Está en la página 1de 146

CRIMINAL LAW I. GENERAL OVERVIEW AND PRELIMINARY MATTERS 1. The Sources of Criminal Law 1. Frey v.

Fedoruk a) Held: Section 30 Cr. C. authorizes a peace officer to arrest without warrant only if he, on reasonable and probable grounds, believes that an offence for which the offender may be arrested without warrant has been committed, but not if he erroneously concludes that the facts amount to an offence, when, as a matter of law, they do not. (peeping is not a criminal offense, but would likely cause breach of the peace) b) Held further: Conduct, not otherwise criminal and not falling within any category of offences defined by the criminal law, does not become criminal because a natural and probable result thereof will be to provoke others to violent retributive action; acts likely to cause a breach of the peace are not in themselves criminal merely because they have this tendency. It safer to hold that no one shall be convicted of a crime unless the offence with which he is charged is recognized as such in the provisions of the Criminal Code, or can be established by the authority of some reported case as an offence known to the law. It is for Parliament and not for the Courts to decide if any course of conduct, which has not up to the present been regarded as criminal, is now to be so regarded. c) Disposition: dismissal by the trial judge of an action for false imprisonment and malicious prosecution. Affirm dissent in court of appeals. 2. CC section 9: person cannot be charged under common law offenses, under UK parliament, place before it became province. (common law offenses abolished except contempt) 3. Sources of criminal law - Roach p. 5: (1) Constitution (division of powers & Charter) (2) statutes (criminal code) (3) judge made common law in form of defenses not yet in criminal code & CL presumptions of fault a) Constitution is supreme law. Laws made by parliament can be struck down by Courts if violate Constitution. b) Statutes prevail over judge made common law. Parliament can abolish CL by making statute (but must accord with Constitution and not violate Charter). Thus, courts have to interpret Constitution. and shape CL. (if there are differences, look to see if justified under sec 1 of the Charter). c) Courts also make reference to international law b/c of obligations: terrorism, war crimes, hate propaganda, and torture. 4. Defenses a) CC section 8: Common law defenses- multiple punishment, obedience to de facto law, insanity, compulsion and duress, ignorance of law, lawful use of force, intoxication, self defense, defense of property, corrective force, reasonable surgical operation, provocation. (1) Abandonment: 1) change of heart, 2) abandonment or change of heart must be communicated in timely manner. (2) Abuse of process: now a fundamental gaurantee under s. 7 Charter (3) Accident: either unintended act (actus reus), or unintended consequences (4) Alibi: physical impossibility b/c accused was else where & not at scene of the crime. Evidence of alibi must raise reasonable doubt, dont have to prove it. (must be disclosed to prosecution, if not, trier of fact can make inference that can weaken alibi evidence). (to disprove alibi, there must be other evidence for basis of reasonable inference that it was fabricated). (5) Automatism: unconscious or involuntary acts. (does not include conscious involuntary acts - irresistible impulse) (a) Mental disorder: automatism based on this treated as insanity, and not as automatism. Onus on accused, on balance of probabilities. (b) Voluntary intoxication: Held in R. v. Daviault that its not a defense of automatism. If based on specific intent, burden on Crown to negate defense beyond a reasonable doubt. If based on general intent, burden of proof is on accused to establish automatism based on a balance of probabilities. i) Jury must find more likely than not. Must show proof of triggering stimuli beyond ordinary stress of life. If ordinary stresses, then defense is insanity, not automatism) ii) Examples: Sleep walking (if also sleep disorder than its defense of insanity); hypoglycemia; hypnotism. iii) In non-culpable involuntary intoxication, burden on Crown beyond a reasonable doubt. (6) Double jeopardy: res judicata - preventing multiple convictions for same delicit, even though its a matter of separate offenses. (a) Elements: (1) same transaction (remoteness of proximity of events in time/place, presence/absence of intervening events, whether acts were related by common objective). (2) factual nexus between charges and legal nexus: adequate relationship between offenses. (3) additional distinguishing elements that go to guilt of offense. (b) Bars conviction of lesser offense, if there are additional elements in greater offense. (c) If elements are the same and no distinguishing element - exemplify these: (1) particularizations (using fire arm, pointing fire arm), (2) more than one method embodied in more than one offense to prove single delicit (perjury, giving contradictory evidence), (3) Parliament wants particular element to be satisfied by proof of different nature b/c social policy of inherent difficulties of proof (age in non consent sex offenses). (d) Main question: whether the same cause, matter, or delicit underlies both charges

(7) Due diligence: defense to non-mens rea offenses/strict liability (three categories of offenses 1) mens rea, 2) public welfare, which fall under strict liability - unless it has willingly, knowingly, with intent, intentionally, in it, and 3) strict liability (a) Strict liability: accused will be guilty of strict liability upon proof of prohibited act unless proves on a balance of probabilities that he reasonably believed in mistaken facts which if true would render act innocent OR that he reasonably took reasonable steps to avoid the event. (b) Absolute liability: no defenses to this. (8) Duress: 1) person who commits an offense under compulsion by threats of death or bodily harm from a person who is present when the offense is committed, is excused from committing the offense, if the 2) person believes that the threats will be carried out and 3) is not a party to conspiracy or association. (onus on prosecution beyond a reasonable doubt). (must be only close temporal connection between threats and harm threatened) (a) Does not apply: murder, treason, piracy, attempted murder, sexual assault, sexual assault with a weapon, threats to third party or causing bodily harm, aggravated sexual assault, forcible aggravated assault, unlawfully causing bodily harm, arson, or abduction or detention of young persons. (b) Threats: can be express or implied. (threat to kidnap children and take them out of the country is not a threat of bodily harm). Threats of future harm can be valid if provided a close temporal connection between the threat and harm threatened. Must still believe threats will be carried out. (c) Save avenue of escape: duress is unavailable if a save avenue of escape was available. Decided based on ojective basis, but also taking into accuseds personal circumstances into regards. (get police protection if threatened before testifying in court as witness) (d) Not a party to conspiracy: defense is not available if accused voluntarily joined a criminal organization that he knew might pressure him to engage in criminal acts. (9) Entrapment: crime to offer people opportunities to commit crime, unless: 1) reasonable suspicion that person already engaged in conduct OR offer made in the course of bona fide investigation; OR 2) having reasonable suspicion or act in course of bona fide inquiry, they go beyond providing opportunity & induce commission of offense. (Dealt w/ in separate proceeding after trial on the merits, if found guilty can apply to stay proceedings as entrapment. Burden on accused on a balance of probabilities that police conduct deserves a stay on proceedings). (a) Opportunity - Court must find: 1) police provided opportunity to commit offense AND 2) finding that police did so without reasonable suspicion. (b) Bona fide investigation - investigating in an area where reasonably suspected that criminal activity is occurring, location defined precisely, then police can present any person associated with area with opportunity to commit offense. (c) Reasonable suspicion: something more than mere suspicion, and something less than a belief based on reasonable & probable grounds. Will vary case to case. If relied on informant, reliability of informant will be relevant. (10) Intoxication: not available as a defense if accused, 1) was intoxicated at time, 2) intoxication was self induced, 3) accused departed from standard of care recognized by Canadian society (unaware or incapable of consciously controlling their behavior, voluntarily or involuntarily interfere or threaten to interfere with bodily integrity of another). (a) When three things met above, it is not a defense that the accused lacked general intent or voluntariness required to commit offense. (b) Common law rule: voluntary intoxication is a defense to specific intent crimes, ONLY if accused was intoxicated to such an extent to raise at least a reasonable doubt regarding the accuseds capacity to form the requisite specific intent. i) Specific intent: intoxication is a defense for offenses with specific intent. (1) Offenses: murder; attempted murder; wounding breaking & enter with intent; unlawfully in dwelling-house with intent; theft; robbery; assaulting police officer; mischief; carrying concealed weapon; passing counterfeit money; forgery; parties and accessories; arson. (knowing or reckless intent crimes) (2) Jury instructions by Judge: Give one step charge where intoxication is defense to SI offense. Two step charge instructs on capacity to form requisite intent, and then goes on to say if jury finds beyond a reasonable doubt that accused had capacity to form intent, then must go on to determine whether accused possessed the actual intent. ii) General intent: manslaughter, unlawfully causing bodily harm or assault causing bodily harm; assaulting a police officer; decent assault; incest; common assault; joyriding; forcible confinement; possession under Controlled Drugs Substances Act and using firearm while committing indictable offense. (accused has burden on balance of probabilities; can use exert witness, show how much consumed & its affect, must be an air of reality that accused was virtually unconscious and unaware of what he was doing). (1) Daviault holding: intoxication can be a defense even to GI offenses if the accused intoxication was so extreme to amount to automatism. (2) Limitations: general intent offenses involving assault or other interference, OR threat of interference with the bodily integrity of another. (c) Involuntary intoxication: intoxication without fault is subject to ordinary criminal liability rules. (d) Degrees of intoxication -

i) Mild intoxication: alcohol induced, relaxant inhibitions, socially acceptable. ii) Advanced intoxication: intoxicated to the point where accused lacks specific intent, to extent of impairment of the accuseds foresight of the consequences of his act, sufficient to raise reasonable doubt about requisite mens rea. (this defense only applies to specific intent) iii) Extreme intoxication akin to automatism: negates voluntariness and is a complete defense to criminal responsibility. (e) Irresistible impulse: if requisite specific intent is present and the accuseds condition does not satisfy the requirements of the defense of insanity, then the fact that the accuseds intoxication by drugs induced in him an irresistible impulse to commit the offense is NOT a defense. (11) Issue Estoppel: precludes Crown re-litigating an issue that has been determined in accuseds favor in prior criminal proceeding or on the basis of reasonable doubt. Burden on accused claiming issue estoppel, must show particular issue was decided in his favor in previous proceeding. Crown then must disprove. (a) Perjury: can be tried for perjury, after murder or other cases (whether convicted or not), as long as there is other additional evidence that was 1) reasonably available at first trial, AND 2) could not have been made available with exercise of due diligence. i) Acquittal for perjury does not bar prosecution of attempting to obstruct justice based on same conduct b/c perjury corroboration requirement may well have accounted for the acquittal. (b) Murder: acquittal of one murder bars trial of second murder at the same time/place (c) Does not apply: interlocutory rulings at earlier proceedings, voir dire rulings (validity of search warrant as distinct from one made during trial proper), (12) Mistake: mistake of fact or law (or mixed) may exculpate where they are inconsistent with mental state required for the guilt or where they amount to belief that if true would provide justification of excuse for the offense. (a) Reasonableness: absent provisions to the contrary, mistake need not be reasonable. Crown must disprove beyond reasonable doubt. (b) Beliefs exculpate: mistaken belief that amounts to equal or greater offense will not exculpate. If amounts to less serious offense (transporting heroin but thought it was weed), he can be convicted but dealt on sentencing based on lesser culpability - so long as the belief is the same kind or type of mistaken belief (wrong about nature of drug). (13) Necessity: this is an excuse, not a justification. Based on moral involuntariness of wrongful action, and applies in circumstances of imminent risk whether action was taken to avoid direct and immediate peril. There must be an objectively appropriate and normal resistance to pressure. (onus on Crown to negate the defense beyond a reasonable doubt) (negligence or being involved in illegal/immoral conduct will NOT exclude the offense)s (a) Elements: (1) imminent peril or danger, (2) absence of a reasonable legal alternative, AND (3) proportionality between harm done and harm avoided. Also show that compliance with the law was impossible. (b) Disallowance of defense: there was a reasonable alternative; harm inflicted must be less than harm sought; contributory fault (if accused contemplated or should have contemplated that his actions would rise emergency requiring break of law. b) R. v. Jobidon (consensual fist fight at bar) (1) Issues: 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. A secondary issue is whether the accused could be convicted of manslaughter on a basis other than that of an unlawful act of assault. (2) 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. (3) 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. In particular, s. 8(3) of the Code expressly provides that exculpatory defences continue so to operate to exclude criminal liability. (4) 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. (5) The scope of the consent required careful scrutiny. The trial judge found that the victim's consent did not extend to a continuation of the fight once he had lost consciousness. (6) Since s. 8(3) of the Code expressly confirms the common law's continued authority and provides that exculpatory defenses not expressly struck down by the Code continue to operate to exclude criminal liability, in this appeal, where the Code has not erased the common law limit in fist fights, it must continue to define the scope of legally effective consent.

(7) A blow struck in anger, or which is likely or is intended to do corporal hurt, is an assault, but that a blow struck in sport, and not likely, nor intended to cause bodily harm, is not an assault, and that, an assault being a breach of the peace and unlawful, the consent of the person struck is immaterial. (8) The policy of the common law will not affect the validity or effectiveness of freely given consent to participate in rough sporting activities, so long as the intentional applications of force to which one consents are within the customary norms and rules of the game. c) Roach p. 104-105 (1) R. v. Jobidon: held that person could NOT consent to an assault that intentionally causes serious hurt or non-trivial bodily harm, in the course of a first fight or brawl. Minor cannot consent to adults intentional application of force in a fight. (there must be serious harm, intended and caused, for consent to be vitiated). Consent will not be negated if harm was trivial or accepted part of socially valued activity (sports). (2) Cannot consent to (a) Minors cannot consent to fights where serious harm is intended and caused but can consent to fights where serious harm not intended/caused. (b) Death, abduction of child, sexual offenses involving under 16 2. The power to create criminal offenses and rules of criminal procedure (a) Constitutional Division of Powers Introduced 1. R.v.Malmo-Levine: 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. The criminal power extends to those laws that are designed to promote public peace, safety, order, health or other legitimate public purpose. The purpose of the NCA fits within the criminal law power, which includes the protection of vulnerable groups 2. Regulatory Offenses (Roach): Include traffic offenses, speeding, environmental offenses, offense for engaging in regulated activity without a license or proper records and offenses relating to harmful commercial practices, such as misleading advertising or not complying with health and safety regulations. Punishment: fine or imprisonment. Accused usually a corp that cannot be imprisoned. Purpose is to deter risky behavior and prevent harm before it happens rather than to punish instrinsicaly wrong and harmful behavior. Standards used to govern favor state than standards for criminal offenses. 3. The Criminal law and the Constitution: only federal can enact crim laws. Provinces and municipalities can enact regulator offenses. Crim law can be unconstitutional if violates Charter and cannot be justified under s. 1. (a) Section 7: law must be in accordance with principles of fundamental justice (cannot deprive life, liberty, security of the person) addresses substantive fairness in crim laws to ensure innocent are not convicted and those that those who cannot be expected to obey law are not punished for conduct committed in morally involuntary fashion. 4. Substantive fairness: Expression includes non violent attempts to convey meaning. Offenses prohibiting hate literature, communication for purposes of prostitution, defamatory libel, pornography must be justified under s. 1 as reasonable limit. Principles under s. 7 prohibit vague, arbitrary, over broad or grossly disproportionate laws, and prohibits punishment of morally innocent of those who are not at fault, as well as those who act in a morally involuntary manner in dire circumstances where there was no realistic choice but to commit crime. (a) Section11(d): protects accused right to be presumed innocent and receive a fair and public hearing by an independent and impartial court. 5. The Criminal law and the Constitution: (a) Criminal justice and the division of powers 1) Federal jurisdiction over criminal law: under s 91(27) Con Act 1867, only fed govt can enact criminal laws and criminal procedure. Valid criminal law: regulating detention of criminally insane b/c of mental disorder, enabling judges to order accused to make restitution to victim of crime; restricting advertising of tobacco, prohibiting pollution, prohibition possession of marijuana. Provinces cannot make laws, infringe fed govts exclusive jdx; will be unconstitutional if purpose is to punish criminal behavior. Will be upheld if designed to prevent and respond to crimes by preventative and remedial measures even if fed crim law has same provisions dealing w/ mischief. 2) Provincial jurisdiction to enact regulatory offenses: under s 92(15) Con Act 1867, province can create offenses punishable by fine, penalty, imprisonment for matters w/n their jdx: highway traffic offenses, classification and censorship of films, compulsory treatment of heroin addicts. Dominant purpose must be to regulate some matter w/n prov jdx like property & civil rights and matters of local and private nature. Classified as regulatory or public welfare offenses, tried in same crim courts. These outnumber crim offenses (more likely charged w/ speeding, no license). 3) Prosecutors, police, and prisons: AG of prov will prosecute under Criminal Code, but Fed AG may prosecute drug offenses. Division of labor for policing, can create their own or purchase RCMP from fed police force. Peace officers bound by Charter and Criminal Code. Ordinary people have power to arrest person fleeing commission of offense and go to judicial official to establish reasonable and probable grounds that criminal offense committed. Prov has jdx over those sentenced to less than 2 years imprisonment. Prov administers probation orders, prov and fed parole boards administer gradual release or parole from imprisonment before an offenders sentence has expired. 4) Trials and trial courts: most crim cases in prov courts, judges appointed by prov, cannot sit w/ jury, can hear most indictable offenses if accused elects to be tried in prov court w/o jury or prelim inquiry to determine if there is enough

evidence to put accused on trial. Least serious crimes can only be tried in prov court. Hear summary convictions offenses (least serious) that can be punishable up to 6 months or $2k fine. 1) Hybrid offenses, crown had discretion to prosecute has indictable or summary offense; if summary then no right to prelim inquiry or trial by jury but max punishment is limited. This will determine what max/min penalty applies. 2) Youth Court: under 18; sentences lower than adult court, but adult sentences can be imposed sometimes. Held that presumption that young person would receive an adult sentence for specified offense violates principle of fundamental justice which presumes that young people are less blameworthy for crimes b/c of age, vulnerability, reduced capacity for moral judgment. 3) Fed appointed superior judges can sit w/ jury, known as Superior Court, Supreme Court or Queens Bench. Murder must be tried w/ superior court judge usually w/ jury. Can try other indictable offenses if accused elects to be tried in higher level of court w/ prelim inquiry (heard by prov judge or justice of peace) and w/ or w/o jury. More formal (lawyers are gowned). 5) Appeals and appellate courts: appeals for summary conviction are heard by superior court judge w/ further appeals on questions of law to Court of Appeal, which has federally appointed judges, and hears appears appeals in panels of 3 or 5. Accused can appeal matters of law, fact or fitness of his sentence. 1) Accuseds appeal allowed on three grounds: 1) Conviction is unreasonable or cannot be supported by the evidence 2) That the conviction entails a miscarriage of justice 3) That the trial judge made an error of law (appeal can be denied if appeal court concludes notwithstanding the legal error, no substantial wrong or miscarriage of justice has occurred). 2) If successful, new trial or acquittal. Minister of justice can order new trial or direct appeal to prov court of appeal when satisfied that there is a reasonable basis to conclude that a miscarriage of justice likely occurred after inquiring into application by person convicted whose appeal rights have been exhausted). 3) Prosecutors appeal: if appeal allowed and can show that outcome would not have been the same w/o the legal error, new trial ordered. Rarely, conviction restored but not done if accused acquitted by jury. 4) Appeal to Supreme Court of Canada are of right for question of law from which judge in prov court of appeal dissents and by leave on any matter of national importance. (b) The Charter of Rights and Freedoms 1. R.v.Heywood: example of crim offense being struck down. (a) Issue: 179(1)(b) of the Criminal Code makes it a crime for persons convicted of specified offences to be "found loitering in or near a school ground, playground, public park or bathing area". Whether the section infringes ss. 7 or 11(d) of the Charter (b) Reasoning: (a)Prohibition contained in s. 179(1)(b) violates the principles of fundamental justice b/c applies without prior notice to the accused, to too many places, to too many people, for an indefinite period with no possibility of review. It restricts liberty far more than is necessary to accomplish its goal. (b) Overbreadth analysis looks at the means chosen by the state in relation to its purpose. A court must consider whether those means are necessary to achieve the state objective. 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 individual's rights will have been limited for no reason. The effect of overbreadth is that in some applications the law is arbitrary or disproportionate. (c)Section 7 of the Charter has a wide scope. An enactment, before it can be found to be so broad that it infringes s. 7 of the Charter, must clearly infringe life, liberty or security of the person in a manner that is unnecessarily broad, going beyond what is needed to accomplish the governmental objective. (d) Rule: In determining whether a provision is overly broad and not in accordance with the principles of fundamental justice, it must be determined whether the means chosen to accomplish the provision's objectives are reasonably tailored to effect its purpose. Where legislation limits the liberty of an individual in order to protect the public, that limitation should not go beyond what is necessary to accomplish that goal. (e) Analysis: Section 179(1)(b) suffers from overbreadth and thus the deprivation of liberty it entails is not in accordance with the principles of fundamental justice. The section is overly broad in its geographical ambit. The limitation should be more narrowly defined, to apply only to those parks and bathing areas where children can reasonably be expected to be present. It is also overly broad in that it applies for life, with no possibility of review. (f) Without a review a person who has ceased to be a danger to children (or who indeed never was a danger to children) continues to be subject to the prohibition in s. 179(1)(b). A pardon under the Criminal Records Act or the royal prerogative of mercy, while removing only any disqualification flowing from conviction, does not meet the need for review because of inadequate and insufficient availability. Finally, s. 179(1)(b) applies to all persons convicted of the listed offences, without regard to whether they constitute a danger to children and accordingly is also overly broad in respect to the people to whom it applies.

(a) In summary, s. 179(1)(b) is overly broad to an extent that it violates the right to liberty proclaimed by s. 7 of the Charter for a number of reasons. First, it is overly broad in its geographical scope embracing as it does all public parks and beaches no matter how remote and devoid of children they may be. Secondly, it is overly broad in its temporal aspect with the prohibition applying for life without any process for review. Thirdly, it is too broad in the number of persons it encompasses. Fourth, the prohibitions are put in place and may be enforced without any notice to the accused. (g) Overbroad legislation infringing s. 7 of the Charter is even more difficult to justify and would appear to be incapable of passing the minimal impairment branch of the s. 1 analysis. The remedies of reading in or reading down are not appropriate here. The changes which would be required to make s. 179(1)(b) constitutional would not constitute reading down or reading in but rather would amount to judicial rewriting of the legislation and the creation of an entirely new scheme with a completely different approach to the problem. (h) The objective of s. 179(1)(b) of protecting children from sexual offences is pressing and substantial. The protection of children from sexual offenses is obviously very important to society. Furthermore, the means employed in s. 179(1)(b), at least in some of their applications, are rationally connected to the objective. However, for the same reasons that s. 179(1) (b) is overly broad, it fails the minimal impairment branch of the s. 1 analysis and so cannot be justified under s. 1 of the Charter. (i) The remedies of reading in or reading down are not appropriate here. The changes which would be required to make s. 179(1)(b) constitutional would not constitute reading down or reading in but rather would amount to judicial rewriting of the legislation and the creation of an entirely new scheme with a completely different approach to the problem 2. R.v.Oakes: example of crim pro rule being struck down. (a) Issue: (1) does s. 8 of the Narcotic Control Act violate s. 11(d) of the Charter; and, (2) if it does, is s. 8 a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society for the purpose of s. 1 of the Charter? (b) Reverse onus test: (c) Reasoning: (a) conclude that s. 8 of the Narcotic Control Act contains a reverse onus provision imposing a legal burden on an accused to prove on a balance of probabilities that he or she was not in possession of a narcotic for the purpose of trafficking. It is therefore necessary to determine whether s. 8 of the Narcotic Control Act offends the right to be "presumed innocent until proven guilty" as guaranteed by s. 11(d) of the Charter. (b) The presumption of innocence lies at the very heart of the criminal law and is protected expressly by s. 11(d) of the Charter. The right to be presumed innocent until proven guilty requires, at a minimum, that: (1) an individual be proven guilty beyond a reasonable doubt; (2) the State must bear the burden of proof; and (3) criminal prosecutions must be carried out in accordance with lawful procedures and fairness. (c) A provision which requires an accused to disprove on a balance of probabilities the existence of a presumed fact, which is an important element of the offence in question, violates the presumption of innocence in s. 11(d) (d) Section 8 of the Narcotic Control Act infringes the presumption of innocence in s. 11(d) of the Charter by requiring the accused to prove he is not guilty of trafficking once the basic fact of possession is proven. (e) The rational connection test -- the potential for a rational connection between the basic fact and the presumed fact to justify a reverse onus provision -- does not apply to the interpretation of s. 11(d). (f) Oakes test (a) The presumption required under s. 8 of the Narcotic Control Act is overinclusive and could lead to results in certain cases which would defy both rationality and fairness. In light of the seriousness of the offence in question, which carries with it the possibility of imprisonment for life, I am further convinced that the first component of the proportionality test has not been satisfied by the Crown. (b) Having concluded that s. 8 does not satisfy this first component of proportionality, it is unnecessary to consider the other two components. (d) Conclusion: The Ontario Court of Appeal was correct in holding that s. 8 of the Narcotic Control Act violates the Canadian Charter of Rights and Freedoms and is therefore of no force or effect. Section 8 imposes a limit on the right guaranteed by s. 11(d) of the Charter which is not reasonable and is not demonstrably justified in a free and democratic society for the purpose of s. 1. (e) Held: The appeal should be dismissed and the constitutional question answered in the affirmative. 3. Criminal law and the Charter (Roach pgs. 31-77): sec 24 Charter can give remedies for violating: termination of prosecution through stay of proceedings, release of a person, exclusion of unconstitutionality obtained evidence. Sect 52 can struck down laws if violate rights and if govt cannot justify under s. 1 1. Division of powers and Charter compared: Sunday observance law, struck down b/c only parliament can pass this crim law. Sunday closing had secular purpose of common day of rest, burdened religious beliefs but justified under s. 1 2. The Charter and Investigation of Crime:

a) Search & Seizure: protects reasonable expectation of privacy - what is reop depends on context. Held that dogs sniffing back packs violates, technology to check homes for drugs does not violate, no privacy in friends home being searched when you stay there, no privacy in car being searched, licenses, customs. a) If reasonable expectation of privacy: need prior judicial authorization for search/seizure unless there are exigent circumstances that make it impossible to obtain warrant b/c evidence of crime will be destroyed or someone will be harmed. Still need some accountability for exigent circumstances. b) No warrant: if person consents to search or reasonable search incident to arrest (SILA); cannot be done in abusive fashion, no samples of DNA or body impressions allowed. Power to do strip search does not follow automatically; there must be reasonable and probable grounds for concluding that strip search is necessary for arrest to discover weapons or evidence. c) Prior judicial authorization: granted only if reasonable and probable grounds established under oath to believe that offense has been committed and that search will reveal evidence of offense. Search must be authorized by law and be reasonable d) Examples allowing warrantless searches b/c of laws passed by parliament: wearing a wire w/o warrant for exigent circumstances and to prevent bodily harm. Judge can authorize warrants for types of searches that would be unreasonable and violate s. 8 if not authorized by judge. Also allow warrantless entires into dwelling houses to make arrests under exigent circumstances. e) Balancing Test for excluding evidence obtained in violation of s. 8: a) Examine the seriousness of the Charter violation b) The impact of Charter violation on accuseds protected interests c) Societys interest in an adjudication on the merits. (If cops act in good faith and committed no flagrant improprieties, court will rarely exclude evidence). b) Arbitrary detention and imprisonment: sect 9 guarantees this. Defined by s 9 and 10 to include detention w/ respect to a demand/direction that will have legal consequences, such as, breath sample, physical restraint, psychological compulsion; leaves people will reasonable belief that they have no choice but to comply. (pulling over cars randomly w/o objective criteria violates this, but justified under s. 1 as preventing drunk driving and ensure traffic safety) e) Not detained if questioned by cops in non-adversarial manner (for emergency calls or accidents, or asked name & address Grant case). Factors: nature of police conduct and characteristics of person - age, minority status) f) Sect 9 protects against arbitrary detention, not all detention. Arbitrary: if not authorized by law or if law that authorizes detention is itself arbitrary, if cop is biased towards person of difference race, nationality, color or had personal enmity towards particular detainee. g) Not arbitrary: if reasonable grounds to believe that she is connected to particular crime and detention reasonably necessary. Will require suspicion. If stop goes beyond brief detention, may be arbitrary. h) Courts remedies for arbitrary detainment: evidence obtained excluded under s. 24 (in Grant gun and drugs were not excluded); reduce sentence, no damages awarded; stay of proceedings for serious violations. i) Sec 10(c) right to habeas corpus, 11(e) right not to be denied reasonable bail w/o just cause. Causes: ensure appearance in court or prevention of future crime or interference w/ admin of justice. Reverse onus requiring charged w/ drug trafficking establish why they should not be detained is valid. Denial of bail for any other just cause. c) Right to counsel: detention interpreted as assumption of control over a person by a demand with significant legal consequences that would otherwise impede access to counsel and psychological compulsion in the form of a reasonable perception of a lack of freedom of choice. e) Breath samples:Person required to give breath sample at road side w/o counsel justified under s. 1 as reasonable limit to combat drunk driving. Extended to answering questions about drinking and roadside sobriety tests. If asked for breath sample at police station must be informed of right to retain counsel. f) Once right revoked, must provide phone, and retain from eliciting evidence until person has reasonable opportunity to contact counsel. Consult lawyer of choice, in privacy. Once give chance to consult counsel, can resume questioning without informing of right to counsel - applies even if told cops dont want to speak and interrogation is lengthy and confrontational w/ real or fake evidence. g) Right can be violated w/ prolonged questioning w/o counsel bring present, police denigration of counsel or offer of plea of bargain w/o counsels presence. h) Right can be subject to informed and voluntary waiver. i) Not waived: if answer questions or in line up before consulting counsel, asked about legal aid and not informed about availability and then questioned, confessed after counsel of choice was insulted. Statements given in violation of right presumptively excluded. j) Right to silence: Sec 10(a): must inform about reason for detention/arrest. No constitutional duty to inform of right to be silent, warning is customary. Right can be violated under s 7 if state tricks accused under detention to

make statement through undercover officer or informant eliciting statement (does not apply to voluntary statements) Right not violated if voluntary statement or if accused refuses to speak to cops. a) Regulatory matters: may have to answer questions if purpose is to determine criminal liability. Can be required by law to provide incriminating statements as part of terrorism investigation, provided that state is not allowed to use info derived from accused. d) Entrapment: R.v.Mack: recognized defense, available even if accused committed actus reus. Finding entrapment results in permanent stay of proceedings rather than acquittal. Must be established by accused on balance of probabilities. Judge (not jury) decides whether defense made out. Definition: Entrapment occurs if state offers person an opportunity to commit a crime 1) w/o reasonable suspicion that person was engaged in criminal activity or 2) while not engaged in a bona fide inquiry into crime in a high-crime area. (simple drug buy may not constitute as opportunity) e) Reasonable suspicion is less than reasonable and probable grounds to believe a person has committed a specific crime. a) Barnes: not enough that person was looking around a lot. No reasonable suspicion, but, Court held that there was no entrapment b/c police were acting pursuant to a bona fide inquiry into criminal activity by offering a person an opportunity to commit the crime b/c he was present in a place associated w/ particular criminal activities. b) Mack: accused former drug user w/o several drug convictions even though he told cops he was interested in real estate). f) Not entrapment: Brief conversation between undercover cop and person selling illegal drugs will not equal entrapment. If cop or agent violated law does not automatically entrapment or stay, no defense if entrapped by private parties (could use duress as defense). There could be entrapment if person was predisposed to commit crime and had intent to commit crime. g) Courts examine proportionality between conduct of the state and accused and whether state had instigated the crime and exploited the accused. Cops acting illegally by selling drugs will not amount to stay unless activity would shock conscience of the community and admin of justice would require judicial intervention. In determining if cop went beyond offering opportunity, focus is on propriety of conduct of police and its agents. 3. The Charter and the criminal trial process a) Disclosure: crowns obligation to disclose to accused all relevant evidence in its possession, necessary to protect right to make full answer and defense under s. 7. Can delay disclosure for legitimate reasons: protecting informers. Must disclose all medical and therapeutic, but not in sexual assault cases b/c reasonable balance of accuseds and complainants right. Courts can reward costs and order new trials as remedies for disclosure violations. b) Right to full answer and defense: sec 7 right. Judges balance accuseds right to make full answer and defense against other factors including societys interest in encouraging the reporting of sexual assaults, the need to remove discriminatory bias from fact-finding and potential prejudice to the complainants rights of privacy, personal security, and the full protection and benefit of the law. Requires accused to conduct cross examination of crowns witnesses. c) Trial in a reasonable time: sec 11(b), if violated, entitled to stay of proceedings; no statute of limitations. Stay might be entered if passage of time has made it impossible for accused to exercise the right to full answer and defense b/c of the unavailability of crucial evidence. e) Violation depends on 1) length of delay (more than 8-10 months is suspect), and 2) explanation of delay (some attributable to accused, but systematic delay caused by backlog of cases and unavailability of judges is charged to crown). Also depends on whether accused waived rights by consenting to delay, and whether suffered prejudice. f) Examples: delays beyond 6 to 8 months amounts to stay, more than 30 months for sexual assault case lead to stay. d) Pre-trial publicity: crim code has mandatory publication bans at the accuseds request on evidence heard at bail hearings or at preliminary inquiries. Former is reasonable limit on freedom of expression to ensure fair trial and expeditious bail process. Trial proceedings when jury is not present (voir dire) cannot be published. Necessary to prevent real and substantial risk to the fairness of the trial b/c alternative measures will not prevent the risks. e) Alternatives: adjournments of trials; changing location/venue of trial to where less publicity; allowing accused to question jury more closely; sequestering juries and instructing them to disregard matters they heard outside courtroom. f) Ban must be limited in scope and time. Good achieved by ban in protecting fair trial outweighs the harm the ban causes to freedom of expression. e) Right to a jury trial: if faces 5 years or more, has right to jury under s 11(f). If fails to appear for trial, can be denied. If charged w/ indictable offense, can also choose jury. 12 jurors, challenged for cause - person is not indifferent between crown and accused. Can ask questions - racial bias. Last two jurors called will determine if next juror is impartial, not the judge. Have preemptory challenges, can remove w/o reason. Must have unanimous verdict, if not, then hung. Instruction that they must have verdict violates 11(f). Usually a criminal offense for juror to disclose info about deliberations.

e) 11(d) protects right to fair and public hearing by independent and impartial tribunal: judges have security of tenure, removed for cause related to capacity to perform judicial functions. Financial security and independence of administration as bears directly over exercise of judicial functions. f) Right may include right to have a lawyer if cannot afford one. Courts can stay proceedings until one appointed or order that he be provided. Right to effective assistance of counsel; must establish performance by lawyer was unreasonable and caused prejudice in form of miscarriage of justice. f) Right to be presumed innocent: 11(d) burden on crown to prove guilt by high degree of quantum of proof. i) Quantum of proof: proof beyond a reasonable doubt; requires crown to go beyond burden used in private law cases of proving that something is more probable than not. If civil is 51%, then in crim crown must proof significantly higher likelihood that crime was committed. i) R.v.Lifchus: held that meaning of reasonable doubt must be explained to jury; should be told that reasonable doubt standard is related to presumption of innocence. Requires more proof that accused is probably guilty but does not require proof to absolute certainty. Based on reason and common sense that is logically derived from evidence or absence of evidence. ii) R.v.Starr: held that trial judge would err if they did not make it clear to jury that reasonable doubt standard was much closer to absolute certainty than balance of probabilities standard used in civil and every day life. ii) Persuasive burdens: presumption of innocence infringed when accused is liable to be convicted despite existence of reasonable doubt about a factor essential for convictions. i) Oakes: 11(d) violated by statutory provision, after crown proved beyond reasonable doubt, required that accused establish, on balance of prob that he did not have intent to traffic for offense of possession w/ intent to traffic. This makes it possible for conviction to occur despite existence of reasonable doubt (raised evidence of doubt, but did not convince jury on balance that presumed fact was untrue). ii) Alternative approach: Examine relationship between 1) element that the crown proves (possession of drugs) and 2) element that is presumed (intent to traffic). Substitution of one element for essential element of offense violates 11(d) unless if proof beyond a reasonable doubt of the substituted element it would be unreasonable for jury not to be satisfied beyond reasonable doubt of the essential element. iii) Presumption applies to elements of offenses, collateral factors, and defense: Whyte: provision: intoxicated person prove absence of intent to put car in motion to escape presumption that accused was in care and control of car. Violated 11(d) b/c required accused to be convicted even if raised reasonable doubt about intent to put vehicle in motion but unable to prove on balance of probabilities that there was no such intent. This triggered mandatory presumption that accused was in care and control of car while impaired. i) If accused required to prove defense on balance of probabilities, that also violates 11(d) b/c accused can be convicted even if reasonable doubt. If required to prove defense of due diligence for regulatory offense, will also offend 11(d). BUT this is justified under s. 1 as reasonable limit on section 11(d) b/c of difficulties requiring crown to prove beyond a reasonable doubt that accused did not have defenses. ii) Section 1 test: To justify, must prove compelling objective, there is a rational connection between the violation and objective, must be lease restrictive means of advancing the objective, and there must be proportionality between objective and the rights violated. i) Do not need rationally connection between proven and presumed factors for presumption to be upheld. Even if evidential burden w/ mandatory presumption it self violates 11d, it can be a less drastic alternative to persuasive burden. iv) .Evidentiary burdens and mandatory presumptions: sect 11(d) violated by evidential burdens (and persuasive burdens) that require accused to point to evidence to raise reasonable doubt about mandatory presumption. R.v.Downey - BUT justified under s. 1 b/c of difficulties of requiring prostitutes to testify against pimps and the ease that a person in a lawful relationship w/ prostitute would have in pointing to some evidence that could raise a reasonable doubt about the presumption.. v) Threshold air of realitytests: needed to justify judge in instructing the jury about a particular issue or defense. Can also help determine practical meaning of a defense. This test can be influenced by whether accused bears persuasive burden on the issue. Test depends on elements of particular defense. ii) Daviault & Stone: to establish air of reality for extreme intoxication and automatism defenses accused must point to evidence upon which jury will find that defense has been established on balance of probabilities. Fontaine: question for trial court is whether evidence discloses a real issue to be decided by the jury. iii) R.v.Cinous: must be air of reality on every requirement of a defense to justify instructing the jury about the defense, but judge should not determine credibility of evidence when assessing if there is air of reality. g) Other trial rights: Sec 14 Charter: continuous, competent, and contemporaneous interpretation at trial if deaf or do not speak language.

