CRIMINAL LAW 1. Sources of Crim Law y Frey v.

Fedoruk (1950) Criminal Offences are created by the CC F: Frey had been on Fedoruks property looking into a lighted side window of the house where Fedoruks mother was preparing for bed. Fedoruk chased him brandishing a butchers knife. He caught and detained him. A policeman, Stone, was called and after some investigation, arrested Frey without warrant. Frey sued for damages for malicious prosecution and for false imprisonment. R: The SCC: criminal offences were to be found in the criminal code and established common law. Since being a peeping tom was not an offence known to the law, there was no justification in law for Fedoruk and Stone to have imprisoned Frey and Frey was entitled to succeed against both of them. J Cartwright said: I do not think that it is safe to hold as a matter of law, that conduct, not otherwise criminal and not falling within any category of offences defined by the criminal law, becomes criminal because a natural and probable result thereof will be to provoke others to violent retributive action. If such a principle were admitted, it seems to me that many courses of conduct which it is well settled are not criminal could be made the subject of indictment by setting out the facts and concluding with the words that such conduct was likely to cause a breach of the peace. Common law defences y R v. Jobidon (1991) The common law can deeply influence the way that statutory criminal offences are interpreted. R: Under s 8(3) of the code, courts may look to pre-existing common law rules and principles to give meaning to and explain the outlines and boundaries of an existing defence or justification to indicate they will not be held legally effective, provided there is no clear language in the code to indicate its displacement of the common law.

1. 2. 3. 4. 5.

Levis city v. Tetreault (2006) recognition of Officially Induced Error defence to criminal offence R: Because the respondent company argues that it was misled by erroneous information obtained from an SAAQ official regarding the procedure for paying the fees relating to the registration of its vehicle, we must now consider the nature and availability of the defence of officially induced error. Because the respondent company argues that it was misled by erroneous information obtained from an SAAQ official regarding the procedure for paying the fees relating to the registration of its vehicle, we must now consider the nature and availability of the defence of officially induced error. However, the inflexibility of this rule is cause for concern where the error in law of the accused arises out of an error of an authorized representative of the state and the state then demands, through other officials, that the criminal law be applied strictly to punish the conduct of the accused. In Lamer C.J.s view, this defence constituted a limited but necessary exception to the rule that ignorance of the law cannot excuse the commission of a criminal offence. There are 6 elements in the defence of officially-induced error: That the error is one of law or mixed law and fact That D considered the legal consequences of his actions That the advice received came from an appropriate official That the advice was reasonable That the advice was erroreous and

6. D relied on the advice in committing the act There is no requirement that the reception of the advice and the act said to constitute the offence be contemporaneous. It is essential that both the advice and the reliance on it be objectively reasonable. I believe that this analytical framework has become established. 2. The Power to Create Criminal Offences and Rules of Criminal Procedure a) Constitutional Division of Powers Introduced y Both the Fed & Prov Govt can create non-criminal offences (regulatory crimes) and to use jail to enforce those regulatory offences y Fed Parl s.91(27) only the federal parliament can create criminal offences The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters. In addition, creates the procedure during criminal hearings via Federal rules and the common law. y Prov Parl s.92(14) jurisdiction over administration of justice in the province s.92(14). Provinces set up lowest level of criminal court, prov AG prosecutes most offences and the provinces have passed statutes setting out juror eligibility within the province. The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts. R v Malmo-Levine The Criminal Law Power y The federal criminal law power is plenary in nature and has been broadly construed. y For a law to be classified as a criminal law, it must possess three prerequisites: a valid criminal law purpose backed by a prohibition and a penalty (Reference re Firearms Act (Can.),[2000] 1 S.C.R. 783, 2000 SCC 31, at para. 27). y The criminal power extends to those laws that are designed to promote public peace, safety, order, health or other legitimate public purpose. y In RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, it was held that some legitimate public purpose must underlie the prohibition. y In Labatt Breweries, supra, in holding that a health hazard may ground a criminal prohibition, Estey J. stated the potential purposes of the criminal law rather broadly as including public peace, order, security, health and morality (p. 933). y Of course Parliament cannot use its authority improperly, e.g. colourably, to invade areas of provincial competence: Scowby v. Glendinning, [1986] 2 S.C.R. 226, at p. 237. B) The Canadian Charter y The Canadian Charter of Rights and Freedoms (the Charter) imposes limits on the jurisdiction of all governments, subject to s. 1, the reasonable limitations clause, and the seldom-used s. 33 notwithstanding clause. y Since its passage in 1982, the Charter has had such a profound impact on criminal law and procedure that all criminal practitioners need to develop expertise in its operation. y The Charter can be used by courts to invalidate offences that Parliament has created, and courts have done so on a number of occasions, but this is not common. It has also been used to strike down rules of criminal procedure, although this too is uncommon. R v Heywood Criminal offence bring struck down y The Court found that section 179(1)(b) of the Criminal Code for vagrancy was overbroad and thus violated section 7 and could not be saved under section 1.

y y

The majority was written by Cory J. The case turned on the interpretation of the word "loiter" in section 179(1)(b) which states: Every one commits vagrancy who ... (b) having at any time been convicted of an offence under section ... section 271..., is found loitering in or near a school ground, playground, public park or bathing area. Cory states that the word should be given its ordinary, dictionary meaning, which is "to stand idly around, hang around", and it does not contain any element of malevolent intent. Given this interpretation, Cory finds that the law infringes the principles of fundamental justice as it is more restrictive than necessary and applies too broadly: If the state, in pursuing a legitimate objective, uses means which are broader than is necessary to accomplish that objective, the principles of fundamental justice will be violated because the individuals rights will have been limited for no reason. The section is overly broad in its geographical ambit. Its application to all public parks and bathing areas is overly broad because not all such places are places where children are likely to be found. Prohibiting individuals from loitering in all places in all parks is a significant limit on freedom of movement. Also s 179 (1)(b) is overly broad that it applies for life, with no possibility of review. The absence of review means that a person who has ceased to be a danger to children is subject to the prohibition.

R v Oakes - Rule of Criminal Procedure being struck down y Constitutionality of s 8 of the Narcotic Control Act: if the court finds the accused in possession of a narcotic, he is presumed to be in possession for the purpose of trafficking. Unless, the accused can establish the contrary, he must be convicted of trafficking. The Ontario court of Appeal held that this provision constitutes a reverse onus clause and is unconstitutional because it violates one of the core values of our criminal justice system, the presumption of innocence, now entrenched in s 11 (d) of the charter of Rights. The Supreme Court ruled that s 8 of the narcotic Control Act violates s 11(d) of the charter by requiring the accused to prove on a balance of probabilities that he was not in possession of the narcotic for the purpose of trafficking. Mr. Oakes is denied his right to be presumed innocent and subjected to the potential penalty of life imprisonment unless he can rebut the presumption. This is radically and fundamentally inconsistent with the societal values of human dignity and liberty which we espouse, and is directly contrary to the presumption of innocence enshrined in s 11(d) of the charter. CJ Dickson stated that the presumption of innocence confirms our faith in humankind; it reflects our belief that individuals are decent and law-abiding members of the community until proven otherwise. The presumption of innocence is infringed whenever the accused is liable to be convicted despite the existence of a reasonable doubt about a factor essential for conviction. Here, s 11(d) was violated by a statutory provision that required, once the crown had proven beyond a reasonable doubt the possession of narcotics, that the accused establish on a balance of probabilities that he or she did not have the intent to traffic in order to escape a conviction for the offence of possession of narcotics with the intent to traffic.

The Charter as an Interpretive Tool The Charter can also be used as in important interpretive tool. Even when it is not used to strike down a provision, it is the practice of courts to permit constitutional values to influence the way statutes are interpreted. R. v. Labaye, [2005]

a decision by the Supreme Court of Canada on criminal indecency. The decision upheld consensual group sex and swinging activities in a club and alleged bawdy-house as being consistent with personal autonomy andliberty. 14: Indecency has two meanings, one moral and one legal. Our concern is not with the moral aspect of indecency, but with the legal. The moral and legal aspects of the concept are, of course, related. Historically, the legal concepts of indecency and obscenity, as applied to conduct and publications, respectively, have been inspired and informed by the moral views of the community. But over time, courts increasingly came to recognize that morals and taste were subjective, arbitrary and unworkablein the criminal context, and that a diverse society could function only with a generous measure of tolerance for minority mores and practices. This led to a legal norm of objectively ascertainable harm instead of subjective disapproval. R. v. Hicklin(1868), L.R. 3 Q.B. 360, Cockburn C.J. stated that the test for obscenity was whether the material would tend to deprave and corrupt other members of society. However, depravity and corruption vary with the eye of the beholder, and the Hicklin test proved difficult to apply in an objective fashion. Convictions often depended more on the idiosyncracies and the subjective moral views of the judge or jurors than objective criteria of what might deprave or corrupt. In 1959, the Canadian Parliament introduced a new undue exploitation of sex test for obscene materials. In considering this test, the Supreme Court emphasized the failings of the previous test and the need for new criteria which have some certainty of meaning and are capable of objective application and which do not so much depend as before upon the idiosyncrasies and sensitivities of the tribunal of fact, whether judge or jury: Brodie v. The Queen, 1962 CanLII 80 (S.C.C.), [1962] S.C.R. 681, at p. 702, per Judson J. In 1985, the Supreme Court pursued the search for objectivity by introducing a two-part definition of community standards of tolerance in Towne Cinema TheatresLtd. v. The Queen. The first way to establish obscenity (undue exploitation of sex) was to show that the material violated the norm of tolerance of what Canadians would permit others, whose views they did not share, to do or see (p. 508). The second was to show that the material would have a harmful effect on others in society (p. 505). Although this notion of harm had been implicit in Cockburn C.J.s definition of obscenity in Hicklin, Towne Cinema marked the first clear articulation of the relationship between obscenity and harm in Canadian jurisprudence, and represented the beginning of a shift from a community standards test to a harm-based test.

. (c) Rules of Practice - The Charters largest impact on criminal procedure has been in creating constitutional procedural protections. Section 482 of the Criminal Code permits courts to create rules of practice to govern the administrative mechanics of practice in criminal courts. Although you will not be examined broadly on the Criminal Rules of Practice, Canadian criminal counsel must be intimately familiar with the rules that apply in their jurisdictions. R v Gundy illustration of the courts creating rules of practice to govern the administrative mechanics of practice in criminal courts under s.482 CC y To summarize, on a charge of over 80 or impaired driving, where an issue arises as to the admissibility of the results of the Intoxilizer/Breathalyzer analysis, the trial court should proceed as follows:

Generally 1. If the accused does not challenge the admissibility of the results of the Intoxilizer/Breathalyzer analysis on the basis that the accuseds rights under the Charter were violated, the Crown is not

required to establish that the officer had reasonable and probable grounds to make the s. 254(3) demand. 2.Any objection to the admissibility of the results of the analysis should ordinarily be made, at the latest, when the Crown tenders the evidence either through a certificate under s. 258(1)(g) or by way of oral testimony. 3. Where the accused intends to object to the admissibility of the results of the analysis on the basis of a violation of the Charter, the accused should comply with Rule 30 of the Rules of the Ontario Court of Justice in Criminal Proceedings, although a trial judge has a discretion to dispense with notice in a proper case. Charter challenge because of lack of reasonable and probable grounds 4. Where the accused objects to the admissibility of the results of the analysis pursuant to ss. 8 and 24(2) of the Charter that the officer lacked reasonable and probable grounds to make the demand, the burden is on the Crown to establish the requisite grounds. 5. Reasonable and probable grounds involve an objective and subjective test. Where the grounds depend upon a fail from an approved screening device, the Crown must prove that the officer reasonably believed that he or she was using an approved device. 6. In the absence of credible evidence to the contrary, the officers testimony that he or she made a demand with an approved screening device is sufficient evidence that the officer had the requisite reasonable belief. The officer is not required to give the particular model number or otherwise identify the device. Obvious errors such as incomplete reference to the model number do not undermine the officers testimony that the device was an approved screening device. 7. Where the officer did not have the requisite reasonable and probable grounds, the warrantless seizure of breath samples for analysis in an Intoxilizer or breathalyzer is an unreasonable seizure within the meaning of s. 8 and the results may be excluded under s. 24(2) of the Charter. 3. y y The Classification of Offences SC p.33-38 Our system has two types of offenses: summary conviction offenses and indictable offenses. However the model is made more complex because the code provides for a great number of offenses that can be prosecuted in either fashion: referred to as hybrid offenses or dual procedure offences Terms, indictable offenses are more serious than summary conviction offenses but unfortunately, the classification is not always a reliable indication of its relative seriousness. Neither the severity of the maximum penalty, nor the perceived seriousness of violence provides a sound basis to explain why offenses have been designated as they have. Classification is very important. The scope of police powers is affected by the classification of offenses. The power of arrest is defined differently for summary than indictable, similarly, the power of search and seizure varies with the classification. Procedures for compelling appearance and the interim release, the manner in which proceedings are conducted in court and that there is no statute of limitations for indictable offenses but there is for summary conviction offenses. Summary conviction are time-barred six months after the completion of the offense. The classification has important consequences with regard to the mode of procedure and the jurisdiction of the courts. All prosecutions began with a charged document that is called an information. In all summary conviction matters in some indictable matters, the information remains the document of charge throughout the proceedings. The proceedings at trial are conducted in the provincial court. For most other indictable offenses however, the usual procedure is to began with the preliminary inquiry on the information before a provincial court judge. If the accused is committed for trial upon the completion of the inquiry, the prosecutor may file a new document of charge, called the indictment.

y y

In most provinces the trial court will be the superior court but in Qubec the provincial Court has jurisdiction to try all offenses except those in which there is trial by judge and jury. Thus the classification of offense as a summary conviction or indictable as a controlling effect on most elementary matters of jurisdiction. Another important aspect is sentencing, indictable offenses are typically defined to allow a maximum term of imprisonment that exceeds two years. Summary conviction offenses allow a maximum of six months or a fine of $2000 or above, unless parliament prescribes a higher maximum. Offenders sentenced to terms of less than two years are incarcerated in provincial jails, where his offenders sentenced to more than two years are incarcerated in federal penitentiarys. Provincial jails therefore house offenders serving sentences for offenses that might be summary conviction or indictable provided that the actual term is less than two years. Inmates in federal penitentiaries are necessarily there to serve sentences for indictable offenses. Code provides different arrangements for appeal in summary and indictable matters. The former are heard by the Superior Court of the province and the latter are heard the Court of Appeal the thrust of most critiques on the classification of offenses has been that the system is a rationally complex because it no longer has any prescriptive coherence. Dividing advances into approximate categories of more and less serious through the distinction between indictable and summary conviction offenses as intuitive attraction but we now have oddities that some indictable offenses are treated for all purposes but sentencing as summary, while some summary conviction offenses are treated as much closer to indictable, solely for the purpose of sentencing. The distinctions are becoming so porous that it is difficult to see a principal operating at a very strong level. Instead the system reflects the particular rules and practices is Canadian law emerged from its origins in English law can was progressively adapted to accommodate Canadian needs. The longer form commission of Canada has argued that current classification is a profound impediment to needed reform of Canadian criminal procedure in all areas but especially as regards to the jurisdiction of the courts over offenses.

4. Interpreting Criminal Provisions Interpreting the Criminal Code and related enactments is not unlike interpreting other statutes. There are special considerations that operate, however. For example: (a) Definitions - The Criminal Code has definitions for many of the terms used but they are not always easy to locate. Section 2 contains definitions that apply throughout the Code. The Code is divided into Parts, and at the beginning of each Part, there will be a definition section that applies solely to that Part. Sometimes definitions are found in or around the relevant statutory provision to be interpreted. See, for example, ss.348(3) and 350, which apply to offences in s. 348(1) (i.e., breaking and entering). (b) Strict Construction - Historically, criminal statutes were interpreted strictly in favour of the liberty of the accused. In other words, the accused would get the benefit of the doubt or ambiguity in matters of interpretation. This principle continues to apply but has been heavily modified by the purposive interpretation. (c) Purposive Interpretation - Canadian law makes liberal use of purposive interpretation, in which the language that is used in the provision being construed is interpreted harmoniously with the statute as a whole, with the underlying purpose of the provision in mind so as to best accomplish its underlying purpose, always bearing in mind that the limit on purposive interpretation is that damage

cannot be done to the language employed. R. v. Pare is an example. Be on the lookout throughout the decisions included in this list for examples of purposive interpretations. R v Pare (1987) ii) Literal Construction y The literal meaning of words could equally be termed their acontextual meaning. As Professor Dworkin points out, the literal or acontextual meaning of words is "the meaning we would assign them if we had no special information about the context of their use or the intentions of their author": see R. Dworkin, Law's Empire (1986). Thus the words "while committing" could have one meaning when disembodied from the Criminal Codeand another entirely when read in the context of the scheme and purpose of the legislation. It is the latter meaning that we must ascertain.

(iii) Strict Construction y 25. Counsel for the respondent argue that the doctrine of strict construction of criminal statutes requires that this Court adopt the interpretation most favourable to the accused. According to this argument the words "while committing" must be narrowly construed so as to elevate murder to first degree only when the death and the underlying offence occur simultaneously. In order to assess the validity of this position we must examine the doctrine of strict construction. 26. The doctrine is one of ancient lineage. It reached its pinnacle of importance in a former age when the death penalty attached to a vast array of offences. As Stephen Kloepfer points out in his article "The Status of Strict Construction in Canadian Criminal Law" (1983), the doctrine was one of many tools employed by the judiciary to soften the impact of the Draconian penal provisions of the time. Over the past two centuries criminal law penalties have become far less severe. Criminal law remains, however, the most dramatic and important incursion that the state makes into individual liberty. Thus, while the original justification for the doctrine has been substantially eroded, the seriousness of imposing criminal penalties of any sort demands that reasonable doubts be resolved in favour of the accused. The continued vitality of the doctrine is further evidenced by the decisions in R. v. Goulis (1981) and Paul v. The Queen, [1982]. The question, therefore, is not whether the doctrine of strict construction exists but what its implications are for this case. As we have noted above, it is clearly grammatically possible to construe the words "while committing" in s. 214(5) as requiring murder to be classified as first degree only if it is exactly coincidental with the underlying offence. This, however, does not end the question. We still have to determine whether the narrow interpretation of "while committing" is a reasonable one, given the scheme and purpose of the legislation.

d) French/English - Federal laws like the Criminal Code are passed in both of Canadas official languages. Each version is equally authoritative, and ambiguities in one language can be clarified by the other. R v J.(D.), [2002] O.J. No. 4916 (Ont. C.A.) y [11] There are two distinctions between the French and English versions which take on some importance in the interpretative exercise. Section 72(1) in the English version uses the word enters to describe the prohibited conduct, while the French version uses the phrase prend possession. The word enters can refer to a purely physical act. However, the phrase prend possession suggests the taking of some form of control over the property.[1]

y y

[12] The second distinction between the two versions appears in s. 72(1.1).[2] The closing words of the English version declare that it is immaterial whether the person entering the property has any intention of taking possession of the real property. The French version uses the phrase semparer dfinitivement meaning to seize for good or definitely: Collins-Robert French English Dictionary 2nd ed. [13] The English version, viewed in isolation, suggests that any intention to take possession of the property, no matter how fleeting or qualified, is immaterial to liability under the section. The French version speaks of a more specific and limited concept of possession. That version declares that it is immaterial whether the person entering the property intended to take over the property. [20] The phrase prend possession in the French version of the current Criminal Code captures the definition of enters favoured in R. v. Pike, supra, and the other authorities. It is also consistent with the common law concept of forcible entry. In addition, the requirement in s. 72(1) that the real property be in the actual and peaceable possession of another at the time of the entry indicates that the prohibited entry must interfere with the peaceable possession of the person in actual possession at the time of the entry. The common meaning of the French and English versions of s. 72(1) speaks of more than a mere physical entry upon the property. Read together, I think, the two versions require a taking of possession in the sense of some interference with the peaceable possession of the person in actual possession of the real property at the time of the entry. As Martin J.A. put it in R. v. Czegledi, supra, at 116: The gist of the offence is the forcible depriving another person of actual and peaceable possession in a manner likely to cause a breach of peace. [21] My reading of s. 72(1) also assists in arriving at the shared meaning of s. 72(1.1). While the English version speaks of an intention to take possession of the property as being immaterial, the French version speaks of an intention to take over the property for good or definitely as immaterial. An interpretation of the provisions which requires a taking of possession in the sense of an interference with the peaceable possession of the person in actual possession, but does not require an intention to take over possession of the property is consistent with the French and English versions of the sections and the purpose of the section.

e) The Charter - As indicated, the Charter can have an important influence on the way statutory provisions are interpreted because of the presumption that statutes were intended to be constitutionally valid. You have observed this in R. v. Labaye, [2005] S.C.J. No. 83 above. Canadian Foundation for Children, Youth & the Law v Canada (A.G.), [2004] [a Charter challenge encouraged the Court to read significant content into the concept of reasonable corrective force. Examine this decision not only for what it shows about legal technique, and the rule of law doctrine of void for vagueness, but also for what it says about the operation of the defence of corrective force.] Charter decision of the Supreme Court of Canada where the Court upheld section 43 of the Criminal Code of Canada that allowed for a defence for assaulting children as not in violation of section 7, section 12 or section 15(1) of the Charter. A defense to a charge of assault for teachers and parents who use reasonable force by way of correction against children. The SCC had no difficulty in finding that the provision adversely affected the security of the person of the children to whom it applied

The SCC accepted to three requirements of fundamental justice. - the Court held that the best interests of the child was a legal principle but it was not one that was generally regarded as fundamental to the justice of the legal system and was not one that yielded a sufficiently precise standard. Therefore, the best interests of the child was not a principle of fundamental justice and the corrective force defense did not infringe section 7. (a) The Standard for Vagueness

y y

The Foundation argues that s. 43 is unconstitutional because first, it does not give sufficient notice as to what conduct is prohibited; and second, it fails to constrain discretion in enforcement. The concept of what is reasonable under the circumstances is simply too vague, it is argued, to pass muster as a criminal provision. 14 Applying the legal requirements for precision in a criminal statute to s. 43, I conclude that s. 43, properly construed, is not unduly vague. 15 A law is unconstitutionally vague if it does not provide an adequate basis for legal debate and analysis; does not sufficiently delineate any area of risk; or is not intelligible. The law must offer a grasp to the judiciary 16 A law must set an intelligible standard both for the citizens it governs and the officials who must enforce it. The two are interconnected. A vague law prevents the citizen from realizing when he or she is entering an area of risk for criminal sanction. It similarly makes it difficult for law enforcement officers and judges to determine whether a crime has been committed. This invokes the further concern of putting too much discretion in the hands of law enforcement officials, and violates the precept that individuals should be governed by the rule of law, not the rule of persons. The doctrine of vagueness is directed generally at the evil of leaving basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application: Grayned v. City of Rockford, 408 U.S. 104 (1972), at p. 109. (b) Does Section 43 Delineate a Risk Zone for Criminal Sanction?

