273.2(b), whether accused took reasonable steps to ascertain consent
-Recklessness: accused subjectively perceives risk that consent not present, proceeds anyway
-Willful blindness: obvious in circumstances there is no consent (not just a risk), but accused does not
want to confirm lack of consent b/c wants to be able to say he didn’t know
-Mistaken belief in consent: a mistake which is either reckless or wilfully blind is no defence
-To rely on honest mistake, accused must take reasonable steps in circumstances known to him at time
to ascertain if consent exists (limits defense in Pappajohn)
o Creates quasi-objective liability; accused held up to standard of reasonable conduct (objective)
assessed on basis of what accused knew at time of the assault (subjective)
o Belief in consent need not be reasonable, but must make reasonable effort to ascertain
o Does not alter fact that mistake alleged by accused may still be unreasonable
o Where ‘air of reality’ gives rise to defence of belief in consent, it must be put to jury
o Once air of reality test met, issue is whether accused aware of circumstances which would lead
RP to inquire further into issue of consent; if not, no further steps required


R v Faulkner (1997 ONCA)
- Ratio: Generally age and location of sexual activity are not factors vitiating consent
- Facts: Appellant, 23, had sex with complainant, 15, after she ingested drugs; asked accused to drive
home, did not want intercourse, no chance to refuse or consent; at time age of consent was 14
- Case History: Trial: complainant lacked necessary capacity to consent to sex b/c of age, ingestion of
drugs/alcohol, isolation of incident
- Held: Appeal allowed, conviction quashed, new trial ordered
- Reasoning: Neither age nor location speak to complainant’s capacity to consent on night in question
o Only alcohol might vitiate consent, but no evidence that ingestion of drugs reached point of
rendering her incapable of consenting
o Factors inconsistent with lack of capacity: aware of curfew, recalled sex in detail

R v S(DG) (2004)
- Ratio: Accused need not be charged with fraud or extortion for act to vitiate consent to sexual activity
- Facts: Respondent threatened to circulate nude photos of ex (MO) unless she had sex with him; as
result she engaged in 3 acts of intercourse with him; MO testified that given respondent’s threats, no
alternative but to engage in sex w/ him
- Case History: Trial: Respondent abused position of power over MO, but acquitted b/c not convinced
Parliament intended to criminalize this situation and unsure conduct amounted to extortion
- Arguments: Crown: MO’s consent vitiated under s.273.1(2)(c), inducement to engage in sexual activity
through abuse of position of power, and extortionate conduct
o Respondent: Sexual activity consensual; charges not made out to requisite standard of proof
- Issue: Did complainant consent to sexual acts in question, and if so, did respondent’s threats to
disseminate photos vitiate that consent?
- Held: Appeal allowed; conviction entered for sexual assault
- Reasoning: Consent not given; actus reus and mens rea of sexual assault established; trial judge erred
in finding acts did not amount to sexual assault within meaning of Code
o Absence of consent is subjective; complainant’s internal state of mind toward sexual touching

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 o Consent implies reasonably informed choice, freely exercised; no consent where person engages
in sexual activity as result of fraud, force, fear or violence (R v Saint-Laurent)
o Respondent acknowledge he blackmailed Mo and knew she didn’t wish to engage in sex; this
constitutes extortion as defined in s.346(1) of Code
o Fact that he was not charged with extortion is irrelevant to issue of whether conduct precluded
voluntary consent to sexual activity to make out offence of sexual assault
- Analysis: List of factors vitiating consent not exhaustive; ONCA added another (extortion)

R v Litchfield (1993 SCC)
- Ratio: Nature of relationship, including lack of power and knowledge (as well as doctor’s duty to
perform treatment in patient’s best interest), must be considered in determining whether complainant
consented to conduct in question.
- Facts: Respondent, family physician, charged with sexual assault with patients; occurred during patient
visits, touched in intimate areas with consent predicated on valid medical purposes
- Reasoning: Sexual aspect is part of actus reus; general intent offense; no sexual nature mental element
(lack of motive of sexual gratification doesn't mean it's not a sexual assault)
o Objective test of all circumstances to determine whether touching was sexual nature
o Court must not underestimate patient’s position of vulnerability when in care of doctor
- Analysis: power imbalances b/n employer-employee, doctor-patient, teacher-pupil can vitiate consent
based on use of that imbalance and exploitation of vulnerability

R v Audet (1996 SCC)
- Ratio: For offense of sexual exploitation, Crown need not prove accused actually abused a position of
trust or authority in order to obtain consent to sexual activity (just position itself)
- Facts: Respondent (A), 22, initiated touching and oral sex with complainant, 14 year-old student; she
grew uncomfortable, asked him to stop and he did; told her not to say anything
o Note: age of consent at time was 14; charged with touching complainant for sexual purpose
while in position of trust or authority toward her
- Case History: Acquitted at trial; affirmed by NBCA on ground that A was not in position of
trust/authority toward complainant at time of incident (dissent believed he was in such position)
- Arguments: Respondent: Crown must show accused abused or exploited position of trust or authority
- Issue: What are constituent elements of sexual exploitation, and meaning and scope of terms “position
of authority” and “position of trust”?
- Held: Appeal allowed; verdict of guilty entered
- Reasoning: CA decision implies Crown must prove accused actually exploited position of
trust/authority; this is contrary to Parliament’s intent and previous judgments
o Distinguish Parliament’s objective (protect young vulnerable persons) from means chosen
o Person charged under s.153(1) can’t raise young person’s consent as defence
o Crown must prove BRD: complainant is young person within meaning of s.153(2); accused
engaged in one of activities listed; at time of act accused was in position of trust, position of
authority, or young person in relationship of dependency (3 separate categories) – also mens
rea for each
o Respondent relied on suggested two-step process in Norberg v Wynrib: 1) Proof of inequality
and 2) Proof of exploitation; rejected by Court; validity of consent was relevant in Norberg
o Requiring proof of exploitation would imply that quality of consent is relevant;
respondent’s position would make offence of sexual exploitation meaningless
o Circumstances where consent is vitiated: s.265(3)(d) exercise of authority and
s.273.1(2)(c) abusing position of trust, power or authority

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 o Clearly Parliament wanted to afford greater protection to young persons by
criminalizing activity itself, whether consensual or not
o Crown does NOT have to prove accused actually abused position
o Position of trust/authority: intended at nature of relationship rather than status/role
o Trial judge must determine on basis of all factual circumstances relevant to relationship;
factors include age difference, evolution of relationship, status of accused in relation
o Status not determinative, but inherent power dependency in some relationships:
presumption that teachers hold position of authority unless accused raises reasonable
doubt; doesn’t violate presumption of innocence or create absolute liability offence
o No evidence re relationship b/n complainant and respondent that rebuts position of trust

- Analysis: When does an appeal court substitute their own verdict vs ordering a new trial?

R v Cuerrier (1998 SCC)
- Ratio: An individual who knows he is HIV-positive and has unprotected sex without disclosing this to
partner may be guilty of sexual assault (fraud vitiating consent) IF significant risk of serious harm
- Facts: Respondent (C) knew he was HIV-positive; received explicit instructions from medical
professionals to inform prospective partners and use protection; 18-month relationship with KM
involving unprotected sex; shorter relationship with BH; both testified that if they had known
respondent had HIV they would not have engaged in unprotected sex with him; charged with
aggr.assault (theory of Crown was that complainant consented to sex)
- Case History: Trial: C endangered lives by putting them at risk of serious bodily harm (contracting HIV);
but they were consenting to sex, and therefore to the nature and quality of act
o CA: upheld acquittal
- Issue: Is complainant’s consent to engage in unprotected sex vitiated by fraud when partner knows he
is HIV-positive and either fails to disclose or deliberately deceives her about it?
- Held: Appeal allowed; new trial ordered
- Reasoning: Aggr asasult: wounding, maiming, disfiguring, or endangering the life of another person
-For aggravated assault, Crown must prove: i) accused’s acts endangered life of complainant and ii)
accused intentionally applied force without consent of complainant
i) proven: endangered lives by exposing complainants to significant risk of potentially lethal
infection through unprotected sex (not necessary to establish they were infected with virus)
ii) more difficult: Crown contends consent not legally effective b/c obtained by fraud
-General definition of “fraud”
o Until 1983, fraud could only vitiate consent if related to “nature and quality of the act”
o s.265(3)(c) now states no consent obtained where complainant submits or does not resist by
reason of “fraud”; no limitations or qualifications
o Parliament intended to move away from rigidity of common law requirement and to more
flexible concept of fraud; requires only causal connection b/n fraud and submission
-2 elements of fraud: i) dishonesty (deceit or intention to deceive) ii) deprivation or risk of deprivation
(intention to expose person to actual or risk of possible injury)
o Dishonesty can include non-disclosure of important facts, if viewed by RP as dishonest
o Concealing or failing to disclose HIV-positive can constitute fraud which may vitiate consent to
sexual activity; true/informed consent can’t be given if there is no disclosure of HIV-positive
status
o Dishonesty made out: No basis for distinguishing b/n lying and deliberately failing to disclose;
the greater the risk of deprivation, the higher the duty of disclosure
o Deprivation made out: significant risk of contracting AIDS (serious bodily harm)

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 o L'Heureux-Dube’s analysis could criminalize broad variety of activities (anyone who lies about
age, wealth); Fraud does not vitiate consent unless there is a significant risk of serious harm
-L'Heureux-Dube (concurring): fraud vitiating consent should be read widely; ask if ANY dishonest act
ensued person to consent to sexual activity, whether particularly risky or dangerous

R v Mabior (2012 SCC)
- Ratio: Person is guilty of aggravated sexual assault if he fails to disclose HIV-positive status before
intercourse and there is a realistic possibility that HIV will be transmitted.
- Facts: M had sex with 9 complainants without telling them he was HIV-positive before; used condoms
in some cases; 8/9 testified they wouldn’t have consented to sex if they had known; none contracted
HIV; M testified he was under treatment and presented low risk of infection
- Case History: Trial: Convicted of 6 counts, acquitted of 3; using condom with low viral count didn’t
place sexual partner at significant risk of serious bodily harm
o MBCA: 2 counts upheld; acquitted of 4; either low viral count OR condom could negate risk
- Issue: What is the proper interpretation of “fraud” vitiating consent to sexual activity? When does
failing to disclose condition of HIV-positive constitute aggravated sexual assault?
- Held: Appeal allowed in part
- Reasoning: 2 issues with Cuerrier test: uncertainty (what constitutes “significant risk” and “serious
bodily harm”) and overbreadth (danger of criminalizing conduct lacking moral culpability/harm)
o Interpretation of “fraud” informed by purpose of criminal law and Charter values of equality,
autonomy, liberty, privacy, human dignity
o Where there is a realistic possibility of transmission of HIV, significant risk of serious bodily harm
is established and deprivation element (second part) of Cuerrier test is met
o In case at hand, realistic possibility of transmission is negated by evidence that accused’s viral
count was low and condom used; convictions maintained for acts in which condom not used
- Analysis: Cuerrier test needed upgrading; drugs made it no longer likely death sentence to contract HIV
o Commentators: ruling discriminates against women with HIV; have to insist male wear condom

R v Hutchinson (2014 SCC)
- Ratio: Where complainant has chosen not to become pregnant, deceptions depriving her of choice by
making her pregnant (or increasing risk of becoming pregnant by removing effective birth control) may
constitute sufficient deprivation for purposes of fraud vitiating consent.
- Facts: Complainant consented to sex with condom to prevent conception; unknown to her at time, H
poked holes in condom; complainant became pregnant; H charged with aggr. sexual assault;
complainant testified she did not consent to unprotected sex
- Case History: Trial: convicted H of sexual assault
o NSCA: upheld conviction; complainant did not consent to activity in question
- Issue: Where should line of criminality be drawn when consent to sexual activity is result of deception?
Is unwanted pregnancy a ‘significant risk of serious bodily harm’? (Yes)
- Held: Appeal dismissed; condom sabotage constituted fraud, so no consent was obtained
- Reasoning: 2-step process for analyzing consent to sex: i) no voluntary agreement to engage in sexual
act in question; if reasonable doubt, consider ii) any circumstances that vitiate apparent consent
o Mistakes resulting from deception not relevant at first stage, only second
o Statutory construction suggests narrow reading of “voluntary agreement to sexual act in
question” and rejection of “essential features/how the act was carried out” approach
o Case where accused lies about condom, creating risk of pregnancy, should be treated same as
case where accused lies about HIV-positive status, creating risk of infection

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 o At first stage of consent analysis, Crown must prove lack of subjective voluntary agreement to:
i) the act itself; ii) Sexual nature of touching (i.e. for a sexual nature rather than medical
purpose); iii) Identity of partner
o Does not include conditions or qualities of act, such as birth control or STDs
o Crown did not prove no voluntary agreement to sexual activity in question
o Under factors vitiating consent, both elements of fraud made out: clear dishonesty and
deprivation from exposing to risk of pregnancy and depriving her of that choice
- Minority: there should also be consent at time to conditions and qualities of act, and
risk/consequences flowing from it (majority said this is too broad)
- Analysis: What if a woman had done same thing as H (or lied about taking birth control)? Unclear
o wouldn’t fit under Hutchinson route to fraud b/c no serious risk of bodily harm for man
o prof suggests could still be fraud under economic loss (if male expected to support child)
o vitiated his choice to bring offspring into world

Consent to Sexual Activity
-Consent must be:
o Directed to each and every sexual act (JA and from provision in Code)
o Communicated by complainant to accused by words or conduct
o Provided only while conscious and during time of application of force (JA)
o Whether consent is given or not is wholly within mind of complainant (must be believed)
o No implied consent no matter nature/length of relationship
o No time limit to bring forward complaint
o If actus reus proven BRD, accused guilty of mens rea if he/she:
o Intended to apply force knowing (or willfully blind or reckless) not consenting, OR
o Failed to take reasonable steps to ascertain consent (Ewanchuk)
o Agreement to sexual touching of one part of body is not agreement to all touching or further
sexual activity (Hutchinson)

Defence Of Self, Of Another, Of Property

Defence of the Person
-Voluntary and intentional application or threat of force without consent = assault
-Accused may be acquitted where she has justification or excuse for application of force
o Justification challenges wrongfulness of action which technically constitutes a crime
o E.g. defence of person or property
o Excuse concedes wrongfulness of action but asserts that circumstances are such that it ought
not to be attributed to perpetrator (i.e. act is morally wrong but not criminal)
o E.g. necessity, duress, infanticide

-Self-defence historically considered a justification
-New provisions do not use “justified”, rather person is “not guilty” where they meet elements
o Original provisions for self-defence overly complicated
o Major reforms came about with Bill C-26: The Citizen’s Arrest and Self-Defence Act
o ss.34-37 replaced with new s.34
o S.34(1): it is a defence to any offence where:
a) person believes on reasonable grounds that force or threat of force is being used
against him or a third person,

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 • Modified objective test: consider personal circumstances of accused (indiv belief,
size, height, experience) and whether belief reasonable
b) offending act done for purpose of defending from use or threat of force, and
c) act is reasonable in circumstances
• Could intend to cause death; but usually the worse the harm caused by accused,
the harder to justify as reasonable in circumstances
o S.34(2): Non-exhaustive list of factors to be considered, including: nature of threat/force, extent
to which it was imminent, other means of response available, person’s role in incident,
use/threat of weapon, size/age/gender, physical capabilities, relationship between parties
including history of communication, nature and proportionality of response to use/threat of
force, whether act committed in response to a use or threat of force that person knew was
lawful (e.g. placed under arrest)
o unless person acting in self-defence believes on reasonable grounds that other person is
acting unlawfully in enforcement of law
-Accused wishing to rely on self-defence must raise “air of reality” on all elements
o 2-pronged question: whether there is i) some evidence, ii) upon which properly instructed trier
of fact, acting reasonably, could conclude accused acted in self-defense
o Quantitative, not qualitative (judge need not believe accused’s testimony himself)
o Once defence put to jury, Crown must disprove BRD (now a live issue in trial)

-Self-Defence Principles:
o Accused may be mistaken about threat of force and still make out defence
o Intoxicated accused can satisfy elements of defence (not part of reasonable analysis)
o No partial defence of “excessive self-defence” (force unreasonable in circumstances)
o Proportionality of use of force should not be “weighed to a nicety” in dynamic and dangerous
circumstances; detached reflection is unrealistic expectation

R v Bogue (1976 ONCA) *Note: case relies on old self-defence provisions*
- Ratio: Acquittal if, on all the evidence, force was delivered under a reasonable apprehension of death
or grievous bodily harm, or if she believed on reasonable grounds that she could not otherwise preserve
herself from death or grievous bodily harm (focus on accused’s state of mind, not proportionality of
force in circumstances)
- Facts: Appellant, B, and deceased, M, got into fight in apartment after drinking; neighbours found B on
floor at M’s feet with black eye and face bleeding; neighbours left to call police, returned to see M on
bed with stab wounds (died as result); B testified “it was self-defence, I did not mean to kill him”; he
came at her with knife, but fell back with blood in eyes, so she stabbed him
- Case History: Trial: Found guilty of manslaughter; told jury incorrectly that force employed must not be
out of proportion to assault by deceased (objective)
- Held: Appeal allowed; serious misdirection by trial judge; new trial ordered
- Reasoning (LaCourciere JA): real test is subjective- whether she believed he was coming at her with
lethal force; was response proportionate to her belief, not to objective standard of force used
o Based on her state of mind (panic in the moment), was the defensive force reasonable?
o Judge erred in explaining requirements of justification by person unlawfully assaulted who
causes death or serious bodily harm; wrong to direct jury that force applied by accused must be
proportionate to circumstances
o However, charge did not contain serious and fatal misdirection
-Howland JA: Judge misdirected jury in extent to which self-defence justified under s.34(2)