a) Sec 11(c): cannot be compelled to testify at their own trial. Does not extend to corporations/officer of corp. Does not require judges to instruct juries to draw adverse inferences from accuseds failure to testify. Not violated if accused introduces evidence of complainants prior sexual conduct in a sexual offense case. b) Sec 13: evidence given by accused as a witness in prior proceeding cannot be used to incriminate except in prosecution for perjury or for giving contradictory evidence. Evidence derived from anothers trial or public inquiry can be used if demonstrated that would have discovered w/o forcing accused to participate in his own self incrimination. c) Sec 11(a): right to be informed w/o unreasonable delay. 11(i): protects from burden of retroactive criminal laws, 11(g): accused has right not to be found guilty unless act/omission at time was committed was offense under canadian law, international law, or general principles of law recognized by community of nations - (war crimes) must prove that accused knew or was willfully blind to facts and circumstances that would bring his acts w/n definition of war crimes or crimes against humanity. 4. The Charter and substantive criminal offenses and defenses: cannot be convicted if criminal offense itself results in unjustified violation of one of the rights guaranteed by Charter. (fundamental freedoms; expression or principles of fund just) g) Fundamental freedoms: Freedom of expression - offense that prohibits any form of expression short of violence will violate expression, depending on objective and reach of offense, courts may find it as a reasonable limit under s. 1 a) Prostitution: prohibiting solicitation in public place for purpose of prostitution violates 2b but justified as reasonable response to social nuisance of street solicitation). Making & distributing obscene materials also violates freedom of expression, but held as reasonable limit provided it is interpreted not to proscribe sexually explicit erotica w/o violence that is not degrading or dehumanizing. Child porno is also a reasonable limit. But defenses of artistic merit, educational, scientific, or medical purpose or public good should be interpreted liberally. b) Hate propaganda:Provision prohibiting willful promotion of hatred against group held as reasonable limit. False news:Court struck down provision prohibiting willful spreading of false news (holocaust did not exist) b/c broader and less narrowly tailored than hate propaganda provision discussed earlier. Defamatory libel: justified restriction as need to protect reputations and establish accused intended to make defamatory statements. h) Principles of fundamental justice: section 7 life liberty and security, does not apply to corporations. R.v.Morgentaler: law violated s. 7 b/c made it offense to obtain abortion w/o approval of hospital committee. Law procedurally unfair b/c of geographic variations in availability of committees and delays in process of approval Rodriquez v. BC: upheld crim code 241(b) which prohibits person from assisted suicide b/c did not violate s 7 b/c was protecting human life. a) Test for whether rule is constitutes POFJ: 1) proposition must be a legal principle, 2) there must be a consensus that the rule of principle is fundamental to the way the legal system ought fairly to operate, and 3) the rule or principle must be identified with sufficient precision to constitute a manageable standard to measure deprivations of life, liberty, or security of the person. b) Not a POFJ: law used to respond to harm; law should pursue best interests of child c) Yes a POFJ: presumption that young persons less blameworthy for offenses i) Vagueness and overbreadth: sec 7 offended by these two that they fail to give proper notice to citizens and provide no limit for law enforcement discretion. Courts reluctant to hold laws are vague. j) Arbitrariness and gross disproportionality: R.v.Malmo-Levine - Held there was no consensus that the crim law should only be used to respond to harms to others and that there was little agreement about what constituted harm. a) Law that that is arbitrary, irrational, overbroad, gross disproportionate, violates s. 7 b) Not arbitrary or disproportionate: criminalization of marijuana not grossly disproportionate to state interest even through imprisonment would not be fit sentence for possession of small amount. a) Safe site injection case: held that ministers refusal to continue to grant statutory exemption from drug laws was arbitrary and grossly disproportionate given evidence that removing the use of dirty needles potentially affected w/ hiv saved lives and absence of evidence that it increased crime in vans downtown east side. b) Prostitution solicitation offense (balanced nuisance and neighborhood harms of public solicitation for purpose of prostitution) and bawdy house (Ontario appeal court) e) Fault requirements: required by s. 7 Charter i) Moral innocence and absolute liability: BC Motor Vehicle Reference: absolute liability offense had min 7 days imprisonment, violated s. 7 b/c allowed person to be convicted regardless of whether he knew his license was suspended or was negligent to it. offense could allow morally innocent to be punished, better alternative would be to allow accused a defense of due diligence or lack of negligence one crown proved prohibited act of driving w/ suspended license. (Also applies to misleading advertising offense - no imprisonment)

10

i) R.v.Pontes: upheld absolute liability offense, only if accused not imprisoned for violating it. Sentence other than imprisonment will not violate s. 7 b/c does not affect rights to life, liberty, security. ii) Absolute liability criminal offenses also violate s. 7. R.v.Hess: violated s. 7 b/c made it statutory rape for having sex with girl under 14 even if had honest belief she was older; reasonable mistake. No mens rea w/ respect to element. New offense imposed fault based on negligence and not on basis that accused committed the criminal act. ii) Negligence as a sufficient fault element under the Charter for most offenses: Sec 7 not violated so long as 1) the mens rea and the available penalties reflect the particular nature of the crime and stigma, 2) punishment is proportionate to the moral blame worthiness of the offender, 3) those who cause harm intentionally are punished more severely than those who cause harm unintentionally. iii) Negligence standards: marked departure from the standards of a non-individualized reasonable person: needed for sec 7 to convict a person of a criminal offense based on objective fault. Must prove that accuseds conduct was a marked departure from the standard of care that would be used in the circumstances by the reasonable person. i) Reasonable person: apply objective standards and characteristics. Creighton: personal characteristics of accused relevant if establish incapacity to appreciate nature and quality of conduct. iv) No requirement of correspondence or symmetry between prohibited act and fault element: Creighton held sec 7 does not require objective fault relate to all prohibited consequences of the offense; proof of objective foresight of bodily harm (as opposed to death) is sufficient to convict a person of manslaughter. Sec 7 not offended by offenses that punish for causing certain harm even if accused may not have subjectively or objectively been at fault for causing the harm that forms part of the actus reus. v) Subjective fault required in relation to the prohibited acts for a few offenses with special stigma: knowledge is minimum fault requirement for murder and attempted murder. i) R.v.Vaillancourt & Martineau: b/c of its stigma and mandatory life imprisonment, murder requires that accused intended to cause death or knew that was likely to occur. Court struck down other constructive murder provisions that allowed an accused committing other serious crimes (murder, sexual assault) to be convicted of murder. Unconstitutional under crim code, under s 7 crown must prove that accused knew or had subjective knowledge that death was likely to occur before person can be convicted of murder. ii) Parties: sec 7 violated by provision that makes party convicted as party to murder on basis that he ought to have known that death would result. Stigma same for attempted murder & murder, thus, crown must establish that accused subjectively knew. iii) Finta - war crimes: accused must have knowledge of attack and must know that his act is part of an attack constituting crimes against humanity. iv) Outside of murder, attempted murder and crimes against humanity, Court has refused to require subjective fault requirement under s. 7. Stigma attached to these offenses is not sufficient to require proof of subjective as opposed to objective fault (dangerous driving, bodily harm, misleading advertising, careless use of firearm, unlawful act manslaughter, failure to provide necessities of life). v) Argument that subjective fault should be required for terrorism crimes, analogy to war crimes. vi) Suffocation cases: must charge accused had subjective foresight that death was likely to result. Jury an infer from attempt at suffocation that accused knew that death was likely, but cannot be required by wording of the offense to draw this inference. vii) Felony murder - Vaillancourt & Martineau: restrictions on sec 7 and 11d were not reasonable b/c there were other ways parliament could achieve its objectives. Would not be justified under s. 1 of Charter b/c availability of other means more respectful of charter rights to pursue states legitimate objective of deterring use of weapons and violence in the commission of crimes. (charge separately for possession of weapon while committing offense). f) Criminal defenses: statutory or common law restrictions on defenses can violate sec 7. Exception, when defense is inconsistent w/ purpose of offense, intoxication not recognized as defense for impaired driving. CC sec 43 allowing parents and teachers to use reasonable force does not violate sec 7, 12, or 15 Charter, was not vague or overbroad to violate sec 7. Best interests of child is not POFJ, application of force is not cruel or unusual, offense did not demean equal dignity of children. g) Moral involuntariness: R.v.Ruzic: focus under sec 7 is whether they will result in conviction of person who has acted in a morally involuntary manner. Acts in morally involuntary manner if did not have any realistic choice in circumstances but to commit the crime. Exigent circumstances, or threats to someone else. Morally involuntary even though did physical voluntary act w/ required fault element. Conviction would result in violating charter, must be justified in exceptional circumstances such as outbreak of war or national emergency. 5. The Charter and punishment: Sec 12 provides that everyone has right not to be subjected to cruel and unusual punishment; prohibits grossly disproportionate punishments. If judge finds that mandatory sentence imposes cruel punishment, he must strike down sentence, not allowed to craft constitutional exemption from mandatory sentence.

11

(d) R.v.Labaye: Charter changed criminal concept of indecency through progression of cases. Dissent is strong. (a) Issue: bawdy house (b) Rule: In order to establish indecent criminal conduct, the Crown must prove beyond a reasonable doubt that two requirements have been met. (a) The first is that by its nature the conduct at issue causes harm or presents a significant risk of harm to individuals or society in a way that undermines or threatens to undermine a value reflected in and thus formally endorsed through the Constitution or similar fundamental laws by (a) confronting members of the public with conduct that significantly interferes with their autonomy and liberty, (b) predisposing others to anti-social behaviour, or (c) physically or psychologically harming persons involved in the conduct. (b) The second requirement is that the harm or risk of harm is of a degree that is incompatible with the proper functioning of society. This two-branch test must be applied objectively and on the basis of evidence. (c) Test: 1) whether the conduct at issue harmed, or presented a significant risk of harm to individuals or society, 2) (d) Reasoning: (a) Three types of harm have thus far emerged from the jurisprudence as being capable of supporting a finding of indecency: (1) harm to those whose autonomy and liberty may be restricted by being confronted with inappropriate conduct; (2) harm to society by predisposing others to anti-social conduct; and (3) harm to individuals participating in the conduct. (b) Here, no evidence of any of the 3 harms above in analysis to the test. (c) The autonomy and liberty of members of the public was not affected by unwanted confrontation with the sexual conduct in question. On the evidence, only those already disposed to this sort of sexual activity were allowed to participate and watch. There is also no evidence of anti-social acts or attitudes toward women, or for that matter men. No one was pressured to have sex, paid for sex, or treated as a mere sexual object for the gratification of others. The fact that the club is a commercial establishment does not in itself render the sexual activities taking place there commercial in nature. The membership fee buys access to a club where members can meet and engage in consensual activities with other individuals who have similar sexual interests. Finally, with respect to the third type of harm, the only possible danger to participants on the evidence was the risk of catching a sexually transmitted disease. However, this must be discounted as a factor because it is conceptually and causally unrelated to indecency. o basis for concluding that the sexual conduct at issue harmed individuals or society. (d) Since the Crown failed to establish the first requirement to prove indecent criminal conduct, it is unnecessary to proceed to the second branch of the test. If one did, there seems to be no evidence that the degree of alleged harm rose to the level of incompatibility with the proper functioning of society. (e) Held: appeal allowed, conviction over turned. (f) Dissent: (a) the impugned acts were indecent and that the accuseds establishment was a common bawdy-house within the meaning of s. 210(1) of the Criminal Code. Whether or not serious social harm is sustained has never been the determinative test for indecency. This new harm-based approach also strips of all relevance the social values that the Canadian community as a whole believes should be protected. The existence of harm is not a prerequisite for exercising the states power to criminalize certain conduct: the existence of fundamental social and ethical considerations is sufficient. (b) To determine whether acts are indecent, it is preferable to continue applying the original test for indecency, which focusses on a contextual analysis of the impugned acts and incorporates the concept of harm as a significant, but not determinative, factor to consider in establishing the applicable level of tolerance. Whether or not harm is sustained is merely one of several indicators or contextual factors that make it possible to gauge the degree of tolerance of the Canadian community. Although a certain degree of subjectivity is inherent in the establishment of the standard of tolerance because of the judges role as interpreter of the communitys minimum standards regarding sex, the analysis remains objective as long as the judge ignores his or her personal convictions and instead tries to determine the nature of the social consensus. (c) Rule: Do the impugned acts offend the standard of tolerance of the contemporary Canadian community, having regard to the place and context in which they occurred? The following contextual factors may be considered in determining the standard of tolerance: (1) the private or public nature of the place; (2) the type of participants and the composition of the audience; (3) the nature of the warning given regarding the acts; (4) the measures taken to limit access to the place; (5) the commercial nature of the place and the acts; (6) the purpose of the acts; (7) the conduct of the participants; and (8) harm suffered by the participants. (attention must be paid to the risk of physical or psychological harm) (d) The consent of the participants or the fact that those present are informed adults is not in itself a determinative factor. A consensual sexual act that is totally acceptable in one situation may be indecent if it is performed in another context. It is the tolerance of the general public that counts, not the tolerance of the participants or spectators. (e) Sexual acts could be performed on the third level of the establishment only after a mandatory commercial transaction between the participants and the owner of the establishment, since everyone had to pay a fee to become a member. The participants essentially purchased sexual services provided by other participants. In the instant case, it is even possible

12

to conclude that a form of social harm has been sustained that results from the failure to meet the minimum standards of public morality. (f) Finally, even though the participants were informed adults whose actions were consensual and voluntary and who presumably shared the philosophy of partner swapping, this characteristic of the participants is not relevant under s. 210(1) of the Criminal Code other than to demonstrate the existence of demeaning or dehumanizing acts. (g) Considered in context, the explicit sexual acts performed in the accuseds establishment clearly offended the Canadian community standard of tolerance. The community does not tolerate the performance of acts of this nature in a place of business to which the public has easy access. The acts were therefore indecent. The public and commercial dimensions of the sexual practices in issue would lead to the conclusion that those practices were indecent even if there were no harm. 3. The Classification of Offenses A. Classification of offenses and mode of trial 1) Introduction: the following is an overview-(a) Two types of offense 1) summary and 2) indictable. Others are hybrid offenses. (b) Three models of trial: 1) court of criminal jurisdiction, 2) superior court of criminal jurisdiction - which can hear matters in two ways: either without a jury or 3) with a jury (c) Summary offenses go to criminal jdx. Indictable can choose superior court w/ jury or w/o jury, or prov court. This choice is referred to as election (d) Election taken away by CC in situations: certain offenses must be tried by judge and jury. Some must be tried in prov court. Rationale: murder has public interest that demands jury. Less serious have no justification to offer choice beyond prov court. (e) If goes to superior court, matter can be first referred to preliminary inquiry in front of prov court. If found there is sufficient evidence will a trial take place. (f) Exceptions to exceptions: ability of crown to compel jury trial, regardless of accuseds election, or ability of accused to reelect having made on election. (trial by jury is not really the norm, but a rarity). 2)Types of offenses (a) Hybrid allows prosecutor to decide whether to proceed by indictable or summary conviction procedure, offense is designed to fall into either category. Hybrid is not 3rd category, simply legislative decision. (b) Indictable offenses carry higher max penalty that summary, but does not indicate those are more serious. Some serious are summary, while nonviolent property crimes may be indictable. Classification is not rationalized by seriousness. (c) Classification of offenses affects: scope of police powers, power to arrest, search and seizure, compelling appearance for interim release. Also affects manner in which proceedings are conducted in court - No statute of limitations for indictable, but there is for summary - time barred 6 months after completion of offense. (d) Classification also affects mode of procedure and jdx in court: summary start off with information. Indictable have preliminary inquiry on the information before prov judge. If committed trial, then crown may file new document of charge called indictment in the court to be tried. Quebec prov court has jdx to try all offenses except if trial by judge and jury. (e) Classification affects sentencing: indictable has max term that exceeds 2 years. Summary allow max 6 month or fine of $2,000, or both unless parliament describes higher max. Practically, accused gets lighter sentence if crown chooses summary when it was hybrid. Parliament has attached sentences more than 6 months for summary, but not more than 18 months. Prov jail is less than 2 years, have both indictable and summary convictions. Federal has convicts serving indictable necessarily. (f) Classification affects appeals: summary heard by prov court, indictable heard by court of appeal. (g) a system is irrationally complex, no longer has prescriptive coherence. Some indictable are treated as summary for purposes of sentencing, while some summary are treated closer to indictable for purposes of sentencing. Not good distinctions, porous. Difficult to see principle operating at very strong level. Current classification is profound impediment to needed reform canadian criminal procedure in all areas, but especially as regards the jdx of courts over offenses. 3) Mode of trial: In CC, parliament gives jdx over offenses to courts created by provinces. (a) Trial: CC gives summary conviction offenses to prov courts. Indictable goes to superior court of crim jdx OR court of crim jdx. 468 states that superior court of prov can try any indictable offense. 469 states that court of crim jdx is also competent but cannot try any of 14 listed offenses. Practically, court of criminal jurisdiction that has general competence to try indictable offenses other than those specifically enumerated as being with exclusive jdx of superior court. (b) 533 states that prov court has absolute jurisdiction to try variety of offenses, almost all property offenses. Exclusive means that offense can be prosecuted in that court alone and no other court. Thus, any offense in 469 can be tried ONLY in superior court. Through 468, jdx over all other indictable offenses is concurrent btn superior and prov court, subject to definition of of court of criminal jdx in 552. Absolute jdx in 553 means that despite concurrency, prov court will be the court that in fact can exercise jdx with regard to offenses listed in that section. (c) Definition of court of criminal jurisdiction: All provinces except Quebec, a judge of superior court has jdx to try any indictable offense except those reserved to exclusive jdx of superior court or those reserved to prov court by 553.

13

(d) Exclusive jdx of superior court defined in 469. Absolute jdx of prov court defined in 553. Court of crim jdx defined in 2, and practically in 552. (e) Right of election allows accused to choose jurisdiction. Factors influence decision, electing trial before prov court, accused waives right to request preliminary inquiry. Also may have right to re-election: as of right, or through consent of prosecutor. Easier to re elect down from trial by judge&jury to trial by judge alone or trial by prov court. Easier to re elect the earlier the decision is made. Example: Accused who elects trial by prov court can re elect up as of right until 14 days before trial, but only w/ prosecutors consent thereafter. Right to relect is not absolute. Election can be preempted by prosecutor if attorney general prefers direct indictment (which can require matter to go trial w/o prelim inquiry) or requires trial by judge and jury for an offense punishable by more than 5 years. (f) Allocation of jdx important for: issuing forms of process and conduct of hearings (bail applications). Only superior courts have general and inherent jdx - meaning, it is the court of first instance for and justicable issue that is not otherwise allocated by statute. Prov courts only have powers expressly given by legislation - by principle, they are subject to review by way of prerogative writ unless such relief is specifically excluded by law. Most common one, writ of certiorari, issued by superior court to quash a decision of judge in lower court who as acted w/o jdx. B. CC provisions 1) Sec 468: superior court 2) Sec 469: court of criminal jurisdiction. Can try treason, alarming her majesty, intimidating parliament or legislature, inciting to mutiny, seditious offenses, piracy, piratical acts, or murder. Attempts to commit any of these. Conspiracy to commit any of these. Accessories to treason or murder. Bribery to judicial officer, crimes against humanity. 3) Sec 552: definition of judge. 4) Sec 553: absolute jurisdiction (long, look at pg. 878) 5) Sec 2: definitions (of various court personnels, peoples, etc, pg. 1) 4. Interpreting Criminal provisions (a) Definitions: section 2 (pg. 1) (b) Strict Construction: historically, statutes interpreted strictly in favor of the liberty of the accused; gets benefit of doubt or ambiguity. This has been modified by purposive interpretation. (a) R. v. Pare: (a) Issue: This appeal is to determine whether the accused murdered the child "while committing" the indecent assault. (b) Reasoning: 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. (a)The words "while committing" in s. 214(5) do not require the murder and the underlying offence to take place simultaneously. Where the act causing death and the acts constituting the indecent assault all form part of one continuous sequence of events forming a single transaction, the death is caused "while committing" an offence for the purposes of s. 214(5). The offences under s. 214(5) all involve the illegal domination of people by other people. Accordingly, it is the continuing illegal domination of the victim which gives continuity to the sequence of events culminating in the murder and makes it a single transaction. The murder represents an exploitation of the position of power created by the underlying crime and knits the two together. The conviction of first degree murder should be restored. (b) Held that murder committed 2 mins after the accused had indecently assaulted victim was committed while the indecent assault took place. Murder was part of same continuous transaction and sequence of events. (No reliance on strict construction b/c by applying purposive there was no ambiguity in provision. (c) Held: appeal allowed. (b) Strict and purposive construction of the criminal law (Roach pgs. 84-89) (a) Criminal law should be interpreted or construed strictly to the benefit of the accused. Reasonable doubts in favor of accused. (Public disturbance if shouting, swearing, singing caused foreseeable interference w/ use of public place, not just annoyance). Defenses can also be expanded to favor accused. (b) Purposive interpretation acknowledges the limits of grammatical or dictionary-based interpretation of words and instruct courts to look at the broader purposes of a particular statute. Reconciled with strict approach: first use purpose interpretation and see if ambiguities exist w/ broad interpretation, then apply strict approach. (c) R.v.Russell: held 1st degree murder can be committed even if underlying offense was committed against third party and not person murdered. Strict construction not relevant b/c ordinary words of 231(5)CC did not require the underlying offense be committed against the victim. Rejected Pare. All that was necessary is that killing was closely connected, temporally, and causally, with an enumerated offense. (d) Courts will often give more serious criminal offenses a generous reading if supported by the language of the enactment. Only resort to strict construction if there are reasonable ambiguities in a law after it has been interpreted in a purposive manner consistent w/ its intent. (e) R.v. Labaye: Bawdy-house case, found no evidence of harm or anti social conduct in this case that involved consenting adults behind closed doors. Dissent held that actions, even if consensual, breached community standards. (c) Purposive Interpretation (d) French/English

14

(a) R. v. Mac (a) Issue: the proper interpretation of the word adapted in s. 369( b) (b) Rule: The Criminal Code is a bilingual statute of which both the English and French versions are equally authoritative. In his Interpretation of Legislation in Canada (3rd ed. 2000), at p. 327, Pierre-Andr Ct reminds us that statutory interpretation of bilingual enactments begins with a search for the shared meaning between the two versions. Where the words of one version may raise an ambiguity, courts should first look to the other official language version to determine whether its meaning is plain and unequivocal. (c) Reasoning: (a) we are of the view that s. 369(b) is not ambiguous. Accordingly, we find it unnecessary to engage in the kind of interpretive analysis undertaken by the Court of Appeal. We say this because the issue is resolved by referring to the French language version of the Code which was not argued in the courts below. Our Court requested the parties to address the French version in further submissions and rescheduled the hearing of the appeal to facilitate this. (b) In this case, any ambiguity arising from the English version is resolved by the clear and unambiguous language of the French version of s. 369(b). (c) This makes clear that, in the first case, adapted means altered or modified, while in the second case it does not. Thus the common meaning of adapted/adapt in s. 369(b) is suitable for. (d) Held: allow the appeal, set aside the judgment of the Ontario Court of Appeal and restore the decision of the trial judge. (b) R. v. Collins (a)The second reason is based on the language of s. 24(2). Indeed, while both the English text of s. 24(2) and Rothman use the words "would bring the administration of justice into disrepute", the French versions are very different. The French text of s. 24(2) provides "est susceptible de dconsidrer l'administration de la justice", which I would translate as "could bring the administration of justice into disrepute". This is suppportive of a somewhat lower threshold than the English text. As Dickson J. (as he then was) wrote in Hunter v. Southam Inc., supra, at p. 157: (a) Since the proper approach to the interpretation of the Charter of Rights and Freedoms is a purposive one, before it is possible to assess the reasonableness or unreasonableness of the impact of a search or of a statute authorizing a search, it is first necessary to specify the purpose underlying s. 8: in other words, to delineate the nature of the interests it is meant to protect. (b) As one of the purposes of s. 24(2) is to protect the right to a fair trial, I would favour the interpretation of s. 24(2) which better protects that right, the less onerous French text. Most courts which have considered the issue have also come to this conclusion (see Gibson, supra, at pp. 63 and 234-35). Section 24(2) should thus be read as "the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings could bring the administration of justice into disrepute". This is a less onerous test than Rothman, where the French translation of the test in our reports, "ternirait l'image de la justice", clearly indicates that the resort to the word "would" in the test "would bring the administration of justice into disrepute" means just that. (c) Roach pg. 87: CC enacted in both english and french, both officially authoritative versions of CC should be consulted to see if one of them resolves an ambiguity that may be present in the other version. If english and french versions of CC are not consistent, Court should elect the more restrictive provision. This approach is consistent with the doctrine of the strict construction of the criminal law and its concerns that are there be fair notice about criminal liability and that reasonable doubts be resolved in favor of the accused, (e) The Charter: (a) R.v.Labaye (look at notes above) (b) Canadian Foundation for Children, Youth & the Law v. Canada (AG): Charter challenge encouraged court to read significant content into concept of reasonable corrective force. Main points: Legal technique, rule of law doctrine void for vagueness, operation of the defense of corrective force. (a) Rules: (a) principle of fundamental justice must fulfill three criteria: First, it must be a legal principle. This serves two purposes. First, it provides meaningful content for the s. 7 guarantee; second, it avoids the adjudication of policy matters: Second, there must be sufficient consensus that the alleged principle is vital or fundamental to our societal notion of justice. Third, the alleged principle must be capable of being identified with precision and applied to situations in a manner that yields predictable results. (b) 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. (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) (b) Reasoning: (a) Section 43 of the Criminal Code does not offend s. 7 of the Charter. While s. 43 adversely affects childrens security of the person, it does not offend a principle of fundamental justice.

15

(c)

First, s. 43 provides adequate procedural safeguards to protect this interest, since the childs interests are represented at trial by the Crown. (b) Second, it is not a principle of fundamental justice that laws affecting children must be in their best interests. (did not meet rule of 3 criteria above) (c) Thirdly, s. 43, properly construed, is not unduly vague or overbroad; it sets real boundaries and delineates a risk zone for criminal sanction and avoids discretionary law enforcement. (b) The force must have been intended to be for educative or corrective purposes, relating to restraining, controlling or expressing disapproval of the actual behaviour of a child capable of benefiting from the correction. While the words reasonable under the circumstances on their face are broad, implicit limitations add precision. (c) Section 43 does not extend to an application of force that results in harm or the prospect of harm. Determining what is reasonable under the circumstances in the case of child discipline is assisted by Canadas international treaty obligations, the circumstances in which the discipline occurs, social consensus, expert evidence and judicial interpretation. 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 (d) The conduct permitted by s. 43 does not involve cruel and unusual treatment or punishment by the state and therefore does not offend s. 12 of the Charter. Section 43 permits only corrective force that is reasonable. Conduct cannot be at once both reasonable and an outrage to standards of decency (e) Section 43 does not discriminate contrary to s. 15(1) of the Charter. A reasonable person acting on behalf of a child, apprised of the harms of criminalization that s. 43 avoids, the presence of other governmental initiatives to reduce the use of corporal punishment, and the fact that abusive and harmful conduct is still prohibited by the criminal law, would not conclude that the childs dignity has been offended in the manner contemplated by s. 15(1). (f) While children need a safe environment, they also depend on parents and teachers for guidance and discipline, to protect them from harm and to promote their healthy development within society. Section 43 is Parliaments attempt to accommodate both of these needs. It provides parents and teachers with the ability to carry out the reasonable education of the child without the threat of sanction by the criminal law. (g) Without s. 43, Canadas broad assault law would criminalize force falling far short of what we think of as corporal punishment. The decision not to criminalize such conduct is not grounded in devaluation of the child, but in a concern that to do so risks ruining lives and breaking up families a burden that in large part would be borne by children and outweigh any benefit derived from applying the criminal process. Held: appeal dismissed.

(a)

II. THE ELEMENTS OF A CRIMINAL OR REGULATORY OFFENSE 5. The Actus Reus (a) Acts and Statutory Conditions (a) R v J.(D.): (b) R.v.Gunning: (a) Rules: The judge is entitled to give an opinion on a question of fact but not a direction. A trial judge has no duty or entitlement to direct a verdict of guilty and the duty to keep from the jury affirmative defences lacking an evidential foundation does not detract from this principle. It is a basic principle of law that the jury is to decide whether an offence has been proven on the facts. (b) Reasoning: The trial judge erred in instructing the jury that the Crown had proven the unlawful act necessary to prove murder or manslaughter and his recharge did not cure the error. In this case, if the jury was satisfied that the accused intended to kill C, the unlawful act that caused the death would be the shooting itself and the accused would be guilty of murder. If the Crown failed to prove an intent to kill, the accused would be guilty of manslaughter only if he was guilty of the unlawful act of careless use of a firearm. If the jury had a reasonable doubt on this question, he was entitled to an acquittal. (a) In finding that the accuseds use of the firearm was careless and an unlawful act that caused the death of C, the trial judge encroached on the exclusive domain of the jury. That issue, together with the question of intent to kill, were central in this trial. It was incumbent upon the trial judge to instruct the jury on the law in respect of the careless use of a firearm, including any defences that arose on the evidence, and to leave for the jury the application of the law to the facts (c) Held: The appeal should be allowed. The conviction should be set aside and a new trial ordered. (c) The act must be voluntary or willed (Roach pgs. 117-119): Voluntariness of the act(a) King: accused convicted of impaired diving did not commit actus reus b/c of involuntary digestion of drug at dentists office. There can be no actus reus unless it is the result of a willing mind at liberty to make a definite choice or decision. Minimal fault requirement suggests that accused who acts involuntarily may not have committed the actus reus of the offense. (b) Thereoux: involuntary conduct that would accompany a heart attack, seizure, detached retina, bee sting, prevents crown from proving actus reus of dangerous driving. (c) Daviault: extreme intoxication would negate mental element of the assault but conceded that such condition could also prevent the voluntary formation of the actus reus.

16

(b) 1.

2.

3.

4.

(d) Lack of voluntariness may be defense to all criminal and regulatory offenses, regardless of the fault element required. Important in cases that have no fault requirement or are based on negligence b/c involuntary conduct should usually be inconsistent with subjective forms of fault. The Act of Possession CC 4(3): possession of substance. Every person who contravenes subsection (1) where the subject-matter of the offence is a substance included in Schedule I (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding seven years; or (b) is guilty of an offence punishable on summary conviction and liable i. for a first offence, to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months, or to both, and ii. for a subsequent offence, to a fine not exceeding two thousand dollars or to imprisonment for a term not exceeding one year, or to both. R.v.York: law of manual possession a) Issue: Whether the trial judge erred in concluding that the evidence established beyond a reasonable doubt that the appellant possessed the necessary mens rea for the offence of possession of stolen property b) Rule: to prove possession, crown must prove 1) manual or physical handling of the prohibited object; 2) knowledge, and 3) control. The offence of possession is made out where there is the manual handling of an object co-existing with the knowledge of what the object is, and both these elements must co-exist with some act of control. c) Reasoning: 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. a) The appellant's conduct was inconsistent with any intention to retain or deal with the goods. He knew the goods were stolen. He also exercised physical control over the goods. However, there was no evidence that he had any intention to deprive the rightful owner of the stolen goods. As well, it appears the judge found the appellant's explanations regarding his discovery of the goods to be reasonable. He then went on to say that the appellant provided an innocent explanation b) the presence of a reasonable doubt would result in an acquittal on all counts d) Held: allow the appeal, set aside the convictions and register acquittals. R.v.Marshall: a) Facts: There was marijuana in the car. Marshall was a passenger in the car. He knew the narcotics were in the car but did not touch or use them. b) Issue: Was Marshall in joint possession? What is necessary to meet the requirements of possession in s.4(3) of the Criminal Code (Canada)? c) Ratio: In determining possession, per s.4(3) of the Criminal Code, there must be evidence of consent to prove the unlawful act. Where one or 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. d)Reasoning: a) There are three types of possession defined in s 4(3): 1) Personal; 2) Constructive (e.g. illegal material in a locker; control over something); or 3) Joint (possession with someone else). a) To be in possession, requires: 1) Knowledge of the criminality associated with the item, 2) Consent (per Marshall v R (1969)); and 3) Control (per R v Terrence (1983)). b) The Alberta Supreme Court agreed that Marshall had knowledge of the marijuana, but not that he had consented to it. Indeed, the Court held that Marshall, in choosing to continue his trip, did not consent or agree to, nor acquiesce in the presence of the drugs in the car. . . the consent was only as to riding in the car and not to the marijuana being there. c) With regards to Marshall passing the pipe, the Supreme Court held that, while it came very close to consent, [it] was almost a reflex action and did not constitute consent. d) The Supreme Court then considered the question of whether Marshall was guilty of aiding or abetting. They determined that Marshall had no power to control the persons possessing the marijuana, nor was he the owner of the car. Therefore, he could not be guilty of aiding or abetting. (he was in need of a ride). e) Held: The appeal was allowed and the conviction quashed R.v.Terrence: constructive joint possession a) Facts: taking ride in friends brother in laws car, but was stolen, so were the licensed plates, he did not know nor was driving. b) Issue: whether the word possession used in s. 3(4)(b) of the Code imports control as essential element. c) Rule: In determining possession, per s.4(3) of the Criminal Code, there must be evidence of control to prove the unlawful act. 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.

17

d) Reasoning: a constituent and essential element of possession under s. 3(4)( b) of the Criminal Code is a measure of control on the part of the person deemed to be in possession by that provision of the Criminal Code and accordingly I do not consider that the Court of Appeal for the Province of Ontario erred in this regard. a) 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. b) Terrence was not driving. He therefore did not meet the requirement of control. c) There are three types of possession defined in s 4(3): 1) Personal; 2) Constructive (e.g. illegal material in a locker; control over something); or 3) Joint (possession with someone else). a) To be in possession, requires: 1) Knowledge of the criminality associated with the item, 2) Consent (per Marshall v R (1969)); and 3) Control (per R v Terrence (1983)). e) Held: The appeal should be dismissed. 5. R.v.Morelli: search and seizure, and possession. a) Rules: an allegation of personal possession, the requirement of knowledge comprises two elements: the accused must be aware that he or she has physical custody of the thing in question, and must be aware as well of what that thing is. Both elements must co-exist with an act of control. a) Constructive possession is thus complete where the accused: (1) has knowledge of the character of the object, (2) knowingly puts or keeps the object in a particular place, whether or not that place belongs to him, and (3) intends to have the object in the particular place for his use or benefit or that of another person b) Reasoning: Canadian cases appear implicitly to accept only the latter proposition: That possession of an image in a computer means possession of the underlying data file, not its mere visual depiction. previous access and the possibility of again accessing a Web site that contains digital images, located on a distant server over which the viewer has no control, do not constitute C either alone or together C constructive possession. However elastic the notion of constructive possession may be, to stretch it that far is to defy the limits of its elasticity. a) Merely viewing in a Web browser an illegal image stored in a remote location on the Internet does not establish the level of control necessary to find possession. Neither does creating a favourite or an icon on ones s computer. b) In order to commit the offence of possession, as opposed to the offence of accessing of child pornography, one must knowingly acquire the underlying data files and store them in a place under ones control. It is the underlying data file that is the stable object that can be transferred, stored, and possessed. The automatic caching of a file to the hard drive does not, without more, constitute possession. While the cached file might be in a place over which the computer user has control, in order to establish possession it must be shown that the file was knowingly stored and retained through the cache he. c) It is hardly surprising as most computer users are unaware of the contents of their cache, how it operates, or even its existence. Absent that awareness, they lack the mental or fault element essential to a finding that they culpably possess the images in their cache. d) An ITO seeking a warrant to search for evidence of possession, rather than accessing, must therefore provide reasonable grounds to believe that the alleged offender possesses (or has possessed) digital files of an illegal image, and that evidence of that possession will be found in the place to be searched at the time the warrant is sought. e) Here, the search and seizure of the accusedss computer infringed his right under s. 8 of the Charter. Even when corrected and amplified on review, the ITO was insufficient to permit any justice of the peace, acting reasonably, to find adequate grounds for the search. The ITO did not allege the distinct and separate offence of accessing child pornography and, stripped of its defects and deficiencies, all that really remained were two Internet links, seen four months earlier in the Favourites menu of a Web browser on a computer that was subsequently formatted, deleting both links. The prior presence of the two Lolita links supports a reasonable inference that the accused browsed a Web site that contained explicit images of females under the age of 18, but this does not suffice to establish possession. c) Held: appeal allowed. The accuseds conviction is quashed and an acquittal is entered. (c) Consent as an element of the actus reus 5. CC 256(3): Assault - consent; no consent is obtained where complainant submits or does not resist by reason of (a) The application of force to the complainant or to a person other than the complainant (b) Threats or fear of the application of force to the complainant or to a person other than the complainant (c) Fraud; or (d) The exercise of authority. 2. R. v. Jobidon: common law influence on the reach of statutory provisions. a) Facts: in a bar, two consented to fight, has physical fist fight, one ended up dying. b) Issue: 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.

18

c) Rule: A person cannot consent to bodily harm. A person cannot consent to death, or to violent force that is unreasonable conduct in the circumstances.Even if you consent to a fight, you cannot consent to the other person using excessive force to kill you. d) Reasoning: 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. a) 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. b) 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. c) While a fist fight constitutes a situation in which the concept and term "assault" fit quite naturally, criminal negligence is less well tailored to that kind of situation. In a fist fight, there is an obvious intention to apply force to the other person. This conscious regard for some level of harmful consequence to the physical integrity of another person distinguishes assault from criminal negligence, where there is actually a disregard for the likely impact of one's conduct on the other's physical safety. d) The limitation demanded by s. 265 as it applies to the circumstances of this appeal is one which 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. e) In the context of s.265 of the Criminal Code, a person may consent to assault. However, the threshold for the vitiation of consent is bodily harm. One exception is in sport, where one may consent to a higher degree of injury since sports lack an intent to injure and have social value. In this case, there is no public interest in allowing people to commit bodily harm against one another. f) You cannot consent to the imposition of death, and therefore this type of assault was not consented to. They also state that to allow an acquittal is contrary to public policy because Parliament wants to eliminate senseless fighting in society. Not only can you not consent to death, you cannot consent to very violent forms of force that clearly extend beyond the ordinary norms of conduct in the circumstances. e) Held: appeal dismissed, in favor of crown. 3. R. v. J.A: d) Issue: whether a person can perform sexual acts on an unconscious person if the person consented to those acts in advance of being rendered unconscious e) Rule: sexual acts performed without consent and without an honest belief in consent constitute the crime of sexual assault f) Reasoning: Parliament has defined consent in a way that requires the complainant to be conscious throughout the sexual activity in question. Parliaments definition of consent does not extend to advance consent to sexual acts committed while the complainant is unconscious. The legislation requires ongoing, conscious consent to ensure that women and men are not the victims of sexual exploitation, and to ensure that individuals engaging in sexual activity are capable of asking their partners to stop at any point. a) The jurisprudence has consistently interpreted consent as requiring a conscious, operating mind, capable of granting, revoking or withholding consent to each and every sexual act. The jurisprudence also establishes that there is no substitute for the complainants actual consent to the sexual activity at the time it occurred. It is not sufficient for the accused to have believed the complainant was consenting: he must also take reasonable steps to ascertain consent, and must believe that the complainant communicated her consent to engage in the sexual activity in question. This is impossible if the complainant is unconscious. b) When the complainant loses consciousness, she loses the ability to either oppose or consent to the sexual activity that occurs. Finding that such a person is consenting would effectively negate the right of the complainant to change her mind at any point in the sexual encounter. g) Conclusion: The definition of consent for sexual assault requires the complainant to provide actual active consent throughout every phase of the sexual activity. It is not possible for an unconscious person to satisfy this requirement, even if she expresses her consent in advance. Any sexual activity with an individual who is incapable of consciously evaluating whether she is consenting is therefore not consensual within the meaning of the Criminal Code. h) Held: appeal allowed and the respondents conviction for sexual assault restored. i) Dissent: Upon regaining consciousness, K.D. did not revoke her prior consent to the sexual conduct in issue which was then still ongoing. And it has not been suggested that she had earlier revoked her consent by words or conduct, or even in her own mind. There is no factual or legal basis for holding that the complainants prior consent, otherwise operative throughout, was temporarily rendered inoperative during the few minutes of her voluntary unconsciousness. It was not suspended by the fact that she had rendered herself incapable of revoking the consent she had chosen, freely and consciously, not to revoke

19

either immediately before or immediately after the brief interval of her unconsciousness. The complainants prior consent to the activity in question constituted a valid consent only to the contemplated activity 4. R. v. Mabior: d) Rule: failure to disclose that one has HIV may constitute fraud vitiating consent to sexual relations. he Crown must show, beyond a reasonable doubt, that the complainants consent to sexual intercourse was vitiated by the accuseds fraud as to his HIV status. The test boils down to two elements: a) a dishonest act (either falsehoods or failure to disclose HIV status); and b) deprivation (denying the complainant knowledge which would have caused him or her to refuse sexual relations that exposed him or her to a significant risk of serious bodily harm). Failure to disclose may amount to fraud where the complainant would not have consented had he or she known the accused was HIV-positive, and where sexual contact poses a significant risk of or causes actual serious bodily harm. e) Reasoning: requirement of significant risk of serious bodily harm should be read as requiring disclosure of HIV status if there is a realistic possibility of transmission of HIV. If there is no realistic possibility of transmission of HIV, failure to disclose that one has HIV will not constitute fraud vitiating consent to sexual relation a) a realistic possibility of transmission of HIV is negated if: (i) the accuseds viral load at the time of sexual relations was low and (ii) condom protection was used. f) Analysis: Here, the four complainants all consented to sexual intercourse with M, and testified that they would not have had sex with him had they known he was HIV-positive. M had intercourse by vaginal penetration with the four complainants, during which he ejaculated. At the time of intercourse with the complainants S.H., D.C.S. and D.H., M had a low viral load but did not use a condom. Consequently, those convictions should be maintained. As regards K.G., the record shows that Ms viral load was low. When combined with condom protection, this did not expose K.G. to a significant risk of serious bodily harm. g) Conclusion: person may be found guilty of aggravated sexual assault under s. 273 of the Criminal Code if he fails to disclose HIV-positive status before intercourse and there is a realistic possibility that HIV will be transmitted. If the HIVpositive person has a low viral count as a result of treatment and there is condom protection, the threshold of a realistic possibility of transmission is not met, on the evidence before us. h) Held: The appeal should be allowed in part and the convictions in respect of the complaints by S.H., D.C.S. and D.H. should be restored. The appeal should be dismissed in respect of the complaint by K.G 5. Policy elements in the definition of the actus reus: The case of consent (Roach pgs. 101-106): d) No consent in sexual assault cases, where: a) Agreement is given by 3rd party b) Complainant is incapable of consenting c) Complainant is induced to participate by abuse of a position of trust, power, or authority d) Complainant express by words or conduct, a lack of agreement to engage in the activity; or e) Complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to engage in the activity. e) Court has rejected advance or implied consent. For determining the actus reus of consent, the absence of consent is subjectively determined by reference to complainants subjective state of mind toward the touching, at the time occurred (not by objective standards of law). This requires for complainant to be conscious at the time of sexual activity in question and prevents use of advance consent. f) Consent negated by fear of application of force, regardless of reasonableness of fear, or whether it was communicated to accused. (unless found not a credible statement of her state of mind at the time the offense occurred). g) R. v. Cuerrier: whether persons non disclosure of HIV status constituted fraud vitiating his partners consent to unprotected sexual intercourse. In determining this, action of accused must be assessed objectively to determine whether a reasonable person would find them to be dishonest. Must be proven that complainant would have refused to have unprotected sex if the accuseds HIV status was disclosed. h) No consent a) 14: to their own death b) 286: abduction of a child c) 150.1(1): not a defense to sexual assault in cases of under age 16. Sec 150.1(4), subjective belief that person was over 16 is not a defense unless accused took all reasonable steps to ascertain the age of complainant. i) R. v. Jobidon: held that person could not consent to assault that intentionally causes serious hurt or non-trivial bodily harm in the course of a fist fight or brawl, and minor could not consent to adults intentional application of force in a fight. Consent not negated it bodily harm is part of an accepted part of socially valued activity, like sports. Harm must be intended and caused for consent to be vitiated. a) Dissent: rule interferes with parliaments decision to make lack of consent requirement for an assault and allowed judges to use common law to expanded the breadth of the offense of assault. b) Minors can consent to school yard scruffles where serious harm is not intended or caused.