19 The purpose of s. 43 is to delineate a sphere of non-criminal conduct within the larger realm of common assault. It must, as we have seen, do this in a way that permits people to know when they are entering a zone of risk of criminal sanction and that avoids ad hoc discretionary decision making by law enforcement officials. People must be able to assess when conduct approaches the boundaries of the sphere that s. 43 provides. 20 To ascertain whether s. 43 meets these requirements, we must consider its words and court decisions interpreting those words. The words of the statute must be considered in context, in their grammatical and ordinary sense, and with a view to the legislative schemes purpose and the intention of Parliament. Since s. 43 withdraws the protection of the criminal law in certain circumstances, it should be strictly construed. 21 Section 43 delineates who may access its sphere with considerable precision. The terms schoolteacher and parent are clear. The phrase person standing in the place of a parent has been held by the courts to indicate an individual who has assumed all the obligations of parenthood: Ogg-Moss, supra, at p. 190 (emphasis in original). These terms present no difficulty. 22 Section 43 identifies less precisely what conduct falls within its sphere. It defines this conduct in two ways. The first is by the requirement that the force be by way of correction. The second is by the requirement that the force be reasonable under the circumstances. The question is whether, taken together and construed in accordance with

governing principles, these phrases provide sufficient precision to delineate the zone of risk and avoid discretionary law enforcement. 23 I turn first to the requirement that the force be by way of correction. These words, considered in conjunction with the cases, yield two limitations on the content of the protected sphere of conduct. 24 First, the person applying the force must have intended it to be for educative or corrective purposes: Ogg-Moss, supra, at p. 193. Accordingly, s. 43 cannot exculpate outbursts of violence against a child motivated by anger or animated by frustration. It admits into its sphere of immunity only sober, reasoned uses of force that address the actual behaviour of the child and are designed to restrain, control or express some symbolic disapproval of his or her behaviour. The purpose of the force must always be the education or discipline of the child: Ogg-Moss, supra, atp. 193. 25 Second, the child must be capable of benefiting from the correction. This requires the capacity to learn and the possibility of successful correction. Force against children under two cannot be corrective, since on the evidence they are incapable of understanding why they are hit (trial decision (2000), 49 O.R. (3d) 662, at para. 17). A child may also be incapable of learning from the application of force because of disability or some other contextual factor. In these cases, force will not be corrective and will not fall within the sphere of immunity provided by s. 43. 36 Determining what is reasonable under the circumstances in the case of child discipline is also assisted by social consensus and expert evidence on what constitutes reasonable corrective discipline. The criminal law often uses the concept of reasonableness to accommodate evolving mores and avoid successive fine-tuning amendments. It is implicit in this technique that current social consensus on what is reasonable may be considered. It is wrong for caregivers or judges to apply their own subjective notions of what is reasonable; s. 43 demands an objective appraisal based on current learning and consensus. Substantial consensus, particularly when supported by expert evidence, can provide guidance and reduce the danger of arbitrary, subjective decision making. Finally, judicial interpretation may assist in defining reasonable under the circumstances under s. 43. It must be conceded at the outset that judicial decisions on s. 43 in the past have sometimes been unclear and inconsistent, sending a muddled message as to what is and is not permitted.However, [t]he fact that a particular legislative term is open to varying interpretations by the courts is not fatal. This case, and those that build on it, may permit a more uniform approach to reasonable under the circumstances than has prevailed in the past. Again, the issue is not whether s. 43 has provided enough guidance in the past, but whether it expresses a standard that can be given a core meaning in tune with contemporary consensus. 40 When these considerations are taken together, a solid core of meaning emerges for reasonable under the circumstances, sufficient to establish a zone in which discipline risks criminal sanction. Generally, s. 43 exempts from criminal sanction only minor corrective force of a transitory and trifling nature. On the basis of current expert consensus, it does not apply to corporal punishment of children under two or teenagers. Degrading, inhuman or harmful conduct is not protected. Discipline by the use of objects or blows or slaps to the head is unreasonable. Teachers may reasonably apply force to remove a child from a classroom or secure compliance with instructions, but not merely as corporal punishment. Coupled with the requirement that the conduct be corrective, which rules out conduct stemming from the caregivers frustration, loss of temper or abusive personality, a consistent picture emerges of the area covered by s. 43. It is wrong for law enforcement officers or judges to apply their own subjective views of what is reasonable under the circumstances; the test is objective. The question must be considered in context and in light of all the circumstances of the case. The gravity of the precipitating event is not relevant.

41 The fact that borderline cases may be anticipated is not fatal. As Gonthier J. stated in Nova Scotia Pharmaceutical, supra, at p. 639, it is inherent to our legal system that some conduct will fall along the boundaries of the area of risk; no definite prediction can then be made. Guidance, not direction, of conduct is a more realistic objective. 42 Section 43 achieves this objective. It sets real boundaries and delineates a risk zone for criminal sanction. The prudent parent or teacher will refrain from conduct that approaches those boundaries, while law enforcement officers and judges will proceed with them in mind. It does not violate the principle of fundamental justice that laws must not be vague or arbitrary.

The Elements of a Criminal or Regulatory Offence 5. The Actus Reus (a) Acts and Statutory Conditions y The act must be the act of the accused and must be the kind of act described in the relevant provision. y Further, the act must be committed under the circumstances or conditions specified in the offence. y For example, an accused cannot be convicted of the offence of break and enter with intent to commit a criminal offence pursuant to s. 348 (1) (a) unless he breaks and enters something that qualifies as a place according to the Criminal Code, with the relevant mens rea.

See, for examples of the interpretation of acts and actus reus conditions: R vDAngelo, [2002] O.J. No. 4312 (Ont. C.A.) y F: The prohibition order tracked the precise wording of s. 161 and prohibited DAngelo from: y attending a public park or public swimming area where persons under the age of fourteen years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground, or community centre; or y Both orders were in force on May 23, 2001 when DAngelo decided to go swimming in the pool at the Crescent Town Club. In his opinion the orders did not affect his use of the facilities. He had lived in the community for years, was a member of the club, and paid a membership fee as part of his rent. Thus, he believed that the swimming pool was a private one. y [8] The trial judge agreed with DAngelos position. She applied the definition of public place from s. 150 of the Code - any place to which the public have access as of right or by invitation, express or implied - and concluded that the community pool did not constitute a public swimming area because the owners of the club have not opened to the general public the use of its facilities. Accordingly, she acquitted DAngelo of both charges. y [9] The sole issue on the appeal is whether the trial judge erred in her interpretation and application of the words public swimming area in s. 161 of the Criminal Code. R: y [12] I note that the phrase public swimming area is not defined in the Code. The trial judge resorted to the definition of public place in s. 150 of the Code to provide assistance. In my view, she was correct to do so. That definition - any place to which the public has access as of right or by invitation, express or implied - does not adopt the government/private sector dichotomy suggested by the respondent. Indeed, this wording suggests something quite different, namely that the word public is linked to the notions of invitation and access, more so than ownership or control.

y y

[13] Having rejected the government/private sector dichotomy, the question becomes: what factors should be considered when defining the phrase public swimming area in s. 161 of the Code? In its helpful factum, the Crown answers this question in this fashion: [I]n determining what constitutes a public swimming area, the court should have regard to the definition of a public place in s. 150 of the Code, the purpose of the legislation, the ordinary meaning of the words, and the individual facts of the case. Facts that should be considered in determining if there is a right of access, either express or implied, include the number of people with access, the particular community, ownership, limitations or restrictions on access, the conduct of owners and the manner in which the place is used. Dictionary definitions are similar. For example, the Dictionary of Canadian Law, 2d ed., (Scarborough, Ont.: Carswell, 1995) defines a Public Place as: 1. Includes any place to which the public have access as of right or by invitation, express or implied. Criminal Code, R.S.C. 1985, c.C-46, s. 150. 2. Includes any place, building or convenience to which the public has,or is permitted to have, access, and any highway, street, lane, park or place of public resort or amusement . . . . [Emphasis added.] [17] The swimming pool at the Crescent Town Community comes easily within these statutory and dictionary definitions.

(b) Acts Must be Voluntary or Willed y The act described by the offence must be voluntary in the sense that it must be the willed act of the accused. y For example, a man in the throes of a seizure does not will his movements; it would be no assault on his part even if his arm was to strike another without the others consent. y It would have been possible to deal with this kind of issue using the mens rea concept by suggesting that he did not intend to strike the other, but Canadian law has also accepted that unless a physical motion is willful, it is not fair to call it an act of the accused person. y This is the foundation for the automatism defence, discussed below. It is easier to understand the concept of voluntariness together with automatism authorities, so this discussion will be deferred until the voluntariness-based defences are discussed below. (c) The Act of Possession y At times part of the actus reus for an offence has an inherent mental element to it, as it does with the important element, common to many offences, of possession. y This concept demonstrates that the divide between the actus reus and mens rea is not a solid one. y What matters is that lawyers appreciate what the elements are, regardless of how they are characterized. y See CC section 4(3), Controlled Drugs and Substances Act section 2 (which will be at the back of most published Criminal Code materials). y y Under s 4(3) of the code, possession may be actual or attributed by operation of law. Actual possession is proven where it is established that a person has the subject matter in his personal possession.

4(3) For the purposes of this Act, (a) a person has anything in possession when he has it in hispersonal possession or knowingly: (i) has it in the actual possession or custody of another person or (ii) has it in any place, whether or not that place belongs to or is occupied by him for the use or benefit of himself or another person; and

(b) where one of two or more persons with the knowledge and consent of the rest has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them. Section 4(3) of the Code creates three types of possession: (i) personal possession as outlined in section 4(3)(a); (ii) constructive possession as set out in section 4(3)(a)(i) and section 4(3)(a)(ii); and (iii) joint possession as defined in section 4(3)(b). Remember that knowledge is an essential element of possession (Beaver/heroin, guilty of selling, acquitted of possession) y In order to constitute constructive possession, which is sometimes referred to as attributed possession, there must be knowledge which extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed. See R. v. Caldwell(1972), 7 C.C.C. (2d) 285 (Alberta Supreme Court, Appellate Division); R. v. Grey(1996), 28 O.R. (3d) 412 (C.A.). y In order to constitute joint possession pursuant to section 4(3)(b) of the Code there must be knowledge, consent, and a measure of control on the part of the person deemed to be in possession. See R. v. Terrence, 1983 CanLII 51 (S.C.C.), [1983] y Right of control over premises implies right to consent or refuse, and therefore consent over the contents of the room for the purposes of constructive possession (Chambers/cocaine in room; contrast with Gladue/guest in house with morphine, not guilty). For the purposes of a charge of possession of X, can A be said to have been in possession as defined in s4(3) of the CCC of X where: Marijuana out the windowno control therefore no consent Regina v. Marshall (1968 AlbSC)
y

Regina v. Terrence (1983 SCC) Re Chambers and the Queen (1985 OnCA)

Stolen camaro...no control therefore no consent

Cocaine stored in bedroomsufficient control by owner of room is

R v. York (2005). [the law of manual possession] y Appeal by York from a conviction for possession of stolen property. York operated a warehouse with several partners. York discovered vans with furniture parked outside the warehouse. One of his business partners refused to disclose the origin of the goods. York realized the goods were stolen and drove the vans away in order to take them off his property. York was stopped by the police and charged with theft and possession of stolen property. y R: While York knew the goods were stolen and he exercised control over the goods for a brief period of time, he did not take the objects into custody with the intention of using them in a prohibited manner. Yorks conduct was inconsistent with any intention to retain or deal with the goods. In order to prove possession the Crown must establish the following: (1) manual or physical handling of the prohibited object; (2) knowledge; and (3) control. y Thus, the offence of possession is made out where there is the manual handling of an object coexisting with the knowledge of what the object is, and both these elements must co-exist with some

y y

act of control. The classic definition of possession was stated by O'Halloran J.A. in R. v. Hess(No. 1)(1948), 94 C.C.C. 48 (B.C.C.A.), wherein he stated: To constitute "possession" within the meaning of the criminal law it is my judgment, that where as here there is manual handling of a thing, it must be co-existent with knowledge of what the thing is, and both these elements must be co-existent with some act of control (outside public duty). When those three elements exist together, I think it must be conceded that under s. 4(1)(d) [of the Opium and Narcotic Drug Act, 1929 (Can.), c. 49] it does not then matter if the thing is retained for an innocent purpose. That view of the law was approved by the Supreme Court of Canada in Beaver v. The Queen(1957), 118 C.C.C. 129. *[20] I think the law can be summarized as follows. Personal possession is established where an accused person exercises physical control over a prohibited object with full knowledge of its character, however brief the physical contact may be, and where there is some evidence to show the accused person took custody of the object willingly with intent to deal with it in some prohibited manner. The judge convicted the appellant on the grounds that the appellant knew that the goods were stolen, and that he exercised physical control over them without notifying the police or the rightful owners. The blameworthiness of this conduct fell short of that required for a conviction for a crime of dishonesty. The appellant's conduct was inconsistent with any intention to retain or deal with the goods.

Constructive Joint Possession: In order to constitute joint possession pursuant to section 4(3)(b) of the Code there must be knowledge, consent, and a measure of control on the part of the person deemed to be in possession. See R. v. Terrence,1983 CanLII 51 (S.C.C.), [1983] See R. v. Marshall, [1969] 3 C.C.C. 149 (Alta. C.A.) [no control therefore no consent] F: The appellant Marshall was charged jointly with three other persons for unlawfully possessing a narcotic: marihuana for the purpose of trafficking. Shortly after leaving Vancouver, Marshall discovered that there was marihuana in the car. On the trip, marihuana was smoked in the car but not by Marshall. At Golden, B.C., the car was stopped by the police. The marihuana was thrown out of the car, but not by Marshall. There is no doubt that Marshall had knowledge of the marihuana being in the car so the question is did he consent to it being there. R: The Appeal court stated: mere acquiescence is not sufficient but there must be something of an active nature, either mental or physical: there must be some kind of control: there must be something upon which the consent of the accused must operate and this consent must be effective. Although Marshall certainly had knowledge of the presence of the marihuana he had no control, right to control, nor did he consent to its presence. In the circumstances of this case the appellant Marshall had no power to control the persons possessing the marihuana. No control therefore, no consent. R. v. Terrence, [1983] 1 S.C.R. 357 [no control therefore no consent] F: Respondent, the passenger in a stolen car was charged with its possession. At trial, respondents testimony (1) that he had accepted an invitation from one of his friends to go for a ride in his brotherin-laws car and (2) that he did not know the car to be stolen property- was not contradicted by any direct evidence. The judge disbelieved him, however and proceeded on the assumption that the respondents knowledge of the stolen character of the vehicle was a proven fact and found him guilty.

R: SCC - A measure of control on the part of the person deemed to be in possession is a consideration and essential element of possession in the criminal code. The knowledge and consent required cannot exist without some measure of control over the subject-matter. The important question raised by this appeal relates to the true meaning to be attached to the word possession as the same occurs in the context of s. 3(4)(b) of the Criminal Code and more particularly whether possession as there employed imports control as an essential element. Section 3(4)(b) reads as follows: (4) (b)where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them. In the same set of reasons, Mr. Justice Roach referred to the judgment of OHalloran J.A. in R. v.Colvin and Gladue,[1943] 1 D.L.R. 20, where he said at p. 25: y Knowledge and consent which is an integral element of joint possession in s. 5(2) must be related to and read with the definition of possession in the previous s. 5(1)(b). It follows that knowledge and consent cannot exist without the co-existence of some measure of control over the subject-matter. If there is the power to consent there is equally the power to refuse and vice versa.They each signify the existence of some power or authority which is here called control, without which the need for their exercise could not arise or be invoked. y As to the second ground of appeal, it appears to me to be implicit in the manner in which it is stated that the respondent knew the automobile to be stolen and as I do not find any evidence to justify this conclusion, I do not think that the question arises in the present case. y See R. v. Pham, [2005] O.J. No. 5127 (Ont. C.A.) for the application of these concepts to possession of materials found in a residence F: Appeal by Pham from her conviction for possession of cocaine for the purpose of trafficking. A neighbor testified she witnessed numerous visitors to Pham and Nguyens apartment who would slip money under the door and that clear plastic bags containing white stuff would then be passed out from the apartment. Drugs were found in the apartment Pham shared with Nguyen. Pham was not present when the drugs were seized. Pham claimed the drugs belonged to Nguyen. Pham was found in constructive possession of the drugs. y [15] In order to constitute constructive possession, which is sometimes referred to as attributed possession, there must be knowledge which extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed. See R. v. Caldwell (1972), 7 C.C.C. (2d) 285 (Alberta Supreme Court, Appellate Division); R. v. Grey (1996), 28 O.R. (3d) 412 (C.A.). y [16] In order to constitute joint possession pursuant to section 4(3)(b) of the Code there must be knowledge, consent, and a measure of control on the part of the person deemed to be in possession. See R. v. Terrence, 1983 CanLII 51 (S.C.C.), [1983] y Watt J. in the case of R. v. Sparling, [1988] Knowledge: It is not essential that there be such evidence for as with any other issue of fact in a criminal proceeding, it may be established by circumstantial evidence. In combination, the finding of narcotics in plain view in the common areas of the residence, the presence of a scale in a bedroom apparently occupied by the applicant, and; the applicants apparent occupation of the premises may serve to found an inference of the requisite knowledge. R: The crown submits that the requisite elements of possession knowledge, consent and control were considered by the trial judge in light of all the direct and circumstantial evidence. There was no evidence of actual possession in that the appellant was not present in the apartment when the search was conducted, so that the Crowns case rested on constructive or joint possession. The central issue at trial was whether

the appellant had knowledge and control of the cocaine found in the bathroom, sufficient to constitute constructive or joint possession. The trial judge was entitled to find on the evidence as he did, that she had constructive possession of cocaine either alone or jointly with Nguyen. It was agreed that if possession was established, that the possession was for the purpose of trafficking. (d) Consent as an Element of the Actus Reus - Often the question of absence of consent by the victim is an important actus reus condition that must be present for offences to occur. Consent is a complex idea, animated by statute and the common law.

R. v. Ewanchuk, [1999] 1 S.C.R. 330 F: Job interview in van, complaintant kept saying no, but accused persisted. Issue: question of consent. y The actus reus of sexual assault is established by the proof of three elements: (i) touching, (ii) the sexual nature of the contact, and (iii) the absence of consent. y The absence of consent, however, is purely subjective and determined by reference to the complainants subjective internal state of mind towards the touching, at the time it occurred. y If, however, the trial judge believes the complainant that she did not consent, the Crown has discharged its obligation to prove the absence of consent. The accuseds perception of the complainants state of mind is not relevant and only becomes so when a defence of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry. y The trier of fact may only come to one of two conclusions: the complainant either consented or did not. y To be legally effective, consent must be freely given. Therefore, even if the complainant consented, or her conduct raises a reasonable doubt about her non-consent, circumstances may arise which call into question what factors prompted her apparent consent. Section 265(3) of the Criminal Code enumerates a series of conditions -- including submission by reason of force, fear, threats, fraud or the exercise of authority -- under which the law will deem an absence of consent in assault cases, notwithstanding the complainants ostensible consent or participation. In a situation where the trier of fact finds that the complainant did not want to be touched sexually and made her decision to permit or participate in the sexual assault activity as a result of an honestly held fear, the law deems an absence of consent and the third component of the actus reus of sexual assault is established. y The trial judge only has to consult s. 265(3) in those cases where the complainant has actually chosen to participate in sexual activity, or her ambiguous conduct or submission has given rise to doubt as to the absence of consent. If, as in this case, the complainants testimony establishes the absence of consent beyond a reasonable doubt, the actus reus analysis is complete, and the trial judge should have turned his attention to the accuseds perception of the encounter and the question of whether the accused possessed the requisite mens rea. y There is a difference in the concept of consent as it relates to the state of mind of the complainant vis--vis the actus reus of the offence and the state of mind of the accused in respect of the mens rea. For the purposes of the actus reus consent means that the complainant in her mind wanted the sexual touching to take place. In the context of mens rea -- specifically for the purposes of the honest but mistaken belief in consent -- consent means that the complainant had affirmatively communicated by words or conduct her agreement to engage in sexual activity with the accused. The two parts of the analysis must be kept separate. R. v. Jobidon, [1991] 2 S.C.R. 714 F: consensual fist fight at bar ends in death, does consent negate the charge of manslaugter.