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 o S.34(1): accused repels unprovoked assault, but does not intend force he uses to cause death or
grievous bodily harm
o Force used to repel must be no more than is necessary for self-defence
o S.34(2): accused intentionally kills or causes grievous bodily harm to assailant
o No specific requirement that repelling force be proportionate to assault
-Under S.34(2), accused acquitted if, on all evidence, reasonable doubt whether force delivered under
reasonable apprehension of death or serious bodily harm, or if she believed on reasonable grounds that
she could not otherwise preserve herself from death or serious harm
o Two criteria (objective standard and subjective element)
o Recognition that one who’s life is in danger can’t be expected to make sober decision
o Essential question in determining whether force is excessive is state of mind at accused at time
force is applied; reasonable belief of accused may be mistaken
-Trial judge charge to jury: “Was it necessary for her to stab him to protect herself? Is the force applied
by her out of proportion to circumstances?”
o Instead, he should have asked whether she believed on reasonable and probable grounds that it
was necessary to stab him
o Judge indicated that in addition to criteria in s.34(2)(a)-(b), force must be proportionate to
original assault; jury may have understood this to mean further requirement that force by her
must be proportionate to assault made upon her for self-defence to be available

R v Lavallee (1990 SCC)
- Ratio: In context of battered relationship, expert evidence can be useful in determining whether
accused had reasonable apprehension of death when she acted
o Modified objective test: what the accused reasonably perceived, given her situation and
experience (jury must decide whether accused's perceptions and actions were reasonable)
- Facts: Appellant, 22, had been living with R (deceased) for 3-4 years; frequent victim of physical abuse
at hands of R; during party at house, R grabbed and hit her, handed her gun, said “you’ll get it once
everyone leaves; either you kill me or I’ll get you”; L shot R in back of head
- Case History: Acquitted by jury; verdict overturned at MBCA (sent back for retrial)
- Issue: Broad issue: Utility of expert evidence in assisting jury on plea of self-defence to murder by
common law partner who had been battered by deceased.
1) Did CA err in concluding jury should have considered self-defence absent expert evidence?
2) Did CA err in holding that trial judge’s charge to jury re expert evidence did not meet
requirements set out by SCC in Abbey, warranting a new trial?
- Held: Appeal allowed; acquittal restored
- Reasoning: Expert evidence from Dr was both relevant and necessary in case; psychiatrist with
extensive experience in treatment of battered women
o Dr: shooting was final desperate act by woman who believed she would be killed
o R v Abbey: Expert opinion is admissible to furnish Court with scientific information outside
experience and knowledge of trier of fact
o Expert function is to provide judge and jury with read-made inference which they are
unable to form themselves due to technical nature of facts
o But if on proven facts an ordinary person could form correct conclusion without help,
opinion of expert is unnecessary
o Battering relationship is subject to many myths and beyond scope of average juror; therefore,
suitable for explanation through expert testimony
o Jury not compelled to accept expert opinions about mental state of accused, but trial fairness
demands they have opportunity to hear them

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-Two elements of s.34(2) defence at issue:
a) Temporal connection: accused was under reasonable apprehension of death/harm
-Old view was that danger had to be imminent (immediate); rationale is to ensure use of
defensive force necessary (no other alternative)
-But expert testimony casts doubt on requirement in context of battered women
-There was a reasonable apprehension of death in circumstances
-Cycle of violence: i) Tension building, ii) Acute battering, iii) Loving contrition
-Degree of predictability that is absent from isolated violent encounter b/n 2 strangers;
heightened sensitivity of battered woman to partner’s acts
-Society gains nothing by making her wait for accused to instigate another episode
before she can act
b) Magnitude of force: accused’s belief that she could not otherwise preserve herself from
death/harm except by shooting was based on reasonable ground
-Lack of alternative to self-help: not for jury to pass judgment on fact that woman
stayed in relationship; doesn't forfeit her right to self-defence (analogous to hostage situation)
o Modified objective test: Defn of ‘reasonable’ must be adapted to circumstances of battered
woman
o Consider personal attributes of accused with respect to ability to perceive and act
o Particularly negative attributes like bad temper not considered; diagnosed psychological
disorders usually will be
o Given history, circumstances and perceptions of appellant, her belief that she could not
preserve herself from death by R that night except by killing him first was reasonable
- Analysis: Cite Lavallee as the first case to establish the modified objective test for defences **
o Now jury should be instructed to consider RP with any of characteristics and experience that are
relevant to accused's ability to perceive and respond to harm/threat (includes age, gender, past
experience w/ person presenting threat, etc)

R v Cinous (2002 SCC)
- Ratio: Where any elements of self-defence lack an air of reality, it should not be put to the jury.
- Facts: Accused found guilty to second degree murder for killing criminal accomplice, M; believed
accomplices were planning to kill him; heard rumors; no threats in form of overt words or actions, but
‘signs’ (hands in jacket, tense atmosphere, rubber gloves); on way to theft, pulled into gas station to get
wiper fluid; came around back of van and shot M in back of head
- Case History: Trial: judge allowed self-defence to be put to jury
o CA: defence not properly explained to jury (both burden of proof and explanation of defence)
- Arguments: Crown: conceded errors made in charge, but conviction should be upheld on basis that
errors immaterial; accused’s claim to self-defence lacked an “air of reality”
o Defense: Threshold requires only “some” evidence for defence to be put to jury; accused’s
testimony satisfied “air of reality” requirement; retrial necessary
- Issue: Should self-defence have been left to the jury (did it possess an “air of reality”)?
- Held: Appeal allowed; self-defence lacked air of reality to warrant putting it to jury, so any errors made
in charge to jury relating to defence are irrelevant
- Reasoning: Errors made in jury charge:
o Burden of proof: where accused relies on defence (especially when accused testifies), jury must
be expressly told that burden of proof in relation to self-defence lies on Crown, who must prove
BRD that defence does NOT apply
o Imminence of attack: not a formal requirement, but merely factor to be considered in self-
defence in determining reasonableness of accused’s response

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 o 3 conditions of self-defence under s.34(2) not set out properly; simultaneously subjective and
objective; judge wrong to say 1st and 3rd subjective, 2nd objective
o Term “moral certainty” in connection with reasonable doubt should have been avoided
-Most of alleged errors in charge were corrected or insufficient to support overturning
o But charge on imminence of attack immaterial only if no air of reality to self-defence
-“Air of reality”: whether there is i) evidence 2) upon which properly instructed jury acting reasonably
could acquit if it believed evidence to be true
o Rationale: trial judge need not put to jury defences with no real factual basis; would confuse
finders of fact and divert attention from determinations impt to issue of guilt
o Trial judge must review evidence to consider whether inferences required for defence to
succeed can reasonably be supported; but cannot consider credibility or weigh evidence
o If any of 3 elements of self-defence lacks air of reality, it should not be put to jury
o Each element has subjective and objective component; accused’s belief but reasonable
o Accused’s subjective conviction that he had no choice but to shoot his way out of
dangerous situation not enough; must point to reasonable ground for that belief
o Issue in this case is whether there was evidence upon which jury could conclude accused’s
purported perceptions were reasonable under circumstances
o Evidence comes from accused’s testimony; issue is not credibility (whether to believe)
-Application of air of reality to self-defence:
1) Air of reality that accused believed he was going to be assaulted (subjective component) and
this perception was reasonable (objective component)
2) Accused’s testimony shows that he reasonably believed he was facing death or grievous
bodily harm from attack (subjective) and perception was reasonable (objective)
3) Air of reality to accused’s claim that at time of shooting he believed he had no alternative; but
NO air of reality that this belief was objectively reasonable (no evidence for jury to infer reasonableness
of belief in absence of alternatives; could’ve fled or called police)
o Since no evidential foundation for third element, defence as a whole lacks air of reality
- Analysis: Cite Cinous for definitive explanation of air of reality test – applies to ALL defences **

R v Vidovic (2013 ABPC)
- Ratio: To be acquitted under self-defence, accused must raise reasonable doubt on all 3 elements of
test: 1) believed on reasonable grounds that force or threat of force being used against her or another
person; 2) acting for purpose of defending/protecting herself or other person; 3) Act committed must be
reasonable in the circumstances
- Facts: M, security guard at casino, asked V and friend, A, to leave b/c too intoxicated to gamble; they
refused; while waiting for backup guards, M placed hand on V’s shoulder to guide toward door, V swore
and shoved him; A rushed at M and M brought him to ground with modified jujitsu move; while
restraining A, V kicked M in face; V testified he believed being attacked and was defending himself
- Arguments: Defense: security guards acted outside authority in attempting to evict accused from
casino; force used by M unlawful; accused acted in self-defence and defence of friend
o Crown: actions of security guard justified under Trespass to Premises Act, Gaming and Liquor Act
and s.41 of Code; accused not unlawfully assaulted; if so, force disproportionate
- Issue: Did Crown prove BRD that accused was not acting in self-defence or in defence of his friend?
- Held: Accused guilty of all three assault counts; Crown has proven BRD that accused not acting in self-
defence; certain elements of self-defence not established
- Reasoning (Allen J): Found accused guilty under both old and new self-defence provisions
-Three-part test in s.34:

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 1) Accused must believe on reasonable grounds that force or threat of force is being used
against her or another person
2) Accused must be acting for purpose of defending/protecting herself or other person
3) Act committed must be reasonable in the circumstances
-To be acquitted, there must be a reasonable doubt on all 3 elements of test
o No longer necessary to determine whether accused was unlawfully assaulted to trigger self-
defense; lawfulness of force used against accused is considered in determining whether act of
self-defence was reasonable in circumstances
-Exception to exemption in s.34(3), where accused believed on reasonable grounds that persons acting
in enforcement of law were not acting lawfully
o If guards were entitled to evict accused, exception in s.34(3) must be considered
o V’s belief that guard had to give him a reason for eviction which he agreed with was a mistake in
law; not a reasonable belief that eviction was unlawful
-Application of three-part test:
1) Accused had reasonable grounds to believe force was used against him by guards
2) Accused not acting in defence of himself, but rather in retaliation/resistance
3) Accused used unreasonable force when he pushed M and attacked other guards;
disproportionate response to minimal force being used to evict him
o Reasonable doubt that kick was reasonable use of force in circumstances, but Crown proved
BRD that accused not acting in self-defence when he pushed M
- Analysis: Note- When person is on premises as guest or patron (including bar or casino), when bar
owner says 'time to go' (no matter the reason),he must leave
o After giving invitee reasonable opportunity to leave, if he fails/refuses to, he becomes a
trespasser; in criminal law, that person commits assault by trespass
o This allows owner to use reasonable force to remove trespasser; if he fights back, that is
physical assault on top of trespassing (can use even more force to restrain or remove)

Defence of Property
-A person is not guilty of an offence if:
(a) they believe on reasonable grounds they are in peaceful possession of property (not challenged by
another), or persons assisting or acting under lawful authority of those persons,
(b) they believe on reasonable grounds that another person
(i) is about to enter, is entering or has entered property without being entitled by law,
(ii) is about to take the property, is doing so or has just done so, OR
(iii) is about to damage or destroy the property, make it inoperative, or is doing so;
(c) act that constitutes the offence is committed for the purpose of:
(i) preventing other person from entering property, or removing person from the property, or
(ii) preventing other person from taking, damaging or destroying property or making it
inoperative, or retaking property from that person; and
(d) act committed is reasonable in the circumstances
-Essentially, a person can defend their property against trespassers, and for personal property held
under claim of right, against rightful owners
• No defence without claim of right (if other person is entitled to its possession by law)
• Then, justification available only if person does not strike or cause bodily harm to trespasser
-Defender of real property entitled to use “no more force than is necessary” to repel trespasser
• If defender intends to cause death or grievous bodily harm and causes either, property
provisions no longer apply; analysis moves to s.34(2)

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R v Szczerbaniwicz (2010 SCC)
- Ratio: property owner in peaceable possession may use physical force to defend property IF force used
was reasonable (proportional) in the circumstances (subjective honest belief, but based on objectively
reasonable grounds)
- Facts: During argument b/n separated spouses, Ms. S took diploma off wall and threw on floor; Mr. S
then pushed her, causing her to fall down staircase; resulted in bruising and broken finger; charged with
assault causing bodily harm; accused conceded he intentionally applied force without consent, but
claimed assault justified b/c he was protecting personal property (diploma)
- Case History: Trial: Convicted of assault (lesser included offense); air of reality to defence of protecting
property, but not made out b/c he used more force than was necessary, so not justified
- Arguments: Accused: Trial judge improperly placed burden on him to explain how wife had been
bruised and misconstrued law and facts related to defence of property under s.39(1)
- Issue: 1) Did trial judge fail to properly apply three-part test set out in R v W(D)?
2) Did trial judge fail to properly apply relevant facts to s.39(1) which protects accused from
criminal responsibility for defending personal property if used no more force than necessary?
- Held: Appeal dismissed
- Reasoning (Abella J): Trial judge properly applied W(D); not required to specifically articulate 3 steps
o Subjective belief about what force is necessary is relevant, but that belief must be based on
reasonable grounds
o Proportionality approach: whether force used was reasonable in all the circumstances
o Trial judge correctly determined whether S used no more force than necessary to defend
diploma in all circumstances based on both subjective and objective criteria
o Judge accepted sentimental value of diploma but also fact that it could be replaced
o Use of force for defensive purpose (to prevent further damage) vs anger/retaliation
o Found use of force to be disproportionate; conclusion is justified in law and facts
- Dissent (Binnie J): Military judge’s reasons fell short of standard in not explaining why accused was
convicted (how force was excessive in circumstances; connected b/n ‘what’ and ‘why’)
o Trial judge used term 'manhandle', but simply means to pull or push – doesn’t help
o Appellant was acting in defence of property of considerable importance to him
o Not required to ‘weigh to a nicety’ exact measure of defensive action or consequences
o Improper to determine degree of force used by looking at end result (injuries), then reasoning
backwards to determine force was excessive

Mistake of Law
-Basic rule = ignorance of the law is no excuse
o A person can be convicted even without knowing their actions were illegal
-Contested in 3 major ways:
1) How is “mistake of law” differentiated from “mistake of fact”?
2) Do some offences require, as part of mens rea, that accused know his conduct is contrary to
law (so ignorance of illegality would prevent finding of full mens rea?)
3) May error be relied on as defence if induced by the state (“officially induced error”)?

R v Campbell and Mlynarchuk (1973 Alta DC)
- Ratio: Mistake of law does not afford a defence to a crime, but can be considered in mitigating the
sentence
- Facts: Campbell convicted at Summary Conviction Court for unlawfully taking part in an
immoral/indecent performance; danced nude on stage before audience at nightclub

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- Arguments: Appellant: lacked necessary mens rea for offence; engaged to do performance b/c relied
on (incorrect) statement that judge had ruled they could go ahead with that type of dancing
- Issue: Did appellant lack necessary mens rea for this offence b/c of her mistake?
- Held: Accused discharged absolutely
- Reasoning: Performance is within meaning of s.163(2), appellant took part as performer, and
performance was immoral within meaning of that section (following precedent of R v Johnson)
o Mistake of fact is a defence to a criminal charge (where facts believed by accused, if true, would
have afforded her a defence); mistake of mixed fact and law also a defence
o Here, appellant made no mistake of fact; rather, mistake of law in misunderstanding significance
of a decision or reasons of a judge
o In some situations, mistake of law can negate malicious intent required for a crime (i.e. wilful
intent or malice); not applicable here, as no special intention required for this offence (only
mens rea required is that C intended to perform the dance)
o Excuse, or legal justification, is defence where act complained of was authorized by some other
law; s.19 essentially says this is not available when person has made mistake as to whether this
act is excused or authorized by another law
o As matter of public policy (and necessity), defence of mistake of law cannot be allowed
o However, should be considered in mitigation of sentence; here, absolute discharge
- Analysis: Bottos' case (Suter); trial judge said S relied on erroneous legal advice he received from duty
counsel, which seriously diminished his criminal responsibility, but CA took different view
o SCC will examine precise circumstances under which mistake of law can be used in
mitigation of sentence

R v Whelan
- Ratio: 1) Accused can’t rely on the advice of their lawyer as a defence to a criminal charge; 2) Mistake
of fact, which includes ignorance of fact, exists when an accused is mistaken in his belief that certain
facts exist when they do not, or that certain facts do not exist when they do. Ignorance of fact exists
when an accused has no knowledge of a matter and no actual belief or suspicion as to the true state of
the matter; 3) By contrast, a mistake of law exists when the mistake relates not to the actual facts but
rather to their legal effect.
- Facts: Landlord entered property and seized assets; charged W with breach of court order and theft; W
testified he was aware of order but went ahead only after consulting with solicitor who advised him "an
argument could be made" that order was limited to month of July
- Case History: Trial: acquitted (no mens rea); CA overturned acquittal
- Reasoning: Most common argument from people relying on solicitor's advice is that person was
unaware that actions were unlawful; to accept this would be to accept mistake of law as defence
o Knowledge that one's actions are contrary to law is NOT a constituent element of mens rea for
most offences
o Must distinguish mistake of fact and law; accused cannot rely on decision of lower court OR
advice of lawyer as defence to criminal charge

Defence of Officially Induced Error
-Strict liability offences: Defence available if accused can show:
o Relied on erroneous advice from office and accused’s reliance was reasonable (with reference
to: efforts to ascertain proper law, complexity of law, position of official, clarity, definitiveness
and reasonableness of advice given)
-Criminal offences: Defence may be available for mens rea offences if:

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 o Agent of state advises or otherwise causes accused to commit offence or represents that
contemplated acts are legal, and accused relied on agent’s expertise and performed prohibited
acts