20

j) Assault 256: non consensual and intentional application of direct or indirect force of another person, but also attempts or threats by an act or a gesture, to apply force to another person if the accused causes the complainant to believe on reasonable grounds that he has the present ability to effect his purpose. k) Possession 4(3): knowingly having something in actual possession or custody of another person or another place. Joint possession is where one or two or more persons, w/ knowledge and consent of rest, has anything in his custody or possession. Persons knowledge & consent: requires that the person deemed to be in possession must have a measure of control over the matter. l) Theft: taking or conversion of anything. Court excludes taking of confidential information from offense of theft on the basis that information alone does not constitute property as protected under crim law, and its theft does not deprive the possessor of the use or possession of the confidential information. a) Actus reus: taking confidential info alone is not theft, but taking piece of paper that contains confidential info may be theft. (d) Causation 2. CC 224-226: 1. 224: death that might have been prevented - where person, by an act/omission, does anything that results in death of a human being, he causes the death of that human notwithstanding that death from that cause might have been prevented by resorting to proper means. 2. 225: Death from treatment of injury (intervening) - where a person causes to a human bodily injury that is of itself of a dangerous nature and from which death results, he causes the death of that human notwithstanding that the immediate cause of death is proper or improper treatment that is applied in good faith. 3. 226: Acceleration of death - where a person causes to a human a bodily injury that results in death, he causes the death of that human notwithstanding that the effect of the bodily injury is only to accelerate his death from a disease or disorder arising from some other cause. 2. R. v. Smithers: legal causation principle of the thin skull a) Facts: S punched C then kicked him very hard in stomach. C dies 5 min later. Cause of death was aspiration due to vomiting. Dr at trial said that the kick very probably caused vomiting and could have caused C to aspirate the vomit b) Issue: Was the kick a sufficient cause of the death to attract criminal liability c) Rule: Even if death is unexpected and the physical reactions of the deceased unexpected, if the accused intended to do grievous bodily harm to the deceased, that could be enough to show causation. (Thin skull test applies too). a) the Crown must show that the accused's acts were a "contributing cause of death outside of the de minimis range. (The Crown had to prove that the kick caused the vomiting, and that the vomiting caused the death) (1) Unlawful act and 2) death was as a result of the alleged unlawful act) d) Reasoning: The medical evidence indicated that the deceased had died from asphyxia from aspiration of foreign materials due to vomiting and that the malfunction of the epiglottis was probably caused by the kick but could have resulted from fear a) The assault by appellant on the deceased was clearly an unlawful act and there was cogent evidence to which the jury could apply common sense in considering the issue of causality. b) There was substantial evidence before the jury indicating that the kick was at least a contributing cause of death, outside the de minimis range, and that was all that the Crown was required to establish. It was immaterial that the death was in part caused by a malfunctioning epiglottis to the malfunction of which appellant may, or may not, have contributed. A person commits homicide when directly or indirectly, by any means, he causes the death of a human being and it was therefore no defence that appellant did not expect that death would ensue c) "[t]here are many unlawful acts which are not dangerous in themselves and are not likely to cause injury which, nevertheless if they cause death, render the actor guilty of culpable homicide ... In the case of so-called intentional crimes where death is an unintended consequence the actor is always guilty of manslaughter at least." d) degree of contribution to the cause of death need only pass a de minimis test. Thin Skull Rule in homicide, where the fact that Cobby was susceptible to failure of the epiglottis should not absolve Smithers from liability. The thin skull rule applies in criminal law and therefore the kick led to the victim's reaction that resulted in death. e) It is a well-recognized principle that one who assaults another must take his victim as he finds him e) Held: Appeal dismissed, conviction upheld. 3. R. v. Nette: need for both factual causation and legal causation, and high causation standard for first degree murder. c) Facts: A 95 year-old widow was robbed and left hog tied in her room. Over a period of 48 hours she suffocated to death. d) Issue: What is the proper threshold of causation required for second-degree murder? a) whether the standard for causation should be the de minimis test from Smithers or the "significant contributing cause" test from R. v. Harbottle. e) Rule: When addressing a jury, the standard of causation for second-degree murder should be positively stated in that the actions of the accused must have been a "significant contributing cause" of death. However, the Smithers causation standard still applies to all forms of homicide. f) Reasoning:The Smithers test applies for all forms of homicide and the additional test used in R v Harbottle applies in the case of first degree murder, rather than to all forms of homicide.

21

a) The test for causation for second degree murder need not be expressed as "a contributing cause of death, outside the de minimis range". (jury instruction). Instead, it would be more preferable to use positive terms such as "significant contributing cause". b) In the case of first degree murder under s. 231(5) of the Code (crime of domination), a jury must also consider the additional R. v. Harbottle "a substantial causation" standard but only after finding the accused guilty of murder. c) the current "de minimis" test, defining the standard as "not a trivial cause" or "not insignificant", is not helpful and instead should be formulated positively such as "significant contributing cause". Since causation is largely fact-driven the judge should have the discretion to rephrase the test as the facts warrant giving the example of Harbottle where, given the high degree of blameworthiness and stigma of the charge, the test was formulated as "a substantial cause" g)Analysis: a) Must show that D caused the death both in fact and law. a) Factual causation inquiry about how the victim came to her death medical, mechanical and physical sense. (But-for test) b) Legal causation (imputable causation) should the accused be held responsible in law for the death that occurred give his level of involvement? a) Degree of participation: Significant cause (de minimis) OR Significant and Integral part Test) b) Remoteness (people acting out of self defence dont break chain of causation) c) For all offences the accused must be a significant contributing cause (de minimis) except for 1st degree murder it is substantial and integral. Manslaughter and 2nd degree murder have the same causation the difference is in the mens rea b) In determining whether and accused is guilty of 1st or 2nd degree murder 1st step for trier of fact is to determine whether murder has been committed pursuant to ss. 229 or 230 Then the next question is whether the offence should be classified as 1st or 2nd degree murder in accordance with criteria set out in s.231 (considering Harbottle standard) f) Conclusion: trial judge correctly charged the jury on the applicable standard of causation for second degree murder in expressing the standard as one in which the accused must have been more than an insignificant or trivial cause of the victims death. There is only one standard of causation for homicide offences, including second degree murder. That standard may be expressed using different terminology, but it remains the standard expressed by this Court in the case of Smithers, supra. The terminology of substantial cause in Harbottle is used to indicate the increased degree of participation in the killing that is required to raise the accuseds culpability to first degree murder under s. 231(5) of the Code. Harbottle did not raise the standard of causation that applies to all homicide offences from the standard expressed in Smithers. g) Held: Appeal dismissed, conviction upheld. h) Concurrence: The test for causation for culpable homicide set out in Smithers should not be changed from a contributing cause of death, outside the de minimis range into a significant contributing cause. There is a meaningful difference between a contributing cause [of death] that is not trivial or insignificant and a significant contributing cause. The suggested change in terminology drastically changes the substance of the causation test and ignores the reason for using a double negative. A significant contributing cause standard calls for a more direct causal relationship than the not insignificant or not trivial test, thus raising the threshold of causation for culpable homicide from where it currently stands. The word significant implies an elevated contribution and is not equivalent to not insignificant. 4. R. v. Williams: If causation is not proved, the accused cannot be convicted of an offense that requires his act to produce a prohibited consequence. e) Facts: W learned that he had recently tested positive for HIV. The complainant tested negative shortly thereafter. f) Issues: Can the accused be convicted of aggravated assault rather then attempted aggravated assault? a) Was consent vitiated by consent by fraud? g) Rule: An attempt is proven by demonstrating that significant portion of the actus reus has been completed even though not all of the elements of actus reus have been proven. a) The absence of consent is subjective and determined by reference to the complainants subjective internal state of mind towards the touching, at the time it occurred. h) Analysis: The mens rea for aggravated assault is the mens rea for assault (intent to apply force intentionally or recklessly or being willfully blind to the fact that the victim does not consent) plus objective foresight of the risk of bodily harm (R v Godin). An accused is guilty of an attempt if he intends to commit a crime and takes legally sufficient steps towards its commission. i) Reasoning: 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, before the accused knew about his own status. a) Crown could not show that sexual activity after November 15, 1991 harmed the complainant, or even exposed her to a significant risk of harm, because at that point she was possibly, and perhaps likely, already HIV-positive. Ws acquittal on the charge of aggravated assault must therefore be affirmed.

22

b) Crown was unable to prove an essential element of the actus reus, namely that Ws sexual conduct, after learning that he had tested positive for HIV, risked endangering the complainants life. To constitute a crime, the actus reus and the mens rea or intent must, at some point, coincide. Here, however, before November 15, 1991, there was an endangerment but no intent; after November 15, 1991, there was an intent but at the very least a reasonable doubt about the existence of any endangerment. c) There is nothing in the evidence to suggest that the complainant, believing rightly or wrongly that she was HIV-free, consented to unprotected sexual intercourse with an HIV-positive partner. At all relevant times, the complainant believed that both she and W were HIV-free. d) The crime of attempt requires the Crown to establish the mens rea to commit the crime in question. The intent to commit the crime of aggravated assault is established for the period after November 15, 1991. As to the actus reus, failure to prove endangerment of life was fatal to the prosecution in this case of aggravated assault but it is not fatal to a conviction for attempted aggravated assault. Clearly, W took more than preparatory steps. He did everything he could to achieve the infection of the complainant by repeated acts of unprotected intercourse for approximately one year between November 15, 1991 and November 1992, when the relationship ended. The reasonable doubt about the timing of her actual infection was unknown to both partners. j) Held: affirm the respondents convictions for attempted aggravated assault and common nuisance. I would dismiss the Crowns appeal with respect to the charge of aggravated assault. 5. R. v. Maybin: intervening acts. e) Facts: guy punching victim, bouncer came and punched victim after he is out, not sure which blow resulted in death. f) Issue: whether the trial judge could have concluded that the appellants caused the death in fact; and if so, whether the subsequent assault by another person constituted an intervening act that nonetheless broke the chain of legal causation. a) Did the trial judge err in failing to address whether the appellants assaults were in fact a cause of death? b) Was it open to the trial judge to find that the appellants assaults remained a significant contributing cause of death despite the intervening act of the bouncer because (a) the intervening act was reasonably foreseeable; or (b) the intervening act was not an intentional, independent act? g) Rule: Even in cases where it is alleged that an intervening act has interrupted the chain of legal causation, the causation test remains whether the dangerous and unlawful acts of the accused are a significant contributing cause of the victims death. h) Reasoning: actual causation - but-for: even if the appellants actions were not the direct and immediate cause of the victims death, but for their actions, the victim would not have died. As Smithers and Nette made clear, factual causation is not limited to the direct and immediate cause, nor is it limited to the most significant cause. The Maybin brothers assault was either the direct medical cause of death or it rendered the victim vulnerable to the bouncers assault. a) Legal causation - intervening act: other causes may intervene to break the chain of causation between the accuseds acts and the death. That some new event or events result in the accuseds actions not being a significant contributing cause of death. b) Any assessment of legal causation should maintain focus on whether the accused should be held legally responsible for the consequences of his actions, or whether holding the accused responsible for the death would amount to punishing a moral innocent. b) both the reasonable foreseeability and the intentional, independent act approach may be useful in assessing legal causation depending on the specific factual matrix. c) The reasonable foreseeability approach questions whether it is fair to attribute the resulting death to the initial actor and posits that an accused who undertakes a dangerous act, and in so doing contributes to a death, should bear the risk that other foreseeable acts may intervene and contribute to that death. The time to assess reasonable foreseeability is at the time of the initial unlawful act. The intervening acts must be reasonably foreseeable in the sense that the acts and the harm flowed reasonably from the conduct of the accused. b) the chain of causation should not be broken only because the specific subsequent attack by the bouncer was not reasonably foreseeable, b/c we go back to the initial unlawful act. c) What is foreseeable coincides with mens rea of manslaughter. d) Whether an intervening act is independent is sometimes framed as a question of whether the intervening act is a response to the acts of the accused. In other words, did the act of the accused merely set the scene, allowing other circumstances to (coincidentally) intervene, or did the act of the accused trigger or provoke the action of the intervening party? If the intervening act is a direct response or is directly linked to the accuseds actions, and does not by its nature overwhelm the original actions, then the accused cannot be said to be morally innocent of the death. e) it was open to the trial judge to conclude that it was reasonably foreseeable that the fight would escalate and other patrons would join or seek to end the fight or that the bouncers would use force to seek to gain control of the situation; the bouncers act was closely connected in time, place, circumstance, nature and effect with the accuseds acts and the effects of the accuseds actions were still subsisting and not spent at the time the bouncer acted. Therefore, based upon the trial judges findings of fact, it was open to him to conclude that the general nature of the intervening act and the

23

accompanying risk of harm were reasonably foreseeable; and that the act was in direct response to the accuseds unlawful actions i) Held: conclude that it was open to the trial judge to find that the appellants assaults remained a significant contributing cause of death. appeal dismissed. 6. R. v. Reid: the need in some contexts to consider whether intervening events have broken the relevant chain of causation. a) Facts: two got into a fight with victim, one had v in a headlock, other gave punches, stopped when realized v was not struggling or resisting, tried to rescue, unable, took to hospital, pronounced dead. Death was due to asphyxia after he aspirated on his stomach contents: he choked to death on his own vomit. Pressure of physical resuscitation efforts forced large quantities of vomitus into his lungs. None of the bruises, scrapes and abrasions found on the mans body were life threatening or had anything to do with the aspiration, asphyxia and subsequent death. b) Issue: what constitutes proper and adequate directions when charging a jury on the standard of causation in a homicide case c) Rule: The question for the jury is whether the initial injury can still be viewed as a significant contributing cause of the victims death. d) Reasoning: Nette and Smithers are distinguishable from cases that intervening causes. a) Failed attempts at CPR clearly interrupted and therefore separated the acts of Stratton and Reid from MacKays ultimate death. It b) was critical that the jury understood their obligation to consider whether or not any independent, intervening and therefore exculpatory factors occurred after the two accuseds acts, thereby severing the link in the chain which tied them to MacKays death. c) Precedence: The trial judge then turned to consider the different situation where death cannot be said to have occurred as the natural consequence of an accuseds actions with the result that the accused may not be held criminally responsible. If a natural, ordinary and entirely foreseeable event like the rising tide in Hallett is acknowledged by the Court as one necessitating a most careful consideration of causation, then surely an altruistic, urgent and unintended result like the failed attempts at CPR in this case, is deserving of equally serious treatment. d) Trial judge did not provide any instructions to the jury on the issue of intervening act and intervening cause as it related to the CPR resuscitation efforts which, on the unanimous view of all of the medical experts, was the cause of MacKays death. e) Having concluded that the trial judge erred in law in his directions to the jury and that it cannot be said that his error occasioned no substantial wrong or miscarriage of justice, s. 686(2) of the CC directs that the conviction must be quashed and either an acquittal entered or a new trial ordered. This omission constitutes a significant error of law. rial judges charge to the jury was seriously incomplete in that he did not specifically instruct them on the issue of intervening act and intervening cause as it related to the failed attempts at CPR which, on the evidence, was the sole cause of Mr. MacKays death e) Examples: consider the situation where A strikes B and leaves him unconscious under a tree where later a branch falls killing the man by its own weight. Or A strikes B and the blow renders B unconscious. Other people carry B to a nearby clinic but on route they tumble down an open well where B drowns; or they are waylaid by a gang of thieves and in the ensuing robbery B is stabbed to death; or upon arrival at the hospital for treatment B contracts streptococcus, flesh eating disease from which he dies within days. These are all examples where the law would recognize a supervening cause, an interrupting exculpatory event. The intervening acts break the chain of causation. They interrupt the original infliction of injury. Some other act or event has intervened before death. a) The question for the jury is whether the initial injury can still be viewed as a significant contributing cause of the victims death. f) Correct jury instructions: a) In order to be satisfied beyond a reasonable doubt that Stratton or Reid caused the death of MacKay, you are required to consider the whole of the evidence and decide: a) whether the accuseds unlawful acts (specifically, as I have reviewed with you, in the case of Stratton the socalled headlock and in the case of Reid the alleged kicks) in fact amounted to a significant contributing cause of MacKays death? a) If you are satisfied as to the first question, you should then go on to ask yourselves: b) Whether any intervening cause which resulted in MacKays death occurred between the accuseds acts and the victims death? Put another way, are you satisfied beyond a reasonable doubt that the actions of either Stratton or Reid are so connected to the death of MacKay that they can be said to have had a significant causal effect which continued up to the time of his death, without having been interrupted by some other act or event, in this case the failed attempts at CPR? b) In order for you to convict either Stratton or Reid, you must find that the Crown has proved each of the essential elements of the offence beyond a reasonable doubt. Here of course we have been considering the requirement that the Crown prove that the accuseds unlawful acts caused MacKays death. Remember that to meet that burden the Crown does not have to show that either Reids kicking or Strattons headlock was the sole cause of MacKays death. It is enough for the Crown to prove to your satisfaction that in the case of Reid, his kicking; or in the case of Stratton, his having a hold of MacKays neck, was a significant contributing cause of MacKays death.

24

c) The question you will now want to consider during your deliberations is this: Were the actions by those at the scene to resusitate MacKay - which all of the doctors said was what caused his death - in your opinion an i ntervening event which broke the chain of causation between what Reid and Stratton are said to have done, and MacKays death, such that the actions of either of them are no longer seen by you as being a significant contributing cause of his death? d) If you were satisfied that the chain of causation was unbroken, or you were not left with a reasonable doubt about it, you would then conclude that this element of the offence of manslaughter was made out. If on the other hand you decided that the CPR efforts had severed the chain of causation linking either of the accused to MacKays death, or were left with a reasonable doubt about it, then the Crown would have failed to establish this essential element of the charge and would therefore be unable to convict that accused of manslaughter. Your deliberations at that point would be over g) Held: allow the appeal, quash both convictions and direct that a new trial be ordered for both Reid and Stratton. 7. R. v. Talbot: a) Facts: argument between D and three others, he punched one guy, who dropped to the floor, kicked up, died in hospital shorty. b) Issues: the trial judge erred in her instructions pertaining to whether the respondents actions constituted one or two transactions [the one transaction issue] a) the trial judge erred in her instructions on self defence; b) the trial judge erred in her instructions as to the respondents potential liability for murder or manslaughter on the basis that the kick was a cause of death; and c) the trial judge erred in failing to instruct the jury as to the respondents potential liability for attempted murder or assault on the basis that the kick was not a cause of death, but was an unlawful act. c) Reasoning: a) One transaction: trial judge erred in telling the jury that it had to be satisfied beyond a reasonable doubt that the respondents acts constituted a single transaction or alternatively, that it had to be satisfied beyond a reasonable doubt that the respondents actions constituted two separate transactions. There was no air of reality to the contention that the punch and the kick constituted two separate and discrete transactions. lthough I accept that the trial judge should have told the jury to treat the punch and the kick as part of a single transaction and that she erred in her instruction on the burden of proof on that issue, I do not think that either error had any effect on the result. I will begin my reasons for so holding by setting out the conclusions that drive my analysis: a) the trial judge correctly instructed the jury on the defence of self defence; b) the jurys verdict indicates that it had a reasonable doubt as to whether the punch was administered in self defence; c) the punch and the consequential head injury when Mr. Sheltons head hit the ground caused Mr. Sheltons death; d) he kick was not a cause of death; and e) it was not open to the jury to convict the respondent of attempted murder or assault based on the kick. b) Self defense: I would describe the charge on self defence as accurate, clear and well organized. The phrase in concert made it clear to the jury that ss. 34(1) and 34(2) were available only if the respondent reasonably perceived that Mr. Shelton and his friends, acting together, were threatening to attack him. Detailed instructions on the intricacies of s. 21, which are intended to describe the limits of accessorial liability, were unnecessary in the context of an instruction on the essential elements of self defence. The words used by the trial judge made it clear to the jury that the respondent could rely on self defence only if he reasonably perceived that Mr. Shelton was a party to the apprehended attack on him. The trial judge made this clear without introducing the complexities of an aiding and abetting instruction into the middle of what was already, of necessity, a somewhat complicated instruction on self defence. c) Cause of death: rial judges instruction on causation was given in the course of her explanation of the respondents potential liability for murder or manslaughter. The trial judge introduced this part of her instruction by saying: [Y]ou do not consider this distinction at all unless you have first rejected the defence of self-defence under both s. 34(1) and s. 34(2). The logic of the jury instruction suggests that the jury having found that the respondent acted in self defence never reached the causation question. The jurys questions quoted above (para. 68) also indicate that the jury concluded that the punch was the sole cause of death. I do not think there was any evidentiary basis for a finding that the kick was a contributing cause of Mr. Sheltons death. a) Juries are not asked to determine factual and legal causation separately. Instead, the two inquiries are joined and the jury is asked to decide whether the accuseds actions significantly contributed to the victims death. If the Crown sought to rely on the kick as a contributing cause of death, it was incumbent on the Crown to prove beyond a reasonable doubt that the kick was a contributing cause b) I also do not think that the jury could find a causal link between the kick and Mr. Sheltons death on the basis of the non-medical evidence. medical evidence was incapable of forging a causal link between the kick and Mr. Sheltons death. d) Potential liability for the kick: the jurys finding that the respondent acted in self defence when he punched Mr. Shelton must be accepted for purposes of the appeal. I have also concluded that in all likelihood, the jury found that death was caused exclusively by the punch and that in any event, there was no evidentiary basis for a finding that the

25

kick was a cause of death. These two conclusions taken together mean that Mr. Sheltons death was not the result of an unlawful act. Without an unlawful act, the respondent cannot be said to have committed a culpable homicide. By definition, Mr. Sheltons death was a non-culpable homicide. Homicide that is non-culpable is not an offence. a) the Crown acknowledges in arguing for criminal culpability for something less than murder based exclusively on the kick, this submission assumes that the kick and the punch are two discrete transactions. Counts in an indictment should generally refer to a single transaction. Offences which arise out of a separate transaction cannot, in my view, be regarded as included offences in a charge relating to a different transaction. They should be the subject of a separate count in the indictment. b) If the Crown wanted to allege that the kick was criminal even if the homicide was not, the Crown should have laid a separate charge to reflect that allegation. c) It is much too late to raise for the first time on appeal a theory of culpability far removed from that advanced by the Crown at trial. Crown is not entitled to a new trial on a theory of culpability that is not reflected in the indictment preferred by the Crown and bears no resemblance to the case advanced against the respondent at trial. d) Held: appeal dismissed. 8. Causing prohibited consequences (Roach pgs. 108-115): think skull rule: held liable for consequences even if consequences are caused by the victims peculiar and unforeseeable vulnerabilities. Principle: accused take his victim as he finds him. a) Statutory provisions concerning causation: 222(1) provides that a person commits homicide when directly or indirectly he caused the death of a human being. Applies if D abducts child who subsequently dies from hypothermia. 231(5) requires first degree if death caused while committing or attempting to commit sexual assault, kidnapping, hostage-taking. 224 provides chain of causation is not broken if death could otherwise have been prevented by proper means, or if the immediate cause of death is proper or improper treatment that is applied in good faith (225) b)General principles of causation: a) R. v. Smithers: upheld manslaughter conviction on basis that accuseds kicking of deceased in stomach was at least contributing cause of death outside the de minimis range, even though death was in part caused by victims malfunctioning epiglottis, which caused him to choke to death on his own vomit. Upheld thin skull rule. Has survived Charter (s.7) - provides sweeping accountability for causing death. b) R. v. Cribbin: de minimis causation test and thin skull principles from Smith are consistent w/ principles of fundamental justice that forbid the punishment of the morally innocent. Upheld manslaughter conviction b/c accuseds assault contributed to victims death, even though victim had been subject to more serious assaults by another person and had died b/c he drowned in his own blood. c) *R. v. Nette: revisited Smith, and arguably elevated causation test for homicide. Explain to jury with terms significant contributing cause rather than negative expressions like not a trivial cause or not significant. D had caused death of 95 year old woman who he left hog-tied and alone after robbing her home. Died of asphysxiation 1-2 days later. Number of causes of death: hog tied position, tight ligature around neck, age, asthma, congestive hearth failure. Causation must be established beyond a reasonable doubt. c) Concurrent causes and new acts that sever the chain of causation: accused causes death when he sets of a chain of events that ended in a persons death even though immediate cause of death had not been at the accuseds hands. a) R. v. Kitching: accused assaulted victim, causing brain death. Held responsible, even though immediate cause of death was the medical withdrawal of life support. b) R. v. Maybin: test for whether intervening act was reasonably foreseeeable from accuseds actions and whether the intervening act was independent of the accuseds action - are only analytical aids and not new legal tests of causation in determining whether intervening act was sufficient to break chain of causation. Held, it was reasonably foreseeable that that either bouncers or other patrons would join in the fight, held two brothers responsible. Bouncers assault on victim was not so independent an act that it rendered accuseds assault so remote to suggest that the accused were morally innocent of death. Test: accuseds actions be a significant cause but not necessarily the only cause of death. c) Jury instructions: as to whether intervening even has severed the chain of causation in such a manner that the accuseds actions are no longer a significant contributing cause of the victims death. a) R. v. Reid: jury should be asked if it satisfied beyond a reasonable doubt that the actions of the accused are so connected to the death that they can be said to have a significant causal effect which continued up to the time of his death w/o being interrupted. Jury must be convinced that that actions were significant contributing cause. Must be instructed about intervening event and asked to determine if accuseds actions remained a significant contributing cause of death. d) Not liable: for blood cot after shooting victim b/c may have gotten it from cocaine induced earlier; if assaulted victim leaving him unconscious but victim killed by subsequent & independent fire or building collapse. May be vulnerable to charges of attempt b/c had required intent for crime and did act that even if did not cause prohibited result, constituted an attempt. d)Causation in non-homicide cases: c) R. v. Winning: although made false statements on credit card application, company did not rely on the min giving card, so no false pretenses.

26

d) Attempt: If have intent, could be charged for attempt because actus reus for attempts only requires some step beyond mere preparation to commit the offense e) Impaired driving: must show impaired driving was a contributing cause outside de minimis range to the bodily harm or death. It cannot simply rely on the fact that the driver was impaired with alcohol. f) Legal and factual causation: legal causation: whether accused is but-for cause of prohibited consequences. Legal causation: whether accused should be held criminally responsible for the prohibited consequence. a) R. v. Williams: acquitted of aggravated assault b/c possible that woman already infected with HIV at the point when accused had sex w/ her knowing he was infected. Need coincidence w/ mens rea an actus reus. When accused may have committed the act of infecting, he did not have guilty mind. e) Attempts and accomplice liability as alternative forms of liability in cases of reasonable doubt about factual causation: c) R. v. Smith: guilty of attempted aggravated assault b/c at time had necessary fault of knowing he was HIV positive and did not tell woman. He committed act that constitutes actus reus of attempt. d) Person can be guilty of attempt even if commission of completed offense is impossible. e) Just like attempt, accomplice or party liability as aider or abetter may also be alternative form of legal liability in cases where there may be doubts as to whether accused was factual case of consequences. Applies in cases where reasonable doubt whom of multiple accused actually killed the victim, but it is clear that all accused assisting in killing through aiding or abetting the killing. (e) Omissions: elements - 1) offense must contemplate guilt for omissions, 2) the accused must be placed under a legal duty to act either by the provision charger him or b some incorporated provision, and 3) the omission in question must be a failure to fulfill that legal duty. 8. R. v. Moore: c) Facts: The accused went through an intersection, against a red light on his bicycle. A peace officer employed, stopped the accused and, with the intention of giving him a traffic ticket, asked for identification. The accused refused. d) Reasoning: A bicycle is a cycle within the definition in s. 121 of the Motor-vehicle Act, the appellant was prohibited from proceeding against the red light. In accordance with those provisions, the constable could only have arrested the appellant for the summary conviction offence of proceeding against a red light if it were necessary to establish his identity. The constable, therefore, in requesting the appellant to identify himself, was carrying out the duty. Accordingly, the officer was under a 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. e) Held: appeal dismissed. f) Dissent: Any duty to identify oneself must be found in either common law or statute. Omission to act in a particular way will give rise to criminal liability only where a duty to act arises at common law or is imposed by statute. There was no statutory duty on a cyclist caught committing a traffic infraction to divulge his name and address. There is no duty at common law to identify oneself to police, and the refusal to so identify oneself cannot constitute obstruction of the police. A person cannot obstruct by refusing to answer a question unless he is under a legal duty to answer. Only if the police have a lawful claim to demand that a person identify himself, does the person have a corresponding duty to do so. 9. R. v. Peterson c) Issue: when a parent is under the charge of a child thereby requiring the child to provide necessaries of life to that parent d) Facts: Dennis Peterson was convicted of failing to provide the necessaries of life to his father, Arnold Peterson, thereby endangering Arnolds life. e) Rule: The duty arose only if his father was (a) a person under his charge (b)unable by reason of age, illness, mental disorder or other cause to withdraw himself from that charge, and (c)unable to provide himself with the necessaries of life. c) The phrase necessaries of life includes not only food, shelter, care, and medical attention necessary to sustain life but also appears to include protection of the person from harm d) 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 f) Reasoning: 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. c) Charge: a) contributory negligence by the victim is not a defence for an accused charged with criminal negligence unless the injuries incurred are attributable solely to the victim b) 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. If the parent is otherwise in the childs charge and the child cannot care for the parent due to the parents refusal to accept care, the child is obliged to seek the help of a community agency c) 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.

27

d) As a general rule, the greater the period of time over which an offence has occurred the greater the moral blame assigned to the offender. g) Held: appeal dismissed. h) Dissent: However, no legal duty or complementary offence is expressly created by s. 215(1)-(2) when a child fails to provide the necessaries of life for a parent. Rather, as this case illustrates, a legal duty on the part of a child to provide the necessaries of life to his or her parent arises only if it can be established that the parent is under [the] charge of his or her child. c) The trial judge failed to explain why he believed that he was required to exercise his discretion by imposing a prison sentence to achieve the objective of general deterrence. A conditional sentence can also provide significant deterrence if sufficiently punitive conditions are imposed. d) the trial judge erred in principle in failing to consider other sentencing alternatives to achieve the objective of general deterrence and in overemphasizing the aggravating factor of the abuse of a position of trust. In addition, the trial judge erred in fact in sentencing the appellant for an offence that he said was committed over a period of years, whereas the indictment was in respect to just over five months. In my view, the sentence was manifestly unfit. e) The appellant does not constitute a danger to the community and would not reoffend. a jail sentence of six months, followed by two years probation and the performance of a hundred hours of community service is excessive and, therefore, unfit. The objective of deterrence can be achieved by a conditional sentence containing appropriate terms. 10. R. v. Browne c) Issue: 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", to take her to the hospital d) Rule: "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. 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" e) Reasoning: 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. c) 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. This does not extend to permitting a trial judge to transform speculation and conjecture into findings of fact f) Held: allow the appeal, set aside the conviction, and enter an acquittal. 11. Omissions (Roach pgs 115-117): omission or failure to act will form actus reus of offense when individual has legal duty to act. 1. People with duties: parent, spouse, guardian, has legal duty to provide necessaries of life, for child, spouse, or charge, and makes it offense to fail to do so without lawful excuse. If offense committed or criminally negligent, can be convicted of manslaughter by means of unlawful act or criminal negligence. 2. Undertake: those who undertake to do an act have a legal duty to perform the act, if an omission to do the act is or may be dangerous to life. (Ex: Applies to life guards. A person who is not a life guard can walk away form a drowning person). 3. Medical treatment: Duty to use reasonable care when providing medical treatment or other lawful acts that may endanger life. Breached: if donate blood yet person knew he had HIV. 4. Breaches of duty: not to use reasonable care in handling explosives, disobey court order, fail to assist cop when requested, abandon a child, not to obtain assistance in child-birth, fail to stop when your vehicle is involved in an accident, to neglect animals, fail to take steps to protect holes in ice or open excavations. 5. Directing others: those who direct others to perform tasks or how to work have a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task. 6. R.v. Colucci: duties implicit in crimes. Accused convicted of publishing false statement w/ intent to deceive shareholders wehn he failed to inform them about an engineers report, which stated that there were no prospects for development of a mine. 7. R.v.Moore: refusal to identify yourself when cop sees you commit a crime, held as obstruction of a police officer. Dissent: criminal law is no place w/n which to introduce implied duties, unknown to statute and common law, breach of which subjects a person to arrest and punishment. 8. R.v.Miller: common law duties created by courts . Held, person who accidentally sets a house on fire has duty to take reasonable steps to extinguish the fire or call fire department. In Canada, controlling principle is that people should respond to dangers out of democratic enactment of general, accessible, and prospective duties in the Code, and not by judges imposing retroactive common law duties on a case by case analysis. 6. Subjective Mens Rea (a) Intentional, and ulterior mens rea: 1. R. v. Vandergraaf: a) Facts: a hockey fan at a game throws a jar of peanut butter onto the rink. The jar hits victim.

28

b) Reasoning: D intended to throw an object, but not make contact w/ victim. Assault was not intended, not guilty. Could have been charged with criminal negligence causing injury, but wrong charge was laid.The assault provision, s 265, requires the intentional application of force to the person. 2. R. v. Murray: attorney intended to hold Bernardo tapes, but not for purposes of obstructing justice. Not guilty. a) Facts: stated that it was not his intent to withhold tapes, but they would come out trial. Withdrew as counsel and another counsel put in the case. Was going to use it to cross examine wife at her trial. b) Reasoning: The word attempts contains its own mental element. Wilfully attempts, then, suggests a double mens rea. The actus reus issue, therefore, is whether Murrays action in secreting the videotapes had a tendency to obstruct the course of justice. 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. a) Actus reus a) 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. b) There is no obligation on a citizen to help the police, but taking positive steps to conceal evidence is unlawful. Hiding them from the police on behalf of the client cannot be said to be an aspect of solicitor-client communication b/c no communication occurred btn two, but were videos. c) Although Murray had a duty of confidentiality to Bernardo, absent solicitor-client privilege, there was no legal basis permitting concealment of the tapes. d) While he had no obligation to assist the police in their investigation or the Crown in its prosecution, Murray could not be a party to concealing this evidence. Having removed the tapes from their hiding place, he could not hide them again. e) 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. b) Mens rea a) The onus is on the Crown to prove beyond a reasonable doubt that it was Murrays intention to obstruct the course of justice. Murray knew it was unlawful to permanently suppress the tapes. b) Questions of intent: 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? c) Murray testified he intended to use the tapes in the defence. With the tapes he could prove Homolka to be a liar and pave the way for Bernardo to give evidence that it was Homolka who committed the murders. d) 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. that Murrays explanation as to his use of the critical tapes in the defence of his client is one that might reasonably be true. c) Belief: Murray testified he believed his conduct was lawful. 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 c) Conclusion: 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. d) Held: acquitted. 3. R. v. J.S.R: intended to shoot into a crowd, w/ intent to kill human being, (not the one killed), opens door to murder conviction. b)Reasoning: a) Causation: the causation issue in respect of Ms. Crebas death is analogous to causation questions in the car racing cases where one of the participants in the car race hits a bystander and causes injury or death. In such cases, both drivers may be held to have caused that injury or death. But for the decision to engage in a gun fight on a crowded street and the resulting exchange of bullets, Ms. Creba would not have been killed. b) Intervening: An intervening, independent act by a third party that is a more direct cause of a victims death than the prior act of an accused may sever the legal causal connection between that victims death and the prior act of the accused even though the prior act remains a factual or but for cause of the victims death. a) Acts by a third party who is not acting independently but is acting in furtherance of a joint activity undertaken by the accused and that third party will not sever the legal causal connection. b) there was an evidentiary basis upon which the preliminary inquiry judge could conclude that a reasonable jury could find that Ms. Crebas death was caused by the mutual gun fight engaged in by J.S.R., the northbound shooter and others. On this view, the northbound shooters firing of the fatal shot was not an intervening act but was part of the joint conduct that caused Ms. Crebas death. c) Party to murder: 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. The common intention must be to carry out an unlawful purpose and to assist each other therein.