This appeal raises the issue as to whether absence of consent is an element which must be proved by the Crown in all cases of assault under s. 265 of the Criminal Code or whether there are common law limitations which restrict or negate the legal effectiveness of consent in certain types of cases. R: y Section 265 of the Code should be read in light of the common law limitations on consent. Section 265 sets out a general rule that one cannot commit assault if the other person agrees to the application of force. However, while s. 265 states that all forms of assault, including assault causing bodily harm, are covered by the general rule, it does not define the situations or forms of conduct or eventual consequences which the law will recognize as being valid objects of consent for the purpose of the offence. The common law has generated a body of law to illuminate the meaning of consent and to place certain limitations on its legal effectiveness in the criminal law. It has also set limits on the types of harmful actions to which one can validly consent, and which can shelter an assailant from the sanctions of the criminal law. Section 8 of the Code indicates that common law principles continue to apply to the extent that they are not inconsistent with the Code or other Act of Parliament and have not been altered by them. Here, the victim's consent to a fair fight did not preclude commission of the offence of assault under s. 265 of the Code. The limitation demanded by s. 265 vitiates consent between adults intentionally to apply force causing serious hurt or non-trivial bodily harm to each other in the course of a fist fight or brawl. The provisions of the Code have not ousted the common law limitations on consent. First, Parliament, by setting out factors that may vitiate consent in s. 265(3) of the Code, did not intend to replace any common law rules that might have negated the legal effectiveness of consent to an act which would otherwise constitute assault. The history of our criminal law reveals that codification did not replace common law principles of criminal responsibility, but in fact reflected them. That history also reveals that limitations on consent based on public policy existed before the codification of Canada's criminal law and they have not been ousted by statutory revisions and amendments made to the Code. Accordingly, even if it could be concluded that s. 265(3) negated the applicability of common law rules which describe when consent to assault will be vitiated for involuntariness or defects in the will underlying the apparent consent, it would not follow that those amendments erased limitations based on public policy. Parliament, if it had so intended, would have stated that intention. Section 8(3) of the Code strongly suggests preservation of the common law approach to consent in assault. Second, by specifying in s. 265(2) that s. 265 is to apply to all forms of assault, Parliament did not intend to eliminate the common law prescription of objects or forms of conduct to which legally effective consent may not be given.

R. v. Cuerrier, [1998] 2 S.C.R. 371 F: Unprotected sex knowing HIV+ but did not inform partners as per nurses instructions. The accused was charged with two counts of aggravated assault pursuant to s. 268 CC. Testified at trial that if they had known that he was HIV-positive they would never have engaged in unprotected intercourse with him. R: y Per Cory, Major, Bastarache and Binnie JJ.: To prove the offence of aggravated assault, the Crown must establish (1) that the accuseds acts endanger[ed] the life of the complainant (s.

268(1)) and (2) that he intentionally applied force without the consent of the complainant (s. 265(1)(a)). The first requirement is satisfied in this case by the significant risk to the lives of the complainants occasioned by the act of unprotected intercourse.With respect to the second requirement, when examining whether consent in assault or sexual assault cases was vitiated by fraud under s. 265(3)(c) - reference simply to fraud indicates that Parliaments intention was to provide a more flexible concept of fraud in assault and sexual assault cases. In the context of the wording of s. 265, an accuseds failure to disclose that he is HIV-positive is a type of fraud which may vitiate consent to sexual intercourse. The essential elements of fraud in commercial criminal law are dishonesty, which can include non-disclosure of important facts, and deprivation or risk of deprivation. The accuseds actions must be assessed objectively to determine whether a reasonable person would find them to be dishonest. The dishonest act consists of either deliberate deceit respecting HIV status or non-disclosure of that status. Rather, it must be consent to have intercourse with a partner who is HIV-positive. The extent of the duty to disclose will increase with the risks attendant upon the act of intercourse. The failure to disclose HIV-positive status can lead to a devastating illness with fatal consequences and, in those circumstances, there exists a positive duty to disclose. To establish that the dishonesty results in deprivation, which may consist of actual harm or simply a risk of harm, the Crown needs to prove that the dishonest act had the effect of exposing the person consenting to a significant risk of serious bodily harm. The risk of contracting AIDS as a result of engaging in unprotected intercourse meets that test. Further, in situations such as this, the Crown is still required to prove beyond a reasonable doubt that the complainant would have refused to engage in unprotected sex with the accused if she had been advised that he was HIVpositive. Therefore, a complainants consent to sexual intercourse can properly be found to be vitiated by fraud under s. 265 if the accuseds failure to disclose his HIV-positive status is dishonest and results in deprivation by putting the complainant at a significant risk of suffering serious bodily harm.

(e) Causation - Where the relevant offence prescribes a consequence that must occur before the offence is complete, the Crown prosecutor must prove that the accused caused the consequence to occur, beyond a reasonable doubt. y As Williams shows, if causation is not proved, the accused cannot be convicted of an offence that requires his act to produce a prohibited consequence. y Menezes shows that causation is a two-stage analysis, requiring factual causation and legal or imputable causation. y Nette deals with the higher standard of responsibility of imputable cause that is required to secure a first-degree murder conviction, and it illustrates the legal causation principle of the thin skull. y Both Nette and Menezes illustrate how most imputable causation principles explain why blame can be assigned in criminal cases, in spite of arguments that might, in civil cases, reduce or even eliminate civil liability. R. v. Williams, [2003] 2 S.C.R. 134 F: Accused having unprotected sexual relations with complainant during their 18-month relationship Five months into relationship, accused learning he was HIV-positive but failing to disclose his HIV status to complainant Complainant likely already infected before accused learned he was HIV-positive Whether Crown can prove endangerment of complainants life beyond reasonable doubt Whether accused guilty of aggravated assault Criminal Code, R.S.C. 1985, c. C-46, s. 268(1). y R: Where, as here, the Crown alleges an offence predicated on an aggravating consequence, it must prove the consequence beyond a reasonable doubt. An accused who fails to disclose his HIV-

positive status cannot be convicted of an aggravated assault endangering life in circumstances where the complainant could already have been HIV-positive. In such circumstances, however, W was properly convicted of attempted aggravated assault. y Ws acquittal on the charge of aggravated assault must therefore be affirmed. The mens rea of the offence had been proven beyond a reasonable doubt, but the Crown was unable to prove an essential element of theactus reus, namely that Ws sexual conduct, after learning that he had tested positive for HIV, risked endangering the complainants life. y To constitute a crime, the actus reus and the mens rea or intent must, at some point, coincide. R. v. Menezes, [2002] O.J. No. 551 (Ont. S.Ct. of J.) F: Street race, friend hit pole and died. Can the accused be convicted on the basis of his participation. The case is perhaps one of first impression in this jurisdiction insofar as determining whether a person who survived a street race in which the second participating party lost his life can be held criminally accountable for that death solely on the basis of his co-participation in the dangerous racing activity. R: y If, in prosecution of a criminal driving charge alleging death as a consequence, a real connection between the driving misconduct and the death is not established, as required by law, the Crown may be left simply with discharge of proof for a lesser offence, i.e. dangerous driving simpliciter. y 88 A determination of causation requires a finding that the accused caused the death of another both in fact and in law. y 89 Factual causation is concerned with an inquiry as to how the victim came to his or her death, in a medical, mechanical, or physical sense, and with the contribution of the accused to that result: R. v. Nette, supra at 505. Was the conduct of the accused a significantcontributing cause of the prohibited consequence? In other words, were the actions of the accused beyond negligible? Where there are multiple operative, independent, and significant contributing causes, competing causes need not be sorted out by the trier of fact in an effort to identify a predominant cause. As there can be more than one cause of death, the causation test is not restricted to a search for the most proximate, the primary, or the only cause of death: R. v. Meiler (1999), 136 C.C.C. (3d) 11 (Ont. C.A.) at 20 per OConnor J.A. Regardless of whether the accuseds conduct is the sole cause, was it a material cause y 90 The legal or imputable causation inquiry concerns itself with the question of whether the accused should be held criminally responsible in law for the death that occurreda moral reaction, a value-judgment as to moral responsibilitywhether, in the circumstances, a blamable cause ought to be identified: R. v. Nette, supra at 505-6. Causation expresses an element of fault. That, together with the requisite mental element, is in law sufficient to base criminal responsibility. 91 The starting point in the chain of causation which seeks to attribute the prohibited consequence to an act of the accused is usually an unlawful act in itself. When the commission of the unlawful act is with the relevant mental element for the crime charged, causation is generally not an issue. y 92 The causation inquiry, other than in sentencing, is generally unconcerned with contributory negligence. y As well, a wrongdoer cannot escape the thinskull rulea wrongdoer must take the victim as found: R. v. Nette, supra at 518; R. v. Creighton, supra at 377-8. y In examining the traceable origin of the chain of events causing death, remoteness may become an issue. If the act of the accused is too remote to have caused the result alleged, causation is not established. y If the accuseds actions are fairly viewed as only part of the history of the setting in which the prohibited result unfolded, without more, causation is not proven: R. v. Cribbin (1994), 89 C.C.C. (3d) 67 (Ont. C.A.) at 80per Arbour J.A. (as she then was).

y y y

However, where the unlawful driving can be said to still demonstrably influence the actual injury accident beyond serving as its backdrop, causation is established: R. v. F. (D.L.), supra at 364. 93 Likewise, if the triggering of a chain of events is interrupted by an intervening cause, it can serve to distance and exonerate the accused from any responsibility for the consequence: R. 94 An intervening act terminating the causal chain of events may be the withdrawal or abandonment by the accused of involvement in the dangerous enterprise. Ordinarily, as a matter of law, abandonment requires communication or timely notice of intention to abandon the common pursuit. In other words, as a general rule, in the absence of exceptional circumstances, something more is necessary than a mere mental change of intention and physical change of place by the person wishing to disassociate from the joint venture and the consequences attendant upon participation up to the point of the crime: 104 In my view, there is no reason rooted in law or policy not to identify the same degree of moral blameworthiness in the surviving racer when it is the driver of the second vehicle, and not the passenger therein, who loses his or her life or is injured. As each driver in effect induces the other to drive in an unlawfully unsafe manner, each is taken to assume any consequential risk objectively within the ambit of the danger created. 117 The racing behaviour had lasted for a number of blocks. The more prolonged the course of racing, the greater the burden on the individual quitting the venture to alert his or her coparticipant of that decision in order to escape continued liability for any reasonably foreseeable consequence of the second racers ongoing conduct. In these circumstances, if the accused slowed his speed to the range of 60% of that of the deceased nearly half a mile from the point of control loss, there must be a reasonable doubt, although nothing more, that his withdrawal from the race amounted to a sufficiently dramatic lack of commitment to keeping pace for it to be known to Jacob Meuszynski. The deceased, as an independent agent, as he had done before January 17th, then chose to maintain excessive speed for motives unrelated to Christopher Menezes presence on Derry Road. His death was a result of his independent actions.

R. v. Nette, [2001] 3 S.C.R. 488 F: Woman robbed and left bound, confessed to undercover officer, charged. Issue: Charge to jury Appropriate standard of causation for second degree murder How applicable standard should be explained to jury -- Whether trial judge misdirected jury on standard of causation. Whether same standard of causation applicable to all homicide offences Whether substantial cause standard applies only to first degree murder under s. 231(5) of Criminal Code. R: Responsibility for causing a result, in this case death, must be determined both in fact and in law. y Factual causation concerns how the victim came to death in a medical, mechanical, or physical sense and the accuseds contribution. y Legal causation concerns the accuseds responsibility in law and is informed by legal considerations such as the wording of the offence and principles of interpretation. y The inquiry to find legal causation can be expressed as determining whether the result can fairly be said to be imputable to the accused. y The law of causation is in large part judicially developed but it is also expressed in the Criminal Code. Where a factual situation does not fall within a statutory rule of causation, the criminal common law applies. The civil law of causation is of limited assistance in elucidating the criminal standard of causation. y It is not appropriate in jury charges to formulate a separate causation test for second degree murder (distinct from mansl). The causation standard expressed in Smithers is still valid and applicable to all forms of homicide.

y y

Smithers v. The Queen, [1978]: at least a contributing cause of death, outside the de minimis range, and that is all that the Crown was required to establish. The parties and intervener on this appeal characterize the decision required of this Court in the present case as a choice between the terminology of beyond de minimis on the one hand and substantial cause on the other in describing the standard of causation for second degree murder to the jury.The standard, however, need not be expressed as a contributing cause of death, outside the de minimis range. The concept of causation and the terminology used to express that concept are distinct. In the case of first degree murder under s. 231(5) of the Code, a jury must also consider the additional Harbottle a substantial causation standard but only after finding the accused guilty of murder. This standard, which indicates a higher degree of legal causation, comes into play at the stage of deciding whether the accuseds degree of blameworthiness warrants the increased penalty and stigma of first degree murder. Such a high degree of blameworthiness would only be established where the actions of the accused were found to be an essential, substantial and integral part of the killing of the victim. The Harbottle standard stresses the increased degree of participation required before an accused may be convicted of first degree murder under s. 231(5). It will be significant, and exculpatory, if independent factors, occurring before or after the acts or omissions of the accused, legally sever the link that ties him to the prohibited result. This case involves neither multiple causes nor intervening causes nor a thin-skull victim so it was unnecessary to instruct the jury on the law of causation beyond stating the need to find that the accused caused the victims death. However, in relation to the charge of first degree murder under s. 231(5) of the Code, it was necessary for the trial judge to instruct the jury in accordance with Harbottle. The thin-skull rule, which is a long-standing principle of tort law, provides that a wrongdoer must take his victim as he finds him: Dulieu v. White, [1901] 2 K.B. 669; Athey v. Leonati, [1996] 3 S.C.R. 458. Thus, the fact that a victims head injuries are aggravated beyond what would normally be expected because of the victims unusually thin skull does not relieve a tortfeasor of liability for the full extent of the harm that resulted from his wrongdoing. The potential harshness of the application of the thin-skull rule in the criminal context is mitigated by the requirement that the accused have the requisite mens rea for the offence charged, which consists of objective foreseeability of the risk of bodily harm which is neither trivial nor transitory, in the context of a dangerous act In my view, it was unnecessary in this case to instruct the jury on the law of causation for homicide, beyond stating the need to find that the accused caused the death of the victim. There was no plausibility to the appellants submission that telling the jury that the standard of causation was substantial cause instead of more than a trivial cause could possibly have made any difference to the verdict of second degree murder. Nothing that occurred following the actions of the appellant and his accomplice in tying her up and leaving her alone can be said to have broken the chain of causation linking them with her death. However, in relation to the charge of first degree murder, it was necessary for the trial judge to instruct the jury in accordance with Harbottle under s. 231(5) of the Code, given the requirement that the Crown establish that the physical actions of the accused form an essential, substantial and integral part of the killing of the victim.

(f) Omissions - Some offences do not require a positive act by the accused. Rather, they can be committed by a showing that the accused failed to act, or omitted to act. Whether an offence can occur by omission is a question of construction. To be guilty by omission (1) the offence must contemplate guilt for omissions, (2) the accused must be placed under a legal duty to act either by the provision charging

him or by some incorporated provision, and (3) the omission in question must be a failure to fulfill that legal duty. R. v. Moore, [1979] 1 S.C.R. 195 F: accused riding bike, cop pulled over. The accused refused to give his name and address. As result he was charged with unlawfully and wilfully obstructing peace officer in the execution of his duty contrary to s.118 of the Criminal Code. R: The appellant was not in breach of s.58 of the British Columbia Motor-vehicle Act when he refused to give his name and address to the constable. In accordance with those provisions the constable could only have arrested the appellant for the summary conviction offence of proceeding against red light if it were necessary to establish his identity The constable therefore in requesting the was carrying out the duty of enforcing the law of the Province in this summary conviction matter by attempt ing to identify the accused person so that he might proceed to lay an information or take the more modern form permitted under the said Summary Convictions Act of issuing ticket. Accordingly the officer was under duty to attempt to identify this wrong-doer and the failure to identify himself by the wrong-doer did constitute an obstruction of the police officer in the performance of his duty. I am of the opinion that the Court of Appeal of British Columbia was correct in finding that when the appellant Moore refused to accede to the con stables request for his identification he was obstructing that constable in the performance of his duties. I am confining my consideration of this matter to the actual circumstances which occurred that is that constable on duty observed the appellant in the act of committing an infraction of the statute and that that constable had no power to arrest the accused for such offence unless and until he had attempted to identify the accused so that he might be the subject of summary conviction proceedings. Therefore for the reasons which have outlined above am of the opinion that the officer was under duty to attempt to identify the wrong-doer and the failure to identify himself by the wrong doer did constitute an obstruction of the police officer in the performance of his duties. R. v. Peterson, [2005] O.J. No. 4450 (Ont. C.A.), leave to appeal refused. F: Old man was neglected by son who could not take care of himself properly. Old man was confused, denied appropriate living conditions and denied food. He was often confused and was found to not be able to take care of himself properly. This appeal requires us to consider when a parent is under the charge of a child thereby requiring the child to provide necessaries of life to that parent pursuant to s. 215 of the Criminal Code. The relevant portion of s. 215 states: (1) Every one is under a legal duty ... (c) to provide necessaries of life to a person under his charge if that person (i) is unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw himself from that charge, and (ii) is unable to provide himself with necessaries of life. The Meaning of Under His Charge [33] This appears to be the first case to reach an appellate court in which the meaning of the phrase under his charge in s. 215(1)(c) as between an adult child and his or parent is in issue. That said, the section must be read and interpreted as a whole. Section 215(1)(c) makes it clear that the duty to provide necessaries is not limited to these relationships but can arise in other circumstances. The duty arises when one person is under the others charge, is unable to withdraw from that charge, and is unable to provide himself or herself with necessaries of life.

[35] Subsection 215(2) imposes liability on an objective basis. The offence is made out by conduct showing a marked departure from the conduct of a reasonably prudent person having the charge of another in circumstances where it is objectively foreseeable that failure to provide necessaries of life would risk danger to life or permanent endangerment of the health of the person under the charge of the other. The personal characteristics of the accused, falling short of capacity to appreciate the risk, are not a relevant consideration. y [36] The objective basis of liability includes an assessment of whether the person in charge could have acted other than as he or she did. y First, the relationship of the parties to each other is among the factors to consider in determining whether a person is in the charge of another. The dependency of the parent under a disability on an independent adult child is justified not only by their past course of dealing in which the parent supported the child but also by their relationship to one another in which an element of trust will usually be present. y Used in these contexts the word charge connotes, among other things, the duty or responsibility of taking care of a person or thing. y In assessing whether one person is in the charge of another, the relative positions of the parties and their ability to understand and appreciate their circumstances is a factor to consider. Just as some contributory negligence by the victim is not a defence to a charge of criminal negligence, the inability of the victim to appreciate his or her need for necessaries and the victims unwillingness to cooperate is not a defence for an accused charged with failure to provide necessaries. y [44] A further consideration in determining whether a person is in the charge of another is whether one person has explicitly assumed responsibility for the other, for example, by obtaining a power of attorney for personal care or by publicly acknowledging to others in the community by words or conduct an assumption of responsibility. y [45] The non-exhaustive criteria below illuminate the trial judges findings and the path he took to his conclusion that Arnold was in the charge of the appellant: y 1. Arnold was dependent: The trial judge found that in his state of dementia, Arnold was unable to provide himself with the necessaries of life. y 2. The appellant had a familial relationship with Arnold and was aware of his fathers dependency. y 3. The appellant controlled Arnolds living conditions and kept him in an unsafe environment. y 4. The appellant had control over Arnolds personal care. The appellant took steps to obtain the power to make decisions respecting Arnolds personal care and had the ability to make decisions about his personal care. y 5. The appellant chose not to make decisions that would result in Arnold receiving the necessaries of life. Dennis was made aware of community services that could assist him with the care of his father. He took no steps pursuant to Const. Cutmores suggestions. y 6. Arnold was incapable of withdrawing himself from the appellants charge due to age and illness. [48] Insofar as the legal test for determining when a person is under the charge of another is concerned, the evidence that Arnold did not wish to bathe or change his clothes does not negate the appellants having charge of him. The evidence simply supports the conclusion that Arnold had a mental disability that prevented him from exercising sound judgment to provide himself with the necessaries of life. This disability cannot be used by Dennis as a defence for failing to provide Arnold with the necessaries of life. Dennis could have called a community agency for help and did not. Further, there was no evidence that Arnold ever refused food yet, Dennis did not provide him with food regularly. y R v. Browne (1997), 116 C.C.C. (3d) 183 (Ont. C.A.),

The issue in this appeal is whether the trial judge erred in concluding that the appellant had caused Audrey Greiner's death by breaching a legal duty arising from an "undertaking" within the meaning of s. 217 of the Criminal Codeto take her to the hospital. Only if the appellant can be found to have given an undertaking giving rise to a legal duty under s. 217 can he be found criminally negligent for "omitting to do anything that it is his duty to do" within the meaning of s. 219 of the Code. The two sections, with the relevant words underlined, state: s. 217. Every one who undertakes to do an act is under a legal duty to do it if an omission to do the act is or may be dangerous to life. s. 219. (1) Every one is criminally negligent who (a) in doing anything, or (b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons. The trial judge found that the appellant told Ms. Greiner at about 2:00 a.m. that he would take her to the hospital and "immediately thereafter embarked on that act." She concluded that this statement was an "undertaking" within the meaning of s. 217 of the Criminal Code. [13] The charge of criminal negligence against the appellant was particularized as follows, mirroring the language found in s. 217 of the Criminal Code: ...that he ... failed to render assistance to Audrey Greiner by failing to take her immediately to the hospital after undertaking to render such assistance and did thereby cause the death of Audrey Greiner ... . [14] had first to be a finding of an undertaking. This flows from the language of s. 217 which states that everyone "who undertakes to do an act is under a legal duty to do it if an omission to do the act is or may be dangerous to life." In other words, the legal duty does not flow from the relationship between the parties, as it does in s. 215, which creates legal duties between spouses, between parents and children, and between dependants and their caregivers. Under s. 217, there is no pre-existing relationship or situation that creates a legal duty; there must be an undertaking before a legal duty is introduced into the relationship. The relationship or context is relevant only to the determination of whether the breach reflected a "wanton or reckless disregard" under s. 219(1), not to whether there was an undertaking under s. 217. What kind of an undertaking gives rise to a legal duty within the meaning of s. 217, the breach of which can result in criminal culpability? it seems to me that when we are deciding whether conduct is caught by the web of criminal liability, the threshold definition we apply must justify penal sanctions. A conviction for criminal negligence causing death carries a maximum penalty of life imprisonment. The word "undertaking" in s. 217 must be interpreted in this context. The criminal standard must be - and is - different and higher. Before someone is convicted of recklessly breaching a legal duty generated by his or her undertaking, that undertaking must have been clearly made, and with binding intent. Nothing short of such a binding commitment can give rise to the legal duty contemplated by s. 217. The inquiry should have begun with whether there was an undertaking. Only if there was an undertaking in the nature of a binding commitment could a legal duty have arisen under s. 217, regardless of the nature of the relationship between the appellant and Audrey Greiner.