R v Jorgensen (1995 SCC)
- Ratio: The defence of officially induced error is an excuse, not a justification, and only where the 6-part
test is met.
- Facts: though Ontario Film Review Board had approved all tapes, officers concluded obscene; accused
charged with knowingly selling obscene materials without lawful justification or excuse
- Case History: Trial judge found 3 films were obscene within meaning of Code due to portrayal of sex
coupled with violence; ONCA upheld convictions (Board approval not lawful justification or excuse)
- Issue: 1) Did accused knowingly sell obscene material? 2) without lawful justification or excuse?
- Held: Accused acquitted
- Reasoning: Sopinka (majority): vendor lacked specific knowledge of content of the films (mistake of
fact) = no mens rea, so overturned conviction
-Lamer CJC (concurring in part): Agree with Sopinka on first issue; disagree on second
o Crown required to prove accused knew of specific set of facts which lead court to conclusion
that material was obscene (not that he knew it was obscene in law)
o Approval of film by review board cannot negate mens rea of offence
-Accused can be excused from conviction on basis of officially induced error of law; reasonable
reliance on board’s approval of film (official advice) is sufficient for judicial stay of proceedings to be
entered (exception from ‘ignorance of law is no excuse’)
-Steps for officially induced error defence:
1) Error of law or of mixed law/fact was made
2) Accused considered legal consequences of actions (insufficient for accused who
wishes to benefit from excuse to simply assume conduct was permissible)
3) Advice obtained came from appropriate official (from RP in position of accused,
agent normally considered responsible for advice about particular law in question)
4) Advice was reasonable (not usually difficult to meet)
5) Advice was erroneous
6) Accused relied on advice in committing the act
-Defence can only be raised after Crown has proven all elements of offence

R v Levis (City) v Tetreault (2006 SCC)
- Ratio: Defence of officially induced error constitutes limited but necessary exception to rule that
ignorance of law is no excuse; advice and reliance on advice must be assessed from perspective of RP in
circumstances of accused
- Facts: accused advised that registration renewal notice would be sent in mail; incompletely addressed,
post office returned; charged with driving unregistered vehicle; thought date on his license was payment
due date for renewal
- Arguments: Respondent argued defences of due diligence and misled by erroneous information
obtained from official (to avoid conviction on charge of operating motor vehicle without paying
registration fees)
- Issue: Nature and availability of defence of officially induced error
- Held: overturned acquittals and substituted convictions
- Reasoning: This Court has never clearly accepted defence of officially induced error although several
Canadian courts have

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 o S.19: ignorance of law is not an excuse for committing an offence; this principle applies to
regulatory offences created by Quebec legislation
o But inflexibility of this rule causes concern where error of law of accused arose from error of
state agent, and state demands that criminal law be applied strictly to punish conduct
-Jorgensen: Defence of officially induced error (Lamer CJ)
o Excuse with effect similar to entrapment; wrongfulness of act established but b/c of
circumstances leading up to act, accused not held liable for act in criminal law (entitled to stay)
o Adopted Lamer’s analytical framework (6 elements for defence), with addition: necessary to
establish objective reasonableness of not only advice, but also reliance on advice
o Must be considered from perspective of RP in situation similar to that of accused
-Charge of operating motor vehicle without registration is strict liability offence
o Due diligence defence available but not made out; respondent should have been concerned
when it failed to receive notice, but did nothing (had a duty to do more)
o Not all conditions for defence of officially induced error have been met; respondent could not
have considered legal consequences on basis of advice from official, or acted in reliance on
opinion (since no info regarding nature/effects of legal obligations requested)




Mistake of Law in Drafting of Offence Provision
-Drafting of small number of offences indicates that mistake of law may support acquittal
o I.e. person liable for actions committed “without colour of right” (without belief in legality of
actions); then mistake of law supporting “colour of right” will support acquittal

R v Howson (1966 ONCA)
- Ratio: there is no offence if there is a colour of right - where accused acted under genuine mistake of
law (honest but mistaken belief)
- Facts: Appellant and his brother operated Ace Towing Service; letter signed by superintendent of
parking lot appeared to give them ‘sole authority to tow any cars parked in private lot without proper
consent’; Haines’ car towed and only released on payment; appellant charged w/ theft
- Case History: Trial: convicted (but judge did not think Howson was trying to steal the car)
- Held: Appeal allowed; conviction quashed and verdict of acquittal entered
- Reasoning (Porter CJ) Evidence shows there was no legal right to withhold the vehicle
o However, if a jury properly instructed were satisfied that accused honestly but mistakenly
believed he had a right in law or in fact, they should acquit
o Test for honest belief is subjective, not objective
o S.19 only applies when there is an offence; no offence if there is a colour of right
o Everyone commits theft who fraudulently without colour of right takes and commits to
use the property of another
o Case where innocence of law affects legality of acts
o If accused did NOT have a colour of right, under circumstances, sufficient to justify his refusal to
release vehicle, he would be guilty of theft
o Accused acted on instructions from his brother; believed he had right to retain car
o Clear that lower court judge did not believe accused was intending to steal car; misdirected
himself by failing to consider question of colour of right
-Laskin JA: Color of right embraces matters of law or fact, but must be an honest belief (although
mistaken one)

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 o Unreasonableness of belief, objectively considered, can be considered but cannot alone
establish no colour of right; nothing in evidence to suggest belief anything other than honest
o BUT colour of right can no longer be invoked to avoid conviction for theft by accused; he is now
put on notice that his actions are illegal

R v Klundert
- Ratio: Mistake of law defence can apply to certain provisions such as tax evasion, but only in very
narrow circumstances (where relevant to fault requirement)
- Facts: optometrist formed opinion that fed gov't did not have legislative power to collect income taxes;
stopped filing and paying; charged with making false statement and tax evasion
- Arguments: Accused admitted actus reus but refusal did not constitute an evasion; rather honest
protest against a legal gov't action
- Issue: Can Dr's belief constitute a mistake of law and negate the fault requirement for tax evasion?
- Held: NO
- Reasoning: Income Tax Act: every person who willfully evaded or attempted to evade compliance with
act or payment of taxes imposed is guilty of offence
o ‘willfully’ means: i) accused must know taxes are owing under act, and ii) accused must attempt
to avoid payment of taxes
o mistake of law defence is applicable in Income Tax prosecutions under this section
o Part of act that is necessarily complex; accepted that people will act on advice of professionals
which will often turn on meanings given to words in the act that are open to interpretation
o Mistake MAY negate the fault requirement in provision, regardless whether factual mistake,
legal mistake, or combination of both
o K knew he owed taxes imposed by acts; mistake did not go to knowledge of his obligations to
pay taxes but rather gov'ts authority to request taxes (believed law was invalid)
o This is a mistake of law which is irrelevant to fault requirement in the provision ('the laws don't
apply to me' cannot constitute free standing excuse for non-compliance)

R v Watson
- Ratio: Jurisdiction is a mistake of law which does NOT give rise to a colour of right defence
- Facts: W's ship was registered in Canada under Shipping Act; therefore any offences committed on it
could be prosecuted in Canada
- Arguments: Accused: honest belief that Canadian law did not apply outside 200-mile limit; argued trial
judge defined scope of colour of right too narrowly (should encompass such a belief)
- Issue: Does colour of right extend to jurisdiction? (No)
- Reasoning: Whether one uses colour of right as limited exception to s.19 or as negation of mens rea, it
does NOT extend to jurisdictions of the criminal law
- Analysis:

Intoxication
-Technically, there is no “defence of intoxication”; rather, evidence of intoxication is admissible in
defined circumstances and is relevant either:
a) to rebut mental element, or more rarely, act element which prosecution must prove
b) to support availability of some defences

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-Distinction b/n Voluntary and Involuntary Intoxication:
-Involuntary: accused unwittingly consumed intoxicants (e.g. date rape drug) OR had
unexpected reaction to prescribed medicine (while consuming recommended dosage)
o Could tender evidence demonstrating she lacked fault for crime
-Voluntary (self-induced): accused intentionally consumed intoxicants; stricter rules of evidence
o If she drank voluntarily, or with willful blindness or recklessness that there might be
something in the drink, will be held responsible for self-induced intoxication
o Unexpected reaction to self-induced intoxicants, or mixed prescription meds with
alcohol, unlikely to excuse liability (but might mitigate sentence)
-Intoxication and objective standards:
-Intoxication evidence cannot diminish accused’s fault where offence or defence involves
application of an objective standard (the RP is not drunk)

-Intoxication and Mens Rea Offences:
-Offences of subjective fault are either general intent (accused intended to perform actus reus
with knowledge of circumstances) or specific intent (accused had additional intention or purpose
*do not confuse specific intent with motive which need not be established*
-One type of evidence relevant to proving mens rea is the actus reus: from commission of act,
trier of fact might infer accused intended to perform the act (general intent) or intended to produce any
prohibited consequences (specific intent)
-Evidence of intoxication may be relevant to whether accused had mens rea for offence
o Alcohol can be the difference b/n what a sober person would foresee as natural
consequences of his actions and what the accused may have foreseen
o Often applies to murder (if accused did not intend to cause death or intend to cause
bodily harm and reckless as to whether death ensues, reduced to manslaughter)
o Can also apply to robbery (use of violence + theft; if accused did not intend to deprive
person of property or convert to his use, reduced to assault)
-Intoxication is NEVER a defence for general intent offences
o For assault or sexual assault, Crown is happy to show accused was drunk at time

-Historical Position:
-Common law viewed intoxication evidence as NOT admissible to rebut mens rea and an
aggravating factor (not mitigating)
-Later admissible to rebut inference of specific intent; to offer alternative, evidence had to show
accused not capable of forming intent (insanity; law didn't distinguish b/n mental disorder and drunk)
-Historical position violated the Charter; possibility of convicting the innocent

-Current State of the Law:
a) Law continue to respect general intent/specific intent distinction
b) Evidence of intoxication continues to be admissible (subject to automatism doctrine) only
respecting specific intent offences
c) Intoxication evidence admissible not only on issue of capacity to form specific intent, but
importantly, on issue of whether accused in fact formed the specific intent
o Now we consider intoxication to point of raising reasonable doubt as to specific intent
(whether accused intended or foresaw consequences)
o E.g. Cairney: evidence of intoxication (almost 4x legal limit); experts testified that
'alcohol myopia' occurs at that point (shortsightedness due to alcohol impairment;

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 person receives less cues from environment; disability to foresee simple cause and
effect scenarios, therefore less able to foresee natural consequences of actions)
d) Function of intoxication evidence remains same: to provide alternatives to inference of mens
rea based on external/physical evidence
e) Accused maintains only tactical burden respecting intoxication; if enough evidence to put
intoxication in play, trier must consider it along with all other evidence; Crown must establish BRD that
accused in fact had specific intent for the offence
f) Must be considered with all other relevant evidence on issue of intention
g) Reasons for distinction in treatment of admissibility of evidence same as historical
-Basis for restriction: public protection, safety against those who make themselves a risk
to others b/c of intoxication; society has no interest in excluding people who put others at risk
-Basis for admissibility re specific intent offences: policy objectives not furthered by
punishing those lacking required mental state; allowing admissibility does not endanger public safety
(usually b/c lesser included offence is available)

-Intoxication jury charges:
-Error for judge to charge jury only on issue of whether intoxicated rendered incapable of
forming specific intent; usually jury should NOT be asked to considered capacity
-But in cases where “natural inference” is very strong, extreme intoxication could prevent
accused from having capacity to form intent; jury may be asked to consider whether intoxication
sufficient to prevent accused from forming specific intent
-Natural flow of charge: instruct re intention (general and specific intent); inferences of
intention from physical/other evidence; intoxication, indicating that in all circumstances it may “block”
usual inferences – may support doubt that accused had specific intent

-Automatism:
-B/c of intoxication, accused incapable of acting voluntarily or forming any intention, whether
general or specific; entered a state “akin” to automatism
-Common law traditionally made no concession for voluntary intoxication automatism
-Daviault (SCC 1994): common law rule violated Charter; automatism established on BOP using
expert evidence rebuts voluntariness or mens rea for even general intent offences
-Parliament reacted by adding s.33.1 to Criminal Code: lack of basic voluntariness to commit
offence produced by self-induced intoxication is NOT a defence to an offence involving assault,
interference/threat with bodily integrity of another person, if accused departed markedly from standard
of care generally recognized in Canadian society

-Dubowski Intoxication Chart
o Based on clinical testing; applies to vast majority of cases
o Used by whichever side wants to introduce evidence of intoxication (Crown or defence)
o Lowest stages ('social drinking') will not raise reasonable doubt for specific intent offences
o At higher stages of Confusion, incapacity starts both for accused and complainants (e.g. if
complainant is incapacitated, she cannot consent to sexual activity)
o In high 200s, incapacity usually established – symptoms include falling asleep, coma,
extreme confusion, incontinence, etc

-Spectrum of Intoxication Chart (Bottos)
o Social drinking stage doesn't raise reasonable doubt for anything
o First stage may raise reasonable doubt for mens rea of planning and deliberation for murder

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 o Second stage is wide range for raising reasonable doubt for specific intent offences
o Third stage is approaching "Stupor"
o Fourth stage is incapacity that may negate actus reus

-4 levels of intoxication that merit legal consideration:
1. Negate accused's ability to plan and deliberate a murder (first degree)
2. Raise reasonable doubt that accused had specific intent (2nd degree murder)
3. Negate accused's capacity to form intent in first place
o beyond raising reasonable doubt as to foresight of consequences)
4. Negate actus reus or general intent offence
o Accused acted involuntarily due to extreme consumption of alcohol (e.g. Daviault, but
undermined by s.33.1)
o Subtle difference b/n negating actus reus (no voluntariness of act; automatism) vs
negating general intent (intention to commit the actus reus)

R v Daley (2007 SCC)
- Ratio: Trial judge only required to charge jury on intoxication if satisfied that effect of intoxication
might have impaired accused’s foresight of consequences sufficient to raise reasonable doubt as to lack
of specific intent
- Reasoning: 3 legally relevant degrees of intoxication:
1) Mild: never a factor in determining whether accused possessed requisite mens rea
2) Advanced: accused lacks specific intent, to extent of impairment of foresight of consequences
of her act sufficient to raise reasonable doubt about requisite mens rea
-Intoxication required for defence to succeed depends on type of offence
3) Extreme intoxication akin to automatism: negates voluntariness (rare and limited to non-
violent offences by s.33.1 of Code)
-Evidentiary burden on accused to satisfy trial judge there is (expert) evidence upon
which properly instructed jury could find accused acted involuntarily on BOP
-Trial judge only required by law to charge jury on intoxication if satisfied that effect of intoxication was
such that it might have impaired accused’s foresight of consequences sufficiently to raise reasonable
doubt – only advanced intoxication or higher
-Adequate jury charge on advanced intoxication:
-Canute: in considering whether Crown proved BRD that accused had required intent, take
consumption into account along with other facts relevant to intent at time of offence
-MacKinlay: even if satisfied BRD that accused had capacity to form necessary intent, must
consider whether satisfied BRD that accused in fact had requisite intent
-R v Seymour: direct link b/n effect of intoxication and common sense inference (may rebut
inference that sane and sober person intends consequences of her actions)
-Jury obliged to ensure jury understands: 1) Reasonable common sense inference may
only be drawn after assessment of ALL evidence incl intoxication; 2) Inference cannot be applied if jury
left with reasonable doubt about accused’s intention
-s.212(a)(ii) or s.229(a)(ii): Jury should consider effect of intoxication along with other
facts in deciding whether accused intended to inflict injury on victim which he knew was likely to cause
death, or whether intoxication affected ability to foresee consequences
-Some courts have held mandatory duty to link intoxication and foreseeability, but SCC
rejected that failure to do so automatically constitutes a reversible error

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Provocation
-Provocation plays two roles in criminal law outside of evidential use in defences of “no actus reus” or
“no mens rea”:
1) Definitional and qualifying role in self-defence provisions
• In non-murder cases, provocation is not a defence but can be a mitigation of sentence
• E.g. for assault, accused can claim he was provoked but will not be acquitted as result
2) Partial excuse for murder, allowing reduction to manslaughter
-Murder typically requires subjective foresight of death (s.229: means to cause death OR means to cause
bodily harm knowing death is likely and being reckless whether death ensues)
o If Crown cannot prove subjective foresight but can prove accused killed, charge is reduced
to manslaughter (unlawful assault + death or criminal negligence + death)
o ONLY way to get to manslaughter even if person intended to kill is by way of legal
provocation under s.232

Provocation Provisions
-S.232(1): Culpable homicide that would otherwise be murder may be reduced to manslaughter if the
person who committed it did so in the heat of passion caused by sudden provocation
-S.232(2): What is provocation? Conduct of the victim that would constitute an indictable offence under
this Act that is punishable by five or more years of imprisonment and that is of such a nature as to be
sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of
this section, if the accused acted on it on the sudden and before there was time for their passion to
cool.
• "Sudden" means it strikes the mind of the accused unprepared for it
• Whether conduct of victim amounted to provocation and whether accused was deprived of
power of self-control are questions of fact
• Subjective (accused must in fact have been provoked) and objective (ordinary person)
• Determined according to general characteristics of accused relevant to alleged provocation in
context of circumstances
-S.232(3)(b): no one shall be deemed to have given provocation to another by doing anything that he
had a legal right to do, or by doing anything that the accused incited him to do in order to provide the
accused with an excuse for causing death or bodily harm
-S.232(4): Culpable homicide that otherwise would be murder is not necessarily manslaughter by reason
only that it was committed by a person who was being arrested illegally, but the fact that the illegality
of the arrest was known to the accused may be evidence of provocation for the purpose of this section.
-NOTE: Provocation under old provisions defined as “wrongful act or insult sufficient to deprive ordinary
person of power of self control” if accused “acted on it before there was time for passion to cool”
• Wider scope; used to encompass catching one’s spouse in act of adultery
• Now, insult eliminated and wrongful act narrowed to indictable offense punishable by at least 5
years in prison (could include assault, uttering death threats, mischief to certain property)

-Air of Reality Test for Provocation
-Determine whether there is some evidence for trier of fact on each element of the defence
• If there is evidence on sufficiency of act to cause accused to lose self-control, but not whether
ordinary person would be deprived of self-control, it will not go to jury

-Rationale for Provocation:
-Defence first developed in early 1800s; derived from the law's compassion for human infirmity