29

a) 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 d) Second degree: the record supports J.S.R.s committal for murder under s. 229(c). a) J.S.R. could be convicted of murder under that provision if a jury was satisfied that he a) For a unlawful object killing the northbound shooter; b) Did anything willingly engaged in a frenzied shootout, discharging his firearm numerous times into a busy street teeming with people; c) That he knew was likely to cause the death of a human being (other than his intended target) discharging his firearm numerous times into a street filled with people; d) Caused the death of a human being substantially contributed to Ms. Crebas death by engaging in a mutual gunfight. b) J.S.R. intended no harm to Ms. Creba. She was not the target of his unlawful object the northbound shooter was. In carrying out his unlawful object, J.S.R. engaged in a dangerous act a frenzied shootout in which he fired his gun numerous times into a crowded street teeming with people. Leaving aside any defences that might be available to him, by engaging in the shootout, J.S.R. had to know that someone other than the northbound shooter was likely to die. b) Conclusion: J.S.R. comes within the parameters of s. 229(c). Manifestly, in our view, if proved, his conduct would meet the high degree of moral blameworthiness needed to justify the stigma of a murder conviction and the consequences flowing from it. c) Held: restore the committal of J.S.R. on the charge of second degree murder. appeal brought by J.S.R. is dismissed. The Crown appeal is allowed and the committal for trial on the charge of second degree murder is restored. 4. R. v. Roks: importance of knowing that death is probable and warns of the dangers of reasoning backwards from the fact that death occurred. a) Reasoning: The evidence of extrinsic misconduct admitted in this case demonstrated that the principals in the Woodbine scheme had also been associated in other contemporaneous fraudulent enterprises. d) Unreasonable verdict: The test includes both objective and subjective assessments of the evidence adduced at trial. an appeal court is entitled to review the evidence adduced at trial, to re-examine that evidence and to reweigh it, but only for the purpose of determining whether the evidence, as a whole, is reasonably capable of supporting the trial judges conclusion e) To succeed on this complaint that the finding of subjective foresight of the likelihood of death from the fire was unreasonable, the appellant must show that no properly instructed trier of fact, acting judicially, could reasonably have concluded that the appellant foresaw that someone would likely die from the fire f) Rule: Unlawful object murder: 1) unlawful object, 2) a dangerous act (does anything that he knows is likely to cause death and thereby causes death to a human being, 3) knowledge or foresight (that he knows is likely to cause death) a) The unlawful object must be conduct which, if prosecuted fully by the accused, would amount to a serious crime, that is, an indictable offence requiring mens rea. The unlawful object that an accused pursues must be something other than to cause the death of the victim or to cause the victim bodily harm that the accused knows is likely to cause the victims death and be reckless whether the victim lives or dies. b) The dangerous act requirement or element in s. 229(c) emerges from the statutory language, does anything that he knows is likely to cause death and thereby causes death to a human being. It must be something done in furtherance of the unlawful object. c) The fault or mental element refers to knowledge of the consequences of the dangerous act. Knowledge of a specific consequence: death of a human being. And knowledge of the prospect of the consequence: the likelihood of its occurrence. The actual or subjective knowledge of the person charged, not the objective or constructive knowledge of a reasonable person in the same circumstances. The inquiry focuses on the accuseds knowledge contemporaneous with the dangerous act. g) Where the prosecutor proves that an accused did one or several things the natural consequences of which would be a particular result, absent evidence of an explanation, the trier of fact may, but does not have to infer that the accused intended the consequence that occurred. It seems reasonable to conclude that if intention can be inferred from the natural and probable consequences of conduct, by parity of reasoning, so should an inference of knowledge or foresight of those consequences be available. b) Analysis: the trial judges finding that the appellant committed murder was unreasonable and cannot be supported on a consideration of the evidence as a whole. The unlawful object to which the appellant was a party was a fraud on Magnos insurers. d) The dangerous act in this case, clearly distinct from the unlawful object of defrauding Magnos insurers, was setting the store premises on fire. Setting the fire was at once a dangerous act, committed intentionally, and one done in furtherance of but distinct from the unlawful object of defrauding Magnos insurer. The dangerous act was also unlawful.

30

e) In the absence of any direct evidence on the foresight or knowledge issue, this element could be proven beyond a reasonable doubt only if the only rational inference available from the circumstantial evidence as a whole was that the appellant (actually) knew that setting the fire at Woodbine would likely cause somebodys death f) Subjective foresight of death is not enough. Subjective foreseeability of harm or the likelihood of harm, or the likelihood of harm or death is not enough. What is essential is subjective foresight of the likelihood of death. g) c) Held: dismiss the appeal from the conviction of second degree murder and substitute a conviction for manslaughter. I would also dismiss the appeal from conviction of conspiracy to commit arson, but allow the appeal from sentence and reduce the sentence to a term of six years. 5. The degrees of subjective means rea (Roach 180-187): 1) Intent, purpose, or willfulness: a) Highest level of mens rea requires intent or purpose to achieve prohibited result, or willfully pursue result. Used infrequently. 229(a)(i) murder. Common law and constitutional requirements require lower forms of mens rea like knowledge and recklessness. Where parliament uses with intent in statute, this will exclude lower forms of mens like like recklessness. b) Examples: 21(b) requires party to do or omit to do anything for purpose of aiding any person to commit an offense. 21(2) requires formation of unlawful purpose. Attempts require intent to commit the offense. Accessory after the fact, must act for purpose of enabling known criminal to escape. c) Guilty intent vs. guilty knowledge: person knowingly engages in conduct, but for another purpose such as avoiding harm. Both cases below, acted w/o purpose to achieve prohibited result. a) R. v. Steane: charged w/ assisting enemy w/ intent to assist the enemy. Wrong to allow jury w/ impression that man must be taken to intend natural consequences of his acts Acted w/ intent but w/ intent and desire to save his wife and children. b) R. v. Paquette: accused held to not have formed common intent to rob when he drove robbers to store after being threatened at gunpoint. c) R. v. Hibbert: overruled case above b/c confused intent and purpose w/ motive and desire. Even though desire to save life, this does not prevent formation of intent to commit robbery. Those who respond to threats can still use duress as defense. If person acts as result of threats, can be relevant to question of whether she possessed mens rea necessary to commit the offense. d) Knowledge something is very certain to occur, equated w/ intent or purpose to achieve prohibited result. a) Buzzanga: general rule, person who foresees that a consequence is certain or substantially certain to result from act he does to achieve some purpose, intends that consequence. Can raise reasonable doubt as to intent. Much higher degree of subject mens rea, than knowledge that accused knew prohibited act probable or reckless. b) R. v. Docherty: willfully stresses intent in relation to achieve a purpose. Concern for higher level of mens rea. Accused not guilty for breaching probation b/c did not believe sitting in drivers seat of motionless car while drunk was a crime that would place him in breach. c) R. v. Carker: convicted of willfully damaging public property, threatened in jail to do so. Found to have mens rea b/c willful defined as purpose of offense, including knowledge or reckless that act would result. He knew he was damaging property, although purpose/intent was to save his life. e) No longer maintained w/ confidence that mens rea of intent, purpose or willfulness will be differentiated from a requirement of knowledge. 2) Intent, purpose, or willfulness distinguished from motive: crim law does not require proof of motive, but it can be relevant and can assist. c) Held that person who assisted in robbery had formed common intent to commit crime, fact that motive was to avoid threats of death from accomplices is irrelevant to issue. Motive to avoid harm to self/others doe snot negate intent. d) Good motive is not defense to intentional crimes, but may be relevant in prosecutorial or sentencing discretion. e) Ignorance of law is no defense. Honest and reasonable mistakes that actions were legal, may still find mens rea to commit offense. All that matters is intent to commit crime. f) Exceptions: relevant to theft and property offenses that allow color of right offense. a) Robbery: mistaken belief about legal entitlement to property can prevent proof of mens rea. b) Motive is part of element of offense for terrorism offenses. Must prove beyond reasonable a doubt that act was committed w/ intent in whole or in part for a political, religious, or ideological purpose. Motive religious or political. Expressions of political, religious, ideological, could fall under definition of terrorist activity unless intent requirements were satisfied. This also distinguishes terrorism from ordinary crime. (b) Subjective mens rea with objective features: 5. R. v. Theroux: T was business man. Sold homes to buyers. Claimed had insurance program. Made false representations that the deposits were insured. House not built. People didnt get deposits back. a) Issue: whether the fact that the accused honestly believed that the project would be completed negates the mens rea of the offence of fraud. b)Rules:

31

a) The actus reus of fraud is established by proof of elements (1) dishonest act and (2)deprivation a) Dishonest act established by: an act of deceit, falsehood or other fraudulent means b) Deprivation caused by the prohibited act established by: proof of detriment, prejudice, or risk of prejudice to the economic interests of the victim, caused by the dishonest act. a) Notes: Just as what constitutes a falsehood or a deceitful act for the purpose of the actus reus is judged on the objective facts, the actus reus of fraud by "other fraudulent means" is determined objectively, by reference to what a reasonable person would consider to be a dishonest act. b) mens rea of fraud is established b) by proof of subjective knowledge of the prohibited act, (Accused knowingly undertook the act which constitutes the falsehood, deceit, or other fraudulent means) c) 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) a) Notes: 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 d) Test: whether the accused subjectively appreciated those consequences at least as a possibility. c) Reasoning: a) 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 money they gave to the accused's company was put at risk, a risk which in most cases materialized. b) The mens rea too 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. d)Analysis: a) Subjective Mens Rea 1. Knowingly 2. Recklessness 3. Wilful blindness b) Actus Reus (wrongful act or forbidden consequence) 1. Simultaneity 2. Voluntary 3. Causation e) Held: appeal dismissed. 2. R. v. Chase: went to neighbors home, without invitation, grabbed 15 year olds breasts, who resisted. b) Issue: definition of the offence of sexual assault c) Rules: Sexual assault is an assault committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated. a) Objective test applied to rule above -viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer". b) Factors: 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. 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. d) Reasoning: 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. e) Held/Conclusion: I would therefore allow the appeal, set aside the conviction of common assault recorded by the Court of Appeal and restore the conviction of sexual assault made at trial. The sentence of six months should stand. f) Disposition: appeal allowed. 3. Sexual offenses (Roach 434-437, 454-457) 1) Sexual assault offenses: abolished rape, now have: sexual assault; sexual assault w/ weapon, threats to third party or causing bodily harm; and aggravated sexual assault. Sexual assault is crime of violence. Applies to both genders, and husbands & wives. 1) Consent: voluntary agreement to engage in sexual activity in question. No means no law: no consent if initially consent agreed, a lack of agreement; if incapable of consenting, induced by position of trust or power or authority, or if third party purports to provide consent. Restrictions on defense of mistaken belief.

32

2) Struck down statutory rape of girls under 14 b/c absolute liability offense b/c required no fault in relation to age of girl. Interests of children protected if accused allowed limited defense if he took all reasonable steps to ascertain age of child, or in cases where accused was close to age of child. Expanded actus reus; apply to sexual interference, invitation to sexual touching, & sexual penetration. Age of consent is 16. 2) The actus reus of sexual assault: look at subjective views and common law restrictions. a) Assaults under section 265: defines all assaults as intentional application of force, directly or indirectly, to another person w/o consent, or attempting or threatening by acts or gesturers to apply force if it causes other person to believe upon reasonable grounds that accused has ability to effect his purpose. b) Sexual assaults distinguished from other assaults and sexual offenses: on basis of whether circumstances viewed objectively are sexual. Differs from sexual offenses w/ respect to young children b/c offense does not require touching for sexual purpose. a) In determining if assault was sexual will look at circumstances: part of body touched, nature of conduct, words and gestures accompanying the act & all other circumstances. b) Held that father who grabs genitals of 3year old sons to discipline him, causing bruising and severe pain, b/c he was grabbing genitals of others, was a sexual assault b/c invaded the childs sexual integrity. Dissent: was assault not sexual assault. c) Consent under section 273.1: defined as voluntary agreement of the complainant to engage in the sexual activity in question. No voluntary consent when threatened to distribute nude photos of ex girl friend if she did not have sex w/ him. No means no: if a person thought no meant yes, or that consent can be given by person incapable of consenting. cannot be excused for criminal conduct. 4. Fraud (property offense): 1. Actus reus: 1) prohibited act of deceit, falsehood, or some other fraudulent means that has 2) the prohibited consequence of causing a deprivation either in the form of an actual loss or placing the victims pecuniary interests at risk. 1. Other fraudulent means: determined objectively on basis of what a reasonable person would consider to be honest even if those acts do not involve deceit or falsehood. 1. Can include: use of corporate funds for personal purposes, unauthorized diversion of funds, non-disclosure of material facts; gambling practices w/ respect to money that was necessary to pay accuseds creditors. 2. Actual loss or placing the victims pecuniary interests at risk: dishonest act must play significant role in deprivation, does not have to be exclusive cause. 3. Attempt: in a case where actus reus of completed offense, is not present. 2. Mens rea: requires subjective knowledge of the prohibited act combined w/ subjective knowledge that the act could result in a deprivation including the placing of the victims pecuniary interest at risk. (Theroux). 1. Recklessness presupposes knowledge of the likelihood of the prohibited consequences. 2. Accuseds subject belief that he had done nothing wrong did not prevent formation of criminal fault. Mens rea would capture negligent misstatements and sharp business practices. 3. Crown must prove: accused knowingly undertook the acts which constitute the falsehood, deceit, or other fraudulent means, and that accused was aware that deprivation could result from such conduct. 4. Theroux: the deprivation of not receiving the insurance protection was a sufficient actus reus, as was the risk that victims could lose the deposit money. Mens rea present, b/c accused knew that he did not have insurance protection for deposits and that he would be depriving the depositors of that protection even though he honestly believed that the houses would be built and the risk to the deposit money would not materialize. 1. Sopinka: warned that there may not be mens rea in case where deprivation would only occur in the event of some future event and the accused honestly believed that such an event would not occur. 5. Zlatic: held that accused had necessary mens rea b/c he subjectively knew that when he gambled w/ money that was required by creditors that he was placing their financial interests at risk even though he believed that he would win at casinos and be able to repay creditors. 1. Dissent: there was no finding that accused was reckless or knew that his gambling would place creditors interest at risk. 2. Majority: rejected relevance on basis of understanding of criminal fault as only relating to commission of actus reus and not including the accuseds belief that the risk to the creditors money would not be realized. (c) Knowledge (a) CC ss. 265(4) & 273.2: (a) 265(4:) Accuseds belief as to consent: if judge is satisfied that there is sufficient evidence if believed by jury, evidence would constitute defense, shall instruct jury when reviewing all evidence relating to determination of honesty of accuseds belief, to consider the presence of absence of reasonable grounds for that belief. (b) 273.2: Where belief in consent not a defense: not a defense where (a) The accuseds belief arose from the accuseds (a) self induced intoxication, or (b) reckless or willful blindness; or

33

(b) The accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting. (b) R. v. Ewanchuk: girls has job interview, goes to back of trailer w/ interviewer, keeps touching and making advances, she says no. (b) Issue: whether the trial judge erred in his understanding of consent in sexual assault and whether his conclusion that the defence of implied consent exists in Canadian law (c) Rules: the actus reus of assault is unwanted sexual touching. (a) 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. (a) The first two of these elements are objective. It is sufficient for the Crown to prove that the accuseds actions were voluntary. (b) 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. (b) The mens rea contains two elements: intention to touch, knowing of, or being reckless of or wilfully blind to, a lack of consent, either by words or actions, from the person being touched. (a) 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. (d) Reasoning: (a) Actus reus: No defence of implied consent to sexual assault exists in Canadian law. 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 - including submission by reason of force, fear, threats, fraud or the exercise of authority. The complainants fear need not be reasonable, nor must it be communicated to the accused in order for consent to be vitiated. If a complainant agrees to sexual activity solely because she honestly believes that she will otherwise suffer physical violence, the law deems an absence of consent, and the third component of the actus reus of sexual assault is established. (b) Mens rea: 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. (c) Consent in context: 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. (d) If his belief is found to be mistaken, then honesty of that belief must be considered. As an initial step the trial judge must determine whether any evidence exists to lend an air of reality to the defence. If so, then the question which must be answered by the trier of fact is whether the accused honestly believed that the complainant had communicated consent. Any other belief, however honestly held, is not a defence. Moreover, to be honest the accuseds belief cannot be reckless, willfully blind or tainted by an awareness of any of the factors enumerated in ss. 273.1(2) and 273.2. (e) the trier of fact may only come to one of two conclusions: the complainant either consented or not. There is no third option. (e) Held: The appeal is allowed, a conviction is entered and the matter is remanded to the trial judge for sentencing (c) R v. Levigne: communicated by computer for a sexual purpose with an undercover police officer posting as a 13-year-old boy. (b) Issue: whether the trial judge was bound by the combined effect of the two provisions to find that the appellant believed he was communicating by computer with an underage interlocutor. (a) whether or not the Appellant reasonably believed he was corresponding with someone who was over 18 years of age (c) Reasoning: our concern here is with s. 172.1(1)(a) and (c), which both consist of three elements: (1) an intentional communication by computer; (2) with a person who is, or who the accused believes is underage; (3) for the specific purpose of facilitating the commission of an enumerated secondary offence with respect to that person. (a) Where it has been represented to the accused that the person with whom he or she is communicating by computer is underage, the accused is presumed to have believed that the interlocutor was in fact underage. This presumption is rebuttable: It will be displaced by evidence to the contrary, which must include evidence that the accused took steps to ascertain the real age of the interlocutor. Objectively considered, the steps taken must be reasonable in the circumstances (b) The evidential burden is on the accused but the persuasive burden is on the Crown. Where the evidential burden of the accused has been discharged, he or she must be acquitted if the trier of fact is left with a reasonable doubt whether the accused in fact believed that his or her interlocutor was not underage. (d) Analysis: s. 172.1 makes it an offence to communicate by computer for a prohibited purpose with a person who is underage, or who the accused believes is underage (a) In this case, the accuseds convictions must be upheld. The reasonable steps invoked by the accused were in fact neither reasonable nor steps to ascertain the age of the person with whom he was communicating by computer for

34

the avowed purpose of his own sexual gratification. Rather, they were circumstances which explain why he in fact took no steps to ascertain the actual age of JG. And this despite the latters repeated assertion that he was only 13. (e) Held: appeal dismissed. (d) R v. Beaver: B agreed to sell heroin to an undercover RCMP officer. Defence was that brother had told him it wasnt heroin, thought it was milk powder, trying to defraud. (b) Issue: whether a conviction based on possession requires knowledge of the nature of the object. (c) Rule: held that knowledge was required. Mistake of fact is the denial of mens rea for the defence it is not a defence it is just not having the requisite mens rea to make up the offence. (d) Reasoning: One who has physical possession of a package which he believes to contain a harmless substance but which in fact contains a narcotic drug, cannot be convicted of being in possession of the drug (a) Held that knowledge was required. Beaver did not know the character of the substance, and he was acquitted of possession. However, he did represent the substance as a narcotic and therefore was convicted on the charge of selling a narcotic. (e) Held: I would quash the conviction on the charge of having possession of a drug. (e) Knowledge (Roach 187-198): slightly lower form of subjective mens rea than intent or purpose. Section 229(c) states that person is guilty of murder if he know that is he likely to cause death to a human. 229(a)(i) guilty knowledge - person who intentionally causes bodily harm is guilty of murder if he knows that harm is likely to result in death. Guilty knowledge requirement held sufficient under sec 7 Charter to sustain murder conviction. (b) Beaver: Knowledge is a common form of mens rea for possession based offenses. Held person in physical possession of a substance could not be said to possess substance unless he knew nature of substance. Person w/ honest belief that substance was baking soda would not have mens rea for possession even if substance was heroin. There is no possession w/o knowledge of character of substance. (c) Lucas: defamatory libel. Accused subjective understanding of statements should not be determinative. Open to argue that real meaning was quite different from meaning that would be objectively attributed to reasonable reader. Question should be whether he knew that message, as it would be understood by a reasonable person, was false. (d) Dynar: knowledge has two components: 1) truth, and 2) belief. Only belief is relevant to the determination of a subjective mens rea. Objective fact is required to establish the actus reus, not the mens rea. Accused who stabbed manikin believing it to be a human, would have subjective mens of murder. Because manikin was not a human, there would be no actus reus for murder. Even though he had mens rea required for murder, he could only be charged w/ attempted murder, (d) Willful blindness (a) R. v. Currie: cheque cashed for stranger which is forged]Ought to have known is not applicable for willful blindness (b) R. v. Vinokurov: (b) Issue: application of the doctrines of recklessness and wilful blindness to a charge of possession of stolen property (c) Rule: 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 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. (d) Reasoning: (a) the onus is on the Crown to prove that the accused knew that the property was stolen. 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. Willful blindness will fullfil a mens rea requirement. (b) Wilful blindness will suffice because it is the equivalent of actual knowledge. Recklessness is not and, accordingly, is insufficient.Recklessness will not satisfy the knowledge requirement on a charge of possession of stolen property. (c) Wilful blindness is distinct from recklessness because, while recklessness involves knowledge of a danger or risk and persistence in the course of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant. The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by the accuseds fault in deliberately failing to inquire when he knows there is reason for inquiry. (e) Held: appeal allowed, convictions quashed, new trials ordered. (c) R. v. Briscoe: groups picked up girl & friend, to take to party, L planned on killing her. B drove them, opened trunk & gave L Pliers. B waited around car, told girl to shut up. Watched girl be raped and murdered. (b) Issue: the doctrine of wilful blindness should find no application in determining the requisite knowledge for murder, either as a principal or as an aider or abettor. (c) Rules: (a) The mens rea requirement reflected in the word purpose under s. 21(1)(b) of the Criminal Code has two components: intent and knowledge. (a) Intent: the Crown must prove that the accused intended to assist the principal in the commission of the offence. It is not required that the accused desired that the offence be successfully committed.

35

(b) Knowledge: in order to have the intention to assist in the commission of an offence, the aider must know that the principal intends to commit the crime, although he or she need not know precisely how it will be committed. (a) Murder: Even in the case of murder, the principals intention to commit the crime must be known to the aider or abettor, but it need not be shared. It is sufficient that he or she, armed with knowledge of the principals intention to commit the crime, acts with the intention of assisting the principal in its commission. (b) Willful blindness: The doctrine of wilful blindness, correctly delineated, is distinct from recklessness and involves no departure from the subjective inquiry into the accuseds state of mind which must be undertaken to establish an aider or abettors knowledge. Wilful blindness can substitute for actual knowledge whenever knowledge is a component of the mens rea. Wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries. (c) Analysis: (a) Canadian criminal law does not distinguish between the principal offender and parties to an offence in determining criminal liability. The actus reus and mens rea for aiding or abetting, however, are distinct from those of the principal offence. (b) Mr. Briscoes actions, carried out with knowledge of Mr. Laboucans plan, made him a party to the offences. His participation included driving the group to and from the crime scene, choosing a secluded location, providing and transporting weapons, and taking an active role by holding Ms. Courtepatte and telling her to shut up, and threatening Ms. K.B. (c) Even Bs own statements to the police, on which the trial judge relied heavily, suggest that he had a strong, well-founded suspicion that someone would be killed at the golf course and that he may have been wilfully blind to the kidnapping and prospect of sexual assault. His statements also show that he deliberately chose not to inquire about what the members of the group intended to do because he did not want to know. The trial judges failure to consider Bs knowledge from that perspective constitutes a legal error which necessitates a new trial on all charges. (d) Held: he trial judges failure to consider Mr. Briscoes knowledge from that perspective constitutes a legal error which necessitates a new trial on all charges. Appeal dismissed. New trial ordered (d) Willful blindness (Roach 189-191): is a substitute in cases in where accused subjectively sees the need for further inquiries about the existence of prohibited consequences or circumstances but deliberately fails to make such inquiries b/c he does not want to know the truth. Remains ignorant. (b) Sansregret: distinct from recklessness, which involves knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur. Culpability justified by consciousness of risk and proceeding in face of it. Where as, if willfully blind, justified by accuseds fault in failing to inquire when he knows there is a reason for inquiring. Conviction b/c aware was willfully blind to the lack of consent b/c he was aware of likelihood of the complainants reaction to his threats. (a) Criticized: if believed she consented to sex, no reason to inquire. (b) Court held that, given the facts, there was break-in and violence. Likelihood of no consent and he deliberately blinded himself to that. Court can properly find willful blindness only where it can almost be said that D actually knew. He suspected the fact, realized probability, refrained from obtaining the final confirmation b/c wanted to deny knowledge. (c) R. v. Briscoe: mere failure to inquire not enough for willful blindness. Can instruct jury that WB is available as substitute fault element for knowledge in case where accused had a strong, well founded suspicion that the victim would be sexually assaulted and killed but had declared: whatever you guys wanna do just do it, dont do it around me. (a) WB is a subjective form of fault, different and greater than recklessness and negligence. Accused must subjectively suspect. Not clear if suspicion must relate to mere possibility or probability that prohibited consequences or circumstances exist. (b) To be distinguished from recklessness, WB requires more than subjective suspicion about mere possibility but rather a well founded suspicion that is closer to knowledge of a probability that the prohibited circumstances or consequences will occur. (c) The fact that accused should have been suspicious or only recognized the possibility as opposed to the probability of unlawful act occurring, should not be sufficient if WB is truly to be the equivalent of guilty knowledge. (e) Recklessness (c) R. v. Theroux: T was business man. Sold homes to buyers. Claimed had insurance program. Made false representations that the deposits were insured. House not built. People didnt get deposits back. a) Issue: whether the fact that the accused honestly believed that the project would be completed negates the mens rea of the offence of fraud. b)Rules: a) Recklessness presupposes knowledge of the likelihood of the prohibited consequences. 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. b) The actus reus of fraud is established by proof of elements (1) dishonest act and (2)deprivation a) Dishonest act established by: an act of deceit, falsehood or other fraudulent means

36

b) Deprivation caused by the prohibited act established by: proof of detriment, prejudice, or risk of prejudice to the economic interests of the victim, caused by the dishonest act. a) Notes: Just as what constitutes a falsehood or a deceitful act for the purpose of the actus reus is judged on the objective facts, the actus reus of fraud by "other fraudulent means" is determined objectively, by reference to what a reasonable person would consider to be a dishonest act. c) mens rea of fraud is established b) by proof of subjective knowledge of the prohibited act, (Accused knowingly undertook the act which constitutes the falsehood, deceit, or other fraudulent means) c) 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) a) Notes: 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 d) Test: whether the accused subjectively appreciated those consequences at least as a possibility. c) Reasoning: b) 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 money they gave to the accused's company was put at risk, a risk which in most cases materialized. c) The mens rea too 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. d) There appears to be no reason, however, why recklessness as to consequences might not also attract criminal responsibility. d) Concurrence: the general proposition that "[r]ecklessness presupposes knowledge of the likelihood of the prohibited consequences" is applicable in the case of fraud but not necessarily for other offences. b) In this case, the trial judge's finding that the accused deliberately lied to his customers determines both the actus reus and mens rea of deceit. If the sole issue were whether the accused's conduct created a risk that the depositors might be deprived of their deposits by reason of the non-completion of the project, the appeal should be allowed. Where the risk of deprivation is dependent on some future event not happening but the accused honestly believes that the future event will happen and there will be no deprivation, a trial judge who accepts this evidence should acquit. c) Here, the trial judge found there was no insurance in place, however, and therefore even if the project were eventually completed, there would have been a deprivation or risk thereof during the uninsured period. The trial judge, having made all the findings of fact which constitute a deprivation, ought to have found that this element had been made out. Failure to make such a determination would be an error of law and would entitle this Court to affirm the conviction and dispose of the case on this basis. e) Dissent: I have reservations about the statement that "[r]ecklessness presupposes knowledge of the likelihood of the prohibited consequences" as a general proposition. This is the subjective definition of recklessness which I agree is applicable in the case of fraud but not necessarily in all cases. For instance, recklessness in the definition of criminal negligence may arguably be made out if there is objective foresight of risk. f) Held: appeal dismissed. (b) R. v. Buzzanga and Durocher (a) Facts: B and D French. They made statements they say were pure theatrics. They had no intention to raise hatred. They /wanted to get the French angry so they would demand school be built. (b) Statutes: 319(2): AR: Communicating, promoting hatred, communicating not in private (a) 319(1): AR: Communicating, promoting hatred, Incitement leads to breach of peace, communicating in any public space (c) Issue: Did the trial judge misdirect himself as to the meaning of willfully? What does the word willfully in s.319(2) mean? (d) Ratio: A person who is conscious or who foresees that a consequence is certain or substantially certain to result from an act which he does in order to achieve some other purpose, intends the consequence. (e) Analysis: In this case the willfully means intentionally Willfully is the same as intent in s.319(2) for the most part willfully tends to mean intent. The general mens rea that is required when no mental element is mentioned in the definition = the intentional or reckless bringing about of the result which the law seeks to prevent. (f) Holding: New trial ordered: the ulterior purpose was to get French school built not promoting hatred (c) Recklessness (Roach 191-192): is a lower form of mens rea than intent, purpose, willfulness, knowledge, or willful blindness, but is still a form of subjective mens rea. Person acts reckless if he as adverted to or become aware of a risk of the prohibited act.

37

Sansregret: recklessness must have an element of subjective, to form mens rea.It is found in attitude of one who aware that there is danger that his conduct could bring about the result prohibited by criminal law, nevertheless persists, despite the risk. It is conduct of one who sees the risk and who takes the chance. (b) Distinguished from negligence, which requires only that a reasonable person in the accuseds circumstances would have recognized the risk. (c) Sexual assault: committed recklessly, if recognizes risk that woman is not consenting. Committed negligently if a reasonable person would have known there was a risk that the woman does not consent. Fault element falls in between recklessness and negligence. (d) Distinguished from knowledge: Requires accused be subjectively aware of the possibility of the prohibited act. Knowledge requires accused be aware of probability of prohibited act. (e) Martin J.A.: general mens rea which required and which suffices for most crimes where no mental element is mentioned in the definition of the crime, is either intentional or reckless bringing about the result, which law seeks to prevent. 7. Objective mens rea and true crimes: 1. R.v.Martineau 1. Facts: M and T went out to do what M thought would only be breaking and entering, but T killed husband and wife of trailer. 2. Issue: whether s. 213(a) of the Criminal Code infringed s. 7 and/or s. 11(d) of the Charter, and if so, whether or not it was justified by s. 1. 3. Rule: 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 4. Analysis: 1. Section 213(a) is known as the "constructive murder" provision of the criminal code. Section 213(a) defined culpable homicide as murder where a person causes the death of another while committing specific indictable offences, such as breaking and entering. This meant that one could be charged with murder under s. 213(a), despite having had neither an intent to kill nor the subjective knowledge that death might ensue from their actions. This was in contrast to the other murder provisions in the Code that require a subjective intent and foresight for a conviction. 2. Section 213(a) of the Code violated both ss. 7 and 11(d) of the Charter. Specifically, it violated the principle of fundamental justice that an appropriate mens rea must be proven by the Crown. Furthermore, the appropriate level of mens rea should be correlated to (1) the severity of the punishment and (2) the social stigma stemming from conviction. 3. Murder is a major indictable offence: both the punishment and stigma stemming from conviction are severe. This being the case, the state must show subjective foresight and intent in order to prove the offence. However, as stated above, such a requirement was absent from s. 213(a). Thus, the violation was not justifiable under s. 1 of the Charter because it failed the proportionality test. 4. 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. 5. Held: This section unduly impairs the Charter rights it is not saved by s.1 The Court of Appeal's decision quashing the convictions and directing a new trial is affirmed. The appeal is, therefore, dismissed 6. Dissent: The question is not what is the best test, but what is the constitutionally valid one? The answer is objective foresight The test of objective foresight of death for the crime of murder does not offend PFJ. 1. An exacting combination of factors must be proven, all beyond a reasonable doubt, before the accused can be found guilty of murder under s. 213(a). The offender must: (1) cause the death by committing a "culpable homicide"; (2) cause the death while committing or attempting to commit one of a limited number of very serious, inherently dangerous and specific intent crimes; (3) intentionally inflict bodily harm while committing one of these offences; (4) inflict the bodily harm purposefully in order to perpetrate the underlying crime or to facilitate escape; and (5) the death must ensue from the bodily harm intentionally inflicted. 2. No Charter violation of ss. 7 or 11(d) takes place if the test of objective foreseeability has been met. The accused must specifically intend to, and actually commit the underlying offence, and must specifically intend to, and actually inflict bodily harm. 3. Concentration on social "stigma" is overemphasized, and in the great majority of cases, completely inapplicable. The "stigma" and punishment attached to murder need not be proportionate to the mens rea alone. Rather they must correspond to the combination of the physical and mental elements that collectively define a murder. 2. R.v.Creighton: held that fault for unlawful act manslaughter was objective foresight of bodily harm and that the objective test should be based on a simple reasonable person standard w/ the personal characteristics of the accused not being relevant unless they revealed an incapacity to appreciate the prohibited risk. 4. Facts: C (experienced drug user) got cocaine. With consent injected X. X died from injection 5. Issue: whether the common law use of manslaughter (s.222) violated section 7 of the Charter. 6. Rules: 1. common law requirement for mens rea of manslaughter of "objective foreseeability of the risk of bodily harm which is neither trivial nor transitory, in the context of a dangerous act" to be constitutional - foreseeability of risk of death not required. Use a

(a)

38

modified objective standard, where you place reasonable person in the circumstance of the accused (not taking into account personal characteristics, but do take into account capacity issues). 2. The unlawful act must be objectively dangerous and the unreasonableness must be a marked departure from the standard of care of a reasonable person. 3. Three step test for unlawful act manslaughter 1. 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. 2. 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. (may be negated of lack of capacity) 3. Establish capacity. Given the personal characteristics of the accused, were they capable of appreciating the risk flowing from their conduct? 4. Analysis: 3. 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. 4. 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. 5. Consequences, or the absence of consequences, can properly affect the seriousness with which Parliament treats specified conduct. Policy considerations support a test for the mens rea of manslaughter based on foreseeability of the risk of bodily injury, rather than death. 6. Considerations of principle and policy dictate the maintenance of a single, uniform legal standard of care for such offences, subject to one exception: incapacity to appreciate the nature of the risk which the activity in question entails. The principle that the criminal law will not convict the morally innocent does not require consideration of personal factors short of incapacity. 7. Dismissed Lamer's focus on "stigma" as indicator for the requirement of mens rea. The very fact that manslaughter is named differently from murder indicates that it is to be treated as less blameworthy. The punishment reflects this in that it has no minimum sentence. As well, this is in line with the principle that intentional crimes are to be punished more severely than unintentional crimes. 8. 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 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. 9. Policy considerations: First, a broader standard is required for deterrence. It tells people that if they act in a dangerous manner even where death is not foreseeable, they may be held liable for any deaths that are caused. Second, the broader standard accords with the sense of justice. An aggressor must take their victims as they find them. Criminal law must reflect the concerns of the victim and society when a vicitim is killed. Third, the broader standard removes the hassle of making distinctions between foreseeability of harm or death which could potentially cause problems in the future. 10. 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. 11. The fact that the MR of manslaughter requires foreseeable risk of harm rather than foreseeable risk of death does not violate the principles of fundamental justice 12. The appropriate test for MR is an objective test, with only one exception, incapacity to appreciate the nature of the risk Personal characteristics should not be admissible Beyond the exception the test should not be individualized 13. In this case a reasonable person in all the circumstances would have foreseen the risk of bodily harm. At the very least, a person administering a dangerous drug like cocaine to another has a duty to inform himself as to the precise risk the injection entails and to refrain from administering it unless reasonably satisfied that there was no risk of harm. As that was not the case here, as the trial judge found, the conviction was properly entered and should not be disturbed. 5. Held: appeal dismissed. 6. Dissent: Murder is distinguished from manslaughter only by the mental elements with respect to the death *The Objective test 3. Trier of fact must pay attention to any human frailties which might have rendered the accused incapable of having foreseen what the reasonable person would have foreseen

39

4. Would a reasonable person in the same circumstances have been aware that the likely consequences of his or her unlawful conduct would create the risk of death? 1. If no, accused acquitted, 2. If yes, ask: accused was unaware 1. (a) because he or she did not turn his or her mind to the consequences of the conduct and thus to the risk of death likely to result, or 2. (b) because he or she lacked the capacity to turn his or her mind to the consequences of the conduct and thus to the risk of death likely to result, due to human frailties. 1. If the answer is (a), the accused must be convicted, since the criminal law cannot allow the absence of actual awareness to be an excuse to criminal liability. 2. If the answer is (b), the trier must ask whether in the context of the particular offence, the reasonable person with the capacities of the accused would have made him- or herself aware of the likely consequences of the unlawful conduct and the resulting risk of death. In this third and final stage of the inquiry, the accused's behaviour is still measured against the standard of the reasonable person, but the reasonable person is constructed to account for the accused's particular capacities and resulting inability to perceive and address certain risks. 7. Notes: Murder = subjective; Manslaughter = objective 3. R.v.Beatty: 6. Facts: B charged with dangerous driving causing death under s.249(4). Truck crossed solid centre line and killed 3 people. Prior to this B was driving properly. B doesnt know what happened, he must have lost consciousness or fallen asleep. 7. Issue: Does s.249 require a marked departure or simple negligence standard? 8. Rule: A modified objective test for negligent driving is a marked departure, in the circumstances the accused knew at the time, not taking into account personal characteristics, unless incapacity to appreciate the risk. 2. A modified objective test is the appropriate test to determine the requisite mens rea for negligence based criminal offences 3. Dangerous Driving, s.249 Contextualized objective standard 2. AR: persons driving is objectively dangerous: dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place 3. MR: marked departure from the standard of care that reasonable person in circumstances would observe 4. Test: 2. First, there must be a marked departure from the civil norm in the circumstances of the case. A mere departure from the standard expected of a reasonably prudent person will meet the threshold for civil negligence, but will not suffice to ground liability for penal negligence. The distinction between a mere departure and a marked departure from the norm is a question of degree. 3. Second, the modified objective test for penal negligence cannot ignore the actual mental state of the accused. Objective mens rea is based on the premise that a reasonable person in the accuseds position would have been aware of the risks arising from the conduct. Where the accused raises a reasonable doubt whether a reasonable person in his or her position would have been aware of the risks arising from the conduct, the premise for finding objective fault is no longer sound and there must be an acquittal. The analysis is thus contextualized, and allowances are made for defences such as incapacity and mistake of fact. This is necessary to ensure compliance with the fundamental principle of criminal justice that the innocent not be punished. 9. Reasoning: 2. The trier of fact must be satisfied beyond a reasonable doubt that, viewed objectively, the accused was driving in a manner that was dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle was being operated and the amount of traffic that at the time was or might reasonably be expected to have been at that place. 3. There was no evidence of any deliberate intention to create a danger suggestive of a marked departure from the norm. Rather, the limited evidence adduced at trial about the accuseds actual state of mind suggested that the dangerous conduct was due to a momentary lapse of attention. There was no evidence of improper driving before the accuseds vehicle momentarily crossed the centre line. Viewed from an objective basis, this momentary act of negligence was insufficient evidence to support a finding of a marked departure from the standard of care of a prudent driver. 4. The burden is on the accused to raise a reasonable doubt about whether a reasonable person in the accused position would appreciate the risk he has created. Hundal - It is only where there is a marked departure from the norm that objectively dangerous conduct demonstrates sufficient blameworthiness to support a finding of penal liability. Personal attributes such as age and experience are not relevant incapacity to appreciate the risk or incapacity to avoid creating it is relevant 10. Held: B did not meet the high level of MR required - it was only a few seconds and that does not constitute negligence in this case. allow the appeal and restore the acquittals. 11. Concurrence: 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. It is for the trier of fact to consider all of the evidence objectively and determine if the actus reus of driving in a manner that constitutes a marked departure

40

from the norm is established. If this is established, the mens 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. 12. Dissent: like his awareness that he is doing so, amounts to subjective mens rea. The mens rea can also be established, and generally is, by demonstrating that the accused failed to meet the objective standard of a reasonable person in the circumstances. In such cases, the fault element is not the marked departure from the norm of a reasonably prudent driver, but the fact that a reasonably prudent driver in the accuseds circumstances would have been aware of the risk of that conduct, and if able to do so, would have acted to avert it. This requisite mental element, however, may only be inferred where the impugned conduct represents a marked departure from the norm; it cannot be inferred from the mere fact that the accused operated the motor vehicle in a dangerous manner. 4. The degrees of objective mens rea (Roach 193-202): for crimes that are less serious than murder, attempted murder, and war crimes. Issue is how to adjust objective standard so that it does not apply to those who cannot reasonably be held responsible for satisfying that standard. 1)Who is the reasonable person a) Creighton: a) Lamers approach of human frailties which would have rendered accused incapable of foreseen what reasonable person would have foreseen. Defined as personal characteristics affecting accuseds awareness of circumstances which create risk; could not be controlled or managed in circumstances. Factor in inexperience of youth, lack of education, enhanced foresight of experienced drug user. Making reasonable person more like accused. b) Majority rejected it b/c personalizes objective test to point where it devolved into a subjective test, eroding min standard of case which parliament has laid down by enactment of offenses of manslaughter and penal negligence. Only relevant characteristics are those to establish capacity to appreciate nature and quality of prohibited conduct and consequences. c) Reasonable person will not be given personal characteristics of accused unless characteristics are so extreme as to create incapacity to appreciate prohibited risk of quality of prohibited conduct. b) Beatty: Besides incapacity, personal characteristics like age, education, experience are not relevant. Standard is reasonably prudent person. c) Defenses: Lamers approach of characteristics, frailties and experiences come in here. Who commits crime w/ defense of provocation, self defense, duress, or necessity, does not voluntarily commit the crime and that accuseds characteristics and experiences must be considered in determining whether he had no realistic choice but to commit the crime. 2) Degrees of negligence: marked departure from reasonable person (standard). a) Tutton: proof of conduct which reveals a marked and significant departure from the standard which could be expected of a reasonably prudent person in the circumstances, as opposed to simple negligence. b) Hundal: trier of fact should be satisfied that conduct amounted to a marked departure from the standard of care of a reasonable person would observe in the accuseds situation c) Beatty: standard required under sec 7 of Charter. d) Also need this standard in cases of simple negligence, like careless use of firearm. Simple negligence standard was read up to require more severe form of negligence. e) R.v.J.F: offense of failing to provide necessities of life required a marked departure from the standard of reasonableness caregiver whereas offenses of criminal negligence causing death or bodily harm would require a marked and substantial departure from the conduct of a reasonably prudent parent in the circumstances. Justify this based on criminal negligence was subject to more serious max sentences than failing to provide the necessities of life. Decision recognizes degrees of objective fault, from general rule of marked departure from reasonable conduct and higher standard of marked substantial departure from reasonable conduct that is required for criminal negligence. f) Means that fault requirement for manslaughter may differ depending on whether manslaughter by criminal negligence (requiring marked and substantial departures) or manslaughter by commission of unlawful act (requiring marked departure) 3) The relevance of subjective perceptions and exculpatory factors to objective fault: mitigate potential harshness of objective standard by factoring in accuseds subjective perception of the surrounding circumstances and other subjective but exculpatory factors when determining whether the reasonable person would have been aware of the risk of the prohibited conduct. a) Tutton: subjective perception or circumstances could be relevant in determining whether he acted w/ criminal negligence. b) Beatty a) Example: the need to factor in information provided to the accused that there was no combustible or explosive material stored near the site of welding. A reasonably held mistake of fact may provide a complete defense, if based on accuseds reasonable perception of the facts, the conduct measured up to the requisite standard of care. b) Need to take contextualized approach, that considers whether accused has suffered unexpected heart attack, seizure, or detached retina. c) Decision means that courts should not ignore factors subjective to accused, when determining whether the accused has criminal mens rea based on negligence. d) By engaging in dangerous act and driving on wrong side is not determinative of fault of marked departure. Consider all evidence: actual state of mind and explanation offered by accused in determining if crown proved marked departure.