[18] In my view, the evidence does not disclose any undertaking of a binding nature. These were two drug dealers who were used to swallowing bags of drugs to avoid detection by the police. There was no evidence that the appellant knew that Audrey Greiner was in a life-threatening situation until 2:00 a.m., when he immediately phoned for a taxi. His words to her at that time - "I'll take you to the hospital" hardly constitute an undertaking creating a legal duty under s. 217. He said he would take her to the hospital when he saw the severity of her symptoms, and he did. There is no evidence either that a 911 call would have resulted in a significantly quicker arrival at the hospital at that hour, or even that had she arrived earlier, Audrey Greiner's life could have been saved. [19] There being no undertaking within the meaning of s. 217 of the Criminal Code, there can be no finding of a legal duty. There being no duty, there can be no breach contrary to s. 219 of the Code.

6.

Subjective Mens Rea y As indicated, subjective mens rea focuses on the actual state of mind of the subject of the prosecution,namely, the accused. Since what someone thinks or wants or knows is personal to him unless communicated, subjective mens rea ordinarily must be gleaned circumstantially, including by using the common sense inference that persons usually tend to intend the natural consequences of their acts. Since the state of knowledge is not often manifested circumstantially the way apparent intent is, the law will assume that the accused knew of the elements of the offence unless the so-called defence of mistake of fact, discussed below, is made out. The close link between knowledge and mistake of fact makes it sensible to discuss the defence together with this mens rea concept. y There are many states of mind described by the various Criminal Code provisions. For example, one form of first degree murder requires proof of planning and deliberation (premeditation), while second degree murder requires only that the accused intend to cause death, or intend to cause bodily harm that he knows is likely to cause death. y Most offences require more than one mental state to exist. For example, to be guilty of murder, the accused must know that the living thing he is killing is a human being and intend to cause death to that human being. A sexual assailant must intend to touch the complainant, and know that she is not consenting (although as indicated, that knowledge will be assumed absent a mistake of fact defence being raised successfully). y It is a close exercise of construction to see what mental states are required by a particular offence. If an offence is explicit and specifies the relevant state of mind, then only that state of mind will suffice. This is why assault contrary to section 265 requires intentional touching, and not simply reckless touching. Many offences do not specify the relevant mental state. If a true crime is silent as to the mental state and the offence requires a consequence, it is implied that intention or recklessness in bringing out the consequence will suffice (that presumption was rebutted for the offence charged in R. v. Buzanga and Durocher below, requiring the Crown to prove actual intention to bring about the consequence). y Again, subject to exception (see for example C.C. s. 150.1) where an offence sets out conditions or circumstances that have to exist, the accused must, as a general rule, know that those conditions or circumstances exist before the offence can be committed, although the mens rea known as willful blindness can substitute for full knowledge. Use the mens rea provided for in the relevant provision, as construed according to relevant criminal law principles. In the cases included below, the most common mental states are identified and illustrated: Intention, and Ulterior Mens Rea Intention is a complex idea. y The accused must have the very intention required by the relevant provision.

(a)

FORMS OF INTENT If subjective mens rea is required, is a specific form of intent required by the statute? o Intention accused has the conscious objective of bringing about the conseuence (Steane) or is substantially certain that a given conseuence will result from an action which he does to achieve some other purpose (Buzzanga and Durocher). o Recklessness accused foresees probability of result, or has substantial certainty that result will follow act o Willful blindness y Where no mental element is mentioned in an offence, the standard for subjective mens rea is intention or recklessness. (Buzzanga v. Durocher) y Where the essence of an offence is a particular intent, that intent must be proven by the Crown. Mere foresight of a consequence is not sufficient to prove intention in such cases. Example of blackout regulations to illustrate that an accused cannot be convicted where there is reasonable doubt that he did not intend the result indicated in the provision. (Steane/WW2 British Radio broadcaster, not guilty) y Use of the word willfully in one provision connotes a subjective standard, the particular level of subjective mens rea will be determined in each particular statute according to the intention of the legislature. The word deem in a provision implies that the word referred to usually has a different meaning than the one appropriated to it for the purposes of that offence, by inclusio exclusio. (Buzzanga v. Durocher/francophone hate propaganda, new trial)

R. v. Vandergraff, [1994] M.J. No. 503 (Man. C.A.) [Vandergraff intended to throw the object, but not to make contact with the victim. His assault was not intended and he was not guilty. He could have been charged with criminal negligence causing injury, but the wrong charge was laid.] y Appeal by the accused from conviction for assault with a weapon. The accused had thrown a jar of peanut butter toward the ice surface of a hockey rink in frustration at the outcome of a game, but it had struck the complainant and caused her injury. The trial judge had found intent to apply force in a general sense, which happened to be the complainant, and convicted. R: The Appeal was allowed and acquittal entered. There was no proof of intention to apply force to a person, his assault was not intended. Imputed intent to wound, maim, disfigure or endanger life, in the case of aggravated assault where intent to apply force was already established, did not apply here. The accuseds conduct was foolish, negligent and may have been criminal, but did not constitute assault.

R. v Murray, [2000] O.J. No. 2182 (Ont. S.C.J.) [Murray intended to hold the Bernardo tapes, but not for the purpose of obstructing justice. He was therefore not guilty.] y F: [1] The accused, Kenneth Murray was retained by Paul Bernardo initially in February 1993 in regard to the Scarborough rapes and on May 18, 1993, in connection with the murders of Leslie Mahaffy and Kristen French and additional related offences. y [2] On May 6, 1993, on written instructions of Bernardo, Murray attended at the Bernardo home and removed from it videotapes which depicted gross sexual abuse. Without disclosing their existence to the Crown, he retained the tapes for 17 months. Trial motions were to begin on September 12, 1994. On September 2, 1994, Murray, through his counsel, applied to the Law Society of Upper Canada for advice. Accepting that advice Murray appeared before the trial judge, Associate Chief Justice LeSage who directed that the tapes, their integrity protected by

y y

suitable undertakings, go to John Rosen, new counsel for Bernardo, at which time Murray was given leave to withdraw as counsel. Rosen, on September 22, 1994, turned the tapes over to the police and they were used by Crown counsel at the trial. A jury found Bernardo guilty on all charges. [3] Murray now faces this charge of attempt to obstruct justice by concealment of the videotapes. R: 139(2) Everyone who wilfully attempts in any manner other than a manner described in subsection (1) to obstruct, pervert or defeat the course of justice is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years. [92] The difficulty with the section is that it is structured as an attempt, although it is a substantive offence. The word attempts contains its own mental element. Wilfully attempts, then, suggests a double mens rea. [93] The solution of the English courts in dealing with their similar common-law offence was the tendency test. Attempting to obstruct justice is construed as the doing of an act which has a tendency to pervert or obstruct the course of justice (the actus reus). Wilfully then constitutes the mens reathat is the act is done for the purpose of obstructing the course of justice [99] The actus reus issue, therefore, is whether Murrays action in secreting the videotapes had a tendency to obstruct the course of justice. [100] The word wilfully denotes the mens rea of the section. This is a specific intent offence and the onus is on the Crown to prove that Murray, when he secreted the tapes, intended to obstruct the course of justice [105] The effect of s. 139(2) is to prohibit improper interference with the functioning of any part of the justice system.

y y

Application of the Tendency Test y [106] On the face of the evidence Murrays action in secreting the critical tapes had the tendency to obstruct the course of justice at several stages of the proceedings. y [110] While Murrays conduct had a tendency to obstruct the course of justice in relation to the police and the Crown, it also influenced the way new defence counsel, Rosen, approached the conduct of Bernardos defence. It had the further potential for a jury to be deprived of admissible evidence. y [111] Concealment of the tapes had the potential to infect all aspects of the criminal justice system. Justification y [112] Prima facie, Murrays action in concealing the tapes is caught by the tendency test. He cannot, however, be said to attempt to obstruct justice if he had legal justification for his conduct. y [113] There is no obligation on a citizen to help the police, but taking positive steps to conceal evidence is unlawful y confidentiality of the tapes is NOT protected under the umbrella of solicitor-client privilege and no privilege, in my opinion, attaches to this evidence. Solicitor-client privilege protects communications between solicitor and client y [117] Although Murray had a duty of confidentiality to Bernardo, absent solicitor-client privilege, there was no legal basis permitting concealment of the tapes. In this sense Murray had no higher right than any other citizen. Nor, in my opinion, can it be said that concealing the critical tapes was permissible because they may have had some exculpatory value. They were overwhelmingly inculpatory. Some of the United States authorities, including the ABA Standards for Criminal Justice: Prosecution Function and Defense Function, 3rd ed., suggest counsel may retain incriminating physical evidence for a reasonable time for examination and testing. There

was no testing contemplated here and, by some time in June 1993, Murray had examined the tapes and knew their contents. He chose to continue to conceal them. [120] I am not entirely clear why there exists this almost universal view that incriminating physical evidence must go to the prosecution. In my opinion it does not follow that because concealment of incriminating physical evidence is forbidden there is always a corresponding positive obligation to disclose. [125] I am satisfied that Murrays concealment of the critical tapes was an act that had a tendency to pervert or obstruct the course of justice.

Mens Rea y [126] The onus is on the Crown to prove beyond a reasonable doubt that it was Murrays intention to obstruct the course of justice. y [127] By putting the tapes beyond the reach of the police and the Crown, Murray clearly intended to impede the prosecution of the case against Bernardo. Defence strategy was based upon concealment of the tapes. y [128] If Murray was aware concealment was unlawful, then the only reasonable inference would be, that by doing so, he intended to obstruct the course of justice. y [129] Murray knew it was unlawful to permanently suppress the tapes. Asked by Mr. Cooper for his reaction to Bernardos August 30, 1994 direction not to disclose the tapes, Murray said: It put me in a position that I was being asked to suppress evidence. I was being asked to do something that was improper, unlawful, unethical and something that I couldnt either under the rules of conduct or professional ethics do. y [130] The factual questions of intent then are: 1. Did Murray intend to conceal the tapes permanently or only up to the point of resolution discussions or trial? 2. If the latter, was it his honest belief he was entitled to do so? Murrays Intention y [138] The tapes, suggested Mr. Cooper, gave Bernardo a slim chance. While they show Bernardo in a terrible light, Homolka turns out to be almost as bad. The benefit to the defence was not just that Homolka could be shown as a liar, but also as a person capable of committing murder. She is shown on the tapes administering halothane to her sister and to Jane Doe, and participating in sexual assaults on both of them. The tapes also show herusing items of her dead sisters clothing to sexually stimulate Bernardo. For the same purpose she employs a rose which she was then going to put on her sisters grave. Mr. Cooper conceded the tapes were an atomic bomb for Bernardo, but, he suggested, it bombed both ways. y [139] In spite of all the inferences I am tempted to draw against the credibility of Murray based on his actions as I have enumerated them, I am satisfied on the basis of Mr. Coopers argument that a defence strategy of use of the tapes at trial was reasonably feasible. That lends support to Murrays evidence that he did not intend to permanently suppress them. In this context, I have warned myself about the dangers of hindsight. y [142] Murrays evidence that he would at some time disclose the tapes is supported by the fact that MacDonald and Doyle knew they existed. Murray would know that the pact of silence, no matter how solemn, would be unlikely to survive the Bernardo trial if the tapes were ultimately suppressed. y [143] I conclude, therefore, that Murrays explanation as to his use of the critical tapes in the defence of his client is one that might reasonably be true. Murrays Belief y [144] Assuming he intended to use the tapes for defence purposes, did Murray believe he had a right to conceal them to the extent he did?

y [145] Murray testified he believed his conduct was lawful. y [146] Criminal Code s. 139(2) casts a broad net It does not specifically isolate as criminal the conduct Murray engaged in. y [149] While Murray made only a token effort to find out what his obligations were, had he done careful research he might have remained confused. The weight of legal opinion in Ontario is to the effect that lawyers may not conceal material physical evidence of crime, but how this rule applies to particular facts has been the subject of extensive discussion. y [151] If I make the assumption Murray intended to use the tapes in the defence, I have no difficulty with the proposition that he may well have believed under the circumstances he had no legal duty to disclose the tapes until resolution discussions or trial. [152] In summary, I find: 1. Murrays concealment of the critical tapes had the tendency to obstruct justice. 2. Murray knew it would be obstructing justice to permanently suppress the tapes. 3. He may not have intended to permanently suppress them. 4. He may have believed he had no obligation to disclose them before trial. [154] In the context of the whole of the evidence, Murrays testimony I find raises a reasonable doubt as to his intention to obstruct justice. R. v. R.(J.S.) (2008), 91 O.R. (3d) 81 (Ont. C.A.) [R.(J.S.) intended to shoot into a crowd, with intent to kill a human being (albeit not the one killed), opening the door to his possible murder conviction during his upcoming trial, depending on how the evidence comes out.] y F: JSR a minor opened gunfire on boxing day and shot & killed Jane Cereba IV. SHOULD J.S.R. BE COMMITTED ON A CHARGE OF MURDER OR MANSLAUGHTER? [35] With the issue of causation as it relates to committal for trial, having been determined against J.S.R., it follows that he must be committed for trial at least on the charge of manslaughter. The Crown maintains that J.S.R. should stand trial for second degree murder and that the motion judge erred in quashing the preliminary inquiry judges order to that effect. [36] We think the Crowns appeal must succeed and the committal for trial on the charge of murder restored. We will address J.S.R.s potential liability, first, under s. 229(b); second, under the party/common intention provisions in s. 21; and finally, under s. 229(c). On the evidence heard at the preliminary inquiry, we think only the last of these provisions provides a basis upon which a reasonable jury, properly instructed, could convict J.S.R. of murder as a perpetrator and not a party. (ii) J.S.R.s Potential Liability as a Party to a Murder [39] We are likewise of the view that the party provisions in ss. 21(1)(b) and 21(2) of the Code, to which the preliminary inquiry judge resorted, have no application on this record. Those provisions, and s. 21(1)(c),2 read as follows: s. 21.(1) Every one is a party to an offence who ... (b) does or omits to do anything for the purpose of aiding any person to commit it; or (c) abets any person in committing it. (2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew ... that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence. [Emphasis added.] y [40] Accessorial liability under s. 21(1)(b) and s. 21(1)(c) must attach to a specific crime committed by someone other than the alleged aider or abetter. The aider or abetter must assist, help in or encourage the commission of the specific crime by the perpetrator. Furthermore, the

aider or abetter must act with the specific intention of bringing about the commission of the crime committed by the perpetrator [41] On the Crowns theory of J.S.R.s accessorial liability, the northbound shooter is the perpetrator of the murder of Ms. Creba. The northbound shooters liability for that murder rests on s. 229(b). According to the Crown, the northbound shooter shot and killed Ms. Creba, intending to shoot and kill J.S.R. To establish the northbound shooters liability for murder under that section, the Crown will have to show that the northbound shooter fired his gun intending to kill J.S.R. It seems strange that J.S.R. could somehow be said to have aided and abetted a murder the mens rea of which was the intention to kill J.S.R. [42] We repeat, both aiding and abetting require proof that the alleged accessory intended to assist the perpetrator in the crime committed by the perpetrator. There is no evidence that J.S.R. did anything with the intention of helping or encouraging the northbound shooter to murder J.S.R. [44] The Crowns reliance on s. 21(2) is also misplaced on the evidence as adduced at the preliminary inquiry. That section expressly requires a common intention between the person who actually commits the crime and the person who is rendered liable for that crime under s. 21(2). The common intention must be to carry out an unlawful purpose and to assist each other therein. Section 21(2) speaks to situations in which two individuals pursue a common unlawful object together and one of them commits an offence other than the common unlawful object in the course of pursuing that common purpose. In such circumstances, the party to the initial common unlawful purpose will sometimes be held criminally responsible for the crime committed by his joint venturer in pursuit of their shared common purpose: see R. v. Popen, supra. [45] There was evidence that J.S.R. and the northbound shooter were engaged in a joint activity. Joint activity cannot necessarily be equated with common intention. On the Crowns case, J.S.R.s purpose was to kill the northbound shooter and the northbound shooters purpose was to kill J.S.R. hardly a common intention! Nor does the evidence provide any support for a finding that J.S.R. and the northbound shooter shared an intention to assist each other in the achievement of some unlawful purpose. Their conduct suggests the antithesis of mutual assistance. [46] As with the Crowns attempt to apply the aiding or abetting provisions to the facts of this case, imposing liability on J.S.R. through s. 21(2) is not supported by a plain reading of the section and is contrary to common sense. On the present state of the evidence, if s. 21(2) were left with a jury, the jury could well be confused and distracted by instructions suggesting it could find a common intention to pursue a joint object between two individuals who were trying to kill each other.

(b)

Subjective Mens Rea with Objective Features y Some criminal offences use standards to define criminal conduct. y For example, some assaults are sexual in their nature, and others are not. Some acts are dishonest, and others are not. y It is not sensible to require the accused to have a subjective appreciation that the relevant criminal standard has been met before a conviction can follow since that would permit the content of offences to vary from offender to offender. y If it were otherwise objective, dishonest people would be held to lower standards than the rest of us. Or an accused can commit sexual assault if he intends to touch another, even if he does not believe that the contact is sexual in nature, so long as it is.

R. v. Theroux, [1993] 2 S.C.R. 5 [the accused can commit fraud if he intends the relevant transaction, even if he does not appreciate that a transaction of that nature is dishonest.]

y F: The accused, the directing mind of a company involved in residential construction, was charged with fraud. The company entered into agreements with a number of individuals for the purchase of residences. The contracts were made and the deposits taken on the basis of a false representation by the company that the deposits were insured. In fact, the company never paid the premiums due on a first application for participation in the insurance program and a second application was never completed. The company became insolvent, the project was not completed and most of the depositors lost their money. y The trial judge also found that the accused sincerely believed that the residential project would be completed and hence that the deposits would not be lost. y The issue in this appeal is whether the fact that the accused honestly believed that the project would be completed negates the mens rea of the offence of fraud. The issue is whether the fact that he honestly believed that the projects would be completed negates the guilty mind or mens rea of the offence. This requires this Court to examine the question of what constitutes the mens rea for the offence of fraud. y y R: Per La Forest, Gonthier, Cory and McLachlin JJ.: The actus reus of fraud is established by proof of a prohibited act, be it an act of deceit, falsehood or other fraudulent means, and by proof of deprivation caused by the prohibited. It is judged objectively by reference to what a reasonable person would consider to be a dishonest act. y This brings me to the question of whether the test for mens rea is subjective or objective. Most scholars and jurists agree that, leaving aside offences where the actus reus is negligence or inadvertence and offences of absolute liability, the test for mens rea is subjective. The test is not whether a reasonable person would have foreseen the consequences of the prohibited act, but whether the accused subjectively appreciated those consequences at least as a possibility. In applying the subjective test, the court looks to the accused's intention and the facts as the accused believed them to be y The question is whether the accused subjectively appreciated that certain consequences would follow from his or her acts, not whether the accused believed the acts or their consequences to be moral. Just as the pathological killer would not be acquitted on the mere ground that he failed to see his act as morally reprehensible, so the defrauder will not be acquitted because he believed that what he was doing was honest. y The mens rea would then consist in the subjective awareness that one was undertaking a prohibited act (the deceit, falsehood or other dishonest act) which could cause deprivation in the sense of depriving another of property or putting that property at risk. y The fact that the accused may have hoped the deprivation would not take place, or may have felt there was nothing wrong with what he or she was doing, provides no defence. y To put it another way, following the traditional criminal law principle that the mental state necessary to the offence must be determined by reference to the external acts which constitute the actus of the offence (see Williams, supra, c. 3), the proper focus in determining the mens rea of fraud is to ask whether the accused intentionally committed the prohibited acts (deceit, falsehood, or other dishonest act) knowing or desiring the consequences proscribed by the offence (deprivation, including the risk of deprivation). The personal feeling of the accused about the morality or honesty of the act or its consequences is no more relevant to the analysis than is the accused's awareness that the particular acts undertaken constitute a criminal offence. y it need only be determined that an accused knowingly undertook the acts in question, aware that deprivation, or risk of deprivation, could follow as a likely consequence. y Correspondingly, the mens rea of fraud is established by proof of subjective knowledge of the prohibited act, and by proof of subjective knowledge that the performance of the prohibited

act could have as a consequence the deprivation of another (which deprivation may consist in knowledge that the victim's pecuniary interests are put at risk). y In certain cases, the subjective knowledge of the risk of deprivation may be inferred from the act itself, barring some explanation casting doubt on such inference. y Where the conduct and knowledge required by these definitions are established, the accused is guilty whether he actually intended the deprivation or was reckless as to whether it would occur. The accused's belief that the conduct is not wrong or that no one will in the end be hurt affords no defence to a charge of fraud. While the scope of the offence may encompass a broad range of dishonest commercial dealings, the proposed definition of mens rea will not catch conduct which does not warrant criminalization. Only the deliberately practised fraudulent acts which, in the knowledge of the accused, actually put the property of others at risk will constitute fraud. The requirement of intentional fraudulent action excludes mere negligent misrepresentation, or sharp business practice. y In this case, it is clear from the trial judge's findings that the offence of fraud is made out. The actus reus is established: the accused committed deliberate falsehoods which caused or gave rise to deprivation. First, the depositors did not get the insurance protection they were told they would get and, second, the moneythey gave to the accused's company was put at risk, a risk which in most cases materialized. The mens reatoo is established: the accused told the depositors that they had insurance protection when he knew this to be false. By this act he was knowingly depriving the depositors of something they thought they had, namely insurance protection. It may also be inferred from his knowledge that insurance protection was not in place that the accused knew that he was subjecting the depositors' money to risk. The fact that he sincerely believed that the houses would be built, and that the deposits would not be lost, was no defence to the crime. R. v. Chase, [1987] 2 S.C.R. 293 y F: Respondent was convicted of sexual assault contrary to s. 246.1(1)(a) of the Criminal Code. He entered the home of the complainant, a fifteen-year-old girl, without invitation, seized her around the shoulders and arms and grabbed her breasts. y When she fought back, he said: "Come on dear, don't hit me, I know you want it." She testified at trial that he tried to grab her "private" but did not succeed. On appeal, the Court of Appeal expressed the view that the modifier "sexual" in the new offence of sexual assault should be taken to refer to parts of the body, particularly the genitalia. Because there was no contact with the complainant's genitals, the conviction at trial was set aside and a conviction for common assault substituted. y The only question arising in this appeal is that of the definition of the offence of sexual assault. y R: Sexual assault is an assault within any one of the definitions of that concept in s. 244(1) of the Criminal Code which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated. y I would consider as well that the test for its recognition should be objective. The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: "Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer". y The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force, will be relevant. y The accused's intent or purpose as well as his motive, if such motive is sexual gratification, may also be factors in considering whether the conduct is sexual.

y Implicit in this view of sexual assault is the notion that the offence is one requiring a general intent only. In the present case, there was ample evidence before the trial judge upon which he could find that sexual assault was committed. y Viewed objectively in the light of all the circumstances, it is clear that the conduct of the respondent in grabbing the complainant's breasts constituted an assault of a sexual nature. (c) Recklessness (subjective) y Recklessness is a subjective state of mind that requires the accused to act in spite of actually and personally foreseeing the risk that if they do act, the prohibited consequence will be brought about. y It therefore differs from negligence which can apply even if the actor does not personally see the risk, provided a reasonable person would have. y Still, recklessness is a subjective mens rea with objective features because it exists only where it is objectively unjustifiable to take that risk the accused understood he was taking. The fact that the accused may have felt the risk to be justifiable would be no answer. y Recklessness will apply where the provision creates a consequence, but does not, as a matter of construction, require some more limited kind of mens rea.