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 • Partial defence; only reduces charge from murder to manslaughter
• Considered an excuse, not a justification; it was a wrongful act but committed under terms that
excuse conduct to some degree
• Loss of control due to anger is NOT enough for provocation; must show more than sheer anger
and meet test in s.232 (however, anger does form part of most fact scenarios)

4-Part Test for Provocation
*Note: described as two-part test by some judges
1. Criminal indictable act punishable by 5 years or more
• objective-based
2. Which is sufficient to deprive ordinary person of power of self-control
• objective-based
• Criminal act must be sufficient that ordinary person would lose self-control; defence
might be denied if a judge thinks the act is too trivial
• Accused's circumstances still taken into account (Tran), but now that provocation
doesn't include insults it doesn't apply in the same way
• Provocative act must deprive ordinary person confronted with same circumstances as
accused of power of self-control - same age, sex, shares other factors that give the
specific act special significance, and experienced same series of events
o Personality defects (rage) or accused consumed alcohol are NOT to be
considered; ordinary person does not lack all self-control, is not drunk or
particularly pugnacious but not saint-like either, has emotions; NOT the RP
• Jury should not be instructed that questions to be decided is whether ordinary person
would lose self control AND do what accused did, b/c the ordinary person would not kill
3. The criminal act must occur on the sudden
• subjective-based
• Tripode: act must "strike upon the mind unprepared for it" (not expecting it)
• Repeated acts/insults may be part of narrative, but final act must surprise accused
4. Accused must have acted on the sudden before regaining power of self-control
• subjective-based
• If accused expected it to happen, doesn't meet 3rd element; if accused was surprised
and angered by it, cooled down, then decided to kill anyway, doesn't meet 4th element
• Suddenness applies not only to provocative act itself but also accused's actions
(subjective, to take drunkenness and temperament into account)
• "On the sudden" usually means within moments, but depends on circumstances
• If accused regained self-control while committing actus reus, it will fail test; unless you
can show accused already deceased at that point (hard to prove)
• History of relationship b/n parties is very impt for parts 2, 3, 4 of test; places the actions
of accused in context

Thibert v The Queen (1996 SCC) *old provisions (wrongful act/insult), but analysis still relevant
- Ratio: Before defence of provocation is left to jury, trial judge must be satisfied that there is a) SOME
evidence to suggest particular wrongful act/insult alleged by accused would have caused ordinary
person to be deprived of self-control, and b) some evidence showing accused was actually deprived of
self-control by act/insult (both objective and subjective elements)
- Facts: Appellant shot his wife’s lover during confrontation in parking lot; wife was leaving accused for
co-worker; accused distraught over news; on day in question had not slept for 36 hours; kept trying to
talk to her; followed her to work, not sure if he would kill himself or her; told her he had non-loaded rifle

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in car; deceased intervened; accused testified that he was taunting him with wife, kept advancing,
ignored appellant’s instructions to stay back and gun discharged
- Case History: CA said deceased had a legal right to do what he did (not against the law)
- Issue: Was trial judge correct in leaving the defence of provocation with the jury?
- Held: Appeal allowed; new trial ordered
- Reasoning (Cory J): S.232 provocation may reduce crime of murder to manslaughter
• Both objective and subjective elements; questions of fact
• Disagreed with CA; it's not just whether victim’s actions were against the law, but the right to do
something means positively sanctioned by law
o Galgay: there may be no legal remedy for an insult but section distinguishes from legal
right (the law does not approve of everything which it does not forbid)
-Elements of Provocation
• Air of reality: Before defence is left to jury, trial judge must be satisfied that a) some evidence to
suggest particular wrongful act/insult alleged by accused would have caused ordinary person to
be deprived of self-control, and b) some evidence showing accused was actually deprived of
self-control by act/insult
• Objective element: In assessing evidence on objective test, entire factual situation (including
characteristics of accused) must be considered
o Rationale: objective element of test ensures criminal law encourages responsible
behaviour, but to be applied sensitively, ordinary person must share with accused sex,
age and such factors as would give act/insult in question a special significance and have
experienced same series of acts/insults as those experienced by accused
o Propensity to drunken rages or short temper cannot be taken into account, but
background of relationship b/n deceased and accused (including earlier insults) can
o Take personal circumstances of accused into account at both obj and subj phases; here,
ordinary person is a sleep-deprived man wanting to have private conversation with wife
before she leaves him for another man, being unexpectedly interrupted by her lover
• Subjective element: “Sudden provocation” means act/insult must make unexpected impact,
take by surprise and set passions aflame
o affronts over long period of time do not preclude defence of provocation, as long as
immediately before last one, accused did not intend to kill
o Prior history of relationship may be taken into account
-Application to facts:
• History b/n deceased and accused could lead to finding that actions were taunting and insulting
(holding wife possessively and taunting him); objective element satisfied
• Romantic rejection cannot ground provocation, but rejection not most significant factor;
confrontation with deceased was unexpected; subjective element satisfied
o Court found accused was not expecting deceased to join the situation (trying to get his
wife alone) or provocative tone, language, actions (holding wife in proprietary way)
• s.232(3): were acts of deceased ones which he had legal right to do? Legal right defined as right
sanctioned by law rather than something person can do without incurring liability
o Actions of deceased not prohibited by law but could be found insulting
=Some evidence on which reasonable jury could find defence of provocation applicable
• Note: Evidence justifying leaving defence to jury is far from concluding jury should act on
evidence
- Dissent (Major J): Defence should not have been left with jury; no air of reality

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 • Provocation defence should be left with jury when reasonable jury acting judicially could find a
wrongful act or insult sufficient to deprive ordinary person of power of self-control (objective
branch of threshold test)
• Here, no evidence of wrongful act or insult sufficient to deprive OP of self-control; deceased
positioning himself b/n appellant and wife and statements not insulting
• Break-up of marriage due to extra-marital affair cannot constitute wrongful act or insult capable
of grounding provocation
• Even if objective threshold test is met, subjective element would fail; accused knew about affair
(no element of suddenness such that passions were set aflame)

R v Parent (2001 SCC) *old provisions (wrongful act/insult), but analysis still relevant
- Ratio: Intense anger alone is insufficient to reduce murder to manslaughter under provocation
- Facts: Respondent shot and killed estranged wife at sale of their assets; claimed she told him she
would “wipe him out completely”, felt hot flush, didn’t know what he was doing; claimed charge should
be reduced to manslaughter based on lack of criminal intent or provocation
- Case History: Jury found accused guilty of manslaughter; QBCA dismissed appeal
- Arguments: Crown: judge erred in instructions to jury in treating anger as matter that could negate
criminal intent to kill and reduce offence to manslaughter; other requirements besides anger must be
met to establish provocation under s.232
• Respondent: any errors fixed in judge’s redirection on provocation to answer jury’s questions
- Issue: Did the trial judge err in his charge to the jury on intention and was it fixed by redirection?
- Held: Appeal allowed; conviction set aside and new trial ordered
- Reasoning: Defence of provocation does not eliminate need to prove intention to kill, but operates as
excuse which reduces murder to manslaughter
• Trial judge’s charge to jury suggested anger, if sufficiently intense but not amounting to
provocation, may reduce murder to manslaughter and negate criminal intention for murder –
this is creating a “defence of anger”
• Anger may form part of defence of provocation when all requirements of that defence are met:
1) wrongful act or insult that would have caused ordinary person to be deprived of self-control,
2) which is sudden and unexpected, 3) which in fact caused accused to act in anger, 4) before
having recovered normal control
• Extreme anger could cause someone to enter state of automatism where they don’t know what
they are doing, negating voluntary component of actus reus (but not asserted here)
• Judge’s misdirection raises possibility that verdict of manslaughter may have been based on
erroneous legal principles (even if conditions for provocation not met)
- Analysis: Once defence is put to jury, Crown must disprove at least one element of provocation BRD

R v Tran (2010 SCC) *old provisions (wrongful act/insult), but analysis still relevant
- Ratio: What amounts to provocation at law and the ‘ordinary person’ standard must be informed by
contemporary social norms including Charter values
- Facts: Accused and wife estranged for some time; suspected she was having sexual affair with another
man; confirmed by private investigator; pretended to give back his key but kept a copy; gained entry to
apartment; found them together in bed; stabbed deceased boyfriend 17 times, 6 of which were lethal
- Case History: Trial: Accepted defence of provocation (Crown failed to disprove elements); guilty of
manslaughter
• ABCA: Defence of provocation had no air of reality; substituted for second degree murder
- Held: Trial judge erred; appeal dismissed

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- Reasoning (Charron J): On the facts, no air of reality to defence of provocation
• No “insult”; view of estranged wife with a man cannot in law be sufficient to excuse loss of
control in form of homicidal rage for ordinary person of any personal circumstances
• Alleged “insult” didn’t strike upon a mind unprepared for it (he knew)
• No air of reality to appellant “Acting on the sudden at the time of killing”
• Defence only applies where accused had necessary intent for murder and acted upon intent
• Objective and subjective elements: wrongful act/insult that would deprive ordinary person of
self-control, which actually caused accused to act in anger on the sudden before passion cooled
-History of provocation defence
• Defence first began as 'chance medley killings': partially excused (considered less morally
culpable b/c they occurred in moment of rage, drunkenness or other passions of mind and
informed by value of honour)
• Crown often reminds courts that this defence was impt in early days b/c being guilty of murder
meant death sentence; law wanted to spare capital punishment from those who were provoked
• Husband catching man in act of adultery with wife was a major source of provocation; basis for
defence was 'jealousy is the rage of a man and adultery is the highest invasion of property'
o Killing the lover is excusable, but the killing of his wife for infidelity could not be excused
o Didn't apply other way around for women (no proprietary interest in their husbands)
• In common law era, defence carried vestige of social view centered on preserving a man's
honour; a violent response in such circumstances expected of a man of honour
• As time passed, categories became narrower; enshrined in Criminal Code, eventually reaching
modern notion which has been narrowed considerably since 2015
-Modern context of provocation
• Social context has played important role in defining what amounts to provocation at law
• defence still serves to recognize compassion for human infirmity and inappropriate reaction to
sufficient wrongful act/insult
• But shouldn't rely on antiquated values such as men's proprietary interest in their wives and
'honour killing' of her lover
• One spouse has legal right to leave partner, but in some cases the way it is communicated may
amount in fact to an ‘insult’ (ordinary meaning); to be recognized at law, insult must be of
sufficient gravity to cause loss of self -control - objectively determined
o situation more common than it used to be, and legal right to end a relationship
• Neither an excuse or justification; act is less blameable b/c of passion aroused by provocation
o Accused’s conduct partially excused out of compassion to human frailty
• Not all loss of self-control excused; accused must have justifiable sense of being wronged
-Objective element: wrongful act or insult sufficient to deprive ordinary person of self-control
• “Ordinary person” reflects normative dimensions of defence; standard must be informed by
contemporary norms of behaviour and fundamental values (Charter, equality)
o Appropriate to ascribe to ordinary person relevant racial characteristics (if provoked by
a racial slur), but not characteristic of being homophobic (homosexual advance used to
be considered form of provocation)
• Flexible approach: particular characteristics that are not idiosyncrasies can be ascribed to
ordinary person without subverting logic of objective test of provocation
• Particular circumstances accused is in will be relevant, but care must be taken not to subvert
logic of inquiry by assimilating circumstances peculiar to accused into standard

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- Reasonable person vs ordinary person
• Ordinary person as legal construct has generally been used interchangeably with reasonable
person, but the RP would NOT commit culpable homicide
o RP often defines conduct expected at law (not criminal)
o "Ordinary person" reflects normative dimensions of defence: OP has human frailties
which are normative (pertaining to a standard, now informed by Charter values)
o OP can lose power of self-control, in certain limited way; RP never loses self-control
o Remember defence is only partial defence
-Subjective element: accused acted in response to provocation before passion cooled
• Suddenness introduced to distinguish provocation from vengeance; applies to both the act of
provocation and accused’s reaction to it (must strike on mind unprepared for it)
• Evidence must be reasonably capable of supporting the inferences necessary to make out
defence before there is an air of reality to defence
-Application to facts: no air of reality to provocation
• conduct does not amount to “insult” and does not meet requirement of suddenness
- Analysis: Peter Royal was counsel for Mr. Tran; expert on provocation (managed to convince trial
judges in both Thibert and Tran, but shot down by CA and SCC)
• Tran decided before amendments in 2015 - focused on "insult" of wife in bed with another
• Under new provisions, adultery will NO longer suffice for legal provocation
• Case shows difficulty of defining which types of insults are provoking enough to meet test; is a
racial slur worse than discovering infidelity by wife? Are the emotions any less intense?
• Now simplified – provocation must emanate from indictable offense
** Analysis very impt; know this case well for exam including history of defence of provocation **

R v Cairney (2013 SCC) *old provisions (wrongful act/insult), but analysis still relevant
- Ratio: 1) Where the accused is prepared for an insult or initiates a confrontation and receives a
predictable response, this is a factor which MAY deprive provocation of an air of reality.
2) Where all other defences fail, if a reasonable doubt exists that the accused had subjective foresight of
death, the accused can be acquitted under “rolled up” defence (cumulative effect).
- Facts: Accused shot and killed long-time friend F, who had history of drinking and physically abusing R,
his common law spouse and accused’s cousin; F was on phone when C came in with gun; smashed
phone; gave him lecture with gun pointed at him (you can't treat her that way); F said 'fuck you, goof, I'll
do with Fran what I want' and walked out into stairwell; C followed and shot him
- Case History: Trial: since no evidence C set up F to advance a provocation defence, defence left to jury,
who acquitted C of second degree murder and convicted him of manslaughter
• ABCA: Ordered new trial; F’s insulting remarks not enough to provoke loss of control in ordinary
person (obj. element not met) and C didn’t act suddenly (subj. element not met)
- Arguments: Appellant: defence of provocation had air of reality on the evidence; correctly left to jury
• Defence relied on analogy to Thibert; also had gun pointed at deceased, and sudden provocation
of taunting words which would caused ordinary person to lose self control also caused Thibert
to act on sudden and lose control
- Issue: What is required to give air of reality to defence of provocation where conduct of deceased
resulted from accused initiating an aggressive confrontation (self-induced provocation)?
- Held: Appeal dismissed; new trial ordered
- Reasoning:
-Air of reality test: trial judge may engage in limited weighing of totality of evidence to determine if jury
acting reasonably could draw inferences necessary to have reasonable doubt

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 • Would ordinary person in C’s circumstances (having initiated confrontation at gunpoint) be
deprived of power of self-control by F’s insults?
-S.232(3) precludes “manufactured” provocation from grounding defence
-Objective element: would ordinary person lose control after initiating gunpoint confrontation?
• standard must be applied in contextual manner (but not individualized)
-Fact that accused initiated provocation is contextual factor in determining whether subjective and
objective elements of defence met
• Typically defence not available where accused prepared for insult or initiates confrontation and
receives predictable response (factor may deprive defence of air of reality)
• SCC distinguished from Thibert who was surprised to see deceased, not looking for
confrontation, wanted to speak with wife privately; C sought and pursued confrontation
• Initiating a confrontation will not jettison defence necessarily, but will make it more difficult for
accused to claim provocation; becomes part of factual matrix
• law does not condone violent confrontations like the gunpoint lecture, regardless of cause
-Evidence does not support contention that ordinary person would have viewed victim’s words as threat
of imminent domestic violence against R leading to loss of self-control
-No air of reality to obj. element, although subj. element had air of reality
-Residual Assessment of Intent (RAI) or “rolled-up defence” charge:
-Even if satisfied BRD that C not intoxicated to extent that it affected awareness that death or
serious injury would result, must re-examine evidence for anything that suggests he acted instinctively
or without thinking about all consequences (i.e. without necessary intent)
-Q: Whether, taken collectively, the whole of the evidence raises a reasonable doubt about C’s
intent (weigh evidence of all testimonies – R’s, C’s, other witnesses)
-Dr’s testimony: combination of factors (depression, alcohol) created lessened appreciation of
consequences
-If jury not satisfied that Crown proved BRD that C had either state of mind required to classify
his unlawful killing of F as murder (intended to cause death or intended to cause serious harm knowing
death likely and being reckless), must find him guilty of manslaughter
-if all other defences fail, but reasonable doubt that accused had subjective foresight of death,
accused can be acquitted: this ultimately saved Cairney at trial #2; e.g. highly intoxicated (alcohol
myopia), threats toward R made him upset (but not legally provoked), AND all happened in span of a
few seconds; each element on its own not enough to provide defence, but considered cumulatively to
negate ability to foresee consequences of actions
- Dissent (Abella J): Objective element had air of reality; trial judge did not err in leaving defence with
jury
• Trial judge does not draw factual inferences but rather comes to conclusion about field of
factual inferences that could reasonably be drawn from evidence
• Relevant contextual circumstances includes relationship between victim and accused (jury may
have found provocation based on credible threat that F would again abuse R)
o Frailty of deciding availability of defence based on ‘who started it’ inquiry
o Gunpoint lectures not condoned, but provocation is only partial defence (not acquittal)
o The provoking act was F saying he would do with Fran what he wanted, not dismissal
• Trial judge’s decision to leave provocation to jury was therefore a proper one
- Analysis: C could not successfully plead defense of person b/c F was fleeing the confrontation; usually
doesn’t succeed in these circumstances (even if he knew F would beat up R again)

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Bill S-7: Zero Tolerance for Barbaric Practices Act
-Provocation is now:
• Conduct of victim that would constitute indictable offense punishable by five or more years of
imprisonment, that is of nature sufficient to deprive ordinary person of power of self-control, is
provocation if accused acted on it on the sudden and before time for passion to cool

Multiple Relevance of Evidence Relating to Provocation
-Evidence of accused’s (subjective) state of mind that is insufficient to raise reasonable doubt respecting
provocation may be considered in determination of whether accused had (subjective) mental element
requisite for murder
-May be considered in “rolled up defence”