41

c) Situations where reasonable person in accuseds situation would not have been aware of risk - cannot be sustained b/c reasonable person in situation would not have been aware of risk or would not have been able to avoid creating danger. d) Relevant factors to consider: mistaken belief that prohibited circumstances did not exist e) Purpose of examining subjective factors: to determine whether there is reasonable doubt about whether the accuseds conduct in the circumstances constituted marked departure from standards of reasonable care. f) R.v.Roy: Acquitted person who drove onto oncoming when entering highway at difficult intersection in foggy/snowy weather. Trier of fact must be meaningful inquiry to determine whether manner of driving was dangerous to public given all circumstances. Must also find fault beyond mere carelessness and amounting to marked departure from standard of care expected from a reasonable person. Circumstances, and evidence of state of mind or explanation of actus reus should be considered in making fault determination. a) Reaffirms Beatty, by indicating only marked departure from reasonable conduct and not mere carelessness will be sufficient to establish criminal liability, and that evidence must be examined and fault should not be automatically deduced even from dangerous act. 8. Regulatory offenses 1. R.v.Sault Ste. Marie: a) Facts: City entered deal with C Disposal for disposal of all refuse. C dumped waste and it ran off into the water b)Rule: a) Three category of offenses: a) Criminal Offences: in which mens rea must be established. Implied through language of knowingly, willfully, intentionally. b) Strict liability: in which mens rea need not be established, act alone is punishable; but where the defence of 1) reasonable belief in a mistaken set of facts or the 2) defence of reasonable care is available; This involves consideration of what a reasonable man would have done in the circumstances.. (Public welfare offences are prima facie in the second category) a) Reverse onus on D, on balance of probabilities, to prove that D took all due care c) Absolute liability: where it is not open to the accused to exculpate himself by showing that he was free of fault (offences would arise where the legislature has made it clear that guilt would follow on mere proof of the proscribed act). Like Strict liability, but no defenses available. b) Factors: Must look at overall regulatory pattern b) The subject matter of the legislation c) The importance of the penalty, d) And the precision of the language used will be primary considerations in determining whether the offence is an absolute offence. c) Reasoning: a) Series of criteria for interpreting offences: b) Does it have words like willfully, with intent, knowingly (if doesnt have these words dont go to full MR offences c) Default to strict liability UNLESS leg has made it clear the guilt would follow proof ex saying it is an absolute offence. d) Crown must prove beyond a reasonable doubt that D committed the prohibited act, D must only establish on the balance of probabilities that he has a defence of reasonable care. e) The present case concerns the interpretation of two troublesome words frequently found in public welfare statutes: cause and permit. These two words are troublesome because neither denotes clearly either full mens rea nor absolute liability. It is said that a person could not be said to be permitting something unless he knew what he was permitting. This is an over-simplification. The conflict in the above authorities, however, shows that in themselves the words cause and permit, fit much better into an offence of strict liability than either full mens rea or absolute liability. d) Held: City entered deal with C Disposal for disposal of all refuse. C dumped waste and it ran off into the water. I would dismiss the appeal and direct a new trial. I would dismiss the cross-appeal. 2. Reference re Section 94(2) Motor Vehicle Act:requiring a fault component for all offences with penal consequences. b) Facts: 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. A successful conviction carried a prison term of a minimum of seven days. c) Issue: d) Rule: e) Reasoning: A law with the potential of convicting a person who really has done nothing wrong offends the principles of fundamental justice and violates a person's right to liberty under s. 7 of the Charter if imprisonment is available as a penalty. a) 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. Therefore, any possibility of a deprivation of life, liberty, or security of person from an absolute liability offence offends the Charter. A law which violates section 7 cannot be saved through section 1 of the Charter, except for extreme circumstances (ex. natural disasters, outbreaks of war, epidemics). The principles of fundamental

42

justice impose a stricter test than section 1. Thus, any law which violates the principles of fundamental justice will most likely not be justifiable in section 1. b) In surveying means of interpreting the constitution, Lamer dismissed the practice of relying on the testimony of the original drafters of the Constitution as interpretive aids, effectively rejecting the use of an original intent approach to Constitutional interpretation. Reference was made to the living tree doctrine in this regard.[2] The Court also rejected the more restricted definition of fundamental justice under the Canadian Bill of Rights c) the alternative view of fundamental justice as natural justice would have been an easier requirement for the government to satisfy. This would limit the rights to life, liberty, and security of person, or, as the Supreme Court put it, place these rights "in a sorely emaciated state." Liberty, for example, would be seen as not as comprehensive a right as section 9, which guards against arbitrary arrest and detention. Security of person would also be less comprehensive than section 8 rights against unreasonable search and seizure. Such an interpretation, the Court decided, would be inconsistent with the normal reading of the Charter. d) Sections 8 to 14 address specific deprivations of the "right" to life, liberty and security of the person in breach of the principles of fundamental justice, and as such, violations of s. 7. These sections are illustrative of the meaning of "principles of fundamental justice" in criminal or penal law. They recognize principles given expression at common law, by international convention and in the very entrenchment of the Charter as essential elements for the administration of justice founded on the dignity and worth of the human person and the rule of law. sections 814 should be seen as examples of principles of fundamental justice. e) The Canadian Bill of Rights, too, was of little assistance in construing s. 7. The words "principles of fundamental justice" in s. 2(e) of the Canadian Bill of Rights are placed explicitly in context of and qualify a "right to a fair hearing". Section 7 of the Charter does not create the same context: the words "principles of fundamental justice" are placed in context of and qualify much more fundamental rights. The distinction was important. In guaranteeing fundamental justice, the Bill of Rights references a "fair hearing." Section 7 does not mention a fair hearing and the only context for fundamental justice is the "much more fundamental rights" of life, liberty and security of person. f) Absolute liability does not per se violate s. 7 of the Charter. An absolute liability offence violates s. 7 only if and to the extent that it has the potential to deprive life, liberty or the security of the person. There is no need that imprisonment be mandatory. The combination of imprisonment and absolute liability, however, violates s. 7 irrespective of the nature of the offence and can only be salvaged if the authorities demonstrate, under s. 1, such a deprivation to be a justified limit in a free and democratic society. Generally, no imprisonment may be imposed for an absolute liability offence and an offence punishable by imprisonment cannot be an absolute liability offence. f) Held: dismissed appeal, answer question in negative. 3. R.v.Wholesale Travel Inc: 1. Facts: W charged with false mislead advertising. Act sets forth defence of due diligence, but s.37.3(b) says that you can be convicted anyways is you become aware of X and dont do what is reasonable to bring it to attention of public = no defence of due diligence 2. Issues: s. 37.3(2) of the Competition Act violated s. 7 or 11(d) of the Charter (which safeguards the "security of the person"). Whether s. 36(1)(a), in and of itself or when read in combination with s. 37.3(2), violated ss. 7 or 11(d) of the Charter. If so, are any saved by s. 1 Charter? 3. Rule: Proof of negligence or allowing a due diligence defence is sufficient to comply with s.7. Strict liability that has the possibility of imprisonment does not violate the Charter if a due diligence defence is provided to the accused 4. Summary: wholesales appeal dismissed. 1. Lamer C.J., La Forest, Sopinka and McLachlin JJ. dissenting in the result): The Crown's appeal should be allowed. 2. It is not an infringement of s. 7 of the Charter to create an offence for which the mens rea component is negligence, so that a due diligence defence (s. 37.3(2)(a) and (b)) is available. Unanimous. 3. The timely retraction provisions (s. 37.3(2)(c) and (d)) infringe s. 7, are not justified under s. 1, and are accordingly unconstitutional. Unanimous. 4. Holdings: 1. On a majority reasoning by Lamer C.J. (and La Forest, Sopinka, Gonthier, McLachlin, Stevenson and Iacobucci JJ.), the reverse onus provision ("he establishes that" in s. 37.3(2)) infringes s. 11(d) of the Charter; L'Heureux-Dub and Cory JJ. (dissenting on this issue) would find no infringement, and would in any event, have found an infringement justified under s. 2. Per Gonthier, Stevenson and Iacobucci JJ.: The provision is justified under s. 1 of the Charter. 3. Per Lamer C.J. and La Forest, Sopinka and McLachlin JJ. (dissenting on this issue): The provision is not justified under s. 1 of the Charter. 4. Per L'Heureux-Dub, Gonthier, Cory, Stevenson and Iacobucci JJ. (Lamer C.J. and La Forest, Sopinka and McLachlin JJ. dissenting in the result): The reverse onus provision is constitutional. 5. Disposition: The matter is therefore remitted to trial on the bases that: (a) a negligence mens rea regulatory offence is constitutional; (b) the timely retraction provisions are unconstitutional; and (c) the reverse onus provision is constitutional.

43

5. Reasoning: 4. absolute liability offenses (requirement for timely retraction) offend principles of fundamental justice and will violate s. 7 Charter if there is a possibility they will result in imprisonment or otherwise violate rights of life, liberty, or security of the person. 5. Strict liability offenses that require accused to establish a defense of due diligence or reasonable mistake of fact on a balance of probabilities violate the presumption of innocence under 11(d), but has been upheld as a reasonable limit on such rights given that the accused has entered a regulated field. 6. offences for which the mens rea component is negligence do not violate s. 7 of the Charter when a due diligence defence (s. 37.3(2)(a) and (b)) is available 7. The Court however was divided on whether a reversal of onus onto the accused in s. 37.3(2) was constitutional. The majority (Lamer with LaForest, Sopinka, Gonthier, McLachlin, Stevenson, and Iacobucci) held that the reverse onus infringed s.11(d) of the Charter. However, only four of the seven held that it could not be saved under s. 1. Since the remaining 2 judges (L'Heureux-Dube and Cory) found the reversal of onus did not violate s. 11(d), a majority was had by those that argued a reversal of onus was constitutionally justifiable by a 5 to 4 margin. (can be saved under s. 1) 8. Justification for Differential Treatment 1. Licensing Concept 1. License implies they accepted the risk 2. Vulnerability Justification 1. Regulatory legislation is essential to the operation of industrial society. 6. Held: timely retraction requirements to be unconstitutional form of absolute liability, but upholding strict liability offenses that require the accused to establish a due diligence defense on a balance of probabilities. Strict liability that has potential of imprisonment does not violate s.7 7. Disposition: The appeal by Wholesale should be dismissed. Crowns appeal allowed. 4. R. v. Raham 4. Facts: respondent charged for racing/stunt driving charged under 172(1) high patrol, when she was trying to go in front of truck, could have gotten her for speeding 5. Rule: analysis of Sault Ste. Marie case look above. 6. Reasoning: Section 172(2) provides that persons who contravene s. 172(1) are liable to a fine of not less than $2,000 and not more than $10,000. Offenders are also liable to a term of imprisonment of up to six months or to both a fine and a term of imprisonment. In addition to these sanctions, the drivers licence may be suspended for up to two years on a first conviction and for up to ten year on a subsequent conviction. She violated this by driving 50km over speed limit. 4. If the offence as charged is one of absolute liability, it is unconstitutional as it is potentially punishable by a term of imprisonment. They also agree that if the offence is one of strict liability, it is constitutional. 5. Actus reus is driving 50km over. The offence committed by the respondent is, in essence, a speeding offence, no matter what the Legislature may choose to call it. 6. The nature of the prohibited conduct, in this case speeding, while certainly germane to the determination of the proper characterization of the offence created, cannot be determinative. To take an extreme example, if the Legislature were to create an offence of wilfully and intentionally driving at over 50 km per hour above the speed limit, I do not think that it could be argued that despite the mens rea language used by the Legislature, the offence would be one of absolute liability because it was a speeding based offence. The proper categorization of speed-based offences as absolute, strict, or full mens rea offences will depend on the outcome of the Sault Ste. Marie analysis. 7. An absolute liability offence that provides for incarceration as a potential penalty is unconstitutional and of no force and effect, subject to an argument based on s. 1 of the Charter. Courts, when interpreting legislation, will presume that the Legislature acted within the limits of its constitutional powers and not in violation of the Charter 8. the presumption in favour of a constitutional interpretation means that if the offence charged against the respondent can reasonably be interpreted as a strict liability offence, it must be so interpreted even if it could also reasonably be interpreted as an absolute liability offence. 9. 4th factor in Sault: the precision of the language used: language that expressly, or by clear implication, excludes the operation of the due diligence defence will necessarily compel the conclusion that the offence is one of absolute liability: 10. A due diligence defence to a strict liability charge amounts to a claim that the defendant took all reasonable care to avoid committing the offence with which he or she is charged. Where the accused contends that he or she operated under a reasonable misapprehension of the relevant facts, the due diligence defence takes the form of a reasonable mistake of fact claim. 7. Analysis: interpret the offence of stunt driving by speeding as defined in s. 3(7) of the Regulation as creating a strict liability offence. It is true that the prohibited conduct is identical to the conduct prohibited by the offence of speeding created by s. 128. I see nothing illogical in treating one as a strict liability offence and the other as an absolute liability offence. 4. The stunt driving provision provides for the potential of incarceration, the speeding provision does not. This distinction is constitutionally significant. The Legislature cannot, absent reliance on s. 1 of the Charter, imprison without fault. Strict

44

liability sets the lowest standard of fault available. The Legislature has chosen, through s. 172, to up the penal stakes for speeding at 50 km per hour or more over the speed limit by including the risk of incarceration. 5. In doing so, the Legislature must be taken, in the absence of clear language excluding the defence, to have accepted the availability of the due diligence defence. Neither the language of s. 172 nor that of s. 3(7) of the Regulation has that effect. 8. Conclusion: The appeal judge erred in holding that stunting driving as defined in s. 3(7) was an absolute liability offence. His acquittal based on that finding must be set aside. Although the trial judge proceeded on the basis that the offence was one of strict liability, given the uncertainty at the time of the trial as to the availability of a due diligence defence and the contours of that defence if available, fairness dictates that the respondent should have a new trial at which she will have the opportunity to advance a due diligence defence if so advised. 9. Held: would allow the appeal, set aside the acquittal and order a new trial. 5. Levis (city) v. Tetreault: 4. Facts: The respondent company, raised the defences of due diligence and officially induced error, alleging that a representative of the Socit de lassurance automobile du Qubec (SAAQ) had had it pay registration fees told it that a renewal notice would be sent to it before the period expired. Because of an error, the SAAQ sent the notice to the company with an incomplete address and the postal service returned it to the sender. As for the respondent T, who is charged with driving a motor vehicle without a valid drivers licence, he raised the defence of due diligence, stating that he was unaware that the date appearing on his licence was the date the licence expired rather than a payment due date. 5. Issue: Is it a defence to be mislead as the law by a state official? 6. Rule: 4. Nature and availability of the defence of officially induced error is available by law. (exception to rule if no ignorance to the law). 6 elements: 1. that an error of law or of mixed law and fact was made; 2. that the person who committed the act considered the legal consequences of his or her actions; 3. that the advice obtained came from an appropriate official; 4. that the advice was reasonable; (objective test) 5. that the advice was erroneous; and 6. that the person relied on the advice in committing the act. (objective test) 5. Factors: to look at for the reasonableness and the reliance on the advice: Efforts made by accused to obtain info, the clarity or obscurity of the law, position and role of the official who gave the info or opinion, and clarity, definitiveness and reasonableness of the info or opinion 7. Reasoning: 4. Nothing in the words of this provision indicates an intention to create a mens rea offence or, conversely, to impose absolute liability so as to exclude a due diligence defence. The provision in no way places the burden of proving mens rea on the prosecution. Nor does it include any expression of the legislatures intent to create an absolute liability offence. 5. The accused did no more than state that he expected to receive a renewal notice for his licence and that he had confused the licence expiry date with the due date for paying the fees required to keep the licence valid. He proved no action or attempt to obtain information. The concept of diligence is based on the acceptance of a citizens civic duty to take action to find out what his or her obligations are. Passive ignorance is not a valid defence in criminal law. 6. A due diligence defence has not been made out, and it has not been demonstrated that all the conditions under which the defence of officially induced error is available have been. The respondent was aware of the date when the fees relating to the registration of its vehicle would be due and, accordingly, the date when the registration would cease to be valid. It could and should have been concerned when it failed to receive a notice. Instead, it did nothing. It had a duty to do more. 7. In the circumstances, the respondent could not have considered the legal consequences of its conduct on the basis of advice from the official in question, nor could it have acted in reliance on that opinion, since no information regarding the nature and effects of the relevant legal obligations had been requested or obtained. 8. Held: offences in question must be considered strict liability offences, and respondents have failed to demonstrate that they exercised due diligence. Consequently, this Court should allow the appeals and enter convictions. 6. Regulatory offenses and corporate crime (Roach 213-229): emphasize protection of public from risk of harm; such as, doing regulated activity without license or not taking safety. Absolute liability vulnerable under s. 7 Charter when deprive life, liberty, security by prison sentence. Strict liability require fault based on negligence, thus, satisfy s. 7, but violate presumption of innocence s. 11(d) b/c allows conviction even when reasonable doubt about Ds negligence. After crown makes case, negligence presumed, D must prove not negligent, on balance of probability, by using defense of due diligence or reasonable mistake of fact. Justified under s. 1 b/c danger acquitting accused who entered regulated field and committed actus reus. Apply to corps for pollutions, misleading ads, violations of health, safety, licensing requirements. Neg under regulatory does not have to be marked departure from reasonable standards like in crim. Legislature enacted senior officer for corp - board of directors, CEO, CFO, responsible for managing activities for being held responsible. Fault: defined by parliament and a subjective intent criminal offense, to hold corp liable. A. Absolute liability offenses: crown must prove commission of act beyond reasonable doubt, no need to show fault like guilty knowledge or negligence. Find these when legislature intends crown to prove fault or such requirement would frustrate purpose of

45

statute. R.v.Pierce Fisheries; majority wants absolute liability w/o subjective knowledge. Minority: wants subjective knowledge in case took reasonable steps not to catch undersized lobsters, like training employees, proper equipment. 1) The common law presumption against absolute liability: 1) Sault Ste Marie: would not interpret public welfare or regulatory offenses as absolute liability, unless legislature makes it clear that guilty would follow proof merely of the proscribed act. Common law presumption that such offenses interpreted as requiring strict liability unless legislature clearly intended to punish accused who acted reasonably and wit due diligence. 1) Held: offense causing pollutions was strict liability, not absolute liability or subjective mens rea offense. Accused has opportunity to establish that he acted reasonably w/ due diligence to avoid commission of the actus reus. Could also establish that he made reasonable mistake of fact. 2) Crown does not have to prove subjective fault or even fault of negligence beyond a reasonable doubt. 2) Factors to determine if absolute liability: subject and regulatory pattern of legislation, language used to define the offense, penalties. 3) BC Motor Vehicle Reference: offense of driving w/ suspended drivers license absolute liability offense in which guilty is established by proof of driving, whether or not D knew of suspension. Held absolute liability when combined w/ imprisonment violated s. 7, and not justified under s. 1. 1) Held: offense is absolute liability. Applies when D had license automatically w/o notice. 2) Minority: see it as strict liability. Would allow defense of due diligence and reasonable mistake of fact. 4) Levis v. Tetrault: go back to Sault Ste Marie, which requires clear proof of legislative intent for absolute liability offense and does not ask additional question of whether legislature intended due diligence offense available. 5) Presumption: all regulatory offenses are strict liability offenses that allow defense of due diligence. 2)The charter and absolute liability 1) BC Motor Vehicle Reference: held that absolute liability offenses offend principles of fundamental justice by allowing conviction of morally innocent. Would also violate s. 7, if deprives life, liberty, security of person - through mandatory prison sentence. Some courts rule that fine threatens liberty if possibility of imprisonment if fine is not paid. 1) Absolute liability would rarely be justified under s.1, only under exceptional cases, such as natural disasters, outbreak of war, epidemics and the like, should liberty of person be sacrificed. 2) Pontes: refused to strike down strict liability, on basis that general provision that no one would be imprisoned for violating absolute liability offense. 3) Right to security does not protect individual operating highly regulated context in commercial trucking for profit from the ordinary stresses and anxieties that a reasonable person would suffer as a result of govt regulation of that industry. Significant and mandatory fines, and stigma may accompany conviction for regulatory offenses associated w/ deaths, appear not to engage the rights of life, liberty, and security of the person sec 7 of Charter. 4) Hess: statutory rape offense w/ girl under 14 was absolute liability b/c only required 14 years of age, not knowledge, or objective fault such as negligence. Unjustified violation of s. 7, compared to alternative that would allow limited defense that took all reasonable steps to ascertain the age of complainant and would require objective fault or negligence. 5) R.v.Wholesale Travel Group: held that provisions that required prompt correction of misleading advertising, even in cases where it was not reasonable for the accused to know that the advertising was misleading, amounted to absolute liability that could not be justified under s. 1 3)Corporations and the Charter 1) BC Motor Vehicle Reference: Held that corps not protected under s. 7 of Charter, on the basis that only humans can enjoy life, liberty, security of person and that it would be nonsensical to speak of corp being put in jail. But, corp can bring Charter challenge on basis that it violates s7 rights of individuals that might be charged. Legislatures can insulate absolute liability offenses from invalidation under s. 7 by enacting offenses that only apply to corps; but not done so far. 4) Corporate liability for absolute liability offenses: 1) Corps have absolute primary responsibility for absolute liability offenses. Corp liable if officer/employee commits prohibits act. 5) Defenses to absolute liability: honest or reasonable mistake of fact will not be defense to absolute liability. Automatism, ental disorder, extreme intoxication may apply b/c would indicate accused acted in involuntary manner that is inconsistent w/ proof of actus reus. Defense of necessity might apply - speeding b/c of urgent need to save life. B. Strict liability offenses: requires crown to prove act beyond reasonable doubt, but gives accused an opportunity to prove due diligence or absence of negligence on balance of probabilities. Strict liability is half way between absolute and mens rea offenses, fullfil goals of public welfare while still not punishing entirely blameless. 1) Simple negligence: blameworthiness of strict liability. Crown does not prove, D must show balance of probabilities that D was not negligent. Reasonableness of Ds conduct determined on basis that reasonable person would have seen, not circumstances that accused actually perceived. To avoid conviction, must show took reasonable steps to avoid prohibited act or that it made honest and reasonable mistake of fact.

46

2) Negligence and the Charter: Wholesale: upheld negligence as fault requirement for offense of false ads. Proof of subjective mens rea might be required b/c of stigma attached to theft. Negligence sufficient, even if faced imprisonment. Demands of s.7 met in regulatory context where liability for conduct which breaches the standard of reasonable care required for those operating in the regulated field. 3) The defense of due diligence: not crown, but D must prove defense of due diligence or lack of negligence on balance of probabilities. Once crown proves wrongful act beyond a reasonable doubt, negligence presumed, unless meets burden above and proves reasonable care or reasonable mistake of fact. 1) Levis: due diligence requires more than just passivity. Rejected accused who thought date on license was renewal notice as opposed to expiry date had defense of due diligence. 2) Due diligence requires an active and reasonable attempt to prevent the commission of the prohibited act. D give defense to make sure SL offense does not become AL. 3) Factors: likelihood and gravity of risk; whether foreseeable and effect that it could have on vulnerable people and neighborhoods; ability of accused to control or manage the risk of prohibited act from occurring; alternative solutions; regulatory compliance; industry standards; preventative systems; efforts made to address problem; promptness of accuseds response; skill level of accused; complexities involved; economic considerations. 4)The defense of due diligence and the Charter 1) Wholesale: 1) Upheld defense that required those who committed wrongful or false or misleading ads to prove on balance of probabilities that they exercised due diligence to prevent occurrence of such error. 7 judges agreed that burden on D violated presumption of innocence 11(d) b/c allows D to be convicted even tho reasonable doubt as to whether he acted negligently. 2) Dissent w/ Lamer: restriction of 11(d) could not be justified under 1 b/c legislature could achieve objective by means as evidential as opposed to a persuasive burden. 3) Majority concluded that imposing burden on accused to establish due diligence on balance of probabilities could be justified. D is in the best position to prove whether he exercised reasonable care. 5)Corporate liability for strict liability offenses 1) SL: Same considerations apply to corps accountable for SL. 2) AL: As for AL, corp commits actus reus when one of its employees is has committed prohibited act. 3) Sault Ste. Marie: defense of due diligence available if those who were directing acted w/ due diligence 4) If senior officer acts w/ due diligence but corp as an organization is negligent as a whole, officer not liable 6) Requirements of fault beyond negligence in regulatory offenses 1) Sault Ste. Marie: held that words cause and permit in environmental legislation were not sufficient to move the regulatory offense into the full mens rea category. 2) Strasser v. Roberge: held that offense was one of SL that required the accused to bear the burden of establishing the lack of intent. Dissent held that offense was one of mens rea that required crown to prove intent. Majority criticized for reversing burden of proof. 3)Characterization of offenses 1) If offense is SL, then Wholesale justifies reversal of proof that requires accused to establish lack of intent. 2) Dissent of Dickson J in Strasser: Recognize the small subset of regulatory offenses that requires subjective fault as mens rea offenses where crown has to establish fault requirement beyond a reasonable doubt. III. EXTENSIONS 9. Aiding and abetting: aiding and encouraging, liable for those offenses and those did not aid/abed it offense foreseeable outcome of offense they did commit. 1. CC s. 21 1. Parties to an offense - everyone is a party to an offense who a) actually commits it b) does or omits to do anything for purpose of aiding any person to commit it; or c) abets any person in committing it 2. Common intention - where two or more person form 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 offense, each of them who knew or ought to have known that the commission of the offense could be a probable consequence of carrying out the common purpose is a party to that offense. 2. R. v. Dunlop and Sylvester 2. Facts: Ds in motorcycle gang. About 18 guys had sex with victim. D and S came to park/dump area w/ beer. They said they were just dropping it off and saw girl having sex someone but didnt know it was w/ member. Left 3 mins later. Girl identified D and S. 3. Issue: Does the fact that the accused were present for part of the assault and did nothing to assist the victim amount to aiding and abetting? 4. Rules:

47

1. Mere presence or passive acquiescence is not sufficient for liability w/o encouragement of principal offender or act of facilitation. Mere presence itself cannot be interpreted to be encouragement 2. 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 offenders intentions to commit the offence, or attendance for the purpose of encouragement. 4. Analysis: 1. 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. 2. One could infer that the two accused knew that a party was to be held, and that their presence at the dump was not accidental or in the nature of casual passers-by, but that was not sufficient. 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. 3. 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. 4. Something more is needed: encouragement of the principal offender; an act which facilitates the commission of the offence, such as keeping watch on enticing the victim away, or an act which tends to prevent or hinder interference with accomplishment of the criminal act, such as preventing the intended victim from escaping or being ready to assist the prime culprit. 5. Holding: appeal should be allowed. Acquittals entered. 3. R. v. Logan 3. Facts: L charged with attempted murder during a robbery. L shot X in neck. X lived 4. Issue: Does s.21(2) of the CC infringe s.7 and/or s.11(d) of the Charter? If so, is it justified under s. 1 Charter? 5. Rules: 1. Where there is a constitutionally minimum required MR for the principle in those cases the party must have the same level of MR 2. Whether a party to an offence had the requisite mens rea to found a conviction pursuant to s. 21(2) must be answered in two steps: 1. Is there a minimum degree of mens rea which is required as a principle of fundamental justice before one can be convicted as a principal for this particular offence 2. if the principles of fundamental justice do require a certain minimum degree of mens rea in order to convict for this offence, then that minimum degree of mens rea is constitutionally required to convict a party to that offence as well. 4. Analysis: 2. Step 1 - Sect 7 & Attempted murder 1. To be convicted of a party to murder you must have subjective foresight of death. Vaillancourt does preclude Parliament from providing for the conviction of a party to that offence on the basis of a degree of MR below the constitutionally required minimum. 2. Stated in Vaillancourt, the principles of fundamental justice require a minimum degree of mens rea for only a very few offences. The criteria by which these offences can be identified are, primarily, the stigma associated with a conviction and, as a secondary consideration, the penalties available. 3. Step 2 - Mens rea for Attempted murder 1. 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. 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. 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. 2. Section 1 analysis: The objective of the legislation is that this possibility of conviction through s. 21(2) will make parties more responsible for the actions of their accomplices. Clearly, then, there is a rational connection between the restriction and the legislative objective. It, nevertheless, does not satisfy the proportionality test because it unduly impairs an accused's rights under s. 7 of the Charter. 3. The objective component of s. 21(2) unduly impairs rights under s. 7 of the Charter when it operates with respect to an offence for which a conviction carries severe stigma and for which, therefore, there is a constitutionally required minimum degree of mens rea. 4. 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. 5. The words "ought to know" allow for the possibility that while a party may not have considered and accepted the risk that an accomplice may do something with the intent to kill in furtherance of the common purpose, the party, through this negligence, could still be found guilty of attempted murder. In other words, parties could be held to be criminally negligent with respect to the behaviour of someone else. 5. Conclusion: I would, therefore, as did the Court of Appeal, declare inoperative the words "or ought to have known" 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

48

foresight of the consequences be subjective, which is the case for attempted murder. 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. 6. Holding: s.21(2) violates s.7 and cannot be justified under s.1. Appeal dismissed. 7. Dissent: A conviction for attempted murder requires proof of the specific intent to kill. No lesser mens rea will suffice. Parliament has decided to create a distinct offence for attempted murder, recognizing that the results of criminal acts are not to be ignored. 2. No killing took place here. The crime was one for which the specific intent of the principal had to be shown. In those instances where the principal is held to a mens rea standard of subjective foresight, the party cannot constitutionally be convicted for the same crime on the basis of an objective foreseeability standard. In this regard the actus reus component of the offence cannot be ignored. Policy considerations addressed in Martineau justify treating completed killings more harshly than attempted ones. If someone who attempts to kill cannot be convicted unless the Crown proves that he had the specific intent to do so, then he who accompanied the principal cannot be convicted if the Crown merely shows that the attempted murder was objectively foreseeable. 4. R. v. Briscoe (same case discussed earlier for willful blindness) 3. Facts: B drove to golf course with other people. They had planned and started to beat and rape here. B held her told her to be quiet. B stood by and watched them kill and rape her 4. Issue: Does willful blindness satisfy the MR? 5. Rule: 2. In order to convict under s.21(1) for the Mens Rea (reflected in the word purpose in s 21) the person must have the intent and knowledge (that the principal was going to carry out an unlawful act) - wilful blindness satisfies this. 1. Intent: the Crown must prove that the accused intended to assist the principal in the commission of the offence. It is not required that the accused desired that the offence be successfully committed. 2. Knowledge: in order to have the intention to assist in the commission of an offence, the aider must know that the principal intends to commit the crime, although he or she need not know precisely how it will be committed. Even in the case of murder, the principals intention to commit the crime must be known to the aider or abettor, but it need not be shared. It is sufficient that he or she, armed with knowledge of the principals intention to commit the crime, acts with the intention of assisting the principal in its commission. 3. The actus reus of aiding or abetting is doing (or, in some circumstances, omitting to do) something that assists or encourages the perpetrator to commit the offence. While it is common to speak of aiding and abetting together, the two concepts are distinct, and liability can flow from either one. 6. Reasoning: 2. 21(1) makes perpetrators, aiders, and abettors equally liable. The person who provided the gun, therefore, may be found guilty of the same offence as the one who pulls the trigger. Purpose = intent and knowledge. 3. Wilful blindness does not define the mens rea required for particular offences. Rather, it can substitute for actual knowledge whenever knowledge is a component of the mens rea. Wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries. 4. In this case, the evidence cried out for an analysis on wilful blindness. Even Bs own statements to the police, on which the trial judge relied heavily, suggest that he had a strong, well-founded suspicion that someone would be killed at the golf course and that he may have been wilfully blind to the kidnapping and prospect of sexual assault. His statements also show that he deliberately chose not to inquire about what the members of the group intended to do because he did not want to know. The trial judges failure to consider Bs knowledge from that perspective constitutes a legal error which necessitates a new trial on all charges. 7. Holding: Bs actions made him a party to the offence. Dismiss the appeal and confirm the order for a new trial. 5. R. v. Thatcher 3. Facts: arrested and charged with causing the death of his ex-wife. 4. Issue: 5. Rule: Where an accused is being tried alone and there is evidence that more than one person was involved in the commission of the offence, it is also appropriate for the trial judge to direct the jury with respect to the provisions of s. 21 of the Code, even though the identity of the other participant or participants is unknown and even though the precise part played by each participant may be uncertain 6. Analysis: 2. Here, there was very strong evidence connecting appellant with the crime. There was also some evidence which, if believed, indicated that he did not commit the crime personally. The facts were for the jury, and the trial judge was correct not to preclude the jury from considering all the alternatives. 3. Section 21(1) of the Criminal Code is designed to make the difference between aiding and abetting and personally committing an offence legally irrelevant. It provides that either mode of committing an offence is equally culpable and, indeed, that whether a person personally commits or only aids and abets, he is guilty of that offence--in this case, murder--and not some separate distinct offence. There is no need for the Crown to specify in the charge the nature of an accused's participation in the offence. Where

49

there is evidence before a jury that points to an accused either committing a crime personally or, alternatively, aiding and abetting another to commit the offence, provided the jury is satisfied beyond a reasonable doubt that the accused did one or the other, it is a matter of indifference which alternative actually occurred. 7. Holding: appeal dismissed. 8. Lamer Concurrence: Since s. 21(1) of the Criminal Code makes the distinction between participation as a principal and participation as aider and abettor legally irrelevant, it was not necessary for the jury to decide on the form of his participation and the jury was correct in convicting. But s. 21 does not always preclude a requirement of jury unanimity as to the particular nature of the accused's participation in the offence. Depending on the nature of the evidence presented by the Crown, the jury unanimity issue may arise in any case where the Crown alleges factually inconsistent theories, even if those theories relate to the particular nature of the accused's participation in the offence. If the Crown presents evidence which tends to inculpate the accused under one theory and exculpate him under the other, then the trial judge must instruct the jury that if they wish to rely on such evidence, then they must be unanimous as to the theory they adopt 9. La Forest Concurrence: But there may be cases where the interrelationship between competing Crown theories and the evidence adduced in relation thereto will not justify a verdict of guilt. In each case, therefore, it will be for the trial judge, having regard to the nature of the offence, the theories of the parties, and the totality of the evidence, to realistically assess the possibility that the evidence will be used improperly, and to direct the jury accordingly. The present, however, is not such a case. The fact that s. 21 makes the particular nature of the accused's involvement in an offence legally irrelevant does not in and of itself justify conviction on the basis of mutually exclusive or alternative theories of culpability. 6. Aiding and Abetting (Roach 147-153): rule in sec 21(1). Person who aids/abets is guilty of same offense asp principle, thus, not necessary for crown to specify whether person is guilty as principal or aider/abetter of offense. Accused can be convicted of murder if all knowingly assisted causing victims death even if unclear if accused actually killed victim. 3. The actus reus of aiding and abetting a) Aid: to assist b) Abet: encouraging (acts or words), instigating, promoting, procuring the crime to be committed. (Distracting guard so friend can steal (aiding); encouraging to steal (abetting). c) Dunlop v. R: mere presence at scene of rape and does nothing to prevent it, does not mean he is an accomplice. Can be evidence of aiding/abetting if other factors present: prior knowledge of crime. Presence at a crime that prevents the victims escape or prevents victims from receiving assistance is sufficient actus reus. d) Mere presence shows reluctance to penalize omissions. Exception to persons who stand by yet are in specific legal duty to act. 21(1)(b) provides that one who omits to do anything for purpose of aiding any person to commit an offence may be charged as party. a) Owners of car who did nothing while others engage in dangerous driving held to aid/abet dangerous driving b/c did not exercise power to control their vehicle. b) Cop aid/abet assault in prisoner by failing to exercise statutory duty to protect prisoner in his charge. 2. The mens rea for aiding and better d) Must knowingly assist the principal, and intend to assist the principal. Two mens rea requirements: a) The intent to assist the principal offender b) Knowledge of the type but not exact nature of the crime committed. e) Example of intent/purpose: Person who drives get away car during robbery will have acted w/ purpose even though participated b/c of death threats. f) 21(1)(b): High mens rea requirement and recklessness will not suffice either for intent to assist requirement or knowledge of crime that is being assisted. a) Ont Ct App: held that purpose is synonymous w/ intent and does not include recklessness. High level of mens rea for section 21(1)(b) is justified not only by specific purpose requirement but also by need to ensure that person who assists in commission of offence has a sufficient level of fault who actually committed the offence. b) Objective fault: High subject mens rea of aid/abetting applies to cases where principal may be convicted on basis of objective fault requirement. Recklessness is not sufficient form of fault to convict a person as a party to an offence b/c aiders involvement w/ crime will be more peripheral than that of the principal offender(s) and this lesser form of physical involvement should be counterbalanced by higher fault requirements. c) R. v. Briscoe: in appropriate case, willful blindness could substitute knowledge requirement. Distinguished wilful blindness as form of deliberate ignorance that is distinct from recklessness. g) Abandoning crime: may be evidence of lack of intent w/ respect to attempts. Supreme Court held, acquittal of man for murder who anticipated break in enter in home, but told principal to stop strangling victim b/c he was going to kill her. Accused gave timely notice he was acting on his own. Rule of timely notice to ground defense of abandonment of an intent to aid/abet. But rule best viewed w/ attempts, can raise reasonable doubt about mens rea. Abandonment depends on degree of participation and form of abandonment. Remorse is not abandonment (notice must be timely, not after its done).