R. v. Theroux(considered above) y R: There appears to be no reason, however, why recklessness as to consequences might not also attract criminal responsibility. y Recklessness assumes knowledge of the likelihood of the prohibited consequences. y It is established when it is shown that the accused, with such knowledge, commits acts which may bring about these prohibited consequences, while being reckless as to whether or not they ensue. y Where the conduct and knowledge required by fraud is established, the accused is guilty whether he actually intended the prohibited consequence or was reckless as to whether it would occur.

R v Buzzanga and Durocher (1979) Willfullness (subjective) F: Convicted of promoting hatred against identifiable group: pamphlet. Accused is French; pamphlet aimed to create uproar, not promote hatred. R: Because s. 281.2(2) willfully, there must be intent, not recklessness. They had no such intent to promote hatred. Applies to similar willfully y Willfullness (subjective) the word willfully does not have a fixed meaning, but I am satisfied that in the context of s.281.2(2) it means with the intention of promoting hatred and does not include recklessness. y Willfully: as a general rule, a person who foresees that a consequence is certain or substantially certain to result from an act that he does in order to achieve some other purpose intends that consequence. The persons foresight of the certainty or moral certainty of the consequence resulting from his conduct compels a conclusion that if he, none the less, acted so as to produce it, then he decided to bring it about (although regretfully), in order to achieve his ultimate purpose. y Application to facts: Court held that the guy either intended to promote hatred or foresaw that it was certain to result from the pamphlets. Intentions can be direct or indirect. The trial judge erred in equating "intent to create controversy, furor, uproar" with "intent to promote hatred". There must be a new trial to decide which intention existed, since courts of appeal cannot decide matters of fact. (P500) Intent can be inferred from objective circumstances. (d) Knowledge

y As indicated, bearing in mind what is said above about standards of criminality, the accused must generally know that the conditions of the actus reus exist. y For example, an accused cannot be convicted of assaulting a police officer, if she does not know the victim is a police officer. y Generally, it is unrealistic to expect the Crown to prove what the accused knows, so we presume the accused knows of the relevant conditions, unless the accused presents a mistake of fact defence. y In the sexual offence context, the mistake of fact defence is heavily limited for policy reasons. R. v. Ewanchuk, [1999] 1 S.C.R. 330 F: Job interview in van, complaintant kept saying no, but accused persisted. y The accuseds perception of the complainants state of mind is not relevant and only becomes so when a defence of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry. y The mens rea of sexual assault contains two elements: intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched. y The accused may challenge the Crowns evidence of mens rea by asserting an honest but mistaken belief in consent. The defence of mistake is simply a denial of mens rea. It does not impose any burden of proof upon the accused. The accused need not testify in order to raise the issue. Support for the defence may stem from any of the evidence before the Court, including the Crowns casein-chief and the testimony of the complainant. However, as a practical matter, this defence will usually arise in the evidence called by the accused. y However, since sexual assault only becomes a crime in the absence of the complainants consent, the common law recognizes a defence of mistake of fact which removes culpability for those who honestly but mistakenly believed that they had consent to touch the complainant. To do otherwise would result in the injustice of convicting individuals who are morally innocent: see R. v. Creighton, [1993] 3 S.C.R. 3. y As such, the mens rea of sexual assault contains two elements: intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched. y The accused may challenge the Crowns evidence of mens rea by asserting an honest but mistaken belief in consent. The nature of this defence was described in Pappajohn v. The Queen, by Dickson J: Mistake is a defence...where it prevents an accused from having the mens reawhich the law requiresfor the very crime with which he is charged. Mistake of fact is more accurately seen as a negation of guilty intention than as the affirmation of a positive defence. It avails an accused who acts innocently, pursuant to a flawed perception of the facts, and nonetheless commits the actus reus of an offence. Mistake is a defence though, in the sense that it is raised as an issue by an accused. y The defence of mistake is simply a denial of mens rea. However, as a practical matter, this defence will usually arise in the evidence called by the accused. (a) Meaning of Consent in the Context of an Honest but Mistaken Belief in Consent y As with the actus reus of the offence, consent is an integral component of the mens rea, only this time it is considered from the perspective of the accused. y In order to cloak the accuseds actions in moral innocence, the evidence must show that he believed that the complainant communicated consent to engage in the sexual activity in question. A belief by the accused that the complainant, in her own mind wanted him to touch her but did not express that desire, is not a defence. y For the purposes of the mens rea analysis, the question is whether the accused believed that he had obtained consent. What matters is whether the accused believed that the complainant effectively said yes through her words and/or actions.

y For the purposes of the actus reus, consent means that the complainant in her mind wanted the sexual touching to take place. In the context of mens rea specifically for the purposes of the honest but mistaken belief in consent consent means that the complainant had affirmatively communicated by words or conduct her agreement to engage in sexual activity with the accused. (b) Limits on Honest but Mistaken Belief in Consent y Not all beliefs upon which an accused might rely will exculpate him. Consent in relation to the mens rea of the accused is limited by both the common law and the provisions of ss. 273.1(2) and 273.2 of the Code(see CC) y For instance, a belief that silence, passivity or ambiguous conduct constitutes consent is a mistake of law, and provides no defence: see R. v. M. (M.L.), [1994] 2 S.C.R. 3. Similarly, an accused cannot rely upon his purported belief that the complainants expressed lack of agreement to sexual touching in fact constituted an invitation to more persistent or aggressive contact. y Common sense should dictate that, once the complainant has expressed her unwillingness to engage in sexual contact, the accused should make certain that she has truly changed her mind before proceeding with further intimacies. The accused cannot rely on the mere lapse of time or the complainants silence or equivocal conduct to indicate that there has been a change of heart and that consent now exists, nor can he engage in further sexual touching to test the waters. Continuing sexual contact after someone has said No is, at a minimum, reckless conduct which is not excusable. y The findings necessary to support a verdict of guilty on the charge of sexual assault were made. In particular, there was no evidence that would give an air of reality to a defence of honest but mistaken belief in consent for any of the sexual activity which took place in this case. Section 273.2(b) precludes an accused from raising that defence if he did not take reasonable steps in the circumstances known to him at the time to ascertain that the complainant was consenting. The position that the nature of the defence of honest but mistaken belief does not need to be based on reasonable grounds as long as it is honestly held has been modified by the enactment of s. 273.2(b), which introduced the reasonable steps requirement.

(e)

Willful Blindness y Willful blindness is related to but distinct from recklessness. y It is a subjective state of mind, requiring that the accused personally sees the risk of a fact, but then willfully avoids confirmation so as to be able to deny knowledge. y Wilful blindness: Suspicion that something is true, deliberate failure to enquire. Always equivalent to knowledge. Subjective: accused must actually have suspected. y Wiki: Willful blindness, a term used in law to describe a situation in which an individual seeks to avoid civil or criminal liability for a wrongful act by intentionally putting himself in a position where he will be unaware of facts which would render him liable. For example, in a number of cases, persons transporting packages containing illegal drugs have asserted that they never asked what the contents of the packages were, and therefore lacked the requisite intent to break the law. Such defenses have not succeeded, as courts have been quick to determine that the defendant should have known what was in the package, and exercised criminal recklessness by failing to find out before delivering it. y In Criminal Law: The General Part (2nd ed. 1961), at pp. 157-158, Glanville Williams wrote: The onus is on the Crown to prove that the accused knew that the property was stolen. [T]he rule is that if a party has his suspicion aroused but then deliberately omits to make further enquiries, because he wishes to remain in ignorance, he is deemed to have knowledge. . . . . . In other words, there is a suspicion which the defendant deliberately omits to turn into certain knowledge. This is frequently expressed by saying that he shut his eyes to the fact, or that he was wilfully blind.

y Before the doctrine of wilful blindness applies, there must be realisation that the fact in question is probable, or, at least, possible above the average. . . y . . . A court can properly find wilful blindness only where it can almost be said that the defendant actually knew. He suspected the fact; he realised its probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge. This, and this alone, is wilful blindness. y This concept fits best when used as a substitute for knowledge, although courts (and Parliament in C.C. s. 273.2) have an unfortunate habit of using willful blindness terminology as interchangeable with recklessness. This leads to confusion. If the two concepts were indeed interchangeable willful blindness would disappear because everyone who is willfully blind is necessarily reckless if you suspect that a fact exists but willfully avoid confirmation so as to be able to deny knowledge (and are willfully blind) then you must necessarily be seeing and taking an unjustifiable risk that the fact may exist (and are reckless). The two concepts are not the same and should not be equated. R. v. Sandhu wilful blindness is imputed knowledge while recklessness is something less than that.

R. v. Currie (1975), 24 C.C.C. (2d) 292 (Ont.C.A.) y F: Appellant gave cheque to bank which was endorsed but the endorsement was a forgery as the cheque was stolen. The appellant claims to have been approached by a man whom he had never seen before asked him to cash the cheque for him and said that he would pay the appellant $5 for cashing it. The appellant then took the cheque, cashed it and gave the proceeds to this unknown man. y R: Mens rea subjective; not whether he ought to have known but whether he did in fact know. Conviction overturned. y Subjective: accused must actually have suspected y Was the defendants suspicion aroused? Test for WB is subjective. Trial judge made the mistake of saying "should have known/ inquired", even when discussing willful blindness. y The trial judge registered a conviction and based his finding of guilt upon his conclusion that the appellant was wilfully blind as to the forged nature of the endorsement. The Appeal court quashed the conviction and a verdict of acquittal was entered. The doctrine of constructive knowledge (ought to have known) has no application in criminal law. R. v. Duong (1998), 15 C.R. (5th) 209 (Ont.C.A.) Harbouring fugitive = Willfull Blindness y Accused charged with accessory after the fact after helping a murder suspect (L) under s.23(1). Lam told Duong that he was in trouble about Murder. D did not inquire further but allowed L to hide in appt for 2 weeks. y R: Court held D willfully blind and convicted under 23(1). y Section 23(1) contemplates aid given to someone who has committed an offence (the principal) by a person who knew that principal had committed that offence when theassistance was provided. This indictment reflects the language of s. 23(1) and charges that the appellant "knowing that Chinh Lam was a party to the offence of murder, did assist Chinh Lam." y [23] These authorities make it clear that where the Crown proves the existence of a fact in issue and knowledge of that fact is a component of the fault requirement of the crime charged, wilful blindness as to the existence of that fact is sufficient to establish a culpable state of mind. Liability based on wilful blindness is subjective. Wilful blindness refers to a state of mind which is aptly described as "deliberate ignorance" (D. Stuart, Canadian Criminal Law, 3rd ed. (1995) at p. 209). y Actual suspicion, combined with a conscious decision not to make inquiries which could confirm that suspicion, is equated in the eyes of the criminal law with actual knowledge.

Both are subjective and both are sufficiently blameworthy to justify the imposition of criminal liability. R. v. Vinokurov, [2001] A.J. No. 612 (Alta C.A.)Stolen Property: Knowledge required [Possession of stolen property, owner of a pawnshop had stolen property from a series of breakins. Recklessness will not suffice. The statute requires knowledge.] y The Appellant was charged with seven counts of possession of stolen property contrary to s. 355(b) of the Criminal Code. CC s.354: Every one commits an offence who has in his possession any property or thing or any proceeds of any property or thingknowing that all or part of the property or thing or of the proceeds was obtained by or derived directly or indirectly from y The issue in this appeal is the application of the doctrines of recklessness and wilful blindness to a charge of possession of stolen property. y [7] It is a general rule of statutory construction that when the term knowingly is used in a criminal statute, the reasonable person standard will not satisfy the mens rea requirement. R. v. Rees y R. v. Sandhu (1989), 50 C.C.C. (3d) 492 (Ont. C.A.), wilful blindness is imputed knowledge while recklessness is something less than that. Where an offence requires knowledge on the part of the accused, it is improper to instruct the jury that a finding of recklessness satisfies that requirement. y [13] Wilful blindness will suffice because it is the equivalent of actual knowledge. Recklessness is not and, accordingly, is insufficient. (agrees with Sandhu) y [14] Recklessness will not satisfy the knowledge requirement on a charge of possession of stolen property. 7. y y y Objective Mens Rea and True Crimes Negligence is judged objectively, according to what a reasonable person would know or understand or how a reasonable person would act. The criminal law has long been uncomfortable with objective fault, as historically the criminal law responded to an evil mind, and careless people may be dangerous but they are not evil. Gradually the law has come to accept objective fault, although this has not happened for murder, where, as a matter of constitutional law, convictions must be based on subjective mens rea in the form of full scale intention. For crimes using objective fault as the mens rea, penal negligence - a more restricted form of negligence - is generally required. The exception is with predicate offences, those aggravated forms of offence that apply when serious consequences result, and that include within their elements another complete but lesser offence, a predicate offence. For predicate offences the consequence need not be brought about by penal negligence. It is enough if the accused commits the underlying or predicate offence, and that the aggravated consequence that has been thereby caused was objectively foreseeable.

y y

MR Charter - Murder R. v Martineau, [1990] 2 S.C.R. 633 Trailer robbery/murder: Subj. Foresight of Death y F:Martineau and a friend, Tremblay, set out armed knowing that they were going to commit a crime; Martineau testified that he thought it would only be a break and enter. Tremblay shot and killed two people after robbing them and their house. Martineau allegedly said or thought, after he heard the shot which killed the first victim, "Lady, say your prayers". As they left, Martineau asked Tremblay

y y

why he killed them and Tremblay answered, "They saw our faces". Martineau responded, "But they couldn't see mine 'cause I had a mask on". Respondent was convicted of second degree murder. [High-water mark for subjective mens rea Conviction for murder cannot rest on anything less than subjective foresight of death. If stigma and punishment are disproportionate to amount of blame required, then unconstitutional. The essential role of requiring subjective foresight of death in the context of murder is to maintain a proportionality between the stigma and punishment attached to a murder conviction and the moral blameworthiness of the offender. General Principle that criminal liability for a particular result is not justified except where the actor possesses a culpable mental state in respect of that result. In a free and democratic society stigma and punishment of murder should be reserved for those who intentionally cause death or who choose to inflict bodily harm that they know is likely to cause death] R: Lamer C.J: The principles of fundamental justice require that a conviction for murder be based upon proof beyond a reasonable doubt of subjective foresight of death. The introductory paragraph of s. 213(a) expressly removes the Crown's burden of proving beyond a reasonable doubt that the accused had subjective foresight of death. In a free and democratic society that values the autonomy and free will of the individual, the stigma and punishment attaching to murder should be reserved for those who choose intentionally to cause death or who choose to inflict bodily harm knowing that it is likely to cause death. Requiring subjective foresight of death in the context of murder maintains a proportionality between the stigma and punishment attached to a murder conviction and the moral blameworthiness of the offender. A special mental element with respect to death is necessary before a culpable homicide can be treated as murder and gives rise to the moral blameworthiness that justifies the stigma and punishment attaching to a murder conviction. It is a principle of fundamental justice that a conviction for murder cannot rest on anything less than proof beyond a reasonable doubt of subjective foresight of death. Section 213 of the Code expressly eliminates the requirement for proof of subjective foresight and therefore infringes ss. 7 and 11(d) of the Charter. The section, however, unduly impairs Charter rights because it is not necessary to convict of murder persons who do not intend or foresee the death in order to achieve this objective. (not saved by s.1)

y y y

MR Charter - Manslaughter R. v. Creighton, [1993] 3 S.C.R. 3 y F: Creighton injected himself and his two consenting companions with cocaine. Martin immediately began to convulse and stopped breathing. Caddedu tried to call 911 but Creighton's threats prevented him from doing so. They cleaned any signs of fingerprints from around the house and then left. Caddedu came back several hours later and called the police. y Creighton was charged under s. 222(5)(a) and (b) CC for manslaughter. y The issue before the Court was whether the common law use of manslaughter (s.222) violated section 7 of the Charter. y The test for the mens rea of unlawful act manslaughter is objective foreseeability of the risk of bodily harm which is neither trivial nor transitory, in the context of a dangerous act. Foreseeability of the risk of death is not required. This test does not violate the principles of fundamental justice under s. 7 of the Charter. The mens rea requirement of foreseeability of harm is entirely appropriate to the stigma associated with the offence of manslaughter.

y y

By the very act of calling the killing manslaughter, the law indicates that the killing is less blameworthy than murder. Nor does the sentence attached to manslaughter require elevation of the degree of mens rea for the offence. y The unlawful act must be objectively dangerous and the unreasonableness must be a marked departure from the standard of care of a reasonable person. y The majority further dismissed the proposition that there must be symmetry between all the external elements of the offence and the fault elements. Symmetry would require that there be a fault element for the consequences of the act, namely, that the accused could foresee death. This would require the courts to abandon the thin skull rule which has already been affirmed in cases of homicide (R. v. Smithers), thus it would not be reasonable to require symmetry in all cases. Rather symmetry remains a rule with clear exceptions and cannot be a principle of fundamental justice. y Risk of bodily harm is not appreciably different from risk of death in the context of manslaughter: when the risk of bodily harm is combined with the established rule that a wrongdoer must take his victim as he finds him and the fact that death did in fact occur, the distinction disappears. Further, while the rule that there must be symmetry between the mens rea and the prohibited consequences of the offence is a general rule of criminal law, it is not a principle of fundamental justice. Just as it would offend fundamental justice to punish a person who did not intend to kill for murder, so it would equally offend common notions of justice to acquit a person who has killed another of manslaughter and find him guilty instead of aggravated assault on the ground that death, as opposed to harm, was not foreseeable. Fundamental justice does not require absolute symmetry between moral fault and the prohibited consequences. y The majority made a point of criticizing the test proposed by Lamer. Lamer's test personalizes the objective test to a point where it resembles a subjective test. The reasonable person should not be vested with the "frailties" and characteristics of the accused. Policy and principle demands a single, uniform legal standard for such offences. There is no support in criminal law theory that suggests that the morally innocent are protected through examination of individual circumstances. It is only in cases of incapacity that characteristics should be considered. y The standard remains as what a reasonably prudent person would have done in all the circumstances. Consequently, activities that pose a greater threat or require greater expertise will require a greater standard of care. A person may fail that standard by undertaking an act they are not qualified in resulting in culpable negligence, or a person who is qualified may negligently fail the exercise special care required by the activity. The majority suggests a three step test for unlawful act manslaughter (penal negligence): y Establish the actus reus. The activity must constitute a marked departure from the standard of care of a reasonable person in all circumstances of the case. This includes carrying out an act in a dangerous manner or carrying out an inherently dangerous act. y Establish the mens rea. The activity must have been done while there was objective foresight of harm that can be inferred from the facts. The standard is that of the reasonable person in the circumstances of the accused. y Establish capacity. Given the personal characteristics of the accused, were they capable of appreciating the risk flowing from their conduct? y

R. v. Beatty, [2008] S.C.J. No. 5. y F: The accused was charged with dangerous operation of a motor vehicle causing death under s. 249(4) of the Criminal Code. Pickup truck crossed centre line, hit oncoming vehicle and killed all 3 occupants. Accused could not remember but stated must have lost consciousness/fallen asleep.