R v Nealy (1986 ONCA)
- Ratio: 1) In some cases, provocation may not operate as a defence but rather as relevant evidence for
intent: considered with totality of evidence, is there a reasonable doubt in mind of jury whether accused
had requisite intent?
2) All the circumstances surrounding the act of killing must be taken into account in determining
whether or not accused had intent required for commission of murder (including provocation,
consumption of drugs/alcohol, etc)
- Facts: At gay bar with girlfriend, N got into altercation with C (deceased); upset by what he had said
about his girlfriend and afraid of C (larger, drunker), he grabbed a knife; stabbed C several times
- Issue: Should trial judge have instructed jury to take into account cumulative effects of evidence of
drinking and provocation to determine whether accused possessed requisite intent for murder?
- Held: Appeal allowed; new trial ordered
- Reasoning: Jury told to consider issues of drunkenness, self-defence and provocation (separately), but
not effect of alcohol coupled with fear and anger on issue of whether he formed intent to murder
• In some cases, provocation afforded by victim, when considered in relation to totality of
evidence, might create reasonable doubt in mind of jury whether accused had requisite intent
• In this sense, provocation does not operate as defence but rather relevant evidence for intent
• Preferable in most cases, and essential in some, that jury be instructed to consider all the
pertinent facts in resolving issue of intent
• Trial judge described as 3 distinct defences in charge to jury, but must consider all together in
the moment - should be put to jury as a cumulative charge

Necessity
-Some violations of law may be excused or justified, if: a) circumstances demanded act in violation of
law (necessity); b) accused coerced into act by threat of injury by others (duress); c) accused defended
himself or property against attack (self-defence and defence of property)
-Necessity is one of the defences of overriding personal interest classified as “excuses”
• “Extrinsic” defence
• Even if Crown proves actus reus and fault necessary for conviction, if accused can show certain
circumstances were present satisfying criteria, entitled to acquittal
• Accused bears only tactical burden respecting defence of necessity
o Normally lack of necessitous circumstances can be inferred from facts
o Accused need only raise reasonable doubt about whether facts support the defence
• Judge must decide if there is some evidence on which reasonable jury, properly instructed,
could acquit (‘air of reality’); judge is not to weigh the evidence

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 • The defence “excuses” an accused who otherwise would have been convicted
o Law recognizes that in certain emergencies, complying with law is not real option;
accused’s act was not “morally voluntary”
o Defence concerns threats produced by nature or external causes, vs duress which
concerns threats produced by other individuals

-History of Necessity:
-Necessity developed early in common law
• Aristotle and Kant: "Act of self-preservation through violence is not inculpable, it still is
unpunishable"
• Blackstone: "choice between two evils"
-In Canada:
• Morgentaler v The Queen (SCC 1976): clear and imminent peril
• Law Reform Commission: to avoid a greater harm or avoid intolerable burden
• Became part of law: Criminal Code s.8(3)

-3 Main Elements (3 P’s):
1) Peril: Accused faced with emergency, situation of ‘clear and imminent peril’
• ‘normal human instincts cry out for action and make patience unreasonable’
• Circumstances constituting emergency could not have been actually foreseen by
accused or reasonably foreseeable
• If not, irrelevant that accused was involved in illegal act before emergency (but may
be charged and convicted for prior transgression)
2) (Im)possibility: In circumstances, compliance with law was not a real or practical option
(‘demonstrably impossible’); breaking the law was a necessity
• No reasonable legal alternative: Was course of conduct that did not involve breaking
law reasonably available?
3) Proportionality: Conduct engaged in breaking law caused harm that was proportional to
harm avoided (generally less than harm that would have been caused if law not broken)
• Generally, emergency should also constitute an immediate threat, virtually certain
to occur; otherwise, accused probably had legal alternative course of conduct
available
-#1 and #2 are subjective and objective: accused must have actually known she was in
emergency and believed no option but to break law to escape danger; accused also must have had
“reasonable grounds” for those beliefs (modified objective test)
-#3 is objective (not modified); proportionality based on “community values” standard

R v Perka (1984 SCC)
- Ratio: 1) Necessity only excuses conduct, never justifies it, and only in limited situations where
requirements are met (all of which must be put to jury) - moral involuntariness is key
2) Legality of preceding actions not relevant per se to necessity, but contributory fault relevant
- Facts: Drug smugglers arrested for importing cannabis into Canada; claimed they were forced to come
ashore b/c of series of problems with ship and bad weather; planned to make repairs and leave
- Case History: Acquittal at trial; BCCA ordered new trial for unrelated reason (necessity not dealt with)
- Arguments: Crown does not challenge availability of necessity as common law defence, but rather trial
judge instructing jury in light of facts and imposing burden of disproof of defence on Crown
- Issue: Did trial judge err in charging jury with respect to the necessity defence? (Yes)
- Held: Appeal dismissed; new trial ordered

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- Reasoning (Dickson J): Court clarified elements of necessity and established preference for necessity as
excuse over justification
-Ancient principle - some circumstances make it unrealistic and unjust to attach criminal liability to
actions which, on their face, violate the law (Aristotle, Kant)
• Unclear concept in Canadian law: “if it does exist, can go no further than to justify non-
compliance in urgent situations of clear and imminent peril when compliance with law is
demonstrably impossible” (Morgentaler)
-2 notions of necessity: utilitarian principle (non-compliance justified by pursuit of greater good) and
humanitarian principle (compliance would impose burden on accused)
• Justification challenges wrongfulness of action which technically constitutes crime (e.g. police
officer shooting hostage-taker, self-defence during assault) – considered rightful
• Excuse concedes wrongfulness of action but asserts circumstances are such that it ought not to
be attributed to actor (e.g. disease of mind, drunk, mistake of fact)
-Rejected justification: To recognize “greater good” formulation (entitling person to violate law b/c of
belief it conflicted with higher value) would import undue subjectivity into criminal law
-Accepted excuse: recognition of human weakness in emergency situations where instincts of self-
preservation or altruism impel disobedience of law; preserves objectivity
• Excuse of necessity doesn’t go to involuntary actus reus, but “moral involuntariness”
• Act was wrong but excused b/c realistically unavoidable (no other viable choice)
• Must be strictly limited to situations corresponding with rationale (inappropriate to punish
actions which are normatively “involuntary”)
• 3 requirements:
I. Urgent situation: At minimum, situation so emergent and peril so pressing that normal
human instincts cry out for action and make patience unreasonable
II. Compliance with law demonstrably impossible; no reasonable legal alternative
III. Proportionality: harm inflicted must be less than harm sought to be avoided
• Accused being engaged in illegal/immoral conduct (or negligence) at time emergency arose is
NOT relevant per se to voluntariness of subsequent conduct
• Unless ‘contributory fault’: actor contemplated or ought to have contemplated actions were
likely to create emergency requiring breaking law (then actions not involuntary)
• Crown bears burden of proving voluntariness of act; often presumed, unless accused places
evidence sufficient to raise issue of emergency situation where compliance impossible
• Trial judge did not err in instructing jury on necessity based on evidence
o Charge adequate to bring to jury’s attention all relevant considerations except
reasonable alternative; usually most important question with defence of necessity
o Lack of “legal way out” was serious error going to heart of defence; justifies new trial

R v Latimer (2001 SCC)
- Ratio: For necessity to apply, accused must at time of act honestly believe, on (objectively) reasonable
grounds, in a situation of imminent peril that leaves no reasonable legal alternative open
- Facts: Appellants’ daughter (T) had severe cerebral palsy; quadriplegic, completely dependent, was in
frequent pain; due to multiple ‘mutilating’ surgeries upcoming, L decided T’s life was not worth living;
took her life with carbon monoxide poisoning; charged with first-degree murder
- Case History: Trial: no "air of reality" to defence of necessity; jury convicted L of second degree
murder; granted constitutional exemption from mandatory min (1 year prison, 1 year probation)
• SKCA: dismissed accused’s appeal from conviction but reversed sentence (imposed mandatory
minimum of life in prison without eligibility for 10 years)

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- Issues: 1) Did trial judge mishandle defence of necessity resulting in unfair trial? (No)
2) Was trial unfair b/c trial judge made jury believe it would have input into sentence? (No)
3) Does imposition of mandatory minimum sentence for second-degree murder constitute “cruel and
unusual punishment” in this case, requiring a constitutional exemption? (No)
- Held: Appeal dismissed; conviction with mandatory minimum of 10 years’ imprisonment upheld
- Reasoning: No air of reality to necessity defence; trial judge correct not to put it to jury
-Defence of necessity:
• Necessity restricted to rare cases where true “involuntariness” was present
• Requirements (Perka): 1) urgent situation of clear and imminent peril; 2) no reasonable legal
alternative to breaking law; 3) harm inflicted not disproportionate to harm avoided
• 1 and 2 evaluated on modified objective standard (objective test taking into account situation
and characteristics of particular accused person); 3 evaluated on objective standard
-Application to facts:
• No air of reality to any of 3 requirements of necessity:
1) No ‘imminent peril’ (T’s ongoing pain didn’t constitute emergency; accused’s belief not
reasonable)
2) Reasonable legal alternative (helping T and minimizing her pain) but rejected it
3) “Harm avoided” (T living with pain) was disproportionate to causing T’s death
§ Proportionality difficult to evaluate in homicide situation
-Jury nullification:
• Rare situation where jury knowingly chooses not to apply law (“safety valve” for exceptional
cases); but there is no “right” to jury nullification
• Trial judge taking steps to guard against jury nullification should not, on that basis alone,
prejudice the accused person
- Analysis: Court left open question of whether proportionality requirement for necessity can ever be
met in homicide situation
• Context of this case changes with new law on assisted suicide; takes it out of necessity defence

R v CWV (2004 ABCA)
- Ratio: 1) If the emergent situation is reasonably foreseeable on modified objective test, accused can't
claim moral involuntariness going to necessity; depends on facts of case
2) illegality of actions do not automatically dismiss defence of necessity
- Facts: Youth + Alcohol = Stupidity; young man returned to party to get keg of beer (hotly contested);
dangerous threats made to him over phone beforehand; surrounded by mob; backed car away, hit a few
pedestrians and a tree, caused minor injuries; defence of necessity advanced
- Case History: Trial: necessity elements established (peril, emergent situation, no alternative but to
back away quickly, proportional - caused minor injury to prevent major injury)
• BUT he "willingly walked into jaws of the lion" = contributory fault
• Peril and impossibility both assessed on modified objective test
• If emergent situation reas. foreseeable on modified obj test, can't claim moral involuntariness
• Knew that returning to party was dangerous; denied him defence of necessity
- Held (majority): ordered new trial; trial judge applied wrong standard
- Dissent (McClung JA): Would dismiss appeal; disagreed that trial judge applied standard incorrectly
• evidence clear that while appellant could not have known fullness of response (of mob), he
voluntarily resorted to self-help to recover stolen property, courting a predictable reaction
• illegal act couldn’t translate to successful defence of necessity in light of what unfolded
- Analysis: dissent wrong based on Perka; illegality of actions shouldn’t dismiss defence of necessity

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 • Q: wasn't there a reasonable legal alternative in that he could have not gone to the house at all?
Reaction of mob foreseeable b/c he knew about threats?
• Each element must meet air of reality test; doesn't seem to be the case here

Duress
-Duress is an “extrinsic” defence like necessity: where accused can show additional circumstances were
present that satisfy certain criteria, accused is entitled to an acquittal
• Duress involves third party threatening death or bodily harm to accused or another individual
(vs necessity which concerns “compulsion by circumstances”)
• Duress may support inference that accused did not have mens rea for the offence, but not
always (distinction b/n motive and mens rea)
• Accused bears only tactical burden; may or may not choose to raise defence of duress; for
defence to succeed, need only raise a reasonable doubt about whether facts support it
• Trial judge decides whether defence has “air of reality”; doesn’t weigh evidence
• Defence operates as ‘excuse’ recognizing human frailty; although act may be conscious and
voluntary in actus reus sense, b/c of coercion/duress, no real or practical choice

-2 legal sources for duress: s.17 of Criminal Code and common law
-Criminal Code s.17:
Compulsion by threats
17 A person who commits an offence under compulsion by threats of immediate death or bodily
harm from a person who is present when the offence is committed is excused for committing the
offence if the person believes that the threats will be carried out and if the person is not a party to
a conspiracy or association whereby the person is subject to compulsion, but this section does not
apply where the offence that is committed is high treason or treason, murder, piracy, attempted
murder, sexual assault, sexual assault with a weapon, threats to a third party or causing bodily
harm, aggravated sexual assault, forcible abduction, hostage taking, robbery, assault with a
weapon or causing bodily harm, aggravated assault, unlawfully causing bodily harm, arson or an
offence under sections 280 to 283 (abduction and detention of young persons).
• Common law defence applies to persons not covered by s.17 (parties to offence)
• in Ruzic, SCC struck down 2 elements of s.17 as inconsistent with s.7 of Charter (requirement of
immediacy of threat and presence of person issuing threat)
• Elements of s.17 clarified in Ryan: 4 elements plus 2 aspects of common law defence to replace
immediacy and presence requirements
• Court also held that proportionality is crucial part of statutory defence of duress, not additional
requirement but as part of moral involuntariness test
o Proportionality depends on 2 elements: i) difference b/n nature and magnitude of harm
threatened and offence committed; ii) general moral judgment regarding accused’s
behaviour

Statutory Defence of Duress
-applies to principals and is comprised of 7 elements:
a. Threat of bodily harm or death directed against accused or third party
b. Reasonable belief that threat will be carried out*
c. No safe avenue of escape*
d. Close temporal connection*
e. Proportionality*

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 f. Accused not part of conspiracy or association (and subject to compulsion)
g. Offence is not on list of excluded offences
*b, c, d, e are analyzed on modified objective standard: whether RP similarly situated would have acted
in same manner as accused

Common Law Defence of Duress
-applies to parties to offences and is comprised of 6 elements
• Includes elements a-f above; only difference is who defence applies to and NO list of excluded
offences like in s.17
• List arguably no longer of any legal/practical significance after Ryan established proportionality
as central to moral involuntariness analysis



R v Ruzic (2001 SCC)
- Ratio: 1) Only voluntary conduct –product of free will and controlled body, unhindered by external
constraints – should attract penalty and stigma of criminal liability (PFJ).
2) Immediacy and presence requirements in s.17 infringe this principle.
- Facts: Series of intimidating encounters with M in Yugoslavia (who R believed was paid to kill people in
the war); M threatened and assaulted her; told her to come to airport, strapped heroin to her body and
told her to take them to Toronto or he would harm her mother; she believed he would harm anyone he
told about it and believed police were corrupt; R arrested at Pearson Airport with 2kg of heroin strapped
to her body and false passport
• Expert evidence bolstered accused's account of conditions in Yugoslavia at time
- Case History: Trial: R successfully challenged constitutionality of s.17; acquitted by a jury under
common law defence of duress
• ONCA: Dismissed appeal
- Arguments: Respondent: s.17 infringes s.7 b/c of under-inclusiveness (strictness of immediacy and
presence requirements means individuals could be found guilty of involuntary actions)
• Appellant: s.17 can be read down (less restrictive, more consistent with Charter)
- Issue: Do immediacy and presence requirements of s.17 of Criminal Code infringe s.7 of Charter, and if
so, can they be justified under s.1?
- Held: Appeal dismissed; S.17 declared unconstitutional in part; acquittal upheld
- Reasoning: Statutory defences not immune from Charter scrutiny; court has duty to evaluate
• Withdrawal of defence will not automatically breach s.7; i.e. where defence inconsistent with
offence (would excuse the very evil the offence seeks to prohibit/punish)
-Moral involuntariness recognized as principle of fundamental justice
• Distinct from moral blameworthiness (conduct that is involuntary not necessarily intrinsically
free of blame; this would be contrary to duress as ‘excuse’)
• Critical importance of autonomy in attribution of criminal liability; capacity to choose
o As in necessity, 'a person acts in morally involuntary fashion when, faced with perilous
circumstances, she is deprived of a realistic choice whether to break the law'
• Only voluntary conduct – behaviour that is product of free will and controlled body, unhindered
by external constraints – should attract penalty and stigma of criminal liability
-“Immediate” and “presence” requirements are unconstitutional
• s.17 would preclude threats of future harm (threatener had to be physically present at scene of
offence, at time it took place, for defence of duress to be available to accused)

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 • Strictness of conditions allows indiv’s acting involuntarily to be liable (breaching s.7)
• Since proof of defence may rest on little more than accused’s own evidence, standard must be
reasonable but strict
• Would be contrary to PFJ’s to punish accused who is psychologically tortured to point of seeing
no reasonable alternative or cannot rely on authorities for assistance
• Breach not justified under s.1 (Crown appellant) didn't make arguments about justification)
-Common law defence of duress
• Common law defence has freed itself from constraints of immediacy and presence, thus more
consistent with Charter
• Duress evolved from attempts at striking proper balance b/n conflicting interests of accused,
victims, society - S.17 did not strike appropriate balance as it was worded
-No need to address alternative argument (do immediacy and presence requirements infringe principle
that constitutional rights should not be restricted in manner that is arbitrary or unfair?)
-Trial judge’s charge on elements of defence of duress, viewed in entirety, was adequate
R v Li, Chen and Lui (2002 ONCA)
- Ratio: Where accused put himself in position likely to be subjected to compulsion, such as voluntarily
joining criminal organization, he cannot avail himself of defence of duress
- Facts: Appellants broke into apartment and kidnapped 3 people (tied one other up); held hostages in
captivity for 22 days; part of scheme to bring informant of criminal organization forward
- Case History: Trial: Convicted of kidnapping and forcible confinement; sentenced to life imprisonment
- Arguments: Appellants acknowledged participation in abduction but claimed they did it b/c of threats
of violence against themselves and their families by ‘Snakehead’ gang
- Issue: Is the defence of duress applicable?
- Reasoning: Appellants had many opportunities to escape or contact the police before the offence, but
chose to participate instead; partly b/c of debt they owed to Snakeheads
• Distinguished from Ruzic who was innocent (not involved in drug smuggling before coerced)
• Appellants’ voluntary decision to get involved with organization in first place goes to whether
they had a safe avenue of escape
• Where person put himself in position where he is likely to be subjected to compulsion, such as
voluntarily joining organization which he knows might bring pressure to commit offence and
being active member at time of pressure, he cannot avail himself of defence of duress
• Appellants freely and without coercion placed themselves in clutches of alleged tormenters; it
would be mockery of justice to place issue of duress before jury (matter of policy)
• Analogous to 'contributory fault' analysis in necessity
-Defence fails air of reality on multiple elements (there was a safe avenue of escape; appellants showed
no fortitude- could have stood up to oppressors; proportionality)
-Analysis: Forcible abduction/hostage taking are excluded offences on list in s.17 and accused were
principals to offence not parties; odd that this wasn't mentioned in judge's ruling