50

h) Drug purchases: courts reluctant to find purchasers of drug liable for aid/abetting trafficking on basis of purchase alone. Do not deserve stigma of trafficking conviction and were appropriately convicted of possession of narcotics or possession w/ intent to traffic, as principal or aider/abetter. a) Greyeyes: assisting a person to purchase drugs - assists trafficking. Dual mens rea of intending to assist trafficking and knowledge that trafficking was being assisted. Acts as go-between parties, convicted as drug trafficker. b) Dual charge of aiding/abetting: R.v.Chan a) Convicted of possessing drugs when he thought he was participating in the purchase of large quantity of heroin. Drugs intercepted, only small amount was contained. Ct App held that what mattered for mens rea was accuseds belief that he was dealing w/ heroin and not the truth of the matter. He may have mens rea even if no drugs in package received. b) Question whether he had actus reus to be guilty of aiding/abetting: if no drugs present, then no, acquitted, but guilty of attempting to possess heroin. Would have mens rea for complete and attempted offense, and actus reus of attempted offense b/c would not have done an act beyond mere preparation to commit the crime. 10. Counseling: if offense committed, CC 22 operates, if not committed, then CC 464 operates. 1. R. v. Hamilton 1. Facts: H sent email saying he had confidential information. Files had instructions on how to set bombs and break into houses. Included program to generate credit card #s. Charged with counseling of a crime. No crime committed 2. Issue: Is recklessness sufficient to meet the 2nd step of MR? YES it is sufficient but recklessness is a specific wording not the general meaning as in Sansregret 3. Rule: 1. Actus Reus: deliberate encouragement or active inducement of the commission of a criminal offence 2. Mens Rea: accused either intended the offence counseled be committed, or knowingly counseled the commission of the offence while aware of the unjustified risk that the offence counseled was in fact likely to be committed as a result of the accsueds conduct 4. Analysis: 1. Recklessness is permissible to satisfy MR for counseling, but as defined as Conscious disregard of the substantial and unjustified risk inherent in the counseling 2. The Actus Reus for counseling will be established where the materials or statement made or transmitted by the accused actively induced or advocated, and do not merely describe, the commission of the offence (R v Sharpe). 3. The trial judge acquitted the accused on the count of counselling fraud because his motivation was mercenary as opposed to malevolent. The trial judges conclusion that the accused did not intend to induce the recipients to use those numbers is incompatible with the plain meaning of the teaser e-mail and with her other findings of fact, including her finding that the accused understood that the use of the generated numbers was illegal. Her assertion that [h]is motivation was monetary immediately after her reference to these facts demonstrates an error of law as to the mens rea for counselling the commission of a crime, and warrants a new trial. The trial judge confounded motive and intent. 5. Holding: The appeal should be allowed on the count of counselling fraud. 6. Dissent: In order for the actus reus to be proven, the words communicated by the accused, viewed objectively, must be seen as actively inducing, procuring or encouraging the commission of an offence. However, it is well established that it is not necessary that the person counselled be in fact persuaded. The mens rea of the offence is largely inferred from the actus reus itself. It is not sufficient that the communication simply raise the possibility of affecting its recipient. At the very least, the counsellor must subjectively intend to persuade the person counselled to commit the offence. Mere recklessness as to the counselled persons reaction to the communication is insufficient. 1. Except in the most unusual circumstances, the counsellor who intends to persuade the person counselled to commit an offence will intend that the offence be committed. 2. There is no reason to interfere with the trial judges conclusion that the accused did not have the necessary mens rea. 7. Notes: Now the MR for counseling is just the intent of the accused that the crime be performed and that can be satisfied with recklessness if it is a conscious disregard of the substantial and unjustified risk inherent in the counseling 2. Counseling a crime that is Not committed (Roach 141-145): one person solicits another to commit a crime and second person is unwilling, charge is counseling a crime not committed. Same reduced punishment as attempted. Different from crime committed, where person becomes party to an offense and punished as if he completed it. 1) The actus reus of counseling a crime that is not committed: 22(3), counsel includes: procure, solicit, incite. Does not matter if 2nd person had intention to commit. Can be charged for soliciting undercover cop, or if person rejects. Rule for actus reus: materials or statements made by accused actively induced or advocate - and do not merely describe - the commission of an offence. 2) The mens rea for counseling a crime that is not committed: 464, subjective knowledge of the crime counselled and actual intent by accused that crime be performed. 1) R.v.McLeod: georgia straight publishing convicted of counseling illegal growth of marijuana by publishing article of how to grow it. Held, evidence insufficient to prove editor had this intent. If case today. 2b Charter freedom of expression would be issue.

51

2) R.v.Janetas (Ont Ct App): accused must intend commission of offence to be guilty of counseling. Recklessness is not sufficient form of fault b/c could result in conviction of person who made only casual comments about possibility of crime being committed. 3) Supreme Court: mens rea will include lesser forms, in knowingly counseling a crime while aware of an unjustified risk that the offense was likely to be committed as a result of accuseds conduct. Dissent: the counsellor must intend that the counseled offence be committed for the offence to be made out. 4) R.v.Hamilton: judgment should not be interpreted as encompassing recklessness as fault for counseling. Instead, requires that the risk that the offence is likely to be committed, which is higher standard than reckless awareness of the possibility that the offence would be committed. 5) Mugesera: giving speech during Rwandan genocide that would incite to commit murder, M had intent to give speech and intended result of commission of murders. Accused intend or at least have knowledge of the complete crime to be guilty of the offence of counseling an offence. 3) Impossibility and counseling: impossibility is not a defense for a crime counseled that was not committed. CC 23.1, person could be guilty of being a party to an offence even though person aided or abetted, counseled or assisted, cannot be convicted of the offence. Applies to crimes committed, not those that are not committed under 464. 1) R.v.Richard (Man Ct App): adult not convicted for counseling commission of indecent assault b/c child he attempted was incapable of committing offence b/c under 12. 2) Accused in Rs place can be charged w/ separate crime of inviting child to engage in sexual touching or attempted sexual interference. These crimes, and for 21-23, does not matter if other person involved cannot be convicted of offence. Adult who counsels children under 12 to commit drug offence can be convicted, even though child cannot be. 3. Counseling a crime that Is Committed (Roach 145-147): 21(1) person who counsels a crime becomes a party to that offence, is subject to same punishment as if he actually committed it. Applies, notwithstanding that the offence was committed in a different way. Still liable if murder committed w/ gun yet counselor counseled to use a bomb. 21(2): counselor becomes party to every other offence committed in consequence of the counseling that the person who counseled knew or ought to have known were likely to be committed in consequence of the counseling. 2) The actus reus of counseling a crime that is committed: procuring, soliciting, inciting a crime, and crime must then be committed. by person counseled; need not be committed in same way it was counseled, but must be a crime that was reasonable foreseeable from counseling. Accused can be convicted even if person who actually committed it cannot be: 12 year old child example. Or if procure a reluctant person to commit offense could be guilty, will have defense of duress. 3) The mens rea for counseling a crime that is committed: 22(1) accused must intentionally counsel crime. 22(2): accused who intentionally counsels is also a party to every offense that the other commits as consequence of the counseling that the person who counseled knew or ought to have known was likely to be committed in consequence of the counseling. Extends liability. 1) Objective foreseeability violates sec 7 Charter when applies to murder or attempted murder, which require subjective foresight of death. But could apply to most other crimes. Ie: accused who counsels severe beating could be convicted of manslaughter if he ought to have known that manslaughter could result. On the other hand, accused only be guilty of murder if he actually knew that death was likely to result. 2) 22(2): objective forms of fault incorporated, while 464 always requires subjective fault even though both offences are based on couseling a crime. Rationale: 22 constitutes form of participation in a completed crime where counseling under 464 is a form of inchoate liability that applies when crime counseled has not been committed. 11. Attempts 1. Criminal Code Sections 1. 463: Attempts, accessories (after the fact) - if accused has life, this person gets 14 yrs max; if accused has 14 years, this person gets one half of longest term; if accused gets summary, this person gets summary conviction; if accused gets indictment or summary, this person gets one half of longest term if its indictable, or punishable by summary conviction. 2. 465: Conspiracy 1. Conspiracy to commit murder, max term of life imprisonment. 2. Conspiracy to prosecute for offence knowing he did not commit that offence, guilty of indictable offence and liable (a) Max 10 years imprisonment, if person who committed is liable to imprisonment for life or 14 years max. (b) Max 5 years imprisonment, if person who committed offense is liable to less than 14 years imprisonment. 3. Everyone who conspires to commit indictable offence under a) or b) is guilty of indictable offence and liable to same punishment as one who is convicted of committing the offence. 4. Everyone who conspires to commit offence punishable on summary conviction is guilty of summary offence. 3. 660: Full offence charged, attempt proved - where complete commission of an offence charged is not proved but the evidence established an attempt to commit the offence, the accused may be convicted of attempt. 2. R. v. Ancio: 2. Facts: broke into house, with gun, where wife lived w/ another man. Struggle, gun went off, missed guy. Arrested, said to police he would have killed guy.

52

3. Issue: 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. 4. Rule: The mens rea for attempted murder is the specific intent to kill and a mental state falling short of that level 5. Analysis: 1. The mens rea for attempted murder is the specific intent to kill and 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. The completed offence of murder involves killing and any intention to complete that offence must include the intention to kill. An attempt to murder should have no lesser intent. Nothing illogical arises from the fact that in certain circumstances a lesser intent will suffice for a conviction for murder. A person cannot intend to commit the unintentional killings described in ss. 212 and 213 of the Code. Any illogic lies in the statutory characterization of unintentional killing as murder. 2. 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. 6. Held: The appeal should be dismissed 3. R. v. Deustch 2. Facts: Appellant, who was in the business of selling franchises of various kinds, conducted interviews with three female applicants and with a police officer who posed as an applicant and recorded the interview on a tape recorder. Appellant indicated to the applicants that a secretary/sales assistant would be expected to have sexual intercourse with clients or potential clients of the company where that appeared to be necessary to conclude a contract. Could earn as much as $100,000 annually. 3. Issue: (1) whether appellant's acts or statements could, as a matter of law, constitute an attempt to procure rather than mere preparation; and (2) whether the sexual intercourse contemplated by appellant would be illicit sexual intercourse within s. 195(1) (a) of the Criminal Code. 4. Rule: Test for attempt 1. Need to look at relationship of the offence and the act a) Rewording of the unequivocal act theory 2. Proximity is relevant, taking into account time, location, and acts controlled by the accused that remain to be accomplished What is important is the acts the accused took a) The fact that further acts are needed to complete the offence is not determinate of an attempt - Proximity is not determinative 4. Analysis: 1. 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, although 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. 2. Relative proximity may 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. 3. If the appellant had the necessary intent to induce or persuade the women to seek employment that would require them to have sexual intercourse with prospective clients, then the holding out of the large financial rewards in the course of the interviews, in which the necessity of having sexual intercourse with prospective clients was disclosed, could constitute the actus reus of an attempt to procure. 4. There would be little else that the appellant would be required to do towards the completion of the offence other than make the formal offer of employment. The holding out of the large financial rewards in the course of the interviews would not lose its quality as a step in the commission of the offence, and thus as an actus reus of attempt, because a considerable period of time might elapse before a person engaged for the position had sexual intercourse with prospective clients or because of the otherwise contingent nature of such sexual intercourse. 5. Holding: acts were an attempt were more then preparatory steps. Appeal dismissed. 4. R. v. Dery 3. Facts: D and S were charged with conspiring to commit theft and conspiring to possess stolen liquor. The trial judge found that no agreement had been established between the two men 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. A majority of the Court of Appeal affirmed their convictions. D alone appealed to this Court. 4. Issue: whether there is any legal basis for concluding that attempt to conspire to commit an indictable offence is a crime in Canada 5. Rule: An attempt to conspire to commit a substantive offence is not an offence under Canadian law. 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.

53

6. Analysis: 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. 1. Here, the Crown proposes an actus reus for attempted conspiracy that, if not open-ended, is much broader than the actus reus of counselling. Even a tentative and vain effort to reach an unlawful agreement would suffice (respondents factum, at para. 40). The safeguard that governs counselling would thus be removed for attempted conspiracy. Even if we were to criminalize an attempt to conspire as a form of counselling, I fear that the Crown attempts in this case to squeeze from it more than it yields 2. It seems to me as well that this would be an inappropriate occasion for this Court to recognize attempt to conspire as a crime for unilateral conspiracies, even if it were within our power and we were inclined on principle to do so. This is not a case with only one willing party. Nor was there any agreement, bogus or bona fide, for Mr. Dry to join. 3. Finally, though Mr. Dry discussed a crime hoping eventually to commit it with others, neither he nor they committed, or even 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. 4. Acts that precede a conspiracy are not sufficiently proximate to a substantive offence to warrant criminal sanction. Given that conspiracy is essentially a crime of intention, it is difficult to reach further than the law of conspiracy already allows. Even if it were possible, it has never been the goal of the criminal law to catch all crime in the egg. In this sense, conspiracies are criminalized when hatched. And they can only be hatched by agreement. 5. 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. By contrast, the criminal law intervenes later in the progression from thought to deed where someone acts alone. Overt steps are then thought necessary to disclose and establish with sufficient certainty the criminal intention that is an essential element of the attempt to commit an offence. By its very nature, moreover, an agreement to commit a crime in concert with others enhances the risk of its commission. Early intervention through the criminalization of conspiracy is therefore both principled and practical. 6. Likewise, 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. 7. Holding: appeal allowed. Ds acquittal entered. 5. Unfulfilled crimes and participation in crimes (Roach 124 - 136): lesser mens rea needed for attempted crime, even if not completed or impossible to complete. Any act beyond mere preparation is actus reus for attempt. Crown must prove beyond reasonable doubt that that accused acted w/ intent to commit the complete offence. Person who solicits, counsels, commission of crime or part of agreement, may be guilty of counseling or conspiracy, even though crime never committed. W/ exception to conspiracy, crimes are subject to less punishment than the complete crime. 3. New crimes can serve as substitutes for attempted crimes: attempted sexual assault or attempted sexual interference, may not be necessary if D guilty of inviting person under 16 to engage in sexual touching. Financing, facilitating, instructing person to carry out activities for benefit of terrorist group, are alternatives to establishing person is guilty of attempt or conspiracy to commit intended crime. 4. Crimes based on participation in activities of terrorist group/organization can be used to charge person as party to crime committed by group or w/ an attempt to commit the crime or with conspiracy to commit the crime. 5. New crime: computer luring offence - preparatory crime captures legal conduct meant to culminate commission of completed offence. Subjective fault in relation to all elements of offence; age of child for sexual offence. Person may be guilty even if secondary crime was not likely to be committed in a case involving man luring 13 yr old girl in different province over computer. 6. Courts refuse to combine inchoate forms of liability and refused to create crime of attempted conspiracy on basis that criminal law should not expand so far as to criminalize risk that a risk of completed crime will occur. Statutory offence as computer luring or terrorist financing may criminalize conduct that presents risk that a particular dangerous risk may occur. A. Attempts: section 24(a) everyone who w/ intent to commit an offence, does or omits to do anything for purpose of carrying out his intention is guilty of an attempt to commit the offence whether or not it was possible to commit the crime; (b) question whether act or omission by person who has intent to commit offence is or is not mere preparation to commit the offence, and too remote to constitute an attempt to commit the offence, is a question of law. 1. Men Rea for attempts: intent to commit complete offence must include intention to kill (for murder), mens rea for attempt cannot be less than specific intent to kill. Sec 24: having an intent to commit murder. a) Constitutional fault element for attempted murder: R. v. Logan: held minimum fault element for attempted murder should be the same as for the commission of murder, on the grounds that the stigma of being convicted of the two offences was the same. In determining whether subjective foresight of death was constitutionally required, the crucial consideration is whether there is a continuing serious social stigma which will be imposed on the accused upon conviction and not the existence of sentencing discretion that is available for attempted murder but not murder. a) Logan: min fault requirement for attempted murder is that death will result. Parliament can lower mens rea of attempted murder to that point but not below. Still does not over take higher standard of intent to kill that is required by Ancio.

54

b) Mens rea for other attempted offenses: R. v. Colburne (Ct. App): attempt requires a specific intent to carry out the crime, even if the completed offence requires a lesser intent. a) Could be argued that attempted sexual assault must be based on the subjective intent to engage in non consensual sexual activity, even though a person could now be convicted of the completed offence of sexual assault on the basis of recklessness, wilful blindness, or failure to take reasonable steps to ascertain complainant was consenting. b) R. v. Williams: man convicted of aggravated assault for having unprotected sex when he knew he had HIV. Attempt conviction entered b/c there was reasonable doubt that accuseds partner was already infected when accused had sex w/ her, knowing he was infected. The actus reus of aggravated assault was not proven beyond a reasonable doubt, but there was a sufficient actus reus for attempted aggravated assault. c) Attempts are, where mens of rea of completed offence is present entirely. Attempts will often require proof of higher mens rea than completed crime b/c of their nature as inchoate offences. Intent to commit crime required for attempt, whereas knowledge or recklessness will be sufficient mens rea for most complete crimes. 2. The Actus Reus of attempts: no universal definition of what a prohibited act is in criminal attempts. 1. Cline (Oct Ct App): the actus reus must not be mere preparation to commit a crime, but can be the next step done w/ the intent to commit the crime after preparation is complete. 2. R. v. Deutsch: fact and offence approach to determine when preparation ended and actus reus began: distinction is qualitative, involving relationship btn nature and quality of the act in question and nature of the complete offence. Consideration must be given in making 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 the accomplished. 1. Accused went beyond mere preparation by telling applicants they could earn $100,000 per year and might have to have sex w/ clients - although no job offer made and any prostitution would occur in considerable period of time in the future 3. Look at evidence of wrongful intent and magnitude of planned crime to find actus reus: going through glove department to steal, point loaded gun at ex wife. If store closed, reasonable doubt about intent to rob. Mass murder, under Deustch accused goes beyond mere preparation and commits actus reus of attemp even though completed crime is months away. 4. Abandonment is no defence to attempt. Could create reasonable doubt about whether D had intent to commit crime. 5. Detering: accused well beyond preparation to commit fraud, but convicted of attempt b/c intended victims were deceived (completed crime cannot occur). 3. Impossibility and Attempts: CC 24(1) person can be guilty of attempt whether or not it was possible to commit the offence under the circumstances. Factual or legal impossibility are NOT defences to attempted crime. 2. Factual impossibility: accused picked pocket that had no money; infect someone with HIV who was already infected. 3. Legal impossibility: attempted to receive stolen goods but were in law not stolen; attempted to take someone elses umbrella from stand but took his own. 4. Distinction between both rejected by CC b/c in both cases person has msn rea of thief, took steps beyond mere preparation, and was thwarted w/ circumstances over which he had no control. 5. Dynar: impossibility is not a defence to attempt. 6. Examples: 1. Accused who believed he was laundering drug money could be convicted of attempted money-laundering even though money was govt money provided by police in sting operation. 2. Person who stabs corpse w/ intent to kill real person is guilty of attempted murder. 3. Person who accepts package believing it to contain large quantity of drugs is guilty of attempting to possess drugs for purpose of trafficking even if package did not contain any drugs. 4. Person comes to hotel hoping to have sex w/ 11 year old is guilty of attempting to procure sexual services of a child even though no child involved in police sting operation. 7. When impossibility is a defence: if person intended to commit a an imaginary crime. Thought something (possession $100 bill) was illegal, but was innocent b/c person has no mens rea known to law, has no displayed propensity to commit crimes in the future. 12. Corporate and association liability: liable for acts of agenes for strict and absolute liability. Actus reus alone. 1. CC 22.1: objective fault or negligence offences 2. CC 22.2: subjective mens rea offences charged against an association. 3. Corporations and mens rea offences (Roach 230-243) 1. The common law directing mind approach: Corp is only liable for what is done by the directing ming and will of the corp, the very ego and center of personality of the corp. Under this alter ego theory; the wrongful action of directing mind is attributed to the corp so that the corp has primary, not vicarious, liability for the acts and mind of an official who is a directing mind of the corp. This applies whether or not there was awareness, formal delegation of the activity in the board of directors or officers, or express prohibition.

55

1. Exception: not liable if directing mind acted in fraud ad against interest of corp. Corp instead would be victim. 2. Directing mind: Officer or manager acting in the scope of his responsibility. Has express/implied delegation of executive authority to design and supervise implementation of corp responsibility. 1. Canadian dredge & dock; no more than one directing mind, include: board of directors, managing director, superintendent, manager or anyone else delegated, governing executive authority of the corp. 2. R. v. Waterloo: manager was directing mind, when committed fraud and rolled back odometers of cars, although president didnt know. Salesperson or mechanic would not be directing mind (less responsibilities). 3. Not directing mind: tug captain, truck driver - no power to design or supervise implementation of corp policy. 4. Problem: those w/ fault did not have enough policy making power, those w/o fault and had directing mind are sheltered w/n corp hierarchy. 2. New statutory provisions for corporate criminal liability: Bill C-45 (2003); new regime to determine when corps were guilty of criminal offences, new punishment to allow courts not just fine corps but place them on probation to ensure offences not repeated. Replaces common law directing mind concept; now includes those responsible for managing important aspect of corps activities. Retains that senior officer must be at fault before persons fault can be attributed to corp for either negligence or subjective fault. New provisions allow corp to be liable for negligence of aggregate actions of more than one of its representatives and the aggregate or collective fault of more than one of its senior officers. Also has separate provision for organizational liability for negligence and subjective fault offences; thus, both individuals and organization may face criminal charges. Can lead to finding corp guilty of subjective intent office b/c senior officer ought to have known that offence would be committed or did not take reasonable steps to prevent office that they knew was being committed by representatives of the corp. a) Organizational liability: new provisions apply to public body, body corp, society, company, firm, partnership, trade union, or municipality. None hold person rights under s. 7 Charter. Apply to less form associations created for common purpose, has operational structure and holds itself out to public as association of persons. Crown can charge corps like criminal gangs, through finding or probation. b) Representatives of an organization: actus reus must be committed by one or more of organizations representatives: directors, partners, employees, members, agents, and contractors. Public body or corp that contracts to non-employees can still be liable for prohibited acts performed by contractors or agent. c) Senior officers of an organization: generally, fault/mens rea must be found in senior officer. Senior officer: rep who plays important role in establishment of corps policies, or responsible for managing important aspect of corps activities. (Ie, Director, CEO, CFO). a) Difference btn old directing mind and new senior officer concept: senior officer method covers responsibilities for managing important part of orgs activities. This overrules previous cases that suggested managerial functions were not high enough in corp hierarchy. Thus, tugboat captain and truck driver would NOW be senior officers whose fault can be attributed to corporation. Senior officers is limited to managers, and not employees. d) Section 22.1 of the CC and organizational fault for negligence offences: negligence in criminal context requires more than unreasonable conduct or simple negligence. 21.1(a) defines how reps of org can commit actus reus of offence. 21.1(b) defines how senior officers of org will have required fault element for negligence based criminal offence. Could include, causing death, or bodily harm by criminal negligence. i. The commission of the prohibited act by the organizations representative(s): rep of org commit prohibited act. i. 21.1(a) Requirement: rep be acting w/n scope of authority ii. 21.1(a)(ii); corp misconduct can often be the aggregate of behavior of separate individuals, each whom taken by themselves may not have committed the prohibited act. ii. Marked departure from reasonable standards by the organizations senior officer(s): 21.1(b) requires senior officer of org to have the fault of departing markedly from a standard of care that a party could reasonably be expected to prevent a representative from being a party to the offence. Need more than simple negligence or lack of due diligence. Standard of care depends on circumstances, and may be informed by some factors. i. Degree of negligence will be found in the conduct of the senior officer who is responsible for aspect of the organizations activities that is relevant to the offence. Ie: senior responsible for mining safety held relevant for determining if comp acts w/ criminal negligence in causing death/bodily harm. Definition of senior officer in s 2 CC that he is responsible for managing important part of orgs activities. ii. 21.1(b) aggregate fault by multiple senior officers: conviction of org if senior officers collectively depart markedly from standard of care, that under circumstances, could reasonably be expected to prevent a rep of the org from being a party to the offence. Even if required criminal negligence cannot be found in one officer, may be found collectively in senior officers. iii.22.1 CC must be based on 1) marked departure from standard of care, 2) crown must prove beyond reasonable doubt that senior officer(s) had this fault whereas it is the accused corp who must demonstrate that it took all reasonable steps to prevent the prohibited act from occurring when the offence is a regulatory offence of SL or simply negligence.

56

e) Section 22.2 of the CC and organizational fault for subjective intent offences: applies to subjective intent, such as, fraud, obscenity, facilitating terrorism. Contemplates offences committed by 1) senior officers actin w/n scope of authority, 2) senior officers directing reps so they commit the offence, 3) senior officers knowing that reps will commit offences but fail to take reasonable measures to stop them. Does not contemplate fault based on collective or aggregate fault or multiple seniors. One responsible senior must have fault under 22., when is then attributed to org. i. Senior officers being a party to the offence: 22.2(a) senior must be 1) acting w/n scope of authority, 2) have intent at least in part to benefit org. Senior does not have to be the person who commits offence (aiding, abetting, common unlawful intent, counseling) ii. Senior officers directing representatives to commit the offence: 22.2(b) makes corp liable when senior directs other reps of corp so they commit offence. i. Directing: Senior must be acting w/n authority, and directing work of other reps so they do act/omission in offence. ii. Mental state: required to be party to offence. i. 21(1)(b) and (c) make senior liable if intentionally and knowingly assist in commission of crime. ii. 21(2) either knew or ought to have known would be a probable consequence of carrying out common unlawful purpose that was intentionally formed w/ at least one person (corp will be liable for other offences that senior either knew or ought to have known would be committed in carrying out purpose) iii.21(2) and 22(2) could be applied to make org liable for subjective intent even though senior had objective fault in relation to offence. (Corp liable if senior officer having formed common unlawful purpose or having counselled commission of an offence, ought to have known that some further offence would be committed) iv. Logan: partially mitigated in this case, hold that objective arm of 21(2) should not apply to murder and attempted murder that constitutionally require subjective fault. iii. Senior officers failing to prevent representatives from committing the offence: 22.2(c), senior knows that a rep of the org is or is about to be a party to offence but fails to take reasonable measures to stop the rep from being party to offence. Requires subjective fault in form of guilty knowledge by senior about commission of offence. ii. 22.2(c) requires objective fault by senior in form of failure to take all reasonable steps to stop commission of offence. Courts may look to factors that are relevant in determining due diligence to determine if reasonable steps taken. iii. Differences btn 22.2(c) as it applies to orgs charged w/ criminal offence of subjective intent & due diligence available to corps charged with regulatory offence. i. Org will not be liable under 22.2(c) unless its senior also had guilty knowledge that a rep of org was committing or was about to commit offence. ii. Failure of senior to take all reasonable steps must be proven beyond a reasonable doubt. Orgs are liable under this sec through combination of subjective and objective fault elements, both proven beyond a reasonable doubt. IV. SELECT CRIMINAL DEFENCES 13. Mental disorder 1. R. v. Cooper: definition of mental disorder; concept of appreciates. 1. Facts: The appellant, an out-patient at the Hamilton Psychiatric Hospital, was charged with the murder of Denise Hobbs, an inpatient at the same institution. 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. 2. Issues: 1. whether there was evidence from which a properly charged jury could conclude, on a balance of probabilities, that the appellant had disease of the mind to an extent that rendered him incapable of appreciating the nature and quality of the act of which he was charged, or of knowing that it was wrong. Sub issues: 1. The meaning to be ascribed to the phrase disease of the mind, and 2. The interpretation to be given the words incapable of appreciating the nature and quality of an act. 3. Rules: 1. CC Section 16 criteria to be taken into account in determining criminal responsibility: 1. No person shall be convicted of an offence in respect of an act or omission on his part while he was insane. 2. For the purposes of this section a person is insane when he is in a state of natural imbecility or has disease of the mind to an extent that renders him incapable of appreciating the nature and quality of an act or omission or of knowing that an act or omission is wrong. 3. A person who has specific delusions, but is in other respects sane, shall not be acquitted on the ground of insanity unless the delusions caused him to believe in the existence of a state of things that, if it existed, would have justified or excused his act or omission. 4. Every one shall, until the contrary is proved, be presumed to be and to have been sane. 4. Analysis: 1. Disease of Mind

57

1. It may include such things as neurasthenia, anxiety states, hysteria, and psychopathic personality. Others would exclude such disorders from the definition. Means different things to different psychiatrists. 2. 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. 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 quality of the violent act or of knowing that it is wrong. 3. 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. 2. Incapable of appreciating the nature and quality of an act 1. 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. In the case of the appellant, as an example, in using his hands to choke the deceased, he may well have known the nature and quality of that physical act of choking. It is entirely different to suggest, however, that in performing the physical act of choking, he was able to appreciate its nature and quality in the sense of being aware that it could lead to or result in her death. 2. Past history, evidence, of all sorts of mental problems, starting at age 7, up until adulthood, marriage, school , hallucinations. There was evidence sufficient to require the judge to fully instruct the jury on the issue of insanity. The judge was of the opinion that that issue should go to the jury 1. Disease of mind 2. Relate the evidence of the accuseds capacity to intend certain acts to the issue of insanity. The judge did not analyze the evidence of Dr. Sim or the other evidence as it may have related to the defence of insanity on the issue of whether the appellant appreciated the nature and quality of his act. 3. Failure before the jury on the issues of intent and intoxication did not preclude success on the issue of insanity. The insanity question should have been put to the jury in such a way as to ensure their due appreciation of the value of the evidence. 5. Holding: appeal allowed. 6. Dissent: no disease of mind. 2. As to the first criticism, the trial judge did not treat the opinion of the psychiatrist that the accused was not suffering from a disease of the mind as determinative. The jury was told that if there was other evidence on this issue they were entitled to weigh it. There was no evidence to show a state of natural imbecility. 3. As to the second criticism, it is desirable to stress the fact that the appellant elected not to raise the question of insanity: The trial judge cannot be criticized for not relating the evidence given in relation to another issue, to an issue which had not been raised at trial. The evidence does not establish an incapacity to appreciate the nature and quality of the appellants act. The onus of proving that he was not sane rested upon the appellant. 2. R. v. Kjeldson: how the defence works for sociopathic or psychopathic offenders 4. Facts: Appellant, whose only defence was insanity, was convicted of first degree murder at trial, of a woman taxi-driver whom he had engaged to drive him from Calgary to Banff. Medical evidence revealed that he was a psychopath and understood the physical nature and consequences of his act, though indifferent to such consequences. 5. PH: The trial judge instructed the jury (1) that psychopathy could be a disease of the mind and (2) on the meaning of the word appreciate in s. 16 of the Criminal Code. On appeal, the Court dismissed the appeal but substituted a verdict of second degree murder because the trial judge failed to instruct the jury adequately on the difference between first and second degree murder. 6. Issue: definition of the word appreciating and the adequacy of the trial judges charge to the jury in that respect. 2. Was the appellant at the time of the commission of the act which killed the victim suffering from a disease of the mind within the meaning of that expression in s. 16 of the Criminal Code and, if so, did the disease of the mind have the effect of depriving him of the capacity to appreciate the nature and quality of his acts at the time of his attack upon the deceased? 7. Rule: A person appreciates the nature and quality of an act within the meaning of s. 16 if he knows what he is doing AND is aware of the physical consequences which will result from his acts. 8. Analysis: 2. 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; in the case at bar, for example, to know that he was hitting the woman on the head with the rock, with great force, and in addition he must have the capacity to estimate and to understand the physical consequences which would flow from his act, in this case that he was causing physical injury which could result in death. 3. There was overwhelming evidence that the appellant was a psychopath. There was medical evidence that supported the trial judges conclusion that psychopathy could be a disease of the mind. 4. I am not persuaded, however, that the omission, if omission it was, can be said to have been a non-direction amounting to a misdirection. The trial had been concerned almost entirely with medical evidence adduced by the Crown and the defence. In my opinion, the evidence of the various medical witnesses was before the jury and had been extensively reviewed and covered in cross-examination and argument, and the fact that specific reference was not made by the trial judge to the passages above mentioned cannot have, in my opinion, the character attributed to it in the dissenting judgment in the Court of Appeal.

58

5. The trial judge correctly instructed the jury that psychopathy could be a disease of the mind and on the meaning of appreciating; and, in view of the evidence of the medical witnesses, the instruction was adequate. 9. Holding: appeal dismissed. 3. R. v. Oommen: edifies about meaning of wrong. 4. Facts: The accused killed, without apparent motive, a friend who was sleeping in his apartment. For a number of years the accused had been suffering from a mental disorder described as a psychosis of a paranoid delusional type and, at the time of the killing, his paranoia was fixed on a belief that the members of a local union were conspiring to "destroy" him. On the night of the murder, he became convinced that they had surrounded his apartment building with the intention of killing him. This delusion, combined with his belief that the victim was one of the conspirators, persuaded him that he was obliged to kill the victim to prevent her from killing him. 5. Issue: whether this delusion exempted Mr. Oommen from criminal responsibility under s. 16(1) of the Criminal Code on the ground that he lacked the capacity at the relevant time to know the difference between right and wrong 6. Rule: 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. 7. Analysis: 2. the inquiry focuses not on general capacity to know right from wrong, but rather on the ability to know that a particular act was wrong in the circumstances. The accused must possess the intellectual ability to know right from wrong in an abstract sense. But he or she must also possess the ability to apply that knowledge in a rational way to the alleged criminal act. 3. Section 16(1) of the Code 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. 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. 4. 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. An accused need not establish that his delusion permits him to raise a specific defence, such as self-defence, to be exempted from criminal responsibility. 5. 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. 6. Here, the evidence was capable of supporting a conclusion that the accused was deprived of the capacity to know his act was wrong by the standards of the ordinary person. 7. First, there was evidence that the accused honestly felt that he was under imminent danger of being killed by Ms. Beaton if he did not kill her first, and that for this reason, believed that the act of killing her was justified. This delusion would have deprived the accused of the ability to know that his act was wrong; in his eyes, it was right. Second (and this may be to say the same thing), there was evidence capable of supporting the conclusion that the accused's mental state was so disordered that he was unable to rationally consider whether his act was right or wrong in the way a normal person would. 8. Holding: s. 16(1) of the Criminal Code embraces not only the intellectual ability to know right from wrong, but the capacity to apply that knowledge to the situation at hand. Appeal dismissed, confirm order of new trial. 4. Mental disorder (Roach 279-302): if offender b/c of mental disorder, is incapable of appreciating the nature and quality of a criminal act, or of knowing what is wrong, should not be convicted. Verdict is not acquittal, but NCR on account of mental disorder. Can be subject to detention or release w/ conditions until no longer danger. See CC 16. Automatism applies when act committed while in state of impaired consciousness that results in involuntary behavior, like blow to the head - person is acquitted. If self induced intoxication, then provisions of intoxication defence apply. CC 16(3), mental disorder defence must be established on a balance of probabilities,same with defence of intoxication and non-mental disorder automatism. Violates 11(d) Charter b/c violates presumption of innocence by allowing person to be convicted even though reasonable doubt, but justifiable limit b/c accused persons will be in best position to adduce evidence about impairment of mental processes. A. Procedural considerations in the mental disorder defence 1) Unfitness to stand trial: if unable to conduct defence at any stage of proceedings before verdict rendered or unable to instruct counsel to do so. 1) Requirements/elements: 1) understand nature or object of proceeding, 2) understand the possible consequences of the proceedings, 3) communicate w counsel. 2) Must be proved on balance of probabilities (presumed fit). Ex: accused who lacked testimonial competence and could not remember crime, permanent brain injury caused by alcohol spectrum disorder, delusion = all FIT to stand trial. 3) If unfit, crown doesnt have to prove beyond a reasonable doubt that accused committed act. Crown will have to establish prima facie case against accused every two years until accused is either fit to be tried or is acquitted b/c cannot establish prima facie case. 4) Supreme Court: unfitness to stand trial violated s. 7 Charter b/c did not provide an absolute discharge for accused who is permanently unfit and does not present danger to public (down syndrome). Parliament has new provisions, allows stay of proceedings where accused not going to become fit, ever, but does not pose threat to safety of public. 2) Who can raise the mental disorder defence: R. v. Swain: found common law practice that allows crown to raise insanity defence violated accused rights under s. 7 to control his own defence. POFJ allow crown to raise this only after

59

accused found guilty. Exception: raising it in rebuttal if accused placed capacity for criminal intent in issue. (if raise automatism, crown can raise mental disorder defence, CC 16 and that further detention/treatment is required, not acquittal). 3) Burden of proof: must be proved on a balance of probabilities. R. v.Chaulk: requirement that accused prove defence of insanity on balance of probabilities violated presumption of innocence under 11(d) b/c allowed conviction even though reasonable doubt about insanity/guilty. But justified under s 1 b/c difficulties w/ crown providing reasonable doubt that accused was sane. Dissent: crown should bear burden once accused produced some evidence of insanity. 1) 16(3) if crown raises defence, would have to prove it on balance of probabilities. But must prove case beyond reasonable doubt. Would be best if defence as also proved by reasonable doubt. 2) Air of reality: evidence, that if believed by jury, would support essential requirements of mental disorder defence, that renders accused incapable of appreciating the nature and quality of the act or incapable of knowing the act is wrong. 4) Disposition of an accused acquitted by reason of mental disorder: Swain: held that automatic detention w/o hearing and w/ no criteria to authorize detention violated accuseds rights under 7 and 9 Charter. Accused did not want to plead insanity as a defence,would to have been insane at time of crime but successfully treated w/ anti-psychotic drugs at time of sentencing. 1) Amendments after Swain: court to hold a disposition hearing for accused when found unfit to stand trial or not criminally responsible on account of mental disorder. 1) Procedure: Review board of a judge, and two mental health professionals required to hold hearing as soon as practicable, but not later than 45 days after verdict rendered. At disposition hearing, court/review board instructed to discharge accused absolutely if accused is not a significant threat to safety of public. Interpreted as - Absolute discharge unless court/review board finds that release would pose significant risk to safety of public. 2) If not absolute discharge, board makes disposition that is the least onerous and lease restrictive to the accused, considering need to protect public and mental condition of accused. No burden on accused or crown. Review board can seek evidence from range of sources. 3) Does not violate 7 or 15 Charter b/c avoids stereotypical assumptions about those who suffer mental disorder and requires individual assessment of each and every person NRMD, and unconditional release if not a threat. 4) Continued detention subject to yearly reviews by board. Can order prov authorities to provide independent eval of diagnosis, safety risk, treatment plan, assertive efforts to enroll in culturally appropriate treatment plan. 5) Supreme Court: disapproves of Ct of App decision that held failure to proclaim caping provisions produced overbreadth and disproportionality in crim law that violated s 7 Charter. As a result, accused found NCR remains subject to potential indeterminate detention or indeterminate conditional restraints on liberty. But accused should be subject to lease restrictive disposition, and released w/o conditions if not significant threat to safety of public. Defence rarely invoked b/c of indeterminate detention or indeterminate conditions. B. The MNaughten rules and their codification: made rules for insanity/mental disorder. A. Legally insane: labored in state of natural imbecility or disease of the mind, to which an extent as to render him incapable of appreciating the nature and quality of an act or omission, and of knowing that such an at or omission was wrong. Failure of either would lead to ground of mental disorder defence. B. Insanity defence renamed as mental disorder defence: incapable of appreciating the nature and quality of the act or omission OR of knowing that it was wrong. C. 16(1) Two part test: A. A mental disorder renders the person incapable of appreciating the nature and quality of the act or omission, OR B. A mental disorder rendered the person incapable of knowing that it was wrong D. Amendments abolished automatic indeterminate detention. Held, acts not product of free will if meet insanity test, thus, courts, refuse to convict persons, this is consistent with sec 7 Charter. Mental disorder must be severe to prevent A or B above. C. Mental disorder or disease of the mind: must suffer from this or mental disorder, if meet A or B above but does not suffer from mental disorder, no defence. Holding person suffers from mental disorder not enough either, must be severe enough to meet A or B. 1) Policy considerations: how wide the defense should be and protection of public. Held that its open to judges to find new policy considerations to influence interpretation of what constitutes disease of mind. Will assist judges in answer: whether society requires protection from accused, consequently whether accused should be subject to evaluation under regime in Part XX.I of Code. Holistic approach; includes open ended list of policy factors: D presents continuing danger, whether his conduct can be explained by internal as opposed to external cause. 2) Continuing danger and internal causes: Continuing danger and internal cause are factors that suggest D may have mental disorder. La Forest: recurrence is one of many factors to be considered in policy stage, and absence of danger of recurrence will not automatically exclude possibility of a finding of insanity. Not the most important policy factor. 1) Stone: existence of continuing danger of internal cause are legitimate and non mutual exclusive factors indicating that accused may suffer from mental disorder. The greater the anticipated frequency of trigger in Ds life, the greater the risk to public.