Issue: whether this momentary act of negligence was sufficient to constitute dangerous operation of a motor vehicle causing death within the meaning of s. 249(4). The determining question then became whether there was an explanation for the accuseds conduct that would raise a reasonable doubt that a reasonable person would have been aware of the risks in the accuseds conduct. Held: The appeal should be allowed and the acquittals restored. Conduct which constitutes a departure from the norm expected of a reasonably prudent person forms the basis of both civil and penal negligence. However, unlike civil negligence, which is concerned with the apportionment of loss, penal negligence is aimed at punishing blameworthy conduct. Fundamental principles of criminal justice require that the law on penal negligence concern itself not only with conduct that deviates from the norm, but also with the offenders mental state. The modified objective test established in Hundal remains the appropriate test to determine the requisite mens rea for negligence-based criminal offences. [6-7] The trier of fact must also be satisfied beyond a reasonable doubt that the accuseds objectively dangerous conduct was accompanied by the required mens rea: that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accuseds circumstances. Moreover, if an explanation is offered by the accused, then in order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused. Short of incapacity to appreciate the risk or incapacity to avoid creating it, the accuseds personal attributes such as age, experience and education are not relevant. The standard against which the conduct must be measured is the conduct expected of the reasonably prudent person in the circumstances. The reasonable person, however, must be put in the circumstances the accused found himself or herself in when the events occurred in order to assess the reasonableness of the conduct. Per McLachlin C.J. and Binnie and LeBel JJ.: The marked departure requirement applies to both the actus reus and the mens rea of the offence of dangerous operation of a motor vehicle. The mens rea is generally inferred from the marked departure in the nature of driving, although the evidence in a particular case may negate or cast a reasonable doubt on this inference. A momentary lapse of attention without more cannot establish the actus reus and mens rea of the offence of dangerous driving. However, additional evidence may show that a momentary lapse is part of a larger pattern that, considered as a whole, establishes the marked departure from the norm required for the offence of dangerous driving. Themens rea will be inferred from the driving pattern, absent excuses presented by the accused, such as sudden and unexpected illness, which raise a reasonable doubt as to criminal intent. In cases of momentary lapse of attention, the Crown does not have to prove that the accused subjectively intended to drive in a manner that constituted a marked departure from the norm and endanger lives.

y y y y y

y y

y y

MR Charter - Bodily Harm R. v. DeSousa [1992] 2 S.C.R. 944Bottle toss: Objective foreseeability of bodily harm [ISSUE: coming on heels of Martineau, is s. 269 (unlawful bodily harm) unconstitutional? Court determined the Constitutionally required level for mens rea for the charge of "unlawfully causing bodily harm". Moves away (retreats) from the ruling in Martineau (Martineau did NOT establish a constitutional minimum of subjective mens rea). This case, therefore, established a move away from subjective mens rea and toward objective mens rea.

There has to be an unlawful act that causes bodily harm = i.e. a predicate offence committed by the accused that results in bodily harm to the victim. This inlawful act / predicate offence must be objectively dangerous. In order for an act to be considered unlawful, it must be likely to injure another person, or, in other words, it must put the bodily integrity of others at risk (R v. Larkin); it must be considered at least objectively dangerous. S. 269 of the CC also requires that bodily harm that is caused by an underlying unlawful act be objectively foreseeable (a fault requirement based on an objective standard). RATIONALE: subjective foresight of bodily harm (i.e. subjective foresight of the consequence of a predicate offence) is not a constitutional requirement (as it is for a charge of murder), because it has a much lighter stigma and no mandatory minimum sentence. A heavy stigma and a mandatory minimum sentence are factors that precipitate a constitutional requirement for subjective mens rea. Symmetry? Some offences may have more than one part; question: do you need the same level of mens rea for every part or element of the actus reus? The first act is often the element of the actus reus that requires the highest level of mens rea. Provided that the actor is already engaged in a culpable activity, foresight of the consequences is not required in order to hold that actor responsible for the results of his/her unlawful activity. Justice Sopinka (R v. DeSousa) was very worried that if the ruling in Martineau was brought forward, then it would be difficult for Parliament to ever convict someone who engages in reckless or negligent conduct that results in unintended consequences. Post-Martineau, it seems that both Martineau and Vaillancourt are stand-alone cases (because there was a mandatory minimum sentence involved). For other offences, the judges could tailor the sentence depending on the circumstances involved ] y F: New Years Eve. Accused throws a bottle in an apartment during a fight. Bottle broke on the wall and a shard hit the complainant. Desousa charged under 269. y Justice Sopinka, writing for the Court, held that s.269 did not violate s.7. y The charge itself is broken down into two separate requirements. First, there must be an underlying offence (the "unlawful act") with a valid mens rea requirement. This includes provincial and federal offences, criminal or otherwise, but precludes any absolute liability offences. Secondly, the "unlawful act" must be at least "objectively dangerous" so that a reasonable person would realize that the act created a risk of bodily harm. Due to the lack of stigma or any sort of significant prison sentence attached to the offence it did not warrant a higher "subjective fault" requirement (R. v. Martineau). y The Court dismissed the argument that the offence would punish the morally innocent by not requiring proof of intention to bring about the consequences. Instead the offence aims to prevent objectively dangerous acts (this justification was elaborated on in R. v. Creighton).

8.

Regulatory Offences y Regulatory offences can be created by any level of government. y Regulatory offences can be full mens rea offences just as true crimes are, but a clear indication that mens rea is required is needed before regulatory offences will be interpreted as having mens rea elements. y They are presumed to be strict liability offences (offences that can be committed by simple, non-penal negligence, with the accused bearing the burden of proving an absence of negligence to avoid conviction).

y Some regulatory offences operate as absolute liability offences that will be committed whenever the relevant actus reus is proved, provided this is clearly what the legislators intended when establishing the offence. y Given the different modes of interpretation used, it is important to be able to distinguish true crimes from regulatory offences. R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299 y Public welfare crimes: environmental, food sale, labor, conservation, sale of liquor to minors, highway regulation infractions. y Dickson divides offenses into three categories: o Full mens rea offenses: When language indicates intent, offenses fall into this category. These offenses are criminal (penalties, stigma.) o Strict liability (presumed for public welfare): The crown proves actus reus), a defense of reasonable due diligence is available, the burden of which lies on the defendant to prove on a balance of probabilities.  Once Crown proves actus reus, defendant has opportunity to avoid responsibility by presenting evidence that acted with reasonable care and taken due diligence to prevent the harm from occurring  A person who is convicted does not have the stigma of being convicted of a criminal offense.  'Permit', 'cause' are strict liability words. o Absolute liability: When the language of the legislature makes it clear, public welfare offenses can fall into this category. F: The city built a disposal site 20 feet from a stream which, when filled by the disposal company, resulted in waste seeping into the stream. R: In the judgement written by Chief Justice Dickson, the Court recognized three categories of offences: 1. True Crimes: y Offences that require some positive state of mind (mens rea) as an element of the crime. y Language indicates intent. These offences are usually implied by the use of language such as "knowingly", "willfully", intentionally". 2. Strict Liability: (presumed for public welfare): y Offences that do not require the proof of mens rea. The act alone is punishable. y The crown proves actus reus, a defense of reasonable due diligence is available, the burden of which lies on the defendant to prove on a balance of probabilities. y The duty is on the accused to have acted as a reasonable person and has a defence of reasonable mistake of fact (a due diligence defence). The Court stated that the due diligence defence "will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. y Does not have the stigma of being convicted of a criminal offense. y 'Permit', 'cause' are strict liability words. 3. Absolute Liability: Similar to Strict Liability, these offences do not require proof of mens rea either. However, the accused has no defences available.

To distinguish between these types the Court examines:

[t]he overall regulatory pattern adopted by the legislature, the subject matter of the legislation, the importance of the penalty and the precision of the language used will be primary considerations in determining whether the offence falls into the third category. The Court then noted that the dumping offences were of a public welfare nature and were from a provincial statute, thus, were Strict Liability offences and do not require mens rea. R. v. Chapin, [1979] 2 S.C.R. 121 F: Went hunting within 1/4mile of area where bait had been laid, charged under Section 14(1) of the Migratory Birds Regulations. R: y The offence created by s. 14(1) of the Regulations cannot be characterized as a crime in the true sense. The Migratory Birds Convention Act is a regulatory statute enacted for the general welfare of the Canadian public and its wildlife. Section 14(1) creates a public welfare offence and it is not subject to the presumption of full mens rea. Following the Sault Ste. Marie case, public welfare offences would prima facie fall in the category of strict liability. The offence created by s. 14(1) is one of strict liability, a classic example of the second category delineated in the Sault Ste. Marie case. An accused may absolve himself on proof that he took all the care which a reasonable man might have been expected to take in all the circumstances or, in other words, that he was in no way negligent.

y y y

Reference re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] Court examines Absolute Liability offences F: Section 94(2) of the Motor Vehicle Act of British Columbia created an absolute liability offence of driving while with a suspended licence. To obtain a conviction, the Crown needed only to establish proof of driving regardless of whether the driver was aware of the suspension or not. R: Justice Lamer, writing for a unanimous court, held that an absolute liability, which makes a person liable for an offence whether or not they took steps not to be at fault, violates the principles of fundamental justice. y The court held that it was a breach of fundamental justice to impose a term of imprisonment for an offense that lacked the element of mens rea. y The court made no attempt to characterize this as a procedural defect in the law; the absence of mens rea created a substantial injustice which meant that the definition of fundamental justice must be expanded. He stated that the principles of fundamental justice are to be found in the basic tenants of the legal system. His opinion gives three reasons for extending fundamental justice beyond procedure: y 1. the words of fundamental justice, are literally broader in scope than other formulations that could have been used such as natural justice. 2. The expansion of the concept of fundamental justice has the effect of expanding the protection of life, liberty and security of the person. 3. Section 7 is a kind of residuary clause for all of the legal rights of the charter. Sections 8-14 are merely illustrative of deprivations of fundamental justice they could just as easily be caught by section 7. Since sections 8-14 go beyond merely procedural guarantees ( as an unreasonable search or seizure in section 8, arbitrary detention or imprisonment in

section 9 and cruel and unusual punishment in section 12) it follows that section 7 must go beyond a merely procedural guarantee y Therefore, any possibility of a deprivation of life, liberty, or security of person from an absolute liability offence offends the Charter. It is only through reasons of public interest can such offences be saved through section 1 of the Charter. The Crown failed to show that the public interest of ridding the roads of bad drivers could be proportional to the limiting of people's rights by imprisoning them.

R. v. Cancoil Thermal (1986), 52 C.R. (3d) 188 (Ont. C.A.). y F: A removed guard from blade; B cut off fingers. Charged w/ violation of Occupational Health and Safety Act and Regulations (provincial). y Legislature intended absolute liability offence but that violates s. 7 due to imprisonment. y Read down to strict liability - new trial to provide opportunity to present evidence of due diligence Levis (City) v Tetreault, [2006] S.C.J. No. 12 y F: Co. charged with operating a motor vehicle for which the fees relating to its registration had not been paid, raised the defences of due diligence and officially induced error DMV told them renewal notice would be sent out, was sent to wrong address. The Municipal Court of the city of Lvis found that ss. 31.1 (registration) and 93.1 (drivers licence) of the Highway Safety Code create strict liability offences y LeBel J said Absolute liability offenses still exist but theyve become an exception requiring clear proof of legislative intent. y The alleged offences belong to the category of strict liability offences. Section 93.1 does not place the burden of proving mens rea on the prosecution and includes no expression of the legislatures intent to create an absolute liability offence. Nor can such an intent be inferred from the scheme of this provision. A strict liability scheme responds adequately to the concern to ensure that vehicle operators are aware of their legal obligations y Nor does s. 31.1, as it is worded, create an absolute liability offence. Absent a clear indication of the legislatures intent, the offence must be categorized as one of strict liability. y Hogg - It is clear that an offensive absolute liability that carries a penalty of imprisonment is an infringement of section 7 of the charter. However it does not follow that the offense must always be struck down. One option is to interpret the statute trading the offense as implicitly allowing a defense of due diligence, in which case the offense becomes one of strict liability: took place in Levis. EXTENSIONS OF CRIMINAL LIABILITY 9. Aiding and Abetting y It is not only the person who actually performs the actus reus (the principal offender) who can be convicted of the offence. y So too can those who aid (physically support) or abet (encourage) the accused to commit the offence. y Indeed, persons who aid and abet one offence can, in some circumstances, be convicted of offences they did not intend to aid or abet, provided that offence is a foreseeable outcome of the offence they did intend to aid or abet. See CC s. 21 parties to offence

R. v. Dunlop and Sylvester, [1979] 2 S.C.R. 881 F: Identified as part of a gang rape, gave evidence that in attendance but did not participate y R: s. 21(2) of the Code, common intention, when there was no evidence that the appellants had formed any common intention with those involved in the gang rape to commit rape upon the complainant. y Presence at the commission of an offence can be evidence of aiding and abetting if accompanied by other factors, such as prior knowledge of the principal offender's intention to commit the offence or attendance for the purpose of encouragement. y In this case there was no evidence that while the crime was being committed either of the accused rendered aid, assistance, or encouragement to the rape of the complainant. There was no evidence of any positive act or omission to facilitate the unlawful purpose. y A person cannot properly be convicted of aiding and abetting in the commission of acts which he does not know may be or are intended. y One must be able to infer that the accused had prior knowledge that an offence of the type committed was planned, i.e. that their presence was with knowledge of the intended rape. R. v. Logan, [1990] 2 S.C.R. 731Whether s. 21(2) of the CC violates ss. 7 or 11(d) Charter y F: respondents convicted of attempted murder. Took part in robbery, victim shot. Johnson was a robber but he had no intention to shoot, nor did he know that it would take place. Logan boasted about planning. y Issue: (1) whether s. 21(2) of the Criminal Code infringed ss. 7 and/or 11(d) of the Charter, and (2), if so, whether it was justified under s. 1. y R: When the principles of fundamental justice require subjective foresight in order to convict a principal of attempted murder, that same minimum degree of mens rea is constitutionally required to convict a party to the offence of attempted murder. y Any conviction for attempted murder, whether of the principal directly or of a party pursuant to s. 21(2), will carry enough stigma to trigger the constitutional requirement. y To the extent that s. 21(2) would allow for the conviction of a party to the offence of attempted murder on the basis of objective foreseeability, its operation restricts s. 7 of the Charter. y The words "or ought to have known" are inoperative when considering under s. 21(2) whether a person is a party to any offence where it is a constitutional requirement for a conviction that foresight of the consequences be subjective, which is the case for attempted murder. y Because of the importance of the legislative purpose, the objective component of s. 21(2) can be justified with respect to most offences. However, with respect to the few offences for which the Constitution requires subjective intent, the stigma renders the infringement too serious and outweighs the legislative objective which, therefore, cannot be justified under s. 1. y Once these words are deleted, the remaining section requires, in the context of attempted murder, that the party to the common venture know that it is probable that his accomplice would do something with the intent to kill in carrying out the common purpose.

10.

Counseling y An accused can be convicted of counseling offences, whether or not the offences counseled are actually committed. y If the offences counseled are committed, CC. s. 22 (person counseling offence) operates. y If they are not committed, CC. s. 464(counseling offence that is NOT committed)

R. v. Hamilton, [2005] 2 S.C.R. 432 Counselling offence that is not committed

y F: accused sent emails and sold packages to people on how to produce valid credit card numbers, it also included instructions on how to make a bomb and how to break into a house. No complaints were received by the bank regarding their improper use. The accused was charged under s. 464 of the Criminal Code with counselling four indictable offences that were not committed, including fraud. y Issue: the imposition of criminal liability on those who counsel others to commit crimes. y R: The actus reus for counselling is the deliberate encouragement or active inducement of the commission of a criminal offence. y The mens rea consists of nothing less than an accompanying intent or conscious disregard of the substantial and unjustified risk inherent in the counselling: that is, it must be shown that the accused either intended that the offence counselled be committed, or knowingly counselled the commission of the offence while aware of the unjustified risk that the offence counselled was in fact likely to be committed as a result of the accuseds conduct. 11. y Attempts Not all crimes need to be complete before an offence arises. There is: (1) the discrete offence of counseling, (2) the offence of conspiracy in which the agreement to commit a crime is a crime, and (3) there is liability for attempting to commit an offence. Ancioshows the relevant mens rea for attempts Deutschis instructive on when the attempt proceeds far enough to constitute a crime. You should be aware that the fact that an offence is legally impossible in the factual circumstances is no defence to an attempt charge, but it is not an offence to try to commit an act you believe is an offence, when it is not actually an offence. Deryexposes the limits of piggy-backing incomplete forms of liability.

y y y

CC s. 24 definition of attempt CC ss. 463(attempts, general scheme of punishment), 465(conspiracy), 660(full offence charged, attempt proved) s. 239 (attempted murder) R. v. Ancio, [1984] 1 S.C.R. 225 y F: Respondent broke into apartment, got into fight with man, would have killed him but police arrived. y At issue here is whether the mens rea in attempted murder is limited to an intention to cause death or to cause bodily harm knowing it to be likely to cause death, or whether the mens rea required extended to the intention to do some action constituting murder as defined by ss. 212 or 213 of the Code. R: y The mens rea for attempted murder is the specific intent to kill y A mental state falling short of that level, while it might lead to conviction for other offences, cannot lead to a conviction for an attempt. y The completed offence of murder involves killing and any intention to complete murder must include the intention to kill.An attempt to murder should have no lesser intent. y The crime of attempt developed as, and remains, an offence separate and distinct from murder. While the Crown must still prove both mens rea and actus reus, the mens rea is the more important element. The intent to commit the desired offence is a basic element of the offence of attempt, and indeed, may be the sole criminal element in the offence given that an attempt may be complete without completion of the offence intended. R. v. Deustch, [1986] 2 S.C.R. 2

y F: conducted interviews for secretary job where told applicants they had to sleep with customers to close contract. y Issue: (1) whether appellant's acts or statements could, as a matter of law, constitute an attempt to procure rather than mere preparation y R: No satisfactory general criterion has been, or can be, formulated for drawing the line between preparation and attempt. The application of this distinction to the facts of a particular case must be left to common sense judgment. y The distinction between preparation and attempt is essentially a qualitative one, involving the relationship between the nature and quality of the act in question and the nature of the complete offence y consideration must be given, in making that qualitative distinction, to the relative proximity of the act in question to what would have been the completed offence, in terms of time, location and acts under the control of the accused remaining to be accomplished. y Relative proximitymay give an act, which might otherwise appear to be mere preparation, the quality of attempt. But an act which on its face is an act of commission does not lose its quality as the actus reus of attempt because further acts were required or because a significant period of time may have elapsed before the completion of the offence.

R. v. Dery, [2006] S.C.J. No. 53Whether offence of attempted conspiracy to commit substantive offence exists in Canadian criminal law. F: D and S were charged with conspiring to commit theft and conspiring to possess stolen liquor. The trial judge found that no agreement to steal or possess liquor and acquitted them of conspiracy, but found their actions more than merely preparatory to conspiracy and convicted them of attempting to conspire. y R: Ds convictions should be set aside and acquittals entered. y An attempt to conspire to commit a substantive offence is not an offence under Canadian law. y Criminal liability does not attach to fruitless discussions in contemplation of a substantive crime that is never committed, nor even attempted, by any of the parties to the discussions. y Here, though D discussed a crime hoping eventually to commit it with S, neither D nor S committed, or agreed to commit, the crimes they had discussed. The criminal law does not punish bad thoughts of this sort that were abandoned before an agreement was reached, or an attempt made, to act upon them. y In this sense, conspiracies are criminalized when hatched. And they can only be hatched by agreement. This basic element of conspiracy exposes the otherwise hidden criminal intentions of the parties to it and this demonstrates their commitment to a prohibited act. y The criminalization of attempt is warranted because its purpose is to prevent harm by punishing behaviour that demonstrates a substantial risk of harm. However, when applied to conspiracy, the justification for criminalizing attempt is lost, since an attempt to conspire amounts, at best, to a risk that a risk will materialize. 12. y y Corporate and Association Liability Corporations are liable for the acts of their agents for strict and absolute liability offences. Since these kinds of offences turn on the actus reus alone, there is no need to use any legal devices to ascribe mens rea to the corporation and so the Criminal Code corporate liability provisions do not apply to regulatory offences. For true crimes the Criminal Code sets out standards for corporate and association liability. Section 22.1 (offences of negligence/organizations) applies to objective fault or negligence offences where an association is charged

y y

y s. 22.2 (other offences/organizations) applies to subjective mens rea offences charged against an association.

SELECT CRIMINAL DEFENCES 13. Mental Disorder y Section 16 of the Criminal Code modifies the common law defence of insanity. y Theaccused must establish that he has a mental disorder as defined by the case law and that it affected him in one or both of the ways described in s.16 (1).