R v Ryan (2013 SCC)
- Ratio: 1) Duress available ONLY in situations where accused has been compelled to commit a specific
offence under threats of death or bodily harm (do x, or I'll do y)
2) More flexible common law elements of duress cannot be used to “fill” gaps created by defined
statutory limitations on self-defence
- Facts: Wife counselled another person to have her abusive husband murdered; he had threatened to
kill her and her daughter; relied on defence of duress

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- Case History: NSCA: Acquitted respondent of counselling commission of husband’s murder; no
“principled basis” on which respondent should be excluded from relying on defence of duress
- Issue: Is duress available as defence where threats made against accused were not for purpose of
compelling commission of an offence? (No)
- Held: Appeal allowed, stay of proceedings entered; uncertainty surrounding law of duress created
unfairness to defence
- Reasoning: CA ignored diff b/n self-defence as justification and duress as excuse, and factual basis
required for duress (do x, or I'll do y to you); R wanted her husband dead, so not morally involuntary
• Defence of duress available when person commits offence under compulsion of threat made for
purpose of compelling her to commit it; therefore not available to respondent
• Necessity and duress are both excuses based on idea of “normative involuntariness”
• Duress, self-defence and necessity all arise where person subjected to external danger and
commits act that would otherwise be criminal as way of avoiding harm
-Self-defence is different:
• based on principle that lawful in some circumstances to meet force with force, whereas in
duress and necessity, victim is generally innocent third party
• In self-defence, victim simply attacks or threatens accused to stop threat/assault (motive
irrelevant); in duress, purpose of threat is to compel accused to commit offence
• Self-defence completely codified; duress partly codified, partly judge-made
• Underlying rationale for duress and necessity: only voluntary conduct – product of free will –
should attract penalty and stigma of criminal liability (principle of fundamental justice)
• Justification of self-defence more readily available than excuse of duress
-4 requirements of statutory defence of duress (post-Ruzic):
1) Threat of death or bodily harm (explicit or implicit, present or future) directed against
accused or third party
2) Accused must believe threat will be carried out
3) Offence must not be on list of excluded offences
4) Accused cannot be party to conspiracy/assoc such that person subject to compulsion
• s.17 only applies to 'a person who commits an offence' (not an aider or abettor)
-3 elements of common law defence of duress which operate alongside s.17:
1) No safe avenue of escape, measured on modified objective standard
2) Close temporal connection b/n threat and execution so accused can’t act voluntarily
3) Proportionality: harm caused not greater than harm avoided (modified obj. standard)
o 2 elements: i) difference b/n nature and magnitude of harm threatened and offence
committed; ii) General moral judgment re accused’s behaviour in circumstances
• Note: Proportionality requirement in necessity is objective, NOT modified objective; temporality
requirement is one of imminence whereas threat for duress can be in future
• More flexible common law elements of duress cannot be used to “fill” gaps created by defined
statutory limitations on self-defence
-6 common elements of statutory and common law defences:
-Threat, accused reasonably believed threat will be carried out, no safe avenue of escape, close
temporal connection, proportionality, accused not party to conspiracy
-Major differences b/n statutory and common law defences:
-Statutory defence applies to principals and has lengthy list of exclusions; common law defence
available to parties to offence and unclear whether any offences are excluded
- Analysis: What about CA’s noted irony that respondent might have defence of self-defence if she
attacked husband directly but left without a defence b/c she hired someone to do it?

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 • Reason for stay of proceedings? SCC might have accepted self-defence argument made in lower
courts; intensely sympathetic to her situation and wanted just result

R v Aravena (2015 ONCA)
- Ratio: Defence of duress, as strictly defined in the jurisprudence, remains available to persons charged
as parties to murder
- Facts: 8 members of Toronto Bandidos gang shot and killed on farm; culmination of internal strive
within gang organization (“pulling patches” of Toronto members); Mather, Aravena and Gardiner
charged with aiding and abetting
- Case History: Jury convicted Sandham, Mushey and Kellestine of 8 counts of first degree murder;
convicted Mather, Aravena and Gardiner of mixed manslaughter/first degree murder
-Trial judge ruled duress not available as defence to murder and not applicable to this case
- Arguments: Appellants (G, M, A): trial judge erred in pre-trial ruling that common law defence of
duress not available to persons charged as parties to murder; prejudiced them at trial
• Crown: trial judge properly held defence not available on charge of murder regardless of nature
of alleged participation; even if available, ruling caused no prejudice to G, M or A
- Issue: Did trial judge err in law in holding that common law defence of duress was not available to
persons charged as parties to murder? (No)
- Held: Conviction upheld; duress didn't begin until second person already killed
- Reasoning: Statutory defence of duress applies to perpetrators; common law defence to parties
• 6 elements of both defences summarized in Ryan: threat of present/future death or bodily
harm, reas. belief threat will be carried out, no safe avenue of escape (mod.obj), close temporal
connection, proportionality (mod.obj.), accused not party to conspiracy
• Based on authorities at time (Hibbert, Paquette), trial judge erred in holding that common law
defence of duress not available to persons charged as parties to a murder
-Are any offences excluded from common law defence of duress?
• Analysis presumes that person advancing defence has full mens rea required of aider and
abettor to murder (knew of intention to kill victim and intended to assist in the act)
• Either duress is full defence resulting in acquittal OR NOT a defence to murder
• Criminal liability requires voluntariness; extended beyond physically voluntary conduct to
explain rationale underlying defences of necessity and duress (‘moral involuntariness’)
o Doesn’t mean conduct was morally blameless (the defence excuses, not justifies)
o Voluntariness (moral and physical) is principle of fundamental justice under s.7
• Societal policy concerns are manifested in ‘no save avenue of escape’ and ‘close temporal
connection’ requirements; not entirely based on accused’s subjective belief
• Proportionality requirement assessed on mod.obj. standard: i) harm threatened must be equal
to or greater than harm inflicted; ii) accused’s choice to inflict harm must accord with what
society expects from RP similarly situated in particular circumstance
• Criminal association exclusion further limits concept of moral involuntariness (accused
voluntarily assumed risk of being compelled by threats to engage in criminal conduct)
• If person is told to “kill or be killed”, harms are of comparable gravity; neither prong of
proportionality will always favour sacrificing one’s own life
• Trial judge treated proportionality requirement as operating outside principle of moral
involuntariness, but Ryan afterwards clarified this is not the case
• Victim’s right to life under s.7 cannot render involuntary conduct criminally liable
• English authorities deny duress to murder charges b/c: i) deterrence (allowing duress would
strengthen criminal organizations); ii) victim’s right to life more valuable than accused

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 o Evidence does not support i) and ii) is based on notion of duress as justification
o Not evaluating whether person accomplished a ‘greater good’ but whether harm caused
was not out of proportion to harm avoided
o Victim’s right to life can’t be automatically prioritized; must be factored into
proportionality assessment as part of broader moral involuntariness inquiry
- Analysis: SCC hasn't ruled on whether murderer can rely on common law defence of duress, but likely
they would lean in this direction

Insanity
-3 distinct issues related to capacity of accused: fitness for trial, capacity of children for criminal liability,
and defence of mental disorder

Capacity for Criminal Responsibility: Children
-S.13: A child cannot be convicted for an offence committed when child was under age of 12
(irrebutable presumption against criminal capacity)
• Variation on common law: irrebutable presumption that child under 7 incapable of possessing
criminal intent; child between 7-14 presumed incapable unless clear proof of “precocity” to
establish real appreciation of the wrong done; for child 14 and older, rebuttable presumption of
capacity for criminal intent
• Under s.13, after person reaches age of 12, presumption of sanity in s.16(4) comes into play;
also presumption of capacity is rebuttable on BOP
• Diminished responsibility for ages 12-18 under Young Offenders Act
• At age of 18, children become fully criminally responsible as adults (used to start at 16)

Capacity/Fitness to Stand Trial
-Statutory foundation:
• S.2 of Criminal Code: “unfit to stand trial” means person is unable on account of mental disorder
(‘disease of the mind’) to:
a) understand nature or object of proceedings
b) understand possible consequences of proceedings, or
c) communicate with council
• Presumption that accused is fit to stand trial unless court satisfied on BOP that unfit
• Fitness issue can arise at any stage of any trial; can be raised by prosecution, accused or court
• If accused cannot comprehend the basics on account of mental disorder, they are unfit to stand
trial; may require a trial to determine this issue (usually trial judge standing alone as trier of law
and fact on that issue, but in rare situations, jury can decide)
• If accused found unfit, trial proceedings terminate and disposition hearing held
• Reviewed every 2 years to determine if evidence warrants putting accused on trial
-Constitutional foundation:
• Statutory definition of unfitness relies on mental disorder, but accused may be unfit to stand
trial for other reasons
• PFJ’s/s.7 forbids trying a person who is unfit to defend herself

Capacity for Criminal Responsibility: Mental Disorder
-Rationale: If level of disorder caused by mental illness is severe (meets legal tests), individual cannot be
held criminally responsible – “exempted” from liability
-Historically (from 19th C – 1991), mentally disordered offenders faced 2 alternative verdicts:

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 i) Conviction: no special treatment, disorder not sufficiently severe
ii) Acquittal by reason of ‘insanity’; followed by automatic indefinite detention (found
unconstitutional in Swain)
-Modern law: In 1991, new regime established in Criminal Code with 3 alternative verdicts:
i) Conviction
ii) Acquittal
iii) ‘Not criminally responsible on account of mental disorder’ (NCROAMD)
• State has jurisdiction over NCROAMD individual; might still be a danger
• When accused is found NCR under s.16, they go to Alberta Psychiatric Hospital for
assessment, monitoring, and usually at least months of treatment
• 3 options for disposition of NCR accused (determined by review board):
i) Detention in secure facility
ii) Release into community on conditions
iii) Absolute discharge
-New regime serves two goals:
• Protection of public and fair treatment of mentally disordered

NCROAMD in s.16
-s.16: no person is criminally responsible for act committed or omission made while suffering from a
mental disorder that rendered person incapable of appreciating nature and quality of act or omission, or
of knowing that it was wrong
• Presumption of sanity (‘no basic fact’ presumption): every person is presumed not to suffer
from mental disorder unless proven to the contrary on BOP
-Burden of proof is on party that raises the issue
-Crown may raise issue of mental disorder in 2 instances:
i) after finding of guilt but before conviction
o judge could grant NCR instead of giving a sentence
o Crown Prosecutor not seeking conviction but just result; ethically bound to raise issue of
mental disorder if she knows accused suffers from it
ii) if accused puts mental condition in issue during trial
o e.g. raises defence of non-insane automatism
o Crown's theory might be if anything accused was suffering from insane automatism,
which they must prove on BOP in place of defence proving non-insane on BOP
-Constitutionality: Limitation of s.11(d) presumption of innocence; accused may be convicted despite
reasonable doubt b/c trier of fact not convinced on BOP that he was insane
• But infringement justified under s.1 (Chaulk):
i) Pressing and substantial objective: avoid imposing very difficult evidential burden on
Crown to disprove insanity
ii) Rational connection: legislative allocation of burden assists Crown; accused best
positioned to bring forth this kind of evidence (knowledge about interactions with lawyers, doctors)
iii) Minimal impairment: BOP is right balance (avoids making defence too available;
contrary for public policy to force Crown to prove; salutory vs deleterious effects?)
-Air of reality: if each element is supported by evidence, trial judge must put defence to jury
• Relevant evidence: psychiatric, lay/observation, other circumstantial

Elements of Mental Disorder Exemption
• Legally relevant time = the time when the act was committed

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 o Many people with mental disorders, once hospitalized, given medicine and counselling,
usually will be found fit to stand trial; then issue is whether they suffered from mental
disorder that would declare them not criminally responsible at time of offense
• “Mental disorder” = caused by a disease of the mind
o Defined widely: any illness, disorder, abnormal condition that impairs functioning of the
mind; organic or psychological (Cooper)
o Does NOT include self-induced drug/alcohol high, transient mental state, high emotion
or lacking normal emotion, transient state resulting from external cause (blow to head)
o Must render accused incapable of performing relevant mental operations
o Legal determination made by trial judge; evidence not determinative
• After disease of mind established, there are 2 branches:
1) Person rendered incapable of appreciating nature and quality of act or omission
§ Didn't know what they were doing physically
§ Some form of analysis or cognition needed; don't have to understand broader
emotional consequences of act
§ Requires mental capacity to foresee and measure physical consequences of act
2) Person rendered incapable of knowing that act was wrong
§ Legally wrong OR morally wrong (standards or notions held by society)
§ If a person is killing someone b/c voices are telling him it was Adolf Hitler and he
is saving society, or belief Messiah would be saved if he kills someone else,
incapable of knowing wrongness of act
§ Not sufficient to establish the mental disorder itself; e.g. Pasieke had
schizophrenia but was able to appreciate the nature and quality of the act
(knew he was killing people) AND knew it was wrong to kill people

-Distinguish NCROAMD from:
• No actus reus: E.g. accused suffered from ‘insane automatism’ (no voluntariness)
• No mens rea: E.g. accused thought he was chopping wood but it was a person
• Criminally responsible: E.g. accused is psychopath; no normal emotions, otherwise sane
-Actus reus and mens rea present, but NCROAMD: E.g. accused killed person believing it to be the devil
and therefore the right thing to do

M'naughtn (1843 Eng)
- Facts: Thought he was victim of international conspiracy against Pope; went to London and shot
someone he thought was PM; HL determined how to handle cases like this which we followed
- Reasoning: S.16 is key: no person is criminally responsible for an act while suffering from mental
disorder that rendered person incapable of appreciating act or knowing it was wrong
• Presumption of sanity: Every person is presumed not to suffer from mental disorder so as to be
exempt from responsibility
• Burden of proof that accused was suffering from mental disorder is on party that raised it (on
BOP); usually accused, but Crown may want to bring it forward (sometimes both sides agree)

Cooper v The Queen (1980 SCC)
- Ratio: 1) Once evidence sufficient to indicate accused suffers from condition which could in law
constitute a disease of mind, judge must leave it with jury to determine as matter of fact whether
accused had disease of mind at time act was committed

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 2) Test for Branch 1 (‘appreciate nature and quality of act’): Whether accused at time of event
by reason of disease of mind was unable to appreciate not only nature of act but the natural
consequences that would flow from it
- Facts: At time, C was an out-patient at Hamilton Psychiatric Hospital (long history of psychosis); while
drinking at a dance for patients he met with the deceased (H); they left dance together, unsuccessful
attempt at sexual intercourse, C strangled deceased to death
- Case History: Defence argued doubt on issue of intent but did not plead ‘defence’ of insanity; trial
judge nevertheless charged jury on insanity in manner challenged in this appeal
• Jury found appellant guilty of non-capital murder; appeal dismissed, Dubin JA dissenting
- Issue: What is obligation of trial judge to charge on insanity in circumstances where accused has
lengthy psychiatric history but does not suffer from ‘disease of the mind’ per medical evidence?
- Held: Appeal allowed; new trial ordered
- Reasoning:
-Disease of the mind
• Evidence led at trial incl. long documented psychiatric history w/ previous violent
episodes, serious illness; impt to corroborate claim of mental disorder (not made-up)
• Psychiatric knowledge and medical testimony form part of evidence on which trier of
fact reaches decision, but medical and legal perspectives differ
• Psychiatrists describe accused’s mental condition from medical POV; judge decides
whether condition described is comprehended by ‘disease of the mind’ (legal term)
o Trier of law determines whether it fits with definition in Criminal Code
• Disease of the mind = any illness, disorder or abnormal condition which impairs the
human mind and its functioning, excluding self-induced states caused by alcohol/drugs
and transitory mental states such as hysteria or concussion
• Once evidence sufficient to indicate accused suffers from condition which could in law
constitute a disease of mind, judge must leave it with jury to determine as matter of fact
whether accused had disease of mind at time act was committed
-Appreciate nature and quality of act
• Q: whether accused was capable of appreciating nature and quality of act
• Additional requirement beyond mere ‘knowledge’ or awareness of the physical act; must
appreciate not only the nature of act but natural consequences that would flow from it
• Was accused deprived of mental capacity to foresee and measure consequences of act?
• Medical evidence: accused diagnosed with various mental conditions (psychosis, mental
deficiency, personality disorder); history of unstable/aggressive behaviour
• Dr formed opinion that appellant not suffering from disease of mind at time of offence; knew he
was causing bodily harm but incapable of forming intent to kill
-Charge to jury
• Trial judge erred in:
o Treating Dr’s response to ‘disease of the mind’ as determinative; if accepted, entire
psychiatric history would have entitled jury to hold that accused suffered from disease
of mind within legal meaning
o Failing to adequately review evidence on insanity and relating evidence of accused’s
capacity to intend certain acts (appreciate nature and quality of act)
§ once trial judge decides a defence has air of reality, she must state it fully and
completely to jury
o Concluding charge on insanity in way which essentially withdrew from jury the essential
determination of fact