60

2) Internal cause relevant in cases of psychological blow automatism. Something extremely shocking triggers what a normal person would go into automatism state. Might be cases where sleep walking internal cause but not a disease of the mind. And disease of mind may not have internal cause. 3) Absence of these does not mean that for other policy reasons, person will not be defined as having a disease of the mind. 3) The Cooper definition disease of mind: illness, disorder, abnormal condition, which impairs human mind & its functioning, excluding, self-induced states by alcohol/drugs, as well as transitory mental states such as hysteria or concussion. 1) Other diseases of the mind psychopathic personalities, personality disorders, brain damage - fetal alcohol spectrum disorder, severe mental disability, delirium tremens or deterioration of the brain cells produced by chronic alcoholism. Drugs/Alcohol fall under mental disorder only if produce permanent condition. 2) Not a disease of the mind: sleep walking, so person rendered unconscious by this condition is entitled to full acquittal rather than possible detention as a person found not guilty by reason of insanity 4) Mental disorder and transitory states: R. v. Bouchard-Lebrum: held accused who assaulted person after taking ecstasy, was not suffering from mental disorder, even though was in a state toxic psychosis that rendered him unable to know that assaults were wrong. Found no mental disorder, convicted of aggravated assault. Fault based on voluntarily intoxicated. Did not rely on defence in CC 33.1 which substitutes fault of becoming extremely intoxicated for the fault and voluntariness of violence general intent offences such as aggravated assault. 1) Cooper definition excludes transitory mental states: hysteria or concussion. Rabey: disassociative state produced by accuseds disappointment as being romantically rejected was found to have been derived from internal factors w/n accused that could constitute a disease of the mind. If, accused was subject to extraordinary external events - accident, escaping murderous attack, seeing loved one killed, then disassociative state can be explained w/o reference to subjective make up of person exposed to such experience. In such case, disassociation would not likely recur b/c of nature of external factor. Would be instrusive to subject accused to possible detention and treatment as person found not criminally responsible on account of mental disorder. 5) Mental disorder and organic conditions: English courts consider epilepsy, arterioscelerosis are diseases of the mind, so is a diabetic not taking insulin. Focus on whether likely to recur and to present continuing danger. After Parks, Ont Ct App held that sleep walking should be considered mental disorder under Stones holistic test b/c internal matter, and continuing risk to public. D. Capacity to appreciate the nature and quality of the act: this involves more than knowledge or cognition that the act is being committed. Includes capacity to measure and foresee the consequences of the conduct. Defence does not apply to those who are unable emotionally to appreciate effect of their actions on the victim (lacks feelings of guilty or remorse) Inability to appreciate penal consequences of act does not render person incapable of appreciating physical consequences of act. E. Capacity to know that the act is wrong: CC 16: two arms for defence; 1) incapable of appreciating physical consequences of act, 2) incapable of knowing act was wrong. A. R. v. Schwartz: majority test; D cold or could not calmly consider whether or not the crime which he committed was morally wrong. Not considered insane if he knew what he was doing and also knew he was committing a criminal act. Dissent; wrong could mean moral or legal wrong. Should be interpreted as knowing it was morally wrong. Broader definition would have a moral offender a defence, b/c incapacity to know the act was morally wrong must stem from disease of mind and indicate complete less of the ability to make moral distinctions. B. Chaulk: reversed decision above. accused should have insanity defence, if b/c of disease of mind, incapable of knowing that act was morally wrong, even if capable of knowing that act was legally wrong. 1) incapacity to make moral judgments ust be causally linked to disease of mind, 2) moral wrong is not judged by personal standards of D but by awareness that society regards the act as wrong. D protected by 16(2) if incapable of understanding that act is wrong according to ordinary moral standards of reasonable members of society. A. Despite this ruling, in many cases CC 16 did not apply to cases where D had a delusion and killed, chose the wrong thing. Capable of knowing what is wrong in society, morally condemned. C. Landry: new moral standard applied here. Accused had insanity defence b/c disease of mind produced delusion that he was God killing Satan. Incapable of knowing that act was morally wrong in circumstances. Mental disorder so severe that not capable of knowing that society would consider killing immoral. D. Oommen: even though accused capable of knowing that killing was wrong, could have insanity defence if paranoid delusion at time of act deprived him of capacity for rational perception and hence rational choice about rightness or wrongness of the act. Focus is on capacity for rational choice about criminal act at time the act was committed, not his general intellectual ability to know right from wrong. F. Irresistible impulse: not recognized as a separate defence, relevant in determining whether accused qualifies for mental disorder defence. CC 16 should protect those who act in morally involuntary manner b/c of mental disorder and person faces genuine irresistible impulse b/c of mental disorder may qualify for defence. Evidence of this also relevant in proving non mental disorder automatism or required mens rea. Ie: numerous killings, accused lost control advice jury to consider testimony in relation to crowns burden to prove intent in relation to each killing and in relation to accuseds claims to have acted in a disassociative state. G. Effect of a mental disturbance short of insanity on mens rea: mental disorder evidence may fall short of mental disorder defence, but may raise reasonable doubt as to whether accused had subjective mental element required for offence.

61

Insanity defence focuses on capacity on balance of probabilities, mental element focuses on actual intent and rebutted by evidence that raises reasonable doublt. B. R. v. Baltzer: to reason what is in accuseds mind jury must have evidence of accuseds whole personality and background, evidence of mental illness or disorder. Error for judge to instruct jury to disregard evidence of mental disorder, if insanity defence fails. All evidence should be considered. The higher the mens rea, the more likely that mental disorder may raise reasonable doubt about intent. C. Error not to considering diminished responsibility in determining mens rea (no separate defence in DR). Can prevent corwn from moving D had subjective foresight of death required for murder conviction. Accused would be acquitted of murder, but could have mens rea for manslaughter. 14. Voluntary Acts negativing the actus reus and automatism: categories 1) insane automatism (mental disorder), 2) noninsane. Applies to cases where there is a disconnect btn actions of accused and his conscious will. 1. R. v. Swaby 1. Facts: didnt know passenger in car had gun, found out after he was arrested. 2. Issues: 1. Did the trial judge err in his answer to jury questions relating to the occupant of motor vehicle charge? 2. Did the trial judge err in failing to instruct the jury that Johnsons criminal record could be used to impugn his credibility? 3. Rule: Voluntary conduct is a necessary element for criminal liability 4. Reasoning: 1. 94(3) Subsection (1) does not apply to an occupant of a motor vehicle who, on becoming aware of the presence of the firearm, prohibited weapon, restricted weapon, prohibited device or prohibited ammunition in the motor vehicle, attempted to leave the motor vehicle, to the extent that it was feasible to do so, or actually left the motor vehicle. 2. he trial judge erred in failing to give the jury a more complete answer to the questions it posed. The questions indicated that the jury was concerned about when the appellant had learned of the existence of the gun. Although the appellant testified that he did not know of the guns existence until after he was arrested, it certainly was open on the evidence for the jury to conclude that the appellant learnt of its existence sometime after he and Johnson had embarked on their journey in the appellants vehicle. 3. To establish guilt on this count, the Crown had to prove the coincidence of the two essential elements of the offence as defined by s. 91(3), namely occupancy of the vehicle and the appellants knowledge of the weapon. In my view, it is implicit as well that 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. 4. 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. If a passenger tells the driver that the passenger has a gun, it cannot be the case that the driver is immediately guilty. 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. 5. Accordingly, it is my view that if the appellant acquired knowledge of the weapon while the vehicle was in motion, he would have to be given a reasonable opportunity to either remove himself or to see that the weapon was removed from the vehicle. If the appellant only acquired knowledge of the weapon at the point when Johnson was leaving the vehicle, he would be entitled to an acquittal. 5. Holding: allow the appeal, set aside the conviction, and order a new trial. 2. R. v. Parks 2. Facts: Respondent attacked his parents-in-law, killing one and seriously injuring the other. The respondent went to a nearby police station, again driving his own car, and told them what he had done. claimed to have been sleepwalking throughout the incident. He had always been a deep sleeper and had a great deal of trouble waking up. The year prior to the incident was particularly stressful for the respondent and his personal life suffered. His parents-in-law were aware of his problems, supported him and had excellent relations with him. Several members of his family suffer or have suffered from sleep problems such as sleepwalking, adult enuresis, nightmares and sleeptalking. 3. Procedural history: At the trial respondent presented a defence of automatism. The trial judge put only the defence of automatism to the jury, which acquitted respondent of first degree murder and then of second degree murder. The judge then acquitted the respondent of the charge of attempted murder. The Court of Appeal unanimously upheld the acquittal 4. 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. 5. Rule: 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. An involuntary act, including one committed in an automatistic condition entitles an accused to an unqualified acquittal, unless the automatistic condition stems from a disease of the mind that has rendered the accused insane. 6. Reasoning:

62

1. The trial judge correctly left only the defence of non-insane automatism with the jury. In distinguishing between automatism and insanity the trial judge must consider not only the evidence but also overarching policy considerations. 2. 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. 1) he must determine whether there is some evidence on the record to support leaving the defence with the jury. 2) then consider whether the condition alleged by the accused is, in law, non-insane automatism. 3. 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. The issue for the jury is one of fact: did the accused suffer from or experience the alleged condition at the relevant time? 4. Because the Crown must always prove that an accused has acted voluntarily, the onus rests on the prosecution at this stage to prove the absence of automatism beyond a reasonable doubt. 5. 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. 6. 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. 7. Because "disease of the mind" is a legal concept, a trial judge cannot rely blindly on medical opinion. 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. 8. Two distinct approaches to the policy component of insanity have emerged in automatism cases, the "continuing danger" and "internal cause" theories. 1. Continuing danger: holds that any condition likely to present recurring danger should be treated as insanity. 2. Internal cause: holds that a condition stemming from the internal make-up of the accused, rather than external factors, should lead to a finding of insanity. Though seemingly divergent, both theories stem from a concern for the protection of the public 9. 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. As for the "continuing danger" test, 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. 10. In this case, then, neither of the two leading policy approaches determines an obvious result. It is clear from the evidence that there is almost no likelihood of recurrent violent somnambulism. A finding of insanity is therefore less likely, but the absence of a continuing danger does not mean that the respondent must be granted an absolute acquittal. At the same time, the internal cause theory is not readily applicable in this case. I 11. Here, no compelling policy factors preclude a finding that the accused's condition was one of non-insane automatism. 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. 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. 12. This matter should not be sent back to the trial judge for the possible imposition of an order to keep the peace. To be effective, any order to keep the peace would have to be permanent. This would violate established practice (if not the law) regarding peace orders, which requires a defined period for the order. It would also be unrealistic to expect respondent's family, who are the only persons able to monitor the order, to complain of any breach of the peace. Finally, it would be unreasonable to expect the respondent to bear the cost of a life-long surety necessary to enforce such an order. 6. Holding: appeal dismissed. 7. Dissent: 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. The rules of natural justice must be observed in any exercise of this power. Exploring, on notice, the possibility of some minimally intrusive conditions to assure the community's safety would not infringe s. 7 of the Charter. 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. 3. R. v. Stone: 5. Facts: 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. The accused testified that he felt a whoosh sensation washing over him. When his eyes focussed again, he was staring straight ahead and felt something in his hand. He was holding a six-inch hunting knife. He looked over and saw his wife slumped over on the seat. He disposed of the body in his truck tool box, cleaned up, drove home, prepared a note for his step-daughter, and checked into a hotel. He then collected a debt, sold a car and flew to Mexico. While in Mexico, the accused awoke one morning to the sensation of having his throat cut. In trying to recall his dream, he remembered stabbing his wife twice in the chest before experiencing a whooshing sensation. He returned to Canada about six weeks later, spoke to a lawyer and surrendered himself to police. He was charged with murder.

63

6. Procedural history: In his defence, the accused claimed: insane automatism, non-insane automatism, lack of intent, and alternatively, provocation. The trial judge ruled that the defence had laid a proper evidentiary foundation for insane, but not noninsane, automatism. Accordingly, he instructed the jury on insane automatism, intention in relation to second degree murder and provocation. The accused was found guilty of manslaughter and sentenced to seven years imprisonment. The Court of Appeal upheld accuseds conviction and dismissed the Crowns appeal of the sentence. Both the accused and the Crown appealed 7. Issues: 8. Whether the defence of sane automatism should have been left to the jury; 9. Whether the defence psychiatric report was properly ordered disclosed to the Crown; and 10. (a) whether the sentencing judge could consider provocation as a mitigating factor for manslaughter where the same provocation had already been considered in reducing the charge to manslaughter; and (b) whether the sentence was fit and properly reflected the gravity of the offence and the moral culpability of the offender. 8. Rules: Two forms of automatism are recognized at law: 8. Non-insane automatism: arises where involuntary action does not stem from a disease of the mind and entitles the accused to an acquittal. 9. 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. 10. 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. 9. Reasoning - Defence of automatism 8. A two-step approach should therefore apply to all cases involving claims of automatism. 1) 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. In all cases, this will require that the defence make an assertion of involuntariness and call confirming psychiatric evidence. (a) 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. (b) No one factor is determinative. The trial judge must weigh all of the available evidence on a case-by-case basis. 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 determine whether the condition alleged by the accused is mental disorder or non-mental disorder automatism. (a) 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. (b) Mental disorder is a legal term defined in the Code as a disease of the mind. 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. 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. (c) There are two distinct approaches to the disease of the mind inquiry. i) The 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. (i) The trial judge must consider the nature of the alleged trigger of the automatism and determine whether a normal person might have reacted to it by entering an automatistic state. 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. (ii) The objective element of the internal cause theory does not violate ss. 7 (the fundamental principles of justice) and 11(d) (the right to be presumed innocent) of the Charter. The objective inquiry is applied to assess whether the condition claimed by the accused is a disease of the mind only after a subjective inquiry has been completed by the trial judge into whether there is evidence upon which a properly instructed jury could find, on a balance of probabilities, that the accused acted involuntarily. That is, the objective component does not affect the burden of proof on the issue of whether the accused voluntarily committed the offence. ii) The continuing danger theory: any condition which is likely to present a recurring danger to the public should be treated as a disease of the mind. 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. Trial judges may

64

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. (d) 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. 2. 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. 1) 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. 3. 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. 1) The case will then proceed like any other s. 16 case, leaving for the trier of fact the question of whether the defence has proven, on a balance of probabilities, that the accused suffered from a mental disorder which rendered him or her incapable of appreciating the nature and quality of the act in question. The determination of this issue by the trier of fact will absorb the question of whether the accused in fact acted involuntarily. 6. Reasoning - Disclosure: The defence waived the privilege in its psychiatrists report at the opening of its case when counsel disclosed the elements in that report favourable to his client. In any event, if disclosure was premature, the accused suffered no prejudice. A witness, once on the stand, is no longer offering private advice to a party but rather is offering an opinion for the assistance of the court. The opposing party must be given access to the foundation of such opinions to test them adequately. Thus, even if the defence counsels opening address had been insufficient to constitute a waiver, s. 686(1)( b)(iii) of the Code would properly be applied to cure the error. 7. Reasoning - Sentence appeal: The sentencing judge must consider all of the circumstances of the offence, including whether it involved provocation. An accused does not gain a double benefit if provocation is considered in reducing a verdict from murder to manslaughter under s. 232 of the Code. Rather, s. 232 provides an accused with a single benefit and to give it full effect, provocation must be considered in sentencing as well. 2. The judiciary must bring the law into harmony with prevailing social values. A spousal connection between offender and victim is recognized as an aggravating factor in sentencing under s. 718.2( a)(ii) and under the common law. Here, the Crown failed to establish that the sentencing judge did not properly consider the domestic nature of this offence in reaching his decision on sentence. 3. Appellate courts, in minimizing disparity of sentences in cases involving similar offences and similar offenders, may fix ranges for particular categories of offences as guidelines for lower courts provided they clearly describe the category created and the logic behind the range appropriate to it. They must not, however, interfere with sentencing judges duty to consider all relevant circumstances in sentencing. 4. Variation of sentence should only be made if an appellate court is convinced that a sentence is not fit or clearly unreasonable, provided the trial judge has not erred in principle, failed to consider a relevant factor or overemphasized the appropriate factors. This was not the case here. 8. Holding: No substantial wrong or miscarriage of justice occurred here. The accuseds appeal from conviction should be dismissed. The Crowns sentence appeal should also be dismissed. 9. Dissent - Defence of automatism: the defence of non-mental disorder automatism should not have been taken away from the jury in light of the trial judges evidentiary ruling that there was evidence the accused was unconscious throughout the commission of the offence. 2. Automatism is conceptually a sub-set of the voluntariness requirement, which in turn is part of the actus reus, and accordingly puts in issue the Crowns ability to prove all of the elements of the offence beyond a reasonable doubt. While sane individuals are presumed to be responsible for their voluntary acts or omissions, no such inference of voluntariness can be drawn if the accused leads credible evidence, supported by expert testimony, that he was unconscious throughout the commission of the offence. 3. A judge-made classification of situations into mental disorder automatism and non-mental disorder automatism cannot relieve the Crown of the obligation to prove all elements of the offence, including voluntariness. Otherwise there would be strong objections under s. 7 (fundamental principles of justice) and s. 11( d) (presumption of innocence) of the Charter, and no attempt was made in this case to provide a s. 1 justification. Similar Charter objections apply to any attempt to add to the evidential burden on the accused the further persuasive or legal burden to establish automatism on a balance of probabilities. 4. The mental disorder provisions of the Criminal Code were not appropriate to resolve the automatism issue here. It was wrong of the courts to require the accused to substitute for his chosen defence of involuntariness the conceptually quite different plea of insanity. 5. Both Crown and defence psychiatrists agreed that the accused did not suffer from a medically defined disease of the mind. He was either unconscious at the time of the killing or he was not telling the truth at the time of the trial. This was a question for

65

the jury. The statutory inquiry into whether he was suffering from a mental disorder that rendered him incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong are qualitative questions that are not really responsive to his allegation that he was not conscious of having acted at all. 6. While s. 16 of the Code may provide an appropriate structure to resolve cases of medical diseases of the mind, it may not be responsive to the real issues where the disease of the mind derives from legal classification, rather than medical classification. 7. If the jury was satisfied that the s. 16 requirements were met, that would end the matter: the accused would have been found not criminally responsible on account of mental disorder (NCRMD). He or she would not be permitted to ignore NCRMD status and seek a full acquittal on the basis of involuntariness. 8. However, if the jury rejects NCRMD status, it should still be left with the elementary instruction that the accused is entitled to an acquittal if the Crown fails to establish beyond a reasonable doubt all of the elements of the offence, including voluntariness. 9. The evidence established that there are states of automatism where perfectly sane people lose conscious control over their actions. Once the trial judge exercised his gatekeeper function to screen frivolous or feigned claims, it was for the jury to make up its mind on the credibility of the plea of automatism. This jurisdiction should not be removed by judicially created policy. 10. The bottom line is, after all, that the task of weighing the credibility of such defences was confined by Parliament to the jury. The Court should respect the allocation of that responsibility. 4. R. v. Fontaine 5. Facts: The accused worked as a garage mechanic. He received a call from R, a disgruntled former employee, who said, Were coming to get you, pigs. The accused later heard from a co-worker that the victim had been offered a contract to kill both of them. Feeling that he was being watched and followed, the accused purchased a firearm. One evening, the accused thought he saw R lurking outside his home. The co-worker came by to check, but noticed nothing unusual. During the night, after smoking marijuana, the accused thought he heard someone breaking into his home. He fired the gun at doors and windows and into walls and concluded that he had shot the intruders. Seeing the victim at the garage the next day, the accused shot and killed him. 6. Procedural history: 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. The accused was convicted of first degree murder. The Court of Appeal quashed the conviction and ordered a new trial. 7. Issues: 2. Did the Court of Appeal err in law as to the nature of the evidential burden on a defence of mental disorder automatism 3. Did the Court of Appeal err in law in concluding that the respondent had discharged that burden in this case and was therefore entitled to have his defence considered and decided by the jury? (resolve both in Ds favor). 8. Rule: 9. Reasoning: 2. 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. 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. 3. Accordingly, on a trial before judge and jury, 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. 4. 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. 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. 5. 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 expert which, 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. 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. 6. Applying the law to the facts, the Court of Appeal did not err as to the nature of the evidential burden on a defence of mental disorder automatism, nor did it err in concluding that the accused had discharged that burden and was entitled to have his defence considered and decided by the jury. 7. The accused gave evidence tending to establish that he was acting involuntarily at the time of the offence. He also adduced expert evidence to support his own testimony. The evidence clearly went beyond a mere allegation of the existence of a defence. It included a relatively detailed description of the accuseds perception of the facts at the moment of the criminal act. The main defence expert, a psychiatrist, concluded that the accused was suffering, at the time of the offence, from a psychotic episode induced by substance abuse. According to the expert, at the relevant times the accused was seeing things and making pathological connections between people, situations and events.

66

8. Taken as a whole, this evidence was sufficient to discharge the accuseds evidential burden on his defence of mental disorder automatism. 10. Holding: The appeal should be dismissed. The accuseds defence of mental disorder automatism should have been put to the jury. 5. R. v. Luedecke 5. Facts: The respondent was charged with sexual assault. From the outset, he has acknowledged that he engaged in non-consensual sexual relations with the victim. He claimed that he was asleep when the sexual activity occurred, was unaware of what was happening, and unable to control his actions. The respondent advanced only one defence non-mental disorder automatism. 6. Issue: were acts a product of a mental disorder? (yes) - should he have been acquitted or found NCRMD? 7. Rule: precedence Parks & Stone 8. Reasoning: 2. The reason for his conduct automatism brought on by parasomnia renders his actions non-culpable in the eyes of the criminal law. That very same explanation, however, makes his behaviour potentially dangerous and raises legitimate public safety concerns. An outright acquittal reflects the non-culpable nature of the conduct but does nothing to address the potential danger posed by the respondents condition. The Canadian criminal law responds to the public safety concerns by treating almost all automatisms as the product of a mental disorder leading not to an acquittal but to an NCR-MD verdict. That verdict acknowledges that the accused committed the prohibited act but is not criminally culpable. An NCR-MD verdict also permits an individualized post-verdict dangerousness assessment of the accused leading to a disposition tailored to the specifics of the individual case. On a proper application of the principles developed in the Canadian case law, the respondents automatism is properly characterized as a mental disorder and should have led to an NCR-MD verdict. 3. The disassociative state that is the hallmark of automatism can be caused by many things including disease, mental illness, concussion, drugs, and parasomnia. Each of these conditions can produce a condition in which an accused, while capable of complex, apparently goal-oriented conduct, is incapable of exercising any control over those actions. 4. If an accuseds automatism is rooted in a mental disorder, the accused will not be acquitted but will be found NCR-MD 5. I am satisfied that the trial judge failed to appreciate the significance of the hereditary nature of the respondents condition, failed to give effect to the respondents well established history of sexsomnia, and failed to appreciate the significance of the strong likelihood of the recurrence of the events that triggered his sexsomnia. The trial judge also failed to appreciate that Dr. Shapiros medical opinion that parasomnia did not constitute a mental disorder was largely irrelevant to the determination of whether, for policy reasons, the condition should be classified legally as a disease of the mind. These errors led to a failure to apply the proper legal standard when characterizing the respondents automatism. 6. While the cause of parasomnia may not fit within the external/internal causal dichotomy described in the case law, Dr. Shapiros evidence establishes that the predisposition for parasomnia, found in some three per cent of the adult population, is hereditary. A genetic predisposition is the epitome of an internal cause. Although that disposition does not cause the particular automatistic event, it does predispose the individual to that condition thereby increasing the risk of recurrence. 7. It was central to his position that he had no awareness of what he was doing and no control over his actions. It must follow that he was incapable of distinguishing between a consensual or non-consensual situation while in a parasomniac state. 8. The Crown has established an error in law that vitiates the acquittal. On a proper application of the principles taken from Stone, to the facts as found by the trial judge, a NCR-MD verdict is the only verdict available in law. By analogy to Crown appeals from acquittals by a judge alone where the Crown seeks a conviction on appeal, an order setting aside the acquittal and substituting an NCR-MD verdict would seem to be the correct order. 9. Holding: I would allow the appeal, set aside the acquittal and order a new trial. Pursuant to s. 686(8), I would limit the scope of the new trial to a determination of whether the respondents automatism should result in a verdict of not guilty or an NCR-MD verdict. 6. Automatism (Roach 302-316): unconscious or involuntary behavior, person who capable of action, is not conscious of what he is doing. Or consciousness may be so impaired that he has no voluntary control over that action. Ie: sleepwalking. 5. Relation to mental disorder and consequences of an automatism defence: both hold that D cannot be criminally responsible for actions owing to a lack of mental capacity. If D uses automatism, crown can counter w/ evidence of automatism was mental disorder. 2. Issue in auto: whether cause of auto is mental disorder or something else? If disease of mind, then NCRMD, and subject to indefinite detention or conditions. If not caused by mental disorder, then acquittal. 3. R. v. Bleta: severe blow to head, got auto, killed another. It is a question of fact for the jury, whether person was in a state of automatism as not to be legally responsible at time he committed the acts. 4. Parks: sleepwalking, stabbed two persons, killed one. Not a disease of the mind. Acquitted. No jdx in courts to make preventative orders absent verdict of NCRMD. 5. Anger: could sometimes cause someone to enter automatism in which person doesnt know what they are doing, and negate actus reus. Acquittal appropriate. D must prove on balance of probabilities. 6. Stone: narrowed distance btn two defences, require D to establish defence of non-mental auto on balance of probabilities, and by indicating that auto will be presumed to be caused by mental disorder unless D establishes otherwise. Non-mental auto results in acquittal

67

6. Air of reality and persuasive burdens of proof: 1992, held that non-insane auto, entitled to acquittal, if show reasonable doubt as to whether D acted in voluntary/conscious manner. B/c raises reasonable doubt as to whether D acted w/ required fault element or whether accused consciously & voluntarily committed actus reus. 2. Stone: Held must establish defence of non mental disorder auto on balance of probabilities. Court concerned w/ faking evidence that allowed defence to go to jury, and about consistencies w/ allocating burdens of proof that the accused had onus to establish on balance of probabilities the Daviault defence of extreme intox producing state of auto and mental disorder defence under 16(3) CC. 1. Concluded new burden of balance of probabilities influenced threshold question of trial judges about whether there was sufficient air of reality to justify instructing jury about defence. Held, judge justified in not instructing jury on defence of non mental disorder auto b/c no evidence upon which properly instructed jury could find accused acted involuntarily on balance of probabilities. 2. To satisfy air of reality, need to assert involuntariness, have psychiatric evidence, and other factors: severity of triggering stimuli, corroborating evidence of bystanders, accused being in state of auto at other times, if there was motive of crime, if trigger of auto was victim of crime. 3. If crime explained w/o reference to auto, then auto defence should not be put to jury. 4. Dissent: air of reality test would deprive D of having claims of non-insane auto considered by jury. Stones test is stringent and reduces number of claims. 2. R. v. Fontaine: there is language in Stone that understood to invite assessment by trial judge as to likelihood of success of defence. Seen as requiring judge to weigh evidence to determine whether it establishes on balance of probabilities, that D was in auto. Held that trial judge who followed such approach erred, and factors set out in Stone were better for guiding trier of fact in deciding whether auto established on balance of probabilities. Judge should not weigh or judge credibility of whether there is an air of reality. Question should be: whether in the record there is any evidence upon which reasonable trier of fact could conclude that defence succeeds. 1. Here, jury should have been instructed about defence of mental disorder auto. Accused gave evidence of involuntary actions and psychiatric evidence. 2. *This case lowers air of reality burden in Stone, but leaves in tact persuasive burden on D to establish defence of non mental auto on balance of probabilities. 3. If D or Crown raise defence of mental disorder auto, then 16(3), must prove on balance of probabilities that D suffers from mental disorder, and renders D incapable of appreciating physical consequences of his acts or knowing that they are morally wrong. Jury left w/ choice between mental and non mental auto. 4. Example: if D leaves capacity for mental element in issue by claiming non insane auto, Crown can argue cause of auto was mental disorder. After crowns decision in Stone, it is more difficult for D to satisfy air of reality burden to have jury instructed about non mental auto. Like Stone and Fontaine, judge may be justified in only leaving defence of mental disorder auto to jury. If jury accepts D committed the crime, only left w/ options of guilty verdict, or if finds crime committed while D was in auto, verdict of NCRMD. 3. Automatism and sleepwalking: Parks: acquittal of D who drove to in-laws, stabbed both, killed one. Judge acted properly by not instructing jury on defence of insanity b/c evidence that sleepwalking is not a neurological illness but a sleep disorder for which there is no medical treatment. In different set of facts, sleep walking could be held to be a disease of the mind. Court stressed medical issues, not policy issues about whether Ds actions prone to recur or present danger to public. 1. Stone does not overrule Parks but encourages judges to use policy concerns about need to protect public as factor in concluding that accused suffers from disease of mind. 2. R. v. Luedecke: Ont Ct App held that trial judge erred when following Parks, classified sleep walking as non mental auto, when D sexually assaulted woman while asleep. Was evidence that sleep walking is not a mental disorder. Judge determined, no continuing danger under Stone, b/c D accepted plan of sleep hygiene, modest alcohol consumption, and meds that would reduce recurrence. As w/ Parks, more focussed on meds, not public safety like in Stone. 1. App Ct: reversed, held that sleep walking for policy reasons should be characterized as a mental disorder. Rejected medical approach in Parks and followed public safety approach in Stone. Stressed dangers of recurrence given past history of sexual activities in sleep. Ensured that sleepwalkers found NCRMD would not be detained or subject to conditions or stereotyped as dangerous unless significant threat to public. Accused consented to NCRMD, was absolutely discharged from Review Board. 2. Result is inconsistent w/ Parks, and could only be justified on basis that Stone overrules Parks, decision Supreme Court has yet to make. 4. Automatism and emotional blows: 1. Rabey: D only has defence of non insane auto if went into automatic state b/c of extraordinary event, like serious accident or seeing loved one killed. Event could reasonably be presumed to affect average normal person w/o reference to subjective make up of person exposed to such experience. Held, D who assaulted woman after learning not romantically interested in him, no non-insane auto. If he did go into auto, defence had to be insane auto b/c state must be considered as having its source in psychological or emotional make-up.

68

1. Dissent: rejected objective threshold on when an emotional blow should be allowed as basis for defence of non insane auto. Fact that other people would not react as D should not obscure reality that external psychological blow did cause loss consciousness. Issue is whether particular person, not a reasonable person, went into disassociative state. 2. Stone: court followed Rabey, held jduge did not err by refusing to give jury defence of non mental auto where D provoked by wifes insults, felt whoosh sensation stabbed her 47 times. Should not instruct if psychiatric evidence that established an air of reality for defence of non mental auto. Held Rabey approach of normal person did not violate s 7 and 11(d) Charter. Objective standard only affected classification of offence as mental or non mental auto. 1. Dissent: followed dissent in Rabey, that no evidence of mental disorder, should be allowed defence of non mental auto to go to jury. Binnie concerned that decision would deprive traditional right to be acquitted if there was reasonable doubt as to whether D acted in voluntary manner. Argued against decision to require D to prove defence of non mental auto on a balance of probabilities 3. Courts reluctant that person who reacts through emotional blow should receive acquittal that follows non mental auto. 5. Automatism and organic conditions: Stone: whether automatic conduct was caused by internal cause is only one factor in a holistic test to determine whether there is a disease of the mind. Focus on internal causes should be discarded when it would not accord w/ policy considerations - protect public. 6. Automatism and intoxication: Revelle: if auto produced by drunkenness, only defence of drunkenness, which is limited to specific intent crimes (murder, not manslaughter), should be left w/ jury. 1. Daviault defence taken away by 33.1 - in general intent offences. (assault or threat of interference w/ bodily integrity) 2. Bouchard-Lebrun: held there was no mental disorder where D took drugs and acted in a toxic psychosis and brutally assaulted persons in part b/c of religious delusions. This reading is at odd w/ broad reading in Stone. Self induced intoxication seems to be special case where courts are reluctant to apply mental disorder defence. 3. Now accused has to establish auto defence on balance of probabilities. 4. King: accused intoxicated, driving, b/c of drug given by dentist. In such cases, may not qualify as voluntary intoxication under 33.1, may be able to establish defence of automatism. Under Bouchard-Lebrun, would be classified as non mental disorder auto leading to acquittal. 7. Automatism and other defences: Stone- courts have classified auto as mental disorder for public safety cases vs. medical diagnosis. Courts have used this to classify sleepwalking as mental disorder for verdict of NCRMD. D will be exposed to potential indeterminate detention. 1. R. v. Graveline: upheld jurys acquittal of severely battered woman, judge left non mental disorder auto and self defence to jury, for shooting husband. Held, crown not entitled to new trial b/c judge left both defences to jury. Dissent: new trial needed b/c defences were fundamentally inconsistent and no air of reality w/ respect to self defence. 8. Conclusion 1. Parks: held sleep walking not a disease of the mind, proper verdict is acquittal. This is the law today, exception being, D would now have burden of establishing defence of non mental disorder auto on balance of probabilities. 2. Stone: imposed burden on D of establishing auto defence on balance of probabilities, but also followed Rabey, by indicating that only extraordinary emotional blows that could cause average person to go into disassociative state, would produce non mental auto and, thus, verdict of acquittal. 1. In all, but extraordinary cases, emotional blow will result in NCRMD, even if not diagnosed w/ psychiatrist mental disorder. 2. In contrast to Parks, court has restricted defence of non insane auto. Less likely jury will every get to consider defence in cases like Parks. (Yet no evidence that defence was being abused in time period). 3. Virtue: holistic approach and policy driven approach to defining disease of mind. Here, consistent w/ Parks. Will only use defence of internal causes as a factor in determining disease of mind. Can depart from this if does not accord w/ overall policy objectives of using mental disorder defence to protect public. 3. Court has limited reference to mental disorder producing inability to appreciate consequences of actions to physical consequences as opposed to emotional or penal consequences. 4. Less clear is contours of being incapable of knowing acts were morally wrong. Chaulk: D cannot benefit from substituting his moral code for that of societys. 5. If Psychopath is capable of discerning societys moral code but decides to follow his own deviant moral code, the mental disorder defence should not apply b/c punishment, not treatment, would be the appropriate disposition. 15. Simple intoxication: reasonable doubt as to whether D formed mens rea of offence that is specific intent. 1. R. v. George: robbery is specific intent that allows defence of simple intoxication. Found assault was general intent that did not allow defence. 1. Facts: Respondent was charged under s. 288 of the Criminal Code with robbery with violence, and was acquitted by the trial judge on the ground that he was so intoxicated as to be incapable of forming the specific intent to commit robbery. In appealing this decision the Crown contended that the trial judge did not consider the included offence of common assault and, in the result, failed to direct himself with respect to the divisibility of the charge laid and to the incidence of drunkenness as a defence to a charge of common assault, as distinguished from a charge of robbery with violence. 2. Issues:

69

1. Whether or not evidence of drunkenness falling short of insanity can be used as a defence not only to negative the capacity of the accused to form a specific or special intent, but also to negative the ordinary mens rea which is a constituent of all crime. 2. Whether or not the Court of Appeal should substitute a conviction for the included offence of common assault, or order a new trial with respect thereto, when Crown counsel at the trial of the accused did not raise the issue of the accused's capacity to commit the included offence of common assault. 3. Rules: As provided by s. 569(1) (a) of the Code, when the commission of the offence charged, as described in the enactment creating it or as charged, includes the commission of another offence, the charge is divisible, and the accused may be convicted of the offence so included, if proved, notwithstanding that the whole offence that is charged is not proved. 1. The rules for determining the validity of a defence of drunkenness have been stated by the House of Lords in the well known case of Beard: 1. (i) Insanity, whether produced by drunkenness or otherwise, is a defence to the crime charged. 2. (ii) Evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into consideration with the other facts proved in order to determine whether or not he had this intent. 3. (iii) Evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute the crime, and merely establishing that his mind was affected by drink so that he more readily gave way to some violent passion, does not rebut the presumption that a man intends the natural consequences of his acts. 4. Reasoning: 1. n a like situation, the offence included is part of the case which the accused has to meet under the law. The mere omission of the Crown to raise the issue cannot per se and without more relieve the trial judge from the duty imposed upon him under the section. The words "may convict" give an authority which must be exercised when the circumstances described in the section are present. 2. Contrary to what is the case in the crime of robbery, where, with respect to theft, a specific intent must be proved, there is no specific intent necessary to constitute the offence of common assault. 3. The finding of the trial judge that the accused had not the capacity to form the specific intent to commit robbery did not justify the conclusion reached in appeal that he could not then have committed the offence of common assault. 4. In considering the question of mens rea, a distinction is to be made between 1. (i) intention as applied to acts considered in relation to their purposes and 2. (ii) intention as applied to acts considered apart from their purposes. A general intent attending the commission of an act is, in some cases, the only intent required to constitute the crime while, in others, there must be, in addition to that general intent, a specific intent attending the purpose for the commission of the act. 5. Contrary to what is the case in the crime of robbery, where, with respect to theft, a specific intent must be proved by the Crown as one of the constituent elements of the offence, there is no specific intent necessary to constitute the offence of common assault 6. The included offence of common assault is to be considered independently of the major offence of robbery, and the law as to the validity of a defence of drunkenness has to be related to that particular included offence. 5. Holding: The appeal should be allowed, the verdict of acquittal with respect to common assault set aside, and a verdict of guilty of that offence entered. 6. Concurrence: The offence of robbery requires the presence of the kind of intent and purpose specified in ss. 269 and 288 of the Code, but the use of the word "intentionally" in defining "common assault" in s. 230( a) is exclusively referable to the physical act of applying force to the person of another. 7. Dissent: 1. The Crown's contention that where a trial judge hearing a criminal charge fails not to deal with, but to consider independently, an offence included in the offence specifically charged, and this is done with the approval of counsel for the Crown, the provisions of s. 584 of the Code may be invoked to again place the accused in jeopardy, should be rejected. 2. Although s. 569 imposes a duty upon the judge to consider the included offence of assault, his failure to do so does not render the proceeding defective and a new trial necessary. 2. R. v. Robinson: 3. Facts: The accused killed a man but claimed to have acted without intent because he was intoxicated. The evidence revealed that he had been drinking with the victim and some friends and that the killing occurred when the victim said something to offend him. After being instructed on provocation, self-defence and intoxication, the jury found the accused guilty of second-degree murder. 4. Procedural history: He appealed his conviction to the British Columbia Court of Appeal primarily on the basis that the trial judge had misdirected the jury on the manner in which they could use the evidence of intoxication as it related to the requisite intent for murder. The British Columbia Court of Appeal allowed the appeal and the Crown appealed that decision to this Court on the basis of Gibbs J.A.'s dissent. 5. Issues: 1. Did the majority in the British Columbia Court of Appeal err in law in concluding that the trial judge's instructions to the jury, when read as a whole, constitute misdirection and reversible error on the issues of intoxication, the common sense inference that a person intends the natural and probable consequences of his acts, and the burden on the Crown to prove the intent required for murder beyond a reasonable doubt?