R. v. Cooper, [1980] 1 S.C.R. 1149 [provides a definition of mental disorder, although it has been modified by R. v. Park (discussed below). Cooper also stresses the significance of the concept of appreciates] y F: After a party at the hospital, the appellant unsuccessfully attempted to have sexual intercourse with the victim then choked her. Appellant had a lengthy psychiatric history. y R: In summary, one might say that in a legal sense disease of the mind embraces any illness, disorder or abnormal condition which impairs the human mind and its functioning, excluding however, self-induced states caused by alcohol or drugs, as well as transitory mental states such as hysteria or concussion. y Once the evidence is sufficient to indicate that an accused suffers from a condition which could in law constitute disease of the mind, the judge must leave it open to the jury to find, as a matter of fact, whether the accused had disease of the mind at the time the criminal act was committed. y In order to support a defence of insanity the disease must, of course, be of such intensity as to render the accused incapable of appreciating the nature and qualityof the violent act or of knowing that it is wrong. y Awareness: The draftsman of the Code, as originally enacted, made a deliberate change in language from the common law rule in order to broaden the legal and medical considerations bearing upon the mental state of the accused and to make it clear that cognition was not to be the sole criterion. Emotional, as well as intellectual, awareness of the significance of the conduct, is in issue. y Knowledge & appreciation: To know the nature and quality of an act may mean merely to be aware of the physical act, while to appreciate may involve estimation and understanding of the consequences of that act. y Our Code postulates an independent test, requiring a level of understanding of the act which is more than mere knowledge that it is taking place In short, a capacity to apprehend the nature of the act and its consequences. y With respect, I accept the view that the first branch of the test, in employing the word appreciates, imports an additional requirement to mere knowledge of the physical quality of the act. The requirement, unique to Canada, is that of perception, an ability to perceive the consequences, impact, and results of a physical act. An accused may be aware of the physical character of his action (i.e., in choking) without necessarily having the capacity to appreciate that,

in nature and quality, that act will result in the death of a human being. This is simply a restatement, specific to the defence of insanity, of the principle that mens rea, or intention as to the consequences of an act, is a requisite element in the commission of a crime. R. v. Kjeldsen, [1981] 2 S.C.R. 617 [describes how the defence works for sociopathic or psychopathic offenders] y F: Appellant, whose only defence was insanity, was convicted of first degree murder at trial. Medical evidence revealed that he was a psychopath and understood the physical nature and consequences of his act, though indifferent to such consequences. y Issue: definition of the word appreciating y R: To be capable of appreciating the nature and quality of his acts, an accused person must have the capacity to know what he is doing and in addition must have the capacity to estimate and to understand the physical consequences which would flow from his act y I draw special attention to the emphasized portion of the trial judges remarks in order to show that, though in the earlier part of that paragraph he had said: I tell you that nature and quality of the act is confined to an appreciation of the physical character of what he was doing, he did not limit the application of the word appreciate to the mere physical character of actions but included, as well, reference to the consequences which flowed from them. y if he had an appreciative awareness of striking with a stone that it might cause death or injury, that has brought us within the meaning of this section, regardless of what his emotional attributes might be, or regardless of what the emotional effect would be on the victim, one does not say that it changes the physical nature of the act one bit.If it does or does not frighten the victim, if it does or does not please the accused, whether it excites him or horrifies him, it is neither here nor there. It is a knowledge or an awareness and appreciation of the physical nature of the act, or combination of acts that matter. R. v. Oommen, [1994] 2 S.C.R. 507 [edifies us about the meaning of wrong.] y F: The accused killed a friend in his apartment without motive. Suffering from psychosis of a paranoid delusional type, thought a member of local union was trying to kill him, attacked friend to prevent her from killing him. y Issue: Meaning of phrase "knowing that [the act] was wrong" in s. 16(1) y R: Section 16(1) CC embraces not only the intellectual ability to know right from wrong in an abstract sense, but also the ability to apply that knowledge in a rational way to the alleged criminal act. y Indeed, the section focuses on the particular capacity of the accused to understand that his act was wrong at the time of committing the act. y An accused should thus be exempted from criminal liability where, at the time of the act, a mental disorder deprived him of the capacity for rational perception and hence rational choice about the rightness or wrongness of the act. y An accused need not establish that his delusion permits him to raise a specific defence, such as selfdefence, to be exempted from criminal responsibility. y The inability to make a rational choice may result from a variety of mental disorders, including delusions which cause an accused to perceive an act which is wrong as right or justifiable. 14. Voluntary Acts Negativing the Actus Reus and Automatism y As indicated above, the accused does not satisfy the actus reus requirement unless his act is willed. Some courts have acquitted individuals who reflexively strike out, using the specious reasoning that their physical act was not willed, but the legitimacy of this reasoning is questionable. y A more sophisticated application of the voluntariness concept was employed in R. v. Swaby.

y It is the voluntariness concept that explains the defence of automatism, which operates on the theory that the accuseds physical motions were not culpable where they are not voluntary or thought-directed or conscious, as in the sleep-walking case of R. v. Parks. y Please note that automatism will not realistically operate in any case where the accused appears conscious of his conduct it is reserved to cases where there appears to be some disconnect between the actions of the accused and his conscious will. y The result of the Parks decision was controversial enough that the Supreme Court of Canada took procedural steps to cut the defence back in R. v. Stone, although in R. v. Fontainesome of the excessive language of Stone was qualified by the Court. y Note that automatism is divided into two categories: 1. insane (or mental disorder) automatism - Where a court finds insane automatism the real defence it is applying is mental disorder, since an accused person who is automatistic because of a disease of the mind cannot appreciate the nature and quality of his act or have the capacity to understand that the act is wrong 2. non- insane (non-mental disorder) automatism.a complete acquittal is appropriate, although Stone has stacked the deck against this kind of defence succeeding R. v. Swaby, [2001] O.J. No. 2390 (Ont.C.A.) y police officers followed a car driven by the appellant in which William Johnson was a passenger. The car stopped and Johnson ran into a nearby backyard. The appellant drove off. Both men were arrested shortly thereafter. The police found a loaded, unregistered, restricted handgun in the backyard. y R: Voluntary conduct is a necessary element for criminal liability. y The requirement for voluntary conduct applieseven if the provision creating the offence does not expressly require one. y There is no general Code stipulation that the guilty act be voluntary. The requirement exists by virtue of judicial reasoningthe act must be the voluntary act of the accused for the actus reus to exist. y If one acquires knowledge of an illegal weapon while travelling in a moving vehicle, it surely cannot be the law that criminal liability instantly attaches. There must be some period of time, however short, afforded to the person who has acquired that knowledge to deal with the situation. The drivers occupancy of the vehicle would have coincided with his knowledge of the gun, but it could not be said that the coincidence of knowledge and occupancy amounted to voluntary conduct on the part of the driver. It is the conduct of the driver following the coincidence of occupancy and knowledge that counts, and if the driver acts with appropriate dispatch to get either the gun or himself out of the vehicle, there is no voluntary act for the criminal law to punish. y The Crown had to prove that the coincidence of occupancy and knowledge was attributable to something amounting to voluntary conduct on the part of the appellant. Although the section under which the appellant was charged contained no explicit defence in the terms of the present s. 94(3), it must be interpreted so as to exclude the possibility of conviction for what would amount to an involuntary act. R. v. Parks, [1992] 2 S.C.R. 871 y F: Respondent sleepwalking drove car, killed one inlaw and seriously injured another and then drove to police station.The respondent was charged with first degree murder and attempted murder. y At the trial respondent presented a defence of automatism. This evidence was that respondent was sleepwalking and that sleepwalking is not a neurological, psychiatric or other illness.

y Issue: whether sleepwalking should be classified as non-insane automatism resulting in an acquittal or as a "disease of the mind" (insane automatism), giving rise to the special verdict of not guilty by reason of insanity. y R: Automatism, although spoken of as a "defence", is conceptually a sub-set of the voluntariness requirement, which in turn is part of the actus reus component of criminal liability. y Non-insane Automatism: An involuntary act, including one committed in an automatistic condition entitles an accused to an unqualified acquittal y Insane Automatism: if the automatistic condition stems from a disease of the mind that has rendered the accused insane. Here, the accused is not entitled to a full acquittal, but to a verdict of insanity. When a defence of non-insane automatism is raised by the accused, the trial judge must determine whether the defence should be left with the trier of fact. This will involve two discrete tasks: 1. First, he or she must determine whether there is some evidence on the record to support leaving the defence with the jury. An evidential burden rests with the accused; the mere assertion of the defence will not suffice. 2. the trial judge must then consider whether the condition alleged by the accused is, in law, non-insane automatism. If the trial judge is satisfied that there is some evidence pointing to a condition that is in law non-insane automatism, then the defence can be left with the jury. y The issue for the jury is one of fact: did the accused suffer from or experience the alleged condition at the relevant time? y Because the Crown must always prove that an accused has acted voluntarily, the onusrests on the prosecution at this stage to prove the absence of automatism beyond a reasonable doubt. y Issue: The question of law at issue here, given that the accused laid the proper foundation for the defence of automatism, was whether sleepwalking should be classified as non-insane automatism or a disease of the mind, thereby leaving only the defence of insanity for the accused. [Examines Insanity] y Under the Criminal Code everyone is presumed to be and to have been sane until the contrary is proved. If the accused pleads automatism, the Crown is entitled to raise the issue of insanity, but must then bear the burden of proving that the condition in question stems from a disease of the mind. y "Disease of the mind" contains a substantial medical component as well as a legal or policy component. The medical component of the term, generally, is medical opinion as to how the mental condition in question is viewed or characterized medically. The legal or policy component relates to: (a) the scope of the exemption from criminal responsibility to be afforded by mental disorder or disturbance, and (b) the protection of the public by the control and treatment of persons who have caused serious harms while in a mentally disordered or disturbed state. y y The judge must determine what mental conditions are included within the term "disease of the mind", and whether there is any evidence that the accused suffered from an abnormal mental condition comprehended by that term. Two distinct approaches to the policy component of insanity have emerged in automatism cases: 1. "continuing danger" Any condition likely to present recurring danger should be treated as insanity. It has been criticized as a general theory. However, the purpose of the insanity defence has always been the protection of the public against recurrent danger. As such, the possibility of recurrence,

though not determinative, may be looked upon as a factor at the policy stage of the inquiry on the issue of insanity. 2. "internal cause" A condition stemming from the internal make-up of the accused, rather than external factors, should lead to a finding of insanity. Although it has gained a certain ascendency, it is merely an analytical tool and is not universal. In particular, it is not helpful in assessing the nature of a somnambulistic condition. The distinction between internal and external causes is blurred during sleep, and certain causes that are discounted for a subject who is awake may have entirely different effects on a sleeping person. Though seemingly divergent, both theories stem from a concern for the protection of the public. [rejects, based on the facts, that sleepwalking is instane automatism] y Our system of justice is predicated on the notion that only those who act voluntarily should be punished under the criminal law. y Here, no compelling policy factors preclude a finding that the accused's condition was one of noninsane automatism. y As the Crown did not meet its burden of proving that somnambulism stems from a disease of the mind, committal under s. 614(2) of the Criminal Code is precluded, and the accused should be acquitted. y However, because the medical evidence in each case impacts at several stages of the policy inquiry and is significant in its own right, sleepwalking in a different case on different evidence might be found to be a disease of the mind. Per Lamer C.J. and Cory J. (dissenting in part): The testimony revealed three very important points: (1) the respondent was sleepwalking at the time of the incident; (2) sleepwalking is not a neurological, psychiatric or other illness but rather is a sleep disorder very common in children and also found in adults; and, (3) there is no medical treatment as such, apart from good health practices, especially as regards sleep. This expert evidence was not in any way contradicted by the Crown, which had the advice of experts who were present during the testimony given by the defence experts and whom it chose not to call. y y The defence of automatism -- rather than that of insanity -- was properly put to the jury. For a defence of insanity to have been put to the jury, there would have had to have been in the record evidence tending to show that sleepwalking was the cause of the respondent's state of mind. That was not the case here. This was not to say, however, that sleepwalking could never be a disease of the mind in another case on different evidence. Notwithstanding respondent's acquittal, some control could be exercised to prevent a possible recurrence in a situation like this through the common law power to make an order to keep the peace which is vested in any judge or magistrate. Any condition imposed must be rationally connected to the apprehended danger posed by the person and go no further than necessary to protect the public from this danger.

R. v. Stone, [1999] 2 S.C.R. 290 Insane and non-insane automatism [Changes which the case made from Parks: y REVERSE ONUS: accused must rebut presumption of voluntariness on a balance of probabilities Parks: Crown must always prove that an accused has acted voluntarily, thus the onus rests on the prosecution prove the absence of automatism beyond a reasonable doubt. Stone:the legal burden in cases involving claims of automatism must be on the defence to prove involuntariness on a balance of probabilities to the trier of fact.Since a defence of automatism amounts to a claim that ones actions were not voluntary, the accused must establish a proper

foundation for this defence before it can be left with the trier of fact. An appropriate legal burden applicable to all cases involving claims of automatism must reflect the policy concerns which surround claims of automatism. Binnie (dissenting)More importantly, piling the persuasive burden on top of the evidential burden represents a change in the law as settled by this Court in Parks. In that passage, Dickson J. was careful to emphasize that imposition of an evidential burden as a matter of policy to filter out frivolous claims did not in any way indicate that an accused carried any part of the persuasive or legal burden, whether on a balance of probabilities or otherwise. Evidence to be called: expert psychiatric or psychological Hollistic approach, take each as a factor and then determine whether disease of the mind existed: must be informed by the internal cause theory, the continuing danger theory, and the policy concerns raised in Parks y Top down:jury starts from proposition that condition accused claims to have suffered = from disease of the mind, then must determine if evidence in particular case takes the condition out of the disease of the mind category Otherwise the test for automatism is the same]
y y

y F: The accused admitted stabbing his wife 47 times but claimed to have done it while in an automatistic state brought on by nothing more than his wifes insulting words. y At issue here were: (1) whether the defence of sane automatism should have been left to the jury R: Bastarache: Two forms of automatism are recognized at law: 1. Non-insane automatism arises where involuntary action does not stem from a disease of the mind and entitles the accused to an acquittal. 2. Insane automatism, arises only where involuntary action is found, at law, to result from a disease of the mind and is subsumed by the defence of mental disorder. A successful defence of insane automatism will trigger s. 16 of the Criminal Code and result in a verdict of not criminally responsible on account of mental disorder. Reverse Onus: y The law presumes that people act voluntarily. y Since a defence of automatism amounts to a claim that ones actions were not voluntary, the accused must establish a proper foundation for this defence before it can be left with the trier of fact. This is the equivalent of satisfying the evidentiary burden for automatism. y Once established, the trial judge must determine whether the condition alleged by the accused is mental or non-mental disorder automatism. y Brings in line: In her 1993 Proposals to amend the Criminal Code (general principles), the Minister of Justice recommended that the legal burden of proof in all cases of automatism be on the party that raises the issue on a balance of probabilities. This is the same legal burden that this Court applied to a claim of extreme intoxication akin to a state of automatism in Daviault, supra. It is also the legal burden Parliament assigned to the defence of mental disorder in s. 16 of the Code, which, as mentioned above, is equally applicable to voluntary and involuntary actions stemming from a disease of the mind and therefore applies to mental disorder automatism. y More importantly, piling the persuasive burden on top of the evidential burden represents a change in the law as settled by this Court in Parks. In that passage, Dickson J. was careful to emphasize that imposition of anevidential burden as a matter of policy to filter out frivolous claims did not in any way indicate that an accused carried any part of the persuasive or legal burden, whether on a balance of probabilities or otherwise.

A two-step approach should therefore apply to all cases involving claims of automatism: 1. First, the defence must establish a proper foundation for automatism. This burden is only met where the trial judge concludes that there is evidence upon which a properly instructed jury could find that the accused acted involuntarily on a balance of probabilities. y In all cases, this will require that the defence make an assertion of involuntariness and call confirming psychiatric evidence. y Other relevant factors to be considered in determining whether this defence burden has been satisfied include: the severity of the triggering stimulus; corroborating evidence of bystanders; corroborating medical history of automatistic-like dissociative states; whether there is evidence of a motive for the crime; and whether the alleged trigger of the automatism is also the victim of the automatistic violence. y No one factor is determinative. The trial judge must weigh all of the available evidence on a case-by-case basis. y Placing this burden on the defence, while constituting a limitation of an accuseds s. 11(d) Charter rights, is justified under s. 1. 2. The trial judge must determinewhether the condition alleged by the accused is mental disorder or non-mental disorder automatism. y The assessment of which form of automatism should be left with the trier of fact comes down to the question of whether or not the alleged condition is a mental disorder. y Mental disorder is a legal term defined in the Code as a disease of the mind. y The question of what conditions are included in that term is a question of mixed law and fact because it involves an assessment of the particular evidence in the case rather than a general principle of law. y Trial judges should start from the proposition that the condition is a disease of the mind and then determine whether the evidence in the particular case takes the condition out of the disease of the mind category. There are two distinct approaches to the disease of the mind inquiry: 1. internal cause theory, the trial judge must compare the accuseds automatistic reaction to the way one would expect a normal person to react in order to determine whether the condition the accused claims to have suffered from is a disease of the mind. This comparison is a contextual objective one. Evidence of an extremely shocking trigger will be required to establish that a normal person might have reacted to it by entering an automatistic state as the accused claims to have done. y That is, the objective component does not affect the burden of proof on the issue of whether the accused voluntarily committed the offence. y Consideration of the subjective psychological make-up of the accused in the internal cause theory would frustrate the very purpose of making the comparison which is the determination of whether the accused was suffering from a disease of the mind in a legal sense. 2. Thecontinuing danger theory, holds that any condition which is likely to present a recurring danger to the public should be treated as a disease of the mind. y While a continuing danger suggests a disease of the mind, a finding of no continuing danger does not preclude a finding of a disease of the mind. y Trial judges may consider any of the evidence before them in order to assess the likelihood of recurrence of violence and in particular the psychiatric history of the accused and the likelihood that the trigger alleged to have caused the automatistic episode will recur.

y y

y y y

A holistic approach should be adopted under which either or both of these approaches to the inquiry may be considered by trial judges. It is therefore more appropriate to refer to the internal cause factor and the continuing danger factor. In addition to these two factors, policy factors may also be considered in determining whether the condition the accused claims to have suffered from is a disease of the mind. If the trial judge concludes that the condition the accused claims to have suffered from is not a disease of the mind, only the defence of non-mental disorder automatism will be left with the trier of fact as the trial judge will have already found that there is evidence upon which a properly instructed jury could find, on a balance of probabilities, that the accused acted involuntarily. The question for the trier of fact will then be whether the defence has proven, on a balance of probabilities, that the accused acted involuntarily. A positive answer to this question by the trier of fact will result in an absolute acquittal. On the other hand, if the trial judge concludes that the alleged condition is a disease of the mind, only mental disorder automatism will be left with the trier of fact.

R. v. Fontaine, [2004] 1 S.C.R. 702 y F: accused got a phone call from a former employee threatening his life. Became paranoid, smoked marihuana, thought employee was trying to break in, shot gun. Seeing the victim at the garage the next day, the accused shot and killed him. Before a judge and jury, the accused pleaded mental disorder automatism. Several psychiatrists gave evidence. The judge refused to put this defence to the jury on the ground that the required evidential foundation had not been laid. y Issue: Whether accused entitled to have defence considered and decided by jury y R:Evidential Burden:If there is some evidence upon which a properly instructed jury could reasonably conclude that an accused probably perpetrated the alleged criminal act in a state of automatism, the evidential burden has been discharged and the defence is in play before the jury. y An evidential burden is not a burden of proof. It determines whether an issue should be left to the trier of fact,while the persuasive burden determines how the issue should be decided. These are fundamentally different questions. The first is a matter of law; the second, a question of fact. y The judge decides whether the evidential burden has been met. In answering that question, the judge does not evaluate the quality, weight or reliability of the evidence. The judge simply decides whether there is evidence upon which a properly instructed jury could reasonably decide the issue. y In the case of reverse onus defences, such as mental disorder automatism, it is the accused who bears both the persuasive and the evidential burdens. In these defences, the persuasive burden is discharged by evidence on the balance of probabilities. y As regards all affirmative defences, the evidential burden will be discharged where there is some evidence that puts the defence in play; the defence will be in play whenever a properly instructed jury could reasonably, on account of that evidence, conclude in favour of the accused. y Where mental disorder automatism is raised as a defence, an assertion of involuntariness on the part of the accused, supported by evidence from a qualified expertwhich, if accepted by the jury, would tend to support that defence, will normally provide a sufficient evidentiary foundation for putting the defence to the jury. y Accompanying instructions in law will make it clear to the jury that the burden remains on the accused to establish the defence to the required degree of probability. 15. Simple Intoxication y Intoxication does not operate as a justification or excuse for criminal conduct. y Operates only if proof of the intoxication helps leave the judge or jury in reasonable doubt over whether the accused formed the relevant mens rea.

y The law is hostile to this claim. It limits the defence to specific intent offences. y Thus, for general intent offences, the question of whether the accused had the relevant mens rea will be assessed on the assumption that the accused was not intoxicated - even if he was. y In other words, the law of simple intoxication operates less as a defence than as a way of limiting cases where the judge or jury can factor intoxication into mens rea determinations. y The concept of a specific intent and general intent offence is described in the extreme intoxication case of R. v. Daviaultbelow. y Please note that in Canada, the inquiry is no longer into capacity to form the intent as it was in common law England the defence applies if intoxication prevents the formation of the specific intent required by the relevant section. R. v. Bernard, [1988] 2 S.C.R. 833 y [McIntyre: GENERAL INTENT-intention to commit assault, should not be entitled to acquittal just because get yourself into such a state o Necessary MENS REA proved in 2 ways:  Triers of fact may infer mens rea from the actus reus itself  Where so intoxicated that there is doubt as to voluntary nature of act; Crown may meet obligation of MR by proving the fact of voluntary self-induced intoxication by drugs or alcohol (guilty mind) y therefore NO DEFENCE: for a general intent crime proof of his voluntary drunkenness can be proof of his guilty mind y Wilson: GENERAL INTENT: no requirement of intent or purpose beyond the intentional application of force y BUT : defence SHOULD BE ALLOWED for GENERAL INTENT crimes where there is extreme intoxication verging on automatism/insanity y Dickson(Dissent): unjust, should have to prove MR with taking intoxication into account ] y F: Appellant admitted forcing the complainant to have sexual intercourse with him and stated that his drunkenness caused the attack on her. y Issue: whether evidence of self-induced intoxication should be considered by the trier of fact, along with all other relevant evidence, in determining whether the prosecution has proved beyond a reasonable doubt the mens rea required to constitute the offence. McIntyre JJ.: y General intent offence: is one in which the only intent involved relates solely to the performance of the act in question with no further ulterior intent or purpose. y Specific intent offence: is one which involves the performance of the actus reus coupled with an intent or purpose going beyond the mere performance of the questioned act. y Intoxication as a defence, may apply in a specific intent offence when the accused is so intoxicated that he lacks the capacity to form the specific intent required to commit the crime. y The defence does not apply in offences of general intent. The Crown must still prove the mens rea in a general intent offence, notwithstanding the absence of a defence of voluntary intoxication. This can be proved in two ways: 1. Themens rea in most cases can be inferred from the actus reus itself: a person is presumed to have intended the natural and probable consequences of his actions. 2. Secondly, where the accused was so intoxicated as to raise doubt as to the voluntary nature of his conduct, the Crown may establish the necessary blameworthy mental state of the accused by proving voluntary self-induced intoxication. As a result, persons accused of these crimes cannot hold up voluntary drunkenness as a defence.