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- Dissent: Martland and Pratte
- Analysis: After Cooper, many thought psychopathy would qualify as a mental disorder
• But later cases show psychopaths may not appreciate emotional fallout from what they have
done, but still know they are committing crime and it is wrong in society's standards
• Evolution of court's view on mental disorders very impt **
• Now DSM5 (manual of mental disorders) used
o There is no such disease as 'psychopathy' (called antisocial personality disorder)
o Schizophrenia will almost always qualify by law; precedent that this is mental disorder

Kjeldsen v The Queen (1981 SCC)
- Ratio: failure to appreciate goes to physical consequences of one's actions, NOT the emotional
consequences associated with it
- Facts: Appellant convicted for sexually assaulting and murdering female taxi-driver; patient at mental
hospital (given a day pass) after having been found not guilty for reason of insanity on previous rape and
attempted murder charges; flew to Calgary; hired taxi driver; on way to Banff he raped and killed her
with several blows to head with rock
- Case History: Convicted at trial
• CA dismissed appeal but substituted second-degree murder b/c of jury charge error on
difference b/n first and second degree
- Arguments: Appellant: trial judge, in his direction on definition of “appreciating”, effectively withdrew
defence of insanity from jury
• Defence argued psychopathy was disease of mind (didn't feel/appreciate consequences)
- Issue: Was appellant suffering from disease of the mind at time of killing, and if so, did it have effect of
depriving him of capacity to appreciate nature and quality of his acts at time? (No)
- Held: Appeal dismissed; no reversible error made by trial judge in jury charge
- Reasoning: Evidence established that appellant was psychopath; trial judge seemed to conclude that
psychopathy could qualify as disease of mind
• On question of whether appellant had appreciation of nature and quality of acts or knowing
they were wrong, trial judge correctly limited scope of term to physical consequences of act
• s.16(2) does not extend to one who has necessary understanding of nature and consequences of
act, but merely lacks feelings of remorse or guilt for victim (even if it stems from disease)
• To appreciate nature and quality of act, must have capacity to know what he is doing (hitting
person on head) and estimate physical consequences; act need not be accompanied by
emotional feelings

R v Chaulk (1990 SCC)
- Ratio: 1) Accused with disease of mind will be protected under s.16(2) if he is incapable of
understanding that act was wrong according to ordinary moral standards of reasonable members of
society.
- Case History: MBCA: dismissed appeal from conviction on charge of first degree murder
- Held: Appeal allowed; new trial ordered; s.16 offends Charter s.11(d) but saved under s.1
- Reasoning (Lamer CJ):
-Nature of NCR Provisions
• s.16 does not say whether insanity negates mens rea, provides excuse or justification, or simply
exempts accused from criminal conviction on policy grounds
• Accused suffering from some disease of the mind causing her to have different frame of
reference than most people; largely incapable of criminal intent

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 • Exemption from criminal liability predicated on incapacity for criminal intent
o Could give rise to either denial of actus reus (not acting consciously/voluntarily) or mens
rea (no intention to bring about consequence) in particular case
o Could also give rise to excuse or justification; accused’s mental condition rendered her
incapable of knowing act was wrong (e.g. thought victim was evil incarnate)
• 1st branch: person is insane when she is in state of natural imbecility or has disease of mind to
extent that renders her incapable of appreciating nature and quality of act/omission
o Operates as denial of mens rea or actus reus (did not act voluntarily)
o R v Abbey: not about accused’s ability to appreciate that legal consequences of act are
applicable to her – claim under first branch usually manifests as denial of mens rea, but
could be denial of voluntary actus reus in particular case
• 2nd branch: Accused, due to mental condition, is incapable of distinguishing b/n right and wrong;
doesn’t negate mens rea (or actus reus), but operates as an excuse from liability
-Nature of Mental Disorder
-2 branches: person was by reason of mental disorder incapable of i) appreciating nature and quality of
prohibited act committed or ii) of knowing that it was wrong
• “Appreciating” requires capacity to apprehend nature, character, consequences
• “Knowing it was wrong” is not only knowledge of illegality, but also that action is wrong
according to moral standards of society
-If mental disorder made out on BOP, verdict is that accused is not criminally responsible on account of
mental disorder; disposition hearing is held
• If mental disorder not made out on BOP, evidence cannot be used to raise reasonable doubt
concerning capacity, but can be considered on issue of whether accused in fact had relevant
mental state at the material time
-Meaning of “Wrong” in s.16(2)
-Whether accused knew act was ‘wrong’ - must mean legally or morally wrong (contrary to ordinary
moral standards of reasonable men and women (adopted Dickson’s dissent in Schwartz)
• Will not open up insanity defence to floodgates b/c:
i) illegality and breaching society’s moral standards do not often differ
ii) incapacity to make moral judgments must first be causally linked to ‘disease of mind’ iii)
‘moral wrong’ not judged by personal standards of accused, but awareness that society regards
the act as wrong/immoral
• Accords with principle that indiv’s are held responsible for commission of criminal offences
when they possess capacity to distinguish b/n right and wrong
-Inquiry cannot terminate with discovery that accused knew act was contrary to formal law
• Defence applies to one who is incapable of knowing act was contrary to law or condemned by
people generally, OR one who was capable of knowing act was contrary to law but incapable of
knowing acting contrary to law was generally condemned and that particular act condemned
• i.e. although accused may be capable of knowing act is wrong in formal sense, incapable of
knowing it was wrong in contextual sense
-Trial judge relied on “wrong” as meaning contrary to laws of Canada; since interpretation of s.16(2) in
Schwartz was incorrect, new trial must be ordered

-Constitutionality of Burden of Proving Mental Disorder
-S.16(4): presumption of sanity can be rebutted if contrary is proved on BOP

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 • Violates presumption of innocence b/c it allows a factor essential for guilt (sanity) to be
presumed rather than proven by Crown BRD; permits conviction in spite of reasonable doubt in
mind of trier of fact as to guilt of accused
-S.1 analysis:
i) Objective is purely evidentiary; relieve prosecution of near impossibility of proving accused’s
sanity in order to secure conviction (sufficiently important)
ii) Rational connection b/n placing burden on accused and removing burden from Crown
iii) Violates s.11(d) as little as possible in achieving objective (Parliament chose from range of
alternative means to meet its pressing and substantial objective)
iv) Proportionality b/n effects and objective: Compromise of 3 impt interests – avoiding burden
on Crown, convicting the guilty, acquitting those who lack capacity for criminal intent
• Alternatives raise other Charter issues and no guarantee they would achieve objective
- Analysis: Most NCR cases fall under branch 2; accused lacks capacity to decide whether act is
right/wrong (Q: does accused know he will be judged or condemned by society for doing what he did?)
• If accused didn’t understand it was illegal but knew wrong immorally, that might not be enough
• ‘Legally wrong’ – exception to mistake of law is not a defence?

R v Oommen (1994 SCC)
- Ratio: Inquiry for s.16(1) is whether accused possessed capacity present in ordinary person to know act
in question was wrong by everyday standards (appreciated wrongness of the particular act he was doing
at that particular time and able to make rational choice)
- Facts: Accused suffering from paranoid delusions (mental disorder); believed members of conspiracy
had surrounded his house with intention of killing him; convinced deceased was part of it and he had to
kill her; fired shots at her from semi-automatic rifle while she lay sleeping in his apartment
- Case History: Trial: convicted of second degree murder before judge alone; sentenced to life
imprisonment
• ABCA: set aside conviction; ordered new trial; trial judge erred in interpretation of insanity
- Arguments: Crown: if accused couldn't qualify for self-defence (deceased was sleeping, no threat
posed) he also couldn't qualify for NCR
- Issue: Did insane delusion exempt appellant from criminal responsibility under s.16(1) of Code on
ground that he lacked capacity at relevant time to know difference between right and wrong?
- Held: Appeal dismissed; new trial ordered
- Reasoning: general ability to determine right from wrong was not issue; Q was whether accused could
distinguish b/n right and wrong at the time of committing the offence
• O suffered from paranoid delusional psychosis; believed members of local union were
conspiring to kill him; thought B was one of the conspirators so he had to kill her first
• O possessed general capacity to distinguish right from wrong, but at time of killing, delusions
affected interpretation of events so he would believe killing justified under circumstances
• Trial judge found that in his own mind O believed he had no choice but to kill B; yet, in view of
general knowledge of right and wrong, O couldn’t be relieved of criminal responsibility
• However, inquiry focuses not only on general capacity to know right from wrong, but whether
accused possessed ability to apply that knowledge in rational way to alleged criminal act
• Accused accepted society’s view of right/wrong, but unable b/c of delusion to perceive act of
killing as wrong in circumstances; different than psychopath who follows deviant moral code
• Findings consistent with conclusion that O’s mental disorder deprived him of capacity to know
act was wrong by standards of ordinary person

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-NCR vs self-defence:
• Not necessary for accused to establish self-defence; s.16 is independent condition of liability
(not merely vehicle for bringing other defences to court
- Analysis: Think of giant vat of mental disorders as being filtered through spigot - NCR must fit route 1
'appreciate' or route 2 'wrong'
• Sometimes evidence which fails to prove on BOP that accused was NCR could still be used by
defence to prove lack of mens rea
• E.g. accused brought evidence to prove schizophrenia and detachment from reality; jury may not
accept on BOP that she failed to appreciate under NCR, but may consider that evidence in
whether accused formed specific intent to kill (foresaw natural consequences of actions)


Procedure for NCROAMD
-Constitutional jurisdiction under s.91(27) – preventative/public protection branch
-Goals: protection of the public and fairness to NCR accuseds (treatment, not punishment)
-Disposition hearing by either Court or Review Board within 45 days of verdict (finding of NCROAMD
itself can be appealed)
• Nature of hearing: inquisitorial, not adversarial; no allocation of burden of proof
• Factors: protect public, A’s mental condition/reintegration/other needs
• Least onerous disposition justified in circumstances
• Options: absolute discharge, discharge on conditions, detention in hospital
• 12-month review by Board; appeal re disposition is available
-Issues: no presumption of dangerousness in hearing; must be established through evidence
• Probability and magnitude of injuries; acts threatened must be significant
• Conduct threatened would be criminal if accused were not NCROAMD
• Evidence relevant to dangerousness: accused’s medical history (prior to, at time of, and
subsequent to offence), nature/severity of offence, accused’s plans, availability of support
services in community, expert recommendations
-S.7 issues: ‘Dangerousness’ establishes standard for legal debate (not void for vagueness)
• No shifting of burden to NCR accused in hearing; no presumption of dangerousness
• Provisions not overbroad (process does not impose excessive restraints on liberty)
• No violation of s.15; distinction based on ground of ‘mental disability’ but doesn’t impose
differential treatment that violates accused’s dignity; individualized, based on evidence

Automatism
-Automatism refers to unconscious, involuntary acts; state of person who, though capable of action, is
not conscious of what he is doing (mind does not go with what is being done)
• No longer a focus on ‘unconsciousness’ of actions

3 Types of Automatism
i) Mental disorder automatism: governed by mental disorder rules under s.16
ii) Automatism caused by voluntary intoxication: if proven on BOP, acquittal for all offences
(now severely restricted by s.33.1)
iii) Non-mental disorder automatism: if proven on BOP, acquittal for all offences
-How court determines b/n the 3 depends on evidence at trial; result can be drastically different

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-Current state of law:
• if automatism is not from mental disorder and not caused by voluntary intoxication, accused
must estab requisite facts on BOP to have benefit of non-insane automatism defence
• Available to all offences
• Successful defence is a complete acquittal, NOT a verdict of NCR

R v Rabey (1980 SCC)
- Ratio: In deciding between the defences of non-mental disorder or mental disorder automatism, ask:
was the accused was suffering from a disease of the mind under s.16 (was the source primarily internal
or external)?
- Facts: R was third-year geology student at university; infatuated with young woman in his class; after
finding a letter she had written saying she found other men attractive, appellant hit victim on head with
a rock he had been carrying and choked her; had minimal amount of sexual experience; advanced
defence of non-insane automatism
- Case History: Trial judge: reasonable doubt that accused committed actus reus b/c of dissociative state
• ONCA set aside acquittal for ‘causing bodily harm with intent to wound’
- Arguments: Appellant: at relevant time, accused was in state where he was not conscious of what he
was doing, and not suffering from a disease of the mind (not insane)
• Crown: Accused was angry and lost control (no excuse); alternatively, s.16 should apply
- Held: Appeal dismissed; upheld ONCA judgment
- Reasoning (Richie J): Central question in deciding defence of automatism is whether accused was
suffering from disease of the mind under s.16
-Caused primarily by internal or external factors?
• If from internal source, s.16; if from external source, non-insane automatism
• Psychiatrists said IF believed, his condition characterized as ‘dissociative state’; may be capable
of performing physical actions without being conscious of them
• Brought on by 'psychological blow' of being rejected; no signs of organic brain disorder
• Appellants’ infatuation created abnormal condition in his mind, under influence of which he
acted unnaturally to imagined slight in way which normal person would not have
• Adopted Martin JA's judgment on why this was not automatism
o Ordinary stresses and disappointments of life do not constitute 'external cause'
explaining malfunctioning of mind which takes it out of category of disease of mind
o Emotional stress suffered by accused as result of infatuation was NOT external factor
producing automatism; must be something more significant
§ 'common lot of mankind' = what ordinary people typically suffer, like rejection
o Did not decide cases where dissociative state resulted from non-physical shock,
extraordinary external events like seeing loved one murdered or assaulted - not ruling
out that it could be a non-physical injury, but it must be more than rejection
• Anyone found NCROAMD b/c of transient mental disorder constituting disease of mind, who is
not dangerous and requires no further treatment, will likely be discharged
- Analysis: Only most severe PTSD likely to qualify as mental disorder; but must also be incapable of
appreciating nature of act/omission OR knowing act/omission was wrong
• PTSD usually not used to prove NCR but mitigating factor in sentence once offence prove

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R v Parks (1992 SCC)
- Ratio: 1) disease of mind is legal concept; medical opinion highly relevant but not determinative
2) Likelihood of recurrence suggests insanity, but absence of recurrence does not preclude it (continuing
danger theory just one of many factors to consider)
- Facts: Respondent had been suffering stress and personal problems, having trouble sleeping; one
night, got up and drove 23 km; attacked his parents-in-law with kitchen knife while they were both
asleep; beat father-in-law nearly to death and killed mother-in-law; drove immediately to police station
after
- Case History: Trial judge only put defence of automatism to jury (not a case of insanity); acquitted of
first degree, second degree and attempted murder
• CA: affirmed trial judgment; properly put defence of automatism rather than insanity to jury
- Issue: Is sleepwalking properly classified as non-insane automatism, or does it stem from a disease of
the mind (insane automatism), leaving only the defence of insanity for the accused?
- Held: Appeal dismissed
- Reasoning (La Forest J): Trial judge correct in leaving only defence of non-insane automatism w/ jury
• Spoken of as defence, but subset of voluntariness requirement of actus reus (Crown must prove)
- middle ground b/n criminal responsibility and legal insanity
• Trier of law: When defence raised, judge must determine whether it should be left with jury: 1)
is there some evidence to support defence (evidential burden)? 2) is condition alleged by
accused in law non-insane automatism? If some evidence, goes to jury
• Trier of fact: did accused suffer from/experience alleged condition at relevant time?
-Distinguishing b/n insane and non-insane automatism (Rabey):
• disease of mind is legal concept; medical opinion highly relevant but not determinative
• 2 approaches to policy component aimed at protection of society and concern for recurrence:
continuing danger and internal cause theory (analytical tools)
-Factors for court to consider:
• Internal cause theory: stems from common concern for public safety - was it internally or
externally based?
o not helpful for analyzing somnambulism (distinction is blurred)
• Continuing danger theory: does the condition pose possibility of recurrence?
o duration and impermanence of condition not relevant if prone to recur (recurrence
suggests insanity, but absence of recurrence does not preclude it)
o Evidence suggests almost no likelihood of recurrent violent somnambulism, but absence
of continuing danger does not mean absolute acquittal should be granted
• Feigning potential: can defence be easily faked?
• Floodgates argument: if we make it too easy, everyone will be claiming automatism
• If not properly monitored, could this bring administration of justice into disrepute?
• No policy factors preclude finding that accused’s condition was non-insane automatism; but
on diff facts, sleepwalking may be found to be disease of the mind
• Disagreed with CJ’s proposed traditional order to keep the peace (practical issues); would not
remit back to trial judge; would dismiss appeal and uphold acquittal
-McLachlin J: care must be taken to avoid possibility of similar episode in future, but concerned about
referring matter back for supervisory order in circumstances (affects accused’s liberty)
-Sopinka J: matter should not be referred back to trial judge to consider order to keep peace
• Common law preventative justice power has significant limits: requires proven factual
foundation which raises probable ground to suspect of future misbehaviour
o Expert evidence in this case is inconsistent with such a conclusion

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 • Common law power has yet to be considered under Charter (must accord with PFJ’s)
- Dissent (Lamer CJ, dissenting in part): upheld acquittal
• In Rabey, Martin JA rejected sleepwalking as disease of mind and classified under non-insane
automatism; trial judge chose not to go against this
• 3 key points from uncontradicted medical evidence:
o respondent was sleepwalking at time of acts; not suffering from mental illness
o sleepwalking is not a ‘disease of the mind’ but common disorder (person who is
sleepwalking cannot reflect or perform voluntary acts; extremely improbable violent
behaviour would be repeated)
o no medical treatment for sleepwalking except good health
• Crown relied on Burgess where sleepwalking was found to constitute insanity, but
distinguishable (that accused suffered from ‘hysterical dissociative state’)
• Accused should be acquitted, but Lamer concerned about need for measures to protect public
or accused himself from possibility of a repetition of violent acts
• Control should be exercised by common law power to make an order to keep peace
o E.g. order requiring Parks to meet regularly with sleep disorder specialist – matter
should be referred back to trial judge to decide whether order is appropriate
o Conditions would restrict P’s liberty, but justified b/c sleepwalker committed act of
violence; conditions must be minimally intrusive - rationally connected to apprehended
danger and go no further than necessary to protect public