This rule recognizes that accused persons who have voluntarily consumed drugs or alcohol, thereby depriving themselves of self-control leading to the commission of a crime, are not morally innocent and are, indeed, criminally blameworthy.

Per Wilson and L'Heureux-Dub JJ.: y Sexual assault causing bodily harm is an offence of general intent requiring only the minimal intent to apply force. y In cases involving general intent offences and intoxication, the Crown can establish the accused's blameworthy mental state by inference from his or her acts. The evidence of intoxication withheld from the trier of fact could not possibly have raised a reasonable doubt as to the existence of the minimal intent to apply force y evidence of intoxication can go to the trier of fact in general intent offences only if it is evidence of extreme intoxication involving an absence of awareness akin to a state of insanity or automatism. Only in such a case is the evidence capable of raising a reasonable doubt as to the existence of the minimal intent required for the offence. R v Daviault (in relation to general/specific intent differentation) Categorization of Crimes as Requiring Either a Specific Intent or a General Intent y stated that sexual assault was a general intent crime R v Penno [1990] Lamer: A general intent offence is one in which the only intent involved relates solely to the performance of the act in question with no further ulterior intent or purpose. "Specific intent" offences also require proof of some further intention. For example, assault (which, in one form, requires only proof of the intentional touching of another without consent), is a general intent offence; murder (which requires proof of not only the intentional infliction of harm but the intention to kill) is a specific intent offence. Note: Examples of Specific and General Intent Offences Specific Intent: murder, robbery/theft, b&e with intent, attempts (sexual assault, murder) General Intent: manslaughter, sexual assaults, assaults, willful damage (vandalism), b&e and commiting an offence R v. Robinson, [1996] 1 S.C.R. 683[2nd degree murder specific intent intoxication] [How to put defence to jury jurys consideration = intent] y The accused killed a man but claimed to have acted without intent because he was intoxicated. He had been drinking with the victim and some friends and that the killing occurred when the victim said something to offend him. y Issue: how juries should be instructed regarding evidence of intoxication y R: The Beard rules on intoxication (Capacity Is the Only Relevant Inquiry) should be overruled. These rules provide that intoxication is not a relevant factor for triers of fact to consider except where the intoxicant removed the accused's capacity to form the requisite intent. y the real focus should be on whether the Crown, in light of the intoxication evidence, has established the requisite intent beyond a reasonable doubt. y Developments in England, New Zealand and Australia where "capacity" language has fallen out of favour and intoxication is now simply a factor jurors can consider in assessing whether the prosecution has proved beyond a reasonable doubt that the accused had the required intent

16.

Extreme Intoxication y This defence was created in R. v. Daviaultunder the influence of the Charter. y Where extreme intoxication applies, it can operate as a defence to any offence, whether specific intent or general intent. y The theory behind the defence is that a person can become intoxicated enough that his mind may cease to operate sufficiently to make conscious choices relating to his actions. y Scientifically, the premise that this can happen is controversial, although Daviault recognized that if this were to occur the Charter would require an acquittal since voluntariness is a principle of fundamental justice.

R. v. Daviault, [1994] 3 S.C.R. 63 [enough alcohol verge of comma sexual assault] [Supreme Court of Canada decision on the availability of the defense of intoxication for "general intent" criminal offenses. The Leary rule which eliminated the defense was found unconstitutional in violation of both section 7 and11(d) of the Canadian Charter of Rights and Freedoms. Instead, intoxication can only be used as a defence where it is so extreme that it is akin to insanity. Majority prefers Wilsons approach in Bernard: extreme intoxication defence to general intent crime y *REVERSE ONUS: shown akin to automatism accused to prove on balance of probabilities the defence *NB: s.33. CC no defence to intoxication for general intent crimes for sexual offences or violent cases (Charter challenge) THEREFORE:  SPECIFIC INTENT: defence of intoxication (Bernard)  GENERAL INTENT: court says that there should be for extreme intoxication, CC says NO defence in cases of violence/sex assault (remains to be seen if can be saved under s.1) ] F: The accused got blackout drunk & sexually assaulted a 65 year old women in a wheelchair whom he was drinking with. A pharmacologist testified that an individual with the blood-alcohol ratio he hypothesized the accused would have had after consuming that amount of alcohol might suffer a blackout. In such a state the individual loses contact with reality and the brain is temporarily dissociated from normal functioning. The individual has no awareness of his actions when he is in such a state and will likely have no memory of them the next day. R: Cory: y The strict application of the rule established in this Court's decision in Leary that the mens rea of a general intent offence cannot be negated by drunkenness offends both ss. 7 and 11(d) of the Charter The mental aspect of an offence has long been recognized as an integral part of crime, and to eliminate it would be to deprive an accused of fundamental justice. The mental element in general intent offences may be minimal; in this case it is simply an intention to commit the sexual assault or recklessness as to whether the actions will constitute an assault. The necessary mental element can ordinarily be inferred from the proof that the assault was committed by the accused, but the substituted mens rea of an intention to become drunk cannot establish themens rea to commit the assault.

y y

y y

y y y

Moreover, the presumption of innocence requires that the Crown bear the burden of establishing all elements of a crime, including the mental element of voluntariness. Self-induced intoxication cannot supply the necessary link between the minimal mens rea required for the offence and the actus reus. To deny that even a very minimal mental element is required for sexual assault offends the Charter in a manner that is so drastic and so contrary to the principles of fundamental justice that it cannot be justified under s. 1 of the Charter. The flexible approach suggested by Wilson J. in Bernard, whereby evidence of intoxication could properly go before a jury in general intent offences if it demonstrated such extreme intoxication that there was an absence of awareness which was akin to a state of insanity or automatism, should be adopted. Extreme intoxication akin to automatism or insanity should, like insanity, be established by the accused on a balance of probabilities. It will only be on rare occasions that evidence of such an extreme state of intoxication can be advanced. It is only the accused who can give evidence as to the amount of alcohol consumed and its effect upon him. Expert evidence would be required to confirm that the accused was probably in a state akin to automatism or insanity as a result of his drinking.

From NCA Notes: - relating to outcome after Daviault y Daviault was so controversial that Parliament immediately enacted s. 33.1 of the Criminal Code to eradicate the defence in sexual offence and violence cases. y This means that, subject to Charter challenge [Canadian courts are split on whether s. 33.1 is constitutionally valid] extreme intoxication can only be used for other kinds of offences. y Since the amendment there remains a major question as to whether this section could survive Charter scrutiny, since it effectively re-instates the Leary rule. y Be aware that nothing in s. 33.1 abolishes the defence of simple intoxication it limits only the defence of extreme intoxication. See CC: s.33.1 (Criminal fault by reason of intoxication/ when defence is NOT available)

17.

Defence of the Person y Self-defence is a complex defence in Canada. y There are four separate but potentially overlapping statutory defences. y All of the defences apply where the accused is being unlawfully assaulted, or reasonably believes he is about to be unlawfully assaulted y But each of the four separate offences has its own additional requirements that must be satisfied.

Section 34(1) applies where the accused does not provoke the assault being defended against, and defends against it without intending to cause death or gbh, whether or not death or gbh is caused. Section 34(2) applies whether or not the accused provoked the assault being defended against and intends to cause death or gbh. Section 35 applies where the accused provoked the assault, but this defence has lost much of its relevance given that section 34(2), which is less restrictive than section 35, can be used where assaults are provoked. The concept of provocation is defined for the purposes of self-defence in section 36.

Section 37 operates as a general defence that is broad enough to subsume the other defences but courts tend not to use it if any of the other provisions apply. R. v. Pintar, [1996] O.J. No. 3451 (Ont. C.A.) [Pintar explains the relationship between sections 34(1) and (2), and the general approach that should be taken to using the various defences. S.34(1) scope of provocation much narrower than s.34(2) Counsel should satisfy judge why using narrower provision Narrower version should be discarded otherwise S.34(2) should be applied in ALL murder cases, whether or not accused intended to kill or cause gbh s.34(2) is wider] F: Pintar was in struggle/fight with Ross & Gill, shot and killed them.
y y y y

y y

R: SCC has now made it clear that just as under-charging can lead to reversible error in some cases, so too can over-charging. On a practical level, I am of the view that the decision advocates a somewhat morefunctional approach to instruction on the law of self-defence than may have existed in the past. Functional approach, provides a convenient label for the underlying principles which should inform the content of every jury charge. Purpose: to relieve against some of the confusion and complexity that has plagued self-defence instruction by enabling trial judges to be somewhat more selective and proactive in the formulation of their instruction. It is designed to encourage trial judges to pinpoint the real basis upon which the claim to self-defence rests and communicate thatdefence to the jury in as clear and comprehensible a fashion as possible.

To give effect to the functional approach, I would urge trial judges to consider the following guidelines when faced with the prospect of charging a jury on the law of self-defence: (1) Consider the evidence carefully with a view to determining the essence of the claim to self-defence and the Code provision(s) realistically available to that claim. (2) To the extent that the evidence fails the air of reality test in respect of one or more of the constituent elements of a particular provision, that provision should not be left with the jury. (3) To the extent that the evidence clearly establishes one or more of the constituent elements of a particular provision, Crown counsel should be encouraged to admit the underlying facts and thereby avoid unnecessary legal instruction. (4) Where a particular provision affords the accused a wider scope of justification than a companion provision, the narrower provision should only be put to the jury if the evidence lends an air of reality to the factual underpinnings of that provision, and the provision somehow fills a gap unaccounted for in the justification afforded by the wider provision.

[air of reality test: A pre-requisite test against which a proposed defence to a criminal charge is weighed; that any proposed defence must at least have an evidential foundation.] y Explaining #4: Experience reveals that it is not uncommon, particularly in murder cases, that even though the primary claim to self-defence rests upon s. 34(2), s. 34(1) remains marginally

relevant and theoretically available. This type of situation generally arises when, despite evidence to the contrary, the Crown has made out a strong case that the accused either provoked the initial assault, or intended to kill or cause grievous bodily harm, or both. When trial judges are faced with situations like this, they should call upon counsel to justify instruction on the narrower provision. If the results of that exercise reveal either the lack of an evidentiary base for putting the narrower provision, or an inability to demonstrate how the narrower provision might be available to fill a gap not provided for by the broader one, the narrower provision should be discarded.

R. v. Cinous, [2002] 2 S.C.R. 3 - Evidential standard applicable to air of reality test. [Cinous shows, each of these defences has both subjective and objective components that have to be satisfied.] F: Accused involved in a chain of robberies. The two other individuals involved began acting suspiciously, whispering, with different gloves and the accused heard from a friend they wanted him dead. He pulled into a gas station and shot one of them while they were in his car. McLachlin C.J. & Bastarache: y A defence should be put to a jury if, and only if, there is an evidential foundation for it. y The air of reality test imposes a burden on the accused that is merely evidential, rather than persuasive. y In applying the air of reality test, a trial judge considers the totality of the evidence, and assumes the evidence relied upon by the accused to be true. y The threshold determination by the trial judge is not aimed at deciding the substantive merits of the defence. That question is reserved for the jury. y The question for the trial judge is whether the evidence discloses a real issue to be decided by the jury, and NOT how the jury should ultimately decide the issue. The pre- and post-Pappajohn authorities support a two-pronged question for determining whether there is an evidential foundation warranting that a defence be put to a jury. The question is whether there is: (1) evidence; - The terms no evidence, some evidence or any evidence can be used to describe the applicable evidential standard, provided these terms are understood as elliptical references to the full question. (2) upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true. - Ask whether the evidence put forth is reasonably capable of supporting the inferences required to acquit the accused. The air of reality test must be applied to each of the three elements of self-defence under s. 34(2) of the Criminal Code, which have both a subjective and an objective component: y Subjective:Would it be possible for the jury reasonably to conclude that the accused believed that he was going to be attacked, y Objective: and that this belief was reasonable in the circumstances. y There is an air of reality to the subjective component of the defence as there is direct evidence on the accuseds beliefs, in the form of the accuseds testimony. A jury acting reasonably could draw an inference from the circumstances described by the accused, including particularly the

many threatening indicators to which he testified, to the reasonableness of his perception that he was going to be attacked. With respect to the second element of self-defence, reasonable apprehension of death or grievous bodily harm, for the same reason there is also an air of reality to the accuseds perception that the attack would be deadly: y Subjective: The accuseds testimony is unambiguously to the effect that he feared a deadly attack. y Objective: A jury acting reasonably could draw an inference from the circumstances described by the accused, including particularly the indications that Y and M were armed, the rumours of a plan to assassinate him, the suspicious behaviour, and the wearing of the gloves, to the reasonableness of his perception that he was in mortal danger. With respect to the third element of self-defence, namely a reasonable belief in the absence of alternatives to killing, y Subjective: it must be established both that the accused believed that he could not preserve himself except by shooting the victim, y Objective: and that he held this belief on reasonable grounds. y The accuseds extensive direct testimony regarding his subjective perceptions at the relevant time amounts to more than a mere assertion of the element of the defence. However, the belief that the accused had no other option but to kill must have been objectively reasonable. y Section 34(2) requires that the accused have believed on reasonable grounds that there was no alternative course of action open to him at that time, so that he reasonably thought he was obliged to kill in order to preserve himself from death or grievous bodily harm. In this case, there is absolutely no evidence from which a jury could reasonably infer the reasonableness of a belief in the absence of alternatives. As the three conditions of self-defence were not all met on the facts of this case, the defence lacked the air of reality required and should never have been put to the jury.

Per Gonthier and Binnie JJ.: (commenting on facts) y Reasons agreed with y There is no air of reality, to the assertion that the accused believed on reasonable grounds that he could not otherwise preserve himself from death or grievous bodily harm, as required by s. 34(2)(b) of the Criminal Code. y The objective reality of his situation would necessarily be altogether ignored, contrary to the intention of Parliament as interpreted in our jurisprudence. A criminal code that permitted preemptive killings within a criminal organization on the bare assertion by the killer that no course of action was reasonably available to him while standing outside a motor vehicle other than to put a shot in the back of the head of another member sitting inside the parked vehicle at a well-lit and populated gas station is a criminal code that would fail in its most basic purpose of promoting public order.

R v Lavallee, [1990] 1 S.C.R. 852Battered woman, fearing attack and possible death, killing spouse, using self defence [illustrates the defence applied in the battered women context]

F: Appellant, a battered woman in a volatile common law relationship, killed her partner late one night by shooting him in the back of the head as he left her room. A psychiatrist with extensive professional experience in the treatment of battered wives prepared a psychiatric assessment of the appellant which was used in support of her defence of self-defence. y y R: Wilson: Expert testimony is admissible to assist the fact-finder in drawing inferences in areas where the expert has relevant knowledge or experience beyond that of the lay person. Expert testimony relating to the ability of an accused to perceive danger from her partner may go to the issue of whether she "reasonably apprehended" death or grievous bodily harm on a particular occasion. Expert testimony pertaining to why an accused remained in the battering relationship may be relevant in assessing the nature and extent of the alleged abuse. By providing an explanation as to why an accused did not flee when she perceived her life to be in danger, expert testimony may also assist the jury in assessing the reasonableness of her belief that killing her batterer was the only way to save her own life. Expert evidence does not and cannot usurp the jury's function of deciding whether, in fact, the accused's perceptions and actions were reasonable. But fairness and the integrity of the trial process demand that the jury have the opportunity to hear that opinion. The expert testimony was properly admitted in order to assist the jury in determining whether the appellant had a reasonable apprehension of death or grievous bodily harm and believed on reasonable grounds that she had no alternative but to shoot. As long as there is some admissible evidence to establish the foundation for the expert's opinion, the trial judge cannot subsequently instruct the jury to completely ignore the testimony. The judge must, of course, warn the jury that the more the expert relies on facts not proved in evidence the less weight the jury may attribute to the opinion.

y y

8. Necessity The defence of necessity permits the conduct of the accused to be excused where its elements are met. The defence is heavily circumscribed. R. v. Latimer, [2001] 1 S.C.R. 3 [Defence of necessity Accused convicted of second degree murder after killing his severely disabled daughter -- Trial judge removing defence of necessity from jury after counsels closing addresses -Whether jury should have been allowed to consider defence of necessity ] y F: Put hose into cab of truck and killed disabled daughter. The trial judge told counsel that he would rule on necessity after the closing submissions, and later ruled that the defence was not available. The jury wanted to account for it on sentencing, but the judge said they should not be concerned with that. R: The defence of necessity is narrow and of limited application in criminal law.

The accused must establish the existence of the three elements of the defence: 1. There is the requirement of imminent peril or danger. y In short, disaster must be imminent, or harm unavoidable and near. It is not enough that the peril is foreseeable or likely; it must be on the verge of transpiring and virtually certain to occur.

In Perka, Dickson J. expressed the requirement of imminent peril at p. 251: At a minimum the situation must be so emergent and the peril must be so pressing that normal human instincts cry out for action and make a counsel of patience unreasonable. The Perka case, at p. 251, also offers the rationale for this requirement of immediate peril: The requirement . . . tests whether it was indeed unavoidable for the actor to act at all. Where the situation of peril clearly should have been foreseen and avoided, an accused person cannot reasonably claim any immediate peril

2.

The accused must have had no reasonable legal alternative to the course of action he or she undertook. y Perka proposed these questions, at pp. 251-52: Given that the accused had to act, could he nevertheless realistically have acted to avoid the peril or prevent the harm, without breaking the law? y Was there a legal way out? (emphasis in original). y If there was a reasonable legal alternative to breaking the law, there is no necessity. y It may be noted that the requirement involves a realistic appreciation of the alternatives open to a person; the accused need not be placed in the last resort imaginable, but he must have no reasonable legal alternative. y If an alternative to breaking the law exists, the defence of necessity on this aspect fails. There must be proportionality between the harm inflicted and the harm avoided. The harm inflicted must not be disproportionate to the harm the accused sought to avoid. But most situations fall into a grey area that requires a difficult balancing of harms. In this regard, it should be noted that the requirement is not that one harm (the harm avoided) must always clearly outweigh the other (the harm inflicted). Rather, the two harms must, at a minimum, be of a comparable gravity. y y A modified objective test: involves an objective evaluation, but one that takes into account the situation and characteristics of the particular accused person. The first and second requirements imminent peril and no reasonable legal alternative must be evaluated on the modified objective standard described above. As expressed in Perka, necessity is rooted in an objective standard: involuntariness is measured on the basis of societys expectation of appropriate and normal resistance to pressure (p. 259). We would add that it is appropriate, in evaluating the accuseds conduct, to take into account personal characteristics that legitimately affect what may be expected of that person. The third requirement for the defence of necessity, proportionality, must be measured on an objective standard. Evaluating the nature of an act is fundamentally a determination reflecting societys values as to what is appropriate and what represents a transgression.

3. y y

Law applied to facts: y Here, the trial judge was correct to remove the defence from the jury since there was no air of reality to any of the three requirements for necessity. y The accused did not himself face any peril, and Ts ongoing pain did not constitute an emergency in this case. Ts proposed surgery did not pose an imminent threat to her life, nor did her medical condition. It was not reasonable for the accused to form the belief that further surgery amounted to imminent peril, particularly when better pain management was available. y Moreover, the accused had at least one reasonable legal alternative to killing his daughter: he could have struggled on.

Proportionality: Killing a person in order to relieve the suffering produced by a medically manageable physical or mental condition is not a proportionate response to the harm represented by the non-life-threatening suffering resulting from that condition.

19. Duress The defence of duress is available under: 1. section 17 of the Criminal Code and; 2. at common law. y S. 17 identifies a limited defence, but the common law and Charter have been used to extend its application.

***Duress*** [UVIC LAW] A. Overview o Availability governed by statute (s. 17) and common law o An excuse not a justification: does not go to MR see Hibbert o Elements of statutory defence: 1. commits offence under threats of immediate death or bodily harm; 2. from person present when offence committed; 3. if offender believes threats will be carried; 4. offender is not an co-conspirator or criminal associate; and 5. offence is not one of the 22 listed in s. 17 Elements of common law defence: see Paquette (SCC, 1976) and Ruzic (SCC, 2001) 1. offender is subject to threat of death or serious injury (not necessarily immediate but with a close temporal connection.) 2. offender must believe that the threat will be carried out 3. threat must be of a gravity to cause a reasonable person to act as the offender did 4. offender must not have a safe avenue of escape (a subjective/objective assessment) 5. offender must not be a criminal associate or accomplice NB: Ruzic held that the restrictive immediacy and presence requirements of the s. 17 defence offended s. 7 of the Charter NB: the s. 17 defence operates on a subjective test while the common law test per Ruzic is a modified subjective/objective test B. Availability of the Defence o Whether an accused can invoke the defence depends on whether he/she is the principal offender (as opposed to an aider/abettor: see ss. 21 & 22 Code) and the nature of the offence in question i. secondary parties can always invoke the common law (and the statutory) defence of duress ii. principal offenders can invoke either defences if the offence is not listed in s. 17 of the Code: post-Ruzic iii. principal offenders are barred from invoking either defence if the offence is listed in s. 17 of the Code

Distinguishing between Principal Offenders and Secondary Parties Why NB? If a secondary party, availability of the defence is much broader

R. v. Hibbert, [1995] 2 S.C.R. 973 Proper instruction on law of duress [situations where duress will negate mens rea will be rare necessity=excuse=normative involuntariness=duress