R v Stone (1999 SCC)
- Ratio: 1) Focus for automatism is ‘involuntariness’ rather than ‘unconsciousness’ of actions
2) Evidentiary burden for claims of automatism: some evidence on which properly instructed jury could
find accused acted involuntarily on BOP (minimum requirements: assertion of involuntariness at time of
offence AND expert psychiatric evidence corroborating claim)
3) Legal burden: he who alleges automatism must prove involuntariness on BOP to trier of fact
4) In determining which type of automatism to leave with jury, trial judge should start from rebuttable
presumption that condition from which accused claims to suffer is disease of the mind, then consider
whether evidence takes condition outside of that (holistic approach)
- Facts: Travelling to visit his ex-wife and kids with current wife who was verbally abusing him; appellant
felt “whooshing” sensation wash over him; when he came to ‘consciousness’ again he was holding a
hunting knife, deceased slumped over in car; had stabbed the deceased 47 times
• Pleaded non-insane automatism, insane automatism, and provocation
- Case History: Jury returned verdict of manslaughter (7 years); rejected automatism defences but likely
found guilty by way of provocation
• BCCA: dismissed accused’s appeal from convicted of manslaughter
- Arguments: Crown argued murder; alternatively, if jury believed accused was operating in dissociative
state, insane automatism under s.16
- Issue: Can mere words cause accused to enter automatistic state such that actions were involuntary
and do not attract criminal liability?
- Held (5-4): Appeal dismissed; conviction affirmed; no reasonable possibility the verdict would have
been different had trial judge’s errors not been made
- Reasoning (Bastarache J): defence psychiatrist testified that appellants’ account of facts consistent
with dissociative episode caused by series of ‘psychological blows’, but dependent on truthfulness
• Crown psychiatrist testified it was possible, but extremely unlikely, that appellant was in
dissociative state at time of killing: explanation highly suspect

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 • equally consistent with rage or other factors; no bystanders to corroborate what happened
-Automatism = state of impaired consciousness (rather than unconsciousness) in which individual,
though capable of action, has no voluntary control over that action
• 2 forms: insane (caused by disease of mind; triggers s.16, rendering special verdict of
NCROAMD) and non-insane (not from disease of the mind; leads to absolute acquittal)
-General two-step test for all automatism claims:
1) Assess whether proper foundation for defence of automatism has been established
o Voluntariness, rather than consciousness, is key legal element of automatism (defence
amounts to denial of voluntary component of actus reus)
o Old evidentiary burden on accused (‘some evidence’ on which jury could reasonably
infer state of automatism); question of mixed law/fact for judge
o Law presumes ppl act voluntarily; burden on accused to rebut presumption; legal
burden on Crown to prove voluntariness BRD to trier of fact
o But evidentiary burden tied to legal burden, which should be same as extreme
intoxication and insanity under s.16
o New legal burden in cases involving claims of automatism: he who alleges automatism
must prove involuntariness on BOP to trier of fact
§ Infringes accused’s s.11(d) rights, but justified under s.1
o New corresponding evidentiary burden: he who alleges must satisfy trial judge of
evidence upon which properly instructed jury could find accused acted involuntarily on
BOP
§ Minimum requirements: 1) assertion of involuntariness at time of offence; 2)
expert psychiatric evidence confirming claim
§ trial judge must recognize weight given to expert evidence may vary from case
to case – rejected in Fontaine (goes beyond air of reality)**
§ Trial judge should undergo qualitative analysis considering relevant factors
(none are determinative):
• severity/nature of alleged “trigger”
• corroborating evidence of bystanders or documented medical history of
similar dissociative states
• evidence of motive (lack of motive generally lends plausibility to
involuntariness – is crime explicable without reference to automatism?)
• whether alleged “trigger” is also victim of automatism
*also rejected in Fontaine (goes beyond air of reality)**
2) Determine whether condition alleged by accused is mental disorder or non-mental disorder
automatism: only ONE is left with jury (dichotomous)
o serious ramifications for individual and society in general
o “Mental disorder” is legal term; whether accused actually suffered from disease of mind
at the time is question of fact for jury
o Trial judges start from proposition that condition is disease of the mind; then
determines whether evidence in particular case takes condition out of that category,
some external cause which explains malfunctioning of mind
o New holistic approach takes account of:
§ Internal cause factor: was trigger such that normal person in same
circumstances might have reacted to it by entering automatistic state as
accused allegedly did (generally must amount to extreme “shock”)? Contextual
objective test

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 § Continuing danger factor: any condition likely to present recurring danger to
public should be treated as disease of mind; not mutually exclusive to internal
cause; 2 relevant issues = psychiatric history and likelihood that trigger causing
episode will recur
§ Other policy factors: where factors above not conclusive on disease of mind
question, trial judges may consider other policy concerns in determining
whether society requires protection from accused and he should be subject to
regime
o If judge concludes condition is not disease of mind, only non-mental disorder
automatism will be left with trier of fact to decide whether accused acted involuntarily
on BOP
o If judge concludes condition is disease of mind, only mental-disorder automatism will be
left with trier of fact (extinguishes validity of claim of involuntariness)
-Application to facts: trial judge found proper foundation for automatism from appellants’ claim of
involuntariness and confirming expert evidence, but didn’t consider other holistic factors (motive,
corroborating evidence, etc)
• However, judge reached correct result on disease of mind question; only mental disorder
automatism had to be put to jury – no substantial wrong or miscarriage of justice
-Dissent (Binnie J): would allow appeal and order new trial; appellant entitled to jury verdict on whether
conduct, though sane, was involuntary b/c:
• Some evidence that appellant was unconscious throughout commission of offense
• Judge classification of mental vs non-mental automatism cannot relieve Crown of obligation to
prove all elements of offence, including voluntariness
• Imposing persuasive burden on appellant to establish involuntariness violates Charter
• ‘Internal cause’ theory cannot deprive appellant of jury’s consideration of voluntariness
• Court should not have substituted appellants’ chosen defence of involuntariness for
conceptually different defence of insanity; appellant did not suffer from disease of mind
• There are states of automatism where sane people lose conscious control; it was up to jury, not
judge, to decide whether accused was in this category
• Court ought not to review legal burden; majority analysis encroaches on jury's function
- Analysis: When this case reached SCC, growing concern by academics and others that automatism
(particularly non-insane) was too easy to prove
• Illogical that accused must only raise a reasonable doubt as to actus reus to be acquitted fully
under non-insane (Crown must prove voluntariness BRD), but under NCR (s.16) accused bears
onus of proving he was insane on BOP - very different legal burden and standard of proof
• Stone brought these incongruities to an end: No longer that accused must merely raise
reasonable doubt as to actus reus; must now prove it on BOP just like s.16
• But Bastarache went too far, some of which Court in Fontaine scaled back (see below)

R v Fontaine (2004 SCC)
- Ratio: 1) For ‘reverse-onus’ defences such as mental disorder automatism, accused bears both
persuasive and evidential burdens
2) Defence of mental disorder automatism must be put to jury if there is some evidence on which a
properly instructed jury acting judicially could acquit (quantitative, not qualitative test - Cinous)
- Facts: F fatally shot D at garage where he worked, after D had told him someone had tried to hire him
to kill F and there was a ‘contract on his head’; claimed he had acted involuntarily; smoked marijuana
excessively in preceding weeks; mixed expert testimony on psychotic state

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- Case History: Trial: guilty of first degree murder; withheld defence of mental disorder automatism
from jury; required evidential foundation had not been laid
• QBCA: ordered new trial; F discharged evidential burden and entitled by law to have defence
considered by jury
- Arguments: Crown: conviction should be restored and CA judgment overturned based on Stone; trial
judge was bound to satisfy himself that accused had acted involuntarily
- Issue: What is evidential burden for mental disorder automatism? Did CA err in law in concluding
accused discharged burden and was entitled to have defence considered by jury? (No)
- Held: Appeal dismissed; mental-disorder automatism is reverse onus defence
- Reasoning: Application of Stone must be seen in light of subsequent cases, Cinous and Arcuri
• Trial judge erred understandably: i) language in Stone understood to require judicial weighing of
evidence which law prohibits since Cinous; ii) were it open to judge to weigh evidence as he did,
conclusion might not have been found unreasonable
-Evidential burden is matter of law; judge does not evaluate quality, weight or reliability of evidence;
but it is a function of persuasive/legal burden on issue of guilt
• For ‘reverse-onus’ defences such as mental disorder automatism, accused bears both persuasive
and evidential burdens
• Defence will go to jury if there is any evidence upon which a properly instructed jury, acting
judicially, could reasonably conclude that defence established on BOP
o Impt to afford jury opportunity to pronounce on every factual issue for which required
evidential foundation has been laid
• Cinous (decisive authority): a single air of reality test applies to all defences: whether there is
some/any evidence upon which a properly instructed jury acting judicially could acquit; trial
judge must assume truth of evidence (credibility/reliability is weighed by jury)
o Quantitative, not qualitative test: considering totality of evidence
• Factors set out in Stone can no longer inform judge’s legal determination whether evidential
burden has been met, but can be taken into account by triers of fact
• Accused’s assertion of involuntariness supported by relevant opinion of expert will normally
provide sufficient evidentiary foundation for defence of mental disorder automatism
- Legal burden: accused must meet persuasive onus establishing presence of facts on BOP
• He who alleges must prove, for both NCR and automatism (rare that Crown alleges insanity)
-Application to facts: CA did not err in finding that F, through his own evidence and Dr’s, had discharged
evidential burden on defence of mental disorder automatism
- Analysis: NOTE: Legal burden does not apply to self-defence; once there is an air of reality, Crown must
disprove self-defence BRD

Process for Automatism:
-Essentially a two-part voir dire:
1. Is there an air of reality for judge to put forward an automatism defence to jury?
2. Which of two branches goes to jury (NCR - usually Crown arguing - or non-insane -
usually defence arguing)?
• Starts with presumption of s.16 and looks at evidence to see whether
presumption rebutted
• E.g. truly external cause (brick to head, no previous psychological episodes)
• At this stage of analysis, judge still assumes all evidence is true- always up to the
jury to determine credibility

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R v Luedecke (2008 ONCA)
- Ratio: 1) Judges should presume disease of the mind (s.16), then look for evidence to remove it from
that category (policy factors including continuing danger should be considered)
2) Whether something is a mental disorder is a LEGAL issue (with a medical component)
- Facts: complainant and accused fell asleep at house party on same couch (didn't know each other); she
awoke to him having intercourse with her; pushed him off; he went home, realized he was wearing
condom; charged with sexual assault; claimed he was asleep, unaware of what was happening and
unable to control actions (non-insane automatism, relying on Parks)
• diagnosed with parasomnia, disorder in which people arise from deep sleep and behave
abnormally, unaware what they are doing (subset of this disorder is sexsomnia)
• Corroboration of former girlfriends who said it had happened 4x before
- Case History: Trial: acquittal; accused’s actions were involuntary and not product of mental disorder
- Arguments: Crown: respondent did not establish actions were involuntary; alternatively, if actions
were involuntary, they were product of mental disorder and accused should be found NCROAMD
- Held: Appeal allowed; new trial limited to whether automatism results in acquittal or NCROAMD
- Reasoning: Actions were non-culpable b/c brought on by parasomnia, but still dangerous
• NCROAMD verdict permits dangerousness assessment addressing legitimate public safety
concerns
• Ample evidence to support finding that accused’s actions were involuntary
• Sleep disorder specialist: respondent was in parasomniac state; acted without volition,
consciousness, or capacity to control behaviour
• Family history of parasomnia, respondent experienced such events as child, and prior incidents
involving sexual activity, several “triggers” present (sleep deprivation, physical exhaustion,
intoxication)
• No real treatment for parasomnia and not regarded as mental disease/disorder
-Source of disassociative state crucial in characterizing nature of automatism
• distinction depends on whether automatism is product of a mental disorder
• “Disease of mind”: broad legal definition to control persons thought to be dangerous
• Trial judges should start with assumption that condition constitutes disease of mind
• Parks: internal cause theory, contributing danger, policy considerations not helpful in deciding
not to characterize parasomnia as disease of mind (Crown simply failed to prove)
• Stone: reversed onus of proof for voluntariness; where accused established evidentiary basis,
trial judge must decide whether claim amounted to non-mental or mental disorder automatism;
presumptively disease of the mind unless evidence convinces him otherwise; continuing danger
factor refocused to risk of recurrence of ‘trigger’
-Application to facts: trial judge failed to appreciate history and hereditary nature of accused’s
parasomnia, strong likelihood of triggers recurring, and medical opinion being largely irrelevant to policy
determination of whether condition should be legally classified as disease of mind
• Fact that similar acts occurred in past and likelihood of triggers (alcohol, stress, sleep
deprivation) recurring are strong support for finding that accused’s parasomnia should be
characterized as disease of mind
• Respondents’ lawyer argued stereotype assoc with those found NCROAMD (unfair to label
accused in same way); Court refused to further stereotype – NCR verdict triggers individualized,
careful assessment of accused’s condition leading to tailored disposition
-Appropriate order: s.686(8) – broad discretionary power to make variety of orders
• Court can make order limiting issues at the new trial only where it does not interfere with
accused’s rights and consistent with demands of justice in circumstances

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 • Here, accused supports order; would not affect right to control his own defence, and would be
unfair to compel respondent to re-litigate voluntariness issue (no errors)
• Order to limit new trial to whether proper application of Stone results in acquittal or NCROAMD
verdict (on same evidence, NCROAMD is only verdict available in current law)
- Analysis: What is the role of precedent in these case-by-case situations? Luedecke tried to rely on
Parks as analogous situation but court rejected b/c of presumption and specific evidence of the case

R v Bouchard-Lebrun (2011 SCC)
- Ratio: 1) Malfunctioning of the mind resulting exclusively from self-induced intoxication cannot be
considered a disease of the mind in legal sense (not a product of inherent psychology)
2) s.16 and s.33.1 are mutually exclusive; must identify source of psychosis (self-induced intoxication or
disease of the mind)
- Facts: Accused seriously assaulted two individuals while in psychotic condition caused by chemical
drugs; stomped on D’s head leaving him disabled for life; claimed highly toxic ecstasy pill had
unanticipated effect on him causing complete dissociation b/n subjective perceptions and objective
reality (experienced episode of ‘religious delirium’)
- Case History: Trial: convicted of two counts of aggravated assault and assault
• QCCA: appellant unsuccessful in obtaining verdict of NCR on account of mental disorder
- Arguments: Appellant: a single episode of intoxication can be a mental disorder within meaning of s.16
if it produces abnormal effects on accused, such as psychotic symptoms (i.e. toxic psychosis always
originates in a pre-existing mental condition)
- Issue: Can toxic psychosis resulting from state of self-induced intoxication from chemical drug use
constitute ‘mental disorder’ within meaning of s.16? (No)
- Held: Appeal dismissed
- Reasoning: Intoxication can be raised as defence to specific intent offences in certain circumstances (if
it prevented accused from forming actual specific intent to commit offence)
• Daviault: accused in ‘state akin to automatism or insanity’ at time of committing general intent
offence are legally entitled to raise reasonable doubt re required mental element
• s.33.1 limited scope of majority rule in Daviault: intoxication may never be used as defence
against general intent violent crimes (e.g. sexual assault, assault)
• Should NOT be interpreted as limiting scope of s.16 (insanity and intoxication distinct)
• Application of s.16 and s.33.1 are mutually exclusive; the key is identifying source of psychosis
(self-induced intoxication or disease of the mind); start with defn of ‘disease of mind’
-Insanity is exception to general criminal law principle that accused is deemed autonomous and rational;
operates as exemption from liability predicated on incapacity for criminal intent
• A person found NCR becomes subject to scheme requiring automatic and indeterminate
detention; society’s interest in ensuring morally innocent offenders are treated
• 2-stage statutory test: 1) characterize mental state of accused (was accused suffering from
mental disorder at time of event?); 2) determine effects of mental disorder (was accused
incapable of knowing act was wrong?)
• Judge determines if disorder constitutes “disease of the mind”(question of law with medical
dimension); jury determines whether accused actually suffered from disease of mind (question
of fact)
o To say toxic psychosis should always be considered a mental disorder would shift
responsibility of legal characterization under s.16 from judge to medical expert
o “Toxic psychosis” arises in many diff circumstances and affected by many factors
• Contextual approach; must be based on specific facts, decided on case-by-case basis

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 • Starting point: general principle that temporary psychosis covered by exclusion from Cooper;
accused can rebut presumption in s.16(2) by showing she suffered from disease of mind at time
that was unrelated to intoxication symptoms
• Stone holistic approach to determine whether disease constitutes mental disorder:
1) Internal cause factor: would normal person have entered similar state after
consuming same substances/quantities? If yes, trigger is external and excluded from s.16
2) Continuing danger factor: is condition likely to present recurring danger (despite will
of accused)? If yes, greater chance it will be regarded as disease of mind under s.16
• Policy consideration: need to protect society from accused (if condition does not require
particular treatment and not a threat, unlikely to be disease of mind)

-Application to facts:
1) Internal cause: taking of one blue pill (specific external factor) and rapid reversal of symptoms
suggests self-induced intoxication, not suffering from mental disorder at time
2) Continuing danger: no evidence that accused’s mental condition is inherently dangerous (if
appellant abstains from such drugs in future)
• Appellant not suffering from “mental disorder” under s.16 at time of assault; failed to rebut
presumption that toxic psychosis was self-induced state caused by drugs (Cooper)
• s.33.1 applies to states of toxic psychosis (no threshold of intoxication); prevents accused from
avoiding criminal liability on ground that intoxication at material time rendered him incapable of
forming mental element or voluntariness required to commit offence
- Analysis: Takeaway - couldn't fall under insane automatism (s.16 NCR) b/c not internal disease of mind
and couldn’t 'fall under non-insane automatism (acquittal) b/c of s.33.1

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