70

2. Did the British Columbia Court of Appeal err in law in following Regina v. Canute 1993 CanLII 403 (BC CA), (1993), 80 C.C.C. (3d) 403 and in deciding that it is reversible error for a trial judge to instruct a jury on the defence of drunkenness in accordance with the "two-step" process enunciated in Regina v. MacKinlay 1986 CanLII 111 (ON CA), (1986), 28 C.C.C. (3d) 306? 3. Did the British Columbia Court of Appeal err in law in failing to apply the provisions of s. 686(1)(b)(iii) [of the Criminal Code, R.S.C., 1985, c. C-46]? 6. Reasoning - Should Beard rules be overruled? 1. The Beard rules 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. According to the Beard rules, the presumption that a person intends the natural consequences of his or her acts cannot be rebutted by evidence falling short of incapacity. This presumption to which Beard refers should only be interpreted as a common-sense inference that the jury can but is not compelled to make. 2. drunkenness ... may be considered by the jury, together with all other relevant evidence, in determining whether the prosecution has proved beyond a reasonable doubt the mens rea required to constitute the crime. 3. The Beard rules violate ss. 7 and 11(d) of the Charter because they put an accused in jeopardy of being convicted even though a reasonable doubt could exist in the minds of the jurors on the issue of actual intent. This restriction on an accused's legal rights does not constitute a reasonable limit under s. 1 of the Charter. 4. A strict application of the Oakes test is appropriate. While decisions of the legislatures may be entitled to judicial deference under s. 1 as a matter of policy, such deference is not required when reviewing judge-made law. The protection of the public from intoxicated offenders is of sufficient importance to warrant overriding a constitutionally protected right. A rational connection exists between the "capacity" restriction of the defence contained in the impugned common law rule and its objective. The restriction fails the proportionality prong, however, because it does not impair an accused's ss. 7 and 11(d) rights as little as is reasonably possible. The Beard rules cast the criminal net too far in that all accused with the capacity to formulate the requisite intent cannot rely on their state of intoxication even though it might create a reasonable doubt as to whether the accused actually had the intent necessary to the crime. 5. Dissent: The rule in MacAskill v. The King infringes ss. 7 and 11(d) of the Charter because it prevents the trier of fact from considering evidence capable of raising a reasonable doubt as to whether the accused had the specific intent required to commit the offence. The effect of the rule is that an accused may be convicted of murder even if the evidence raises a reasonable doubt as to the existence of the intent element of the offence. The common law may impose reasonable limits on Charter rights. While the analysis of a common law rule under s. 1 need not adhere strictly to the structure set out in Oakes, the substance of the analysis will be similar because its purpose is to ascertain whether the particular rule is a justifiable limit on rights. 7. Reasoning - replacement of Beard rules 1. Before a trial judge is required by law to charge the jury on intoxication, he or she must be satisfied that the effect of the intoxication was such that the effect might have impaired the accused's foresight of consequences sufficiently to raise a reasonable doubt. Once a judge is satisfied that this threshold is met, he or she must then make it clear to the jury that the issue before them is whether the Crown has satisfied them beyond a reasonable doubt that the accused had the requisite intent. 2. In place of the Beard rules, two different approaches have developed over the years. 3. If a two-step charge is used with "capacity" and "capability" type language and the charge is the subject of an appeal, then a determination will have to be made by appellate courts on a case by case basis of whether there is a reasonable possibility that the jury may have been misled into believing that a determination of capacity was the only relevant inquiry. 4. The following factors, not intended to be exhaustive, should be considered: (a) the number of times that reference to capacity is used; (b) the number of times that reference to the real inquiry of actual intent is used; (c) whether there is an additional "incapacity" defence; (d) the nature of the expert evidence (i.e., whether the expert's evidence relates to the issue of capacity rather than to the effect of alcohol on the brain); (e) the extent of the intoxication evidence; (f) whether the defence requested that references to "capacity" be used in the charge to the jury; (g) whether during a two-step charge it was made clear that the primary function of the jury was to determine whether they were satisfied beyond a reasonable doubt that the accused possessed the requisite intent to commit the crime. 5. Dissent: 1. As a preliminary matter, the threshold for putting any defence to the jury is whether it has an evidentiary basis on which a reasonable jury might acquit. Where the accuseds defence rests on evidence of intoxication, the question is whether there is sufficient evidence of intoxication that a jury could have a reasonable doubt as to whether the accused had the specific intention, knowledge or foresight required for the offence. 2. Assuming that the evidence meets this threshold, two approaches have been developed as to how the judge must present the evidence of intoxication to the jury: a one-step charge, referring only to intent; and a two-step charge that also mentions that intoxication may be relevant to the accuseds capacity to form the required intent. Where a trial judge has referred to capacity or used a two-step charge, the question is not whether there is a reasonable possibility that the jury may have been misled since that question arises only after an ambiguity or error has been identified. If the evidence in a particular case puts the accuseds capacity in issue, it cannot be an error to tell the jury that they must acquit the accused if they have a reasonable doubt as to whether the accused had the capacity to form the required intent. Nor is a charge necessarily

71

ambiguous simply because it discusses capacity. Rather, each charge must be reviewed individually to ascertain whether it meets the basic requirements of correctness, completeness and clarity. If it does, it cannot be impeached, regardless of whether it contains one step or two. 3. This Court need not and should not express a general preference for either form of charge, or construct a special test, based on minutiae, for determining whether references to capacity were acceptable. The role of an appellate court in reviewing a jury charge is to determine whether the effect of the charge as a whole is to leave the jurors with an adequate understanding of the issues involved, the law relating to the issues, and the evidence that they should consider in resolving the issues. It is not to express vague disapproval of a form of charge that, in frequent cases, will be perfectly appropriate. 8. Analysis: I am of the view that the trial judge's charge to the jury in this case incorrectly instructed them on the relationship between intoxication and intent in fact. 1. The charge in this case left the jury with the impression that there was a threshold test that had to be met before the intoxication evidence became relevant. No instruction was given informing the jury that they were entitled to consider whether, in light of the intoxication evidence, the accused had the requisite intent in fact. In this case, a charge linking the evidence of intoxication with the issue of intent in fact was particularly important since there was also some, albeit weak, evidence of provocation and self-defence. The jury, even if it may have rejected each individual defence, could have had a reasonable doubt about intent had they been instructed that they could still consider the evidence of intoxication, provocation and self-defence cumulatively on that issue. 2. The trial judge's incorrect use of the term presumption in discussing the common-sense inference that a sane and sober person intends the natural consequences of his or her actions did not result in reversible error when read in the context of the charge as a whole. He made it sufficiently clear to the jury that they were not obligated to follow it. 3. Where some evidence of intoxication exists, a trial judge must link his or her instructions on intoxication with the instruction on the common-sense inference so that the jury is specifically instructed that evidence of intoxication can rebut the inference. In both the model charges set out in MacKinlay and Canute, this approach is taken. This instruction is critical since in most cases jurors are likely to rely on the inference to find intent. Moreover, if no instruction is given, a confused jury may see a conflict between the inference and the defence and resolve that conflict in favour of their own evaluation of common sense. Therefore, an instruction which does not link the common-sense inference with the evidence of intoxication constitutes reversible error. In this case, the trial judge's failure to make this linkage constitutes reversible error. 4. The trial judge correctly stated the distinction between the two intents for murder under s. 229 at some points in the charge but he also misstated or blurred the distinction at others. The lapses and errors in the charge as it related to specific intent for murder in s. 229(a)(ii) of the Code aggravated the other errors in the charge but did not warrant ordering a new trial on this ground alone. 5. The jury would not have adequately understood the issues concerning intoxication and intent or the law and evidence relating to those issues. The curative provisions of s. 686(1)(b)(iii) of the Code should not be applied as the accused was denied a defence to which he was entitled to at law. 6. Dissent: 1. Most of the errors alleged by the accused are non-existent, and the few imperfections that do exist are immaterial. In describing the common-sense inference that people intend the natural consequences of their acts, the use of the term presumption was not an error because the jury understood that the presumption or inference was optional. Moreover, the trial judge put the common-sense inference in its proper perspective and made it clear that the overriding issue was whether the Crown had proved specific intent. 2. There is no absolute requirement that the evidence of intoxication be linked to the common-sense inference. It was clear to the jury, exercising its common sense, that the evidence of intoxication could be considered together with the other evidence in ascertaining the accuseds intent. 9. Holding: the appeal should be dismissed. I am not satisfied that at the end of the day, the jury would have adequately understood the issues concerning intoxication and intent or the law and evidence relating to those issues 3. Intoxication (Roach 246 - 255): admissible and could raise a reasonable doubt to the mental element for specific intent offences, which require ulterior objective beyond the immediate act. Not admissible if charged w/ general intent offences, which require proof only of an intent to perform immediate act. (yes for murder & robbery, not for manslaughter and assault). A. Beards case: 1) intoxication can be ground for insanity defence if produced a disease of mind, 2) evidence of drunkenness, which renders incapable of forming specific intent, should be considered w/ other fats proved to determine if D had intent or not, 3) evidence of drunkenness falling short of incapacity in D to form intent, merely establishing that mind was affected by drinking so much that he more readily gave way to some violent passion, does not rebut presumption that a man intends the natural consequences of his acts. - not a defence here unless established at time of committing rape was so drunk as to be incapable of forming intent to commit it. B. The distinction between general and specific intent offences: Beard interpreted as establishing distinction btn specific and general intent, defence only for specific. A. R. v. George: held robbery as specific offence, but assault was general, and intoxication rarely relevant to it. For mens rea, distinction is to be made 1) intention as applied to acts considered in relation to their purposes, 2) intention as applied to acts apart from their purposes. Robbery fell into first category b/c required application of force to facilitate taking property. Assault in second category b/c required minimal intent for application of force w/o consent. Acquitted of robbery, convicted of assault.

72

B. R. v. Bernard: specific intent require mind to focus on objective further than immediate one. General intent require only conscious doing of prohibited act. Held sexual assault causing bodily harm was general intent offence. Different offence of breaking and entering w/ intent to commit indictable offence was specific intent b/c required proof of ulterior intent beyond immediate prohibited acts. A. Dissent: distinction btn general and specific is artificial, uncertain, confusing. Juries can be relied upon to accept specious claims that Ds intoxication deprived him of intent required for particular crime. C. Distinction driven by policy concerns. D. R. v. Daviault: specific intent were more serious requiring ulterior intent, failure to prove added element will result in conviction of lesser offence. (assault to resist or prevent arrest - down to assault simpliciter). E. Specific intent: murder, theft, robbery, aiding, abetting, attempted crimes. Require proof of ulterior objective beyond immediate act. Intoxication is admissible to raise reasonable doubt about mental element for those offences. F. General intent: manslaughter, assault, sexual assault, assault causing bodily harm, mischief. Require proof of intent in relation to act. G. Crimes based on objective fault preclude considering intoxication. H. Extreme intoxication may be defence to general intent, to extent that it negates voluntariness of actions, it may also be a defence to crimes that require objective fault and even absolute liability. C. The intoxication defence for specific intent offences: accused practically acquitted of specific, b/c of intoxication will almost always be convicted of lesser general intent crime.(murder down to manslaughter). 1) Intent not capacity to commit the offence: issue is whether evidence of drunkenness raised a reasonable doubt as to the accuseds capacity to form specific intent. 1) R. v. Robinson: held Beard violate 7 and 11(d) Charter b/c required jury to convict even if it had reasonable doubt about Ds actual intent. Court was concerned that D that was no so intoxicated as to lack capacity to form intent may nevertheless have not exercised that capacity and formed the specific intent. Rule not justified under s 1 b/c social protection could be achieved w/o casting the net of liability so far as to convict all those who had the capacity to form the requisite but who nevertheless not have had the intent required for murder conviction. 2) After this case, judge can still instruct jury to consider Ds capacity to form intent. If judge instructs on capacity, has duty to make sure jury understands ultimate issue is whether evidence of intoxication raised reasonable doubt as to accuseds actual intent, and not his capacity to form intent. New trial will be ordered if jury is mislead. 3) R. v. Daley: judges should only instruct juries to consider whether intoxication raised reasonable doubt as to accuseds actual intent and should not make reference to capacity so as not to confuse the jury. 2) Threshold air of reality tests: for general or specific, must establish that there is an air of reality that justifies instructing the trier of fact about the intoxication defence. Test designed to ensure that jury is not instructed about irrelevant defences (mistake of fact, intoxication, necessity). 1) Murder; threshold test: whether evidence of drunkenness was sufficient to permit a reasonable inference that the accused may not in fact have foreseen that his act of firing the gun at the deceased would cause her death. 2) Lemky: threshold not met for D who was intoxicated, capable before an d after shooting aware of consequences of actions (shot and killed). 3) Daviault test for extreme intoxication to general intent; threshold issue should be capacity to have minimal intent associated w/ general intent offences as opposed to the actual intent. Judge focus on whether jury could acquit on the evidence. Judge should not determine credibility of evidence or keep the defence from the jury on the basis that accused may not be able to establish defence on balance of probabilities. D. Liability for the intoxicated commission of general intent offences: R. v. Leary: followed Majewski, intoxication should not be a defence to general intent. In Majewski, by becoming voluntarily intoxicated, D had committed mens rea for general intent offence such as assault causing bodily harm. A. Recklessness of becoming drunk is deemed to be sufficient to supply fault element for commission of the particular general intent offence. Fault element formed not when assault took place, but when accused became intoxicated. At time assault takes place, D has no fault element. Creates exception to fault element being directed towards actus reus. Extremely intoxicated person may not have formed intent to commit general intent offence while becoming intoxicated. B. Leary dissent: recklessness while becoming intoxicated was not legally sufficient b/c recklessness in a legal sense imports foresight. It cannot exist in the air, must have reference to consequences of particular act, namely, crime charged. Dichotomy btn general and specific was irrational, and evidence of drunkenness should be left w/ jury regardless of offence charged/classification of offences. 16. Extreme intoxication: 1. R. v. Daviault 1. Facts: The complainant, a 65-year-old woman who is partially paralysed and thus confined to a wheelchair, knew the accused through his wife. At about 6:00 p.m. one evening, at her request, the accused arrived at her home carrying a 40-ounce bottle of brandy. The complainant drank part of a glass of brandy and then fell asleep in her wheelchair. When she awoke during the night to go to the bathroom, the accused appeared, grabbed her chair, wheeled her into the bedroom, threw her on the bed and sexually assaulted her. 2. Procedural history: The trial judge found as a fact that the accused had committed the offence as described by the complainant, but acquitted him because he had a reasonable doubt about whether the accused, by virtue of his extreme intoxication, had possessed the

73

minimal intent necessary to commit the offence of sexual assault. The Court of Appeal allowed the Crown's appeal and ordered that a verdict of guilty be entered. It held that the defence of self-induced intoxication resulting in a state equal to or akin to automatism or insanity is not available as a defence to a general intent offence. 3. Issue: Can a state of drunkenness which is so extreme that an accused is in a condition that closely resembles automatism or a disease of the mind as defined in s. 16 of the Criminal Code, R.S.C., 1985, c. C-46, constitute a basis for defending a crime which requires not a specific but only a general intent? 4. Rule: 5. Reasoning: 1. 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 Canadian Charter of Rights and Freedoms. 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. 2. 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 the mens rea to commit the assault. 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. 3. Assuming that voluntary intoxication is reprehensible, it does not follow that its consequences in any given situation are either voluntary or predictable. Further, 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. 4. The experience of other jurisdictions which have completely abandoned the Leary rule, coupled with the fact that under the proposed approach, the defence would be available only in the rarest of cases, demonstrate that there is no urgent policy or pressing objective which need to be addressed. Studies on the relationship between intoxication and crime do not establish any rational link. 5. Finally, as the Leary rule applies to all crimes of general intent, it cannot be said to be well tailored to address a particular objective and it would not meet either the proportionality or the minimum impairment requirements. 6. 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. Given the minimal nature of the mental element required for crimes of general intent, even those who are significantly drunk will usually be able to form the requisite mens rea and will be found to have acted voluntarily. 7. 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. While such a burden constitutes a violation of the accused's rights under s. 11(d) of the Charter, it can be justified under s. 1. 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. 8. Should it be thought that the mental element involved relates to the actus reus rather than the mens rea, the result must be the same. The actus reus requires that the prohibited criminal act be performed voluntarily as a willed act. A person in a state of automatism cannot perform a voluntary willed act, and someone in an extreme state of intoxication akin to automatism must also be deprived of that ability. It would equally infringe s. 7 of the Charter if an accused who was not acting voluntarily could be convicted of a criminal offence. 9. Here again the voluntary act of becoming intoxicated cannot be substituted for the voluntary action involved in sexual assault. To convict in the face of such a fundamental denial of natural justice could not be justified under s. 1 of the Charter. 6. Holding: The appeal should be allowed and a new trial ordered. 7. Dissent: 1. This Court's decision in Leary still stands for the proposition that evidence of intoxication can provide a defence for offences of specific intent but not for offences of general intent. Since sexual assault is a crime of general intent, intoxication is no defence. This rule is supported by sound policy considerations. One of the main purposes of the criminal law is to protect the public. Society is entitled to punish those who of their own free will render themselves so intoxicated as to pose a threat to other members of the community. The fact that an accused has voluntarily consumed intoxicating amounts of drugs or alcohol cannot excuse the commission of a criminal offence unless it gives rise to a mental disorder within the terms of s. 16 of the Criminal Code. 2. Since the Leary rule does not relieve the Crown of the responsibility of proving the existence of a mens rea or any of the other elements of the offence of sexual assault which are required by the principles of fundamental justice, it does not violate s. 7 or s. 11(d) of the Charter. While this is one of the rare cases in which the accused was sufficiently intoxicated to raise a reasonable doubt as to whether he intended to commit the offence of sexual assault, none of the relevant principles of fundamental justice require that the intent to perform the actus reus of an offence of general intent be an element of the offence. The requirements of the principles of fundamental justice are satisfied by proof that the accused became voluntarily intoxicated

74

3. The principles of fundamental justice can exceptionally be satisfied provided the definition of the offence requires that a blameworthy mental element be proved and that the level of blameworthiness not be disproportionate to the seriousness of the offence. These requirements are satisfied in this case. 4. Individuals who render themselves incapable of knowing what they are doing through the voluntary consumption of alcohol or drugs possess a sufficiently blameworthy state of mind that their imprisonment does not offend the principle of fundamental justice which prohibits imprisonment of the innocent. Those found guilty of committing sexual assault are rightfully submitted to a significant degree of moral opprobrium, and that opprobrium is not misplaced in the case of the intoxicated offender. 5. While as a general rule an act must be the voluntary act of an accused in order for the actus reus to exist, the rules of fundamental justice are satisfied by a showing that the drunken state was attained through the accused's own blameworthy conduct. 6. Finally, although distinguishing between offences of specific and general intent may lead to some illogical results, the underlying policy of the Leary rule is sound. Rather than jettisoning the rule, the Court should clarify the distinction by clearly identifying and defining the mental element of offences. It can then be determined whether applying the criteria for the identification of offences of specific and general intent in a particular case serves the public interest in punishing the offender notwithstanding the absence of the mens rea associated with the offence. 2. R. v. Bouchard - Lebrun 5. Facts: B brutally assaulted two individuals while he was in a psychotic condition caused by drugs he had taken a few hours earlier. As a result of these incidents, B was charged with aggravated assault. 6. Procedural history: The trial judge convicted B on the basis that all the elements of s. 33.1 of the Criminal Code (Cr. C.), which provides that self-induced intoxication cannot be a defence to an offence against the bodily integrity of another person, had been proven beyond a reasonable doubt. B then tried unsuccessfully on appeal to obtain a verdict of not criminally responsible on account of mental disorder under s. 16 Cr. C. The Court of Appeal held that s. 33.1 Cr. C. applied in this case. 7. Issues: 1. Does s. 33.1 Cr. C. limit the scope of the defence of not criminally responsible on account of mental disorder provided for in s. 16 Cr. C.? 2. Can a toxic psychosis whose symptoms are caused by a state of self-induced intoxication be a mental disorder within the meaning of s. 16 Cr. C.? 8. Rules: 1. An accused who wishes to successfully raise the insanity defence must meet the requirements of a two-stage statutory test. 1. The first stage involves characterizing the mental state of the accused. The key issue to be decided at trial at this stage is whether the accused was suffering from a mental disorder in the legal sense at the time of the alleged events. 2. The second stage of the defence provided for in s. 16 Cr. C. concerns the effects of the mental disorder. At this stage, it must be determined whether, owing to his or her mental condition, the accused was incapable of knowing that the act or omission was wrong. In the instant case, it is not in dispute that B was incapable of distinguishing right from wrong at the material time. 2. 33.1 applies where three conditions are met: (1) the accused was intoxicated at the material time; (2) the intoxication was self-induced; and (3) the accused departed from the standard of reasonable care generally recognized in Canadian society by interfering or threatening to interfere with the bodily integrity of another person. Where these three things are proved, it is not a defence that the accused lacked the general intent or the voluntariness required to commit the offence 5. Reasoning: 1. A court must consider the specific principles that govern the insanity defence in order to determine whether s. 16 Cr. C. is applicable. If that defence does not apply, the court can then consider whether the defence of self-induced intoxication under s. 33.1 Cr. C. is applicable if it is appropriate to do so on the facts of the case . Intoxication and insanity are two distinct legal concepts. 2. Toxic psychosis does not always result from a mental disorder. In Stone, Bastarache J. proposed an approach for distinguishing toxic psychoses that result from mental disorders from those that do not. This approach is structured around two analytical tools, namely the internal cause factor and the continuing danger factor, and certain policy considerations 3. The internal cause factor, the first of the analytical tools, involves comparing the accused with a normal person. The comparison between the accused and a normal person will be objective and may be based on the psychiatric evidence. The more the psychiatric evidence suggests that a normal person, that is, a person suffering from no disease of the mind, is susceptible to such a state, the more justified the courts will be in finding that the trigger is external. Such a finding would exclude the condition of the accused from the scope of s. 16 Cr. C. The reverse also holds true. 1. In this case, the application of the first factor suggests that the drug-taking is an external cause. It seems likely that the reaction of a normal person to taking drugs would indeed be to develop toxic psychosis. This strongly suggests that B was not suffering from a mental disorder at the time he committed the impugned acts. And the rapid appearance of psychotic symptoms generally indicates that Bs delusions can be attributed to an external factor. In addition, the psychotic symptoms B experienced began to diminish shortly after he took the drugs and continued to do so until disappearing completely. The Court of Appeal held that the disappearance of the symptoms showed that the symptoms of toxic psychosis coincided with the duration of Bs intoxication. It could thus say that B suffered from no disease of

75

the mind before committing the crimes and once the effects of his drug-taking had passed. There is no valid reason to depart from this conclusion. 4. The second analytical tool, the continuing danger factor, is directly related to the need to ensure public safety. In this case, there is no evidence indicating that Bs mental condition is inherently dangerous in any way. Provided that B abstains from such drugs in the future, which he is capable of doing voluntarily, it would seem that his mental condition poses no threat to public safety. 1. In this context, B was not suffering from a mental disorder for the purposes of s. 16 Cr. C. at the time he committed the assault. A malfunctioning of the mind that results exclusively from self-induced intoxication cannot be considered a disease of the mind in the legal sense, since it is not a product of the individuals inherent psychological makeup. This is true even though medical science may tend to consider such conditions to be diseases of the mind 5. The foregoing conclusion leads to the question whether s. 33.1 Cr. C. is applicable. This provision applies where three conditions are met: (1) the accused was intoxicated at the material time; (2) the intoxication was self-induced; and (3) the accused departed from the standard of reasonable care generally recognized in Canadian society by interfering or threatening to interfere with the bodily integrity of another person. Where these three things are proved, it is not a defence that the accused lacked the general intent or the voluntariness required to commit the offence. Section 33.1 Cr. C. therefore applies to any mental condition that is a direct extension of a state of intoxication. There is no threshold of intoxication beyond which s. 33.1 Cr. C. does not apply to an accused, which means that toxic psychosis can be one of the states of intoxication covered by this provision. It is so covered in the case at bar. The Court of Appeal therefore did not err in law in holding that s. 33.1 Cr. C. was applicable rather than s. 16 Cr. C. 6. Holding: appeal dismissed. 3. CC 33.1: Self induced intoxication 4. When defence not available - Not a defence to an offence referred to in subsection (3), by reason of self-induced intoxication, lacked the general intent or the voluntariness required to commit the offence, where the accused departed markedly from the standard of care as described in subsection (2). 5. Criminal fault by reason of intoxication - a person departs markedly from standard of reasonable care generally recognized in canadian society and is thereby criminally at fault where the person, while in a state of self induced intoxication that renders the person unaware of, or incapable of consciously controlling, their behavior; voluntarily or involuntarily interferes or threatens to interfere w/ the bodily integrity of another person. 6. Application - this section applies in respect of an offence under this Act or any other Act of parliament that includes as an element an assault or any other interference or threat of interference by a person w/ the bodily integrity of another person. 4. Extreme intoxication and general intent offences (Roach 255-277): 4. The development of the Daviault defence: 1. Leary rule vulnerable under the Charter b/c 1) departed from requirement that mens rea occur at same time as actus reus, 2) transferred the general intent offence, 3) woud allow conviction of a person who was so severely intoxicated that he acted involuntarily or w/o the intent required for the general intent offence. 2. Considered Leary rule in Bernard. Dickson Concurrence: Exclusion of evidence of intoxication converts general intent offences to absolute liability by not considering potentially crucial factor in determining whether accused had required mens rea. Presumption of innocence violated when fault of becoming intoxicated substituted fault for general intent offence. Not justified under s. 1 b/c would require convictions for unintended or unforeseen crimes, not been demonstrated that risk of imprisonment of a few innocent persons is required to attain the goal of protecting the public from drunkenness offenders. 3. Wilson J, retained distinction btn specific and general intent. 4. Daviault: extreme intoxication could in rare cases be a defence to general intent offences (assault, sexual assault). Minimal intent required for general intent offences could not be inferred from commission of act b/c the voluntariness of consciousness of that act may be put in question by the extreme intoxication of the accused. (Defence only applies if D is extremely intoxicated). 1. Held Leary rule violated 11(d) and 7. 2. Required accused to prove extreme intoxication as a defence to general intent on balance of probabilities. This violated 11d but was justified b/c its only the accused who can give evidence as to amount of alcohol consumed and its effect upon him. 3. Sent case back for new trial to require D to establish the defence of extreme intoxication in balance of probabilities. 4. Raises possibility that extreme intox would be defence also to absolute or strict liability offences. May negate voluntariness that is seen part of actus reus. 5. Did not abolish distinction btn specific and general intent offences, introduced 2 distinct intoxication defences w/ different burdens of proof. ] 1. If tried w/ specific intent, ordinary intoxication defence will apply if it raises reasonable doubt about whether accused had required intent. Still will have to face charge of general intent (murder to manslaughter). 2. For general intent, evidence of intox relevant in rare cases supported w/ expert. Prove on balance of probabilities that was so intoxicated as to being incapable of forming min intent required for general intent. Will not be charged w/ lesser offence.

76

5. Extremely intoxicated D would still have objective fault if conduct demonstrated marked and substantial departure from what a reasonable person would have done in the circumstances. If extreme intox negates voluntariness required for actus reus, accused may have a defence b/c he did not consciously and voluntarily commit the criminal act. 2. The legislative response to Daviault: Section 33.1: Could respond to social danger of acquittal of severely intoxicated accused who committed general intent, by parliament passing something. Penno: court rejected that intox could be a defence to crime of intoxicated driving . Alternatively, could treat those w/ Daviault defence in same manner as mentally disordered offender; subject to further detention and treatment if they are danger to public. But canadian courts reluctant to hold this. 4. 33.1(1) and (2): it will not be a defence that the accused by reason of self induced intoxication, lacked the general intent or the voluntariness required to commit the offence b/c its a marked departure from standard of reasonable care recognized in canadian society. This marked departure from standard of reasonable care is substituted for intent required to commit general intent offence (assault or sexual assault). 5. This affirms Majewsky and Leary that if accused charged w/ general intent does not have mens rea at time offence committed, actions and mind in voluntarily becoming so intoxicated can be substituted for mens rea or voluntary actus reus required for particular offence. 6. Leary rule: becoming intoxicated recklessness is in the air --> fault for any general intent offence 7. Rule of CC 31.1: becoming intoxicated --> fault for any general intent offence that includes assault or threat of interference w/ bodily integrity (33.1(3)) 5. Deemed to constitute marked departure from standard of reasonable care generally recognized in Can society (33.1(2)) 8. 33.1 does not apply to general intent offences that do not involve assault or threat of interference w/ bodily integrity. Principles in Daviault still state the law in canada, subject to significant restriction set out in 33.1 Daviault will still apply today to D charged w/ property offence to plead extreme intoxication. 3. The constitutionality of Section 33.1: no ruling on constitutionality done yet. 4. Applies where three conditions are met: 1) the accused was intoxicated at the material time, 2) the intoxication was self induced, 3) and the accused departed from the standard of reasonable care generally recognized in canadian society by interfering or threatening to interfere w/ the bodily integrity of another person. (it is no defence that D lacked general intent or voluntariness) 5. Often upheld by lower courts under sec 1 Charter, while concluding that substitution of fault for becoming extremely intoxicated for fault and voluntariness of general intent crime of violence violates s 7 and 11(d) of Charter. 6. Allows person to be convicted of crime even if he lacked general intent or voluntariness and was incapable of controlling the behavior. 7. Preamble: concern w/ intoxicated violence. 8. Section 1 analysis: 1) determine objective of 33.1 and whether it is important enough to justify limitations on relevant Charter rights. Complete acquittal of accused is a compelling objective that could justify infringement of rights. Question is, whether it is a proportionate response to important objectives. 5. Crowns argument: parliament has adopted more tailored rule than previous common law rule. Thus 33.1, does not transfer the fault of becoming extremely intoxicated for the mens rea or voluntariness of all general intent offences as contemplated under the Leary rule, but only for crimes involving violence. 6. Accuseds argument: parliament rejected a number of more proportionate responses when it introduced new legislation that effectively reversed Daviault for general intent offences of violence. It follows minority in Daviault and Leary be substituting fault of voluntarily becoming drunk for fault of general intent crime. This outweighs the benefits of 33.1 9. Vickberg: found 33.1 violated sec 7 and 11(d) b/c substituted proof of voluntary intoxication for proof of intent to commit an offence of general intent. Held justified under sec 1 as proportionate means to ensure accountability for violence related w/ intoxication. But found here intoxication was involuntary (33.1 only substitutes it for self-induced intoxication) b/c overdose of drugs prescribed to treat heroin addiction, produced non mental disorder automatism leading to acquittal. Thus, 33.1 was not applied to D. (expanded the defence of involuntary intoxication to apply to unanticipated effects of self induced drugs). 10. Some cases have found 33.1 to be constitutional, justifiable under sec 1. Others have found it to be unconstitutional. 11. Dunn: convicting such accused would not outweigh the harms of convicting an accused who did not outweigh the harms of convicting a person who acted in an involuntary manner. 12. Brenton: in effect it re enacts as legislation the very same common law rule that was held unconstitutional in Daviault. By eliminating need to prove intent or voluntariness, parliament has created an absolute liability provision and ignored more proportionate response of enacting a new offence based on the accuseds intoxication. Reversed on appeal. 13. R. v. Jensen: unjustifiable limit on 7 and 11(d). 14. 33.1 is more narrowly tailored than Leary rule b/c it is restricted to general intent crimes of violence. Unexpected forms of intoxication may be exempted from 33.1 if involuntary and not truly self induced. To uphold this, would require Court to back down from its previous and controversial decision in Daviault. 5. Involuntary intoxication: 33.1 and Leary: D convicted of general intent on basis of fault or recklessness of voluntarily becoming intoxicated.

77

1. Involuntary intoxication as an independent defence: R. v. King: D impaired w/ drug given by dentist, should not be convicted of impaired driving if D became impaired through no at of his own will and cannot reasonably be expected to have known that his ability was impaired or might thereafter become impaired. Suggests that involuntary intox can be a defence that may negate either mens rea or actus reus of general intent. Evidence of either voluntary or involuntary intox could also be considered in determining whether accused had the mens rea of a specific intent offence. 2. Involuntary intoxication and section 33.1: issue whether involuntary and unexpected intox constitutes self induced intox under 33.1 or whether 33.1 can be read down not to apply to such forms of intoxication. 4. Vickberg: self induced intox, 33.1 did not apply b/c accused became involuntarily intoxicated, since did not know and could not be expected to know that drug he was given to assist heroin withdrawal would intoxicate him. 5. Brenton: rejected, b/c D knew marijuana was intoxicating and smoking it constitutes self induced intoxication under 33.1 6. Conclusion 1. Four ways in which intoxication can act has defence 4. Can raise reasonable doubt as to whether the accused had intent required for specific intent offence (murder, robbery) Issue is whether D had intent. Issues: air of reality. 5. Daviault- extreme intoxication to general intent offences that do not include an element of assault or any other interference or threat of interference w/ the bodily integrity of another person. Establish on balance of probabilities w/ expert evid. Issue, whether capable of forming min intent for general intent crime. If successful, acquittal. Does not apply to crimes that require intoxication as an element of the offence 6. Daviault - raised to violent general intent offence (manslaughter, assault, sexual assault). Would violate 7 and 11(d) to convict person so extremely intoxicated that he acted involuntarily and w/o min intent required for general intent. But 33.1 adds support to traditional rule of Leary. 33.1 substitutes fault of becoming extremely intoxicated for fault of committing the general intent crime of violence, even though D may have acted involuntarily at the time. 7. Involuntary intoxication: could prevent conviction of D charged w/ general intent who involuntarily becomes intoxicated. (drug slipping into drink) may be exempt from 33.1, which applies only to self induced intoxication. Logic that person who becomes intoxicated through no fault of his own should not be held culpable: substitution for fault of becoming intoxicated for the fault of offence should not occur if D was w/o fault in becoming intoxicated. May only benefit those who ought not to have known about the intoxicating effects of the substance they ingested. 17. Defence of the Person 1. R. v. Lavallee: reasonable belief 1. Facts: 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. The shooting occurred after an argument where the appellant had been physically abused and was fearful for her life after being taunted with the threat that either she kill him or he would get her. She had frequently been a victim of his physical abuse. 2. PH: The jury acquitted the appellant but its verdict was overturned by a majority of the Manitoba Court of Appeal. 3. Issues: 1. Did the majority of the Manitoba Court of Appeal err in concluding that the jury should have considered the plea of selfdefence absent the expert evidence of Dr. Shane? 2. Did the majority of the Manitoba Court of Appeal err in holding that the trial judge's charge to the jury with respect to Dr. Shane's expert evidence did not meet the requirements set out by this Court in Abbey, thus warranting a new trial? 4. Rules: 1. in order for expert evidence to be admissible "the subject-matter of the inquiry must be such that ordinary people are unlikely to form a correct judgment about it, if unassisted by persons with special knowledge". 2. There are two elements of the defence under s. 34(2) of the Code which merit scrutiny for present purposes. 1. The first is the temporal connection in s. 34(2)(a) between the apprehension of death or grievous bodily harm and the act allegedly taken in self-defence. Was the appellant "under reasonable apprehension of death or grievous bodily harm" from Rust as he was walking out of the room? 2. The second is the assessment in s. 34(2)(b) of the magnitude of the force used by the accused. Was the accused's belief that she could not "otherwise preserve herself from death or grievous bodily harm " except by shooting the deceased based "on reasonable grounds"? 1. The subsection can only afford protection to the accused if he apprehended death or grievous bodily harm from the assault he was repelling and if he believed he could not preserve himself from death or grievous bodily harm otherwise than by the force he used. Nonetheless, his apprehension must be a reasonable one and his belief must be based upon reasonable and probable grounds. 5. Reasoning: 2. 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. It is difficult for the lay person to comprehend the battered wife syndrome. It is commonly thought that battered women are not really beaten as badly as they claim, otherwise they would have left the relationship. Alternatively, some believe that women enjoy being beaten, that they have a masochistic strain in them. Each of

78

these stereotypes may adversely affect consideration of a battered woman's claim to have acted in self-defence in killing her partner. Expert evidence can assist the jury in dispelling these myths. 3. 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. 4. Ultimately, it is up to the jury to decide whether, in fact, the accused's perceptions and actions were reasonable. 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. 5. Here, there was ample evidence on which the trial judge could conclude, apart from the psychiatrist's evidence, that the appellant was battered repeatedly and brutally by the deceased over the course of their relationship. 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. Each of the specific facts underlying the expert's opinion need not be proven in evidence before any weight could be given to it. 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. 6. Holding: allow the appeal, set aside the order of the Court of Appeal, and restore the acquittal 7. Concurrence: The very special facts in R. v. Abbey, and the decision required on those facts, have contributed to the development of a principle concerning the admissibility and weight of expert opinion evidence that is self-contradictory: an expert opinion relevant in the abstract to a material issue in a trial but based entirely on unproven hearsay is admissible but entitled to no weight whatsoever. Such an opinion, however, is irrelevant and therefore inadmissible. 2. A practical distinction exists between evidence that an expert obtains and acts upon within the scope of his or her expertise, as in consultation with colleagues, and evidence that an expert obtains from a party to litigation touching a matter directly in issue. Where the information upon which an expert forms his or her opinion comes from a party to the litigation, or from any other source that is inherently suspect, a court ought to require independent proof of that information. The lack of such proof will have a direct effect on the weight to be given to the opinion. 3. Where an expert's opinion is based in part upon suspect information and in part upon either admitted facts or facts sought to be proved, the matter is purely one of weight. That was the situation here, and in the circumstances, the trial judge properly admitted the expert evidence and adequately charged the jury. 2. Self-Defence (Roach 324-341): amended in 2012. 1) Self-defence and Defence of Others in the New Section 34: one defence for self-defence, and defence of others. Not guilty if a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; b) the act is committed for the purpose of defending or protecting themselves or another person from the use or threat of force, AND c) the act committed is reasonable in the circumstances. a) Self-defence applies to a broad and expanded range of offences: can use it for any offence: stealing vehicles to murder. No restrictions. Ds intent relevant in determining reasonableness of self defence. b) No specific reference to self-defence as a justification: traditionally, seen as justification and not an excuse. But require crimes committed under duress and necessity be proportionate to the harm threatened even though these defences are characterized as excuses and not justifications. New defences in 34 and 35 replace reference to accused who acts in self defence or defence of property is justified w/ more generic reference to such a person not being guilty of an offence. Recognizes distinction btn justification and excuses can become blurred in some contexts. Omission of justification language for property - requires proportionality btn threatened harm and that caused by the accused. c) First requirement: belief on reasonable grounds that force or threat of force is being used under section 34(1)(a): must believe on reasonable grounds that force or threat of force is being used against them or another person. a) R. v. Petel: held an accused can quality for self defence claim even though he was in fact not being unlawfully assaulted. Women threatened by one of two men, shot both w/ one of their guns. She reasonably, but mistakenly believed she was being unlawfully assaulted by both men. Jury question: did the accused reasonably believe in the circumstances, that she was being unlawfully assaulted. In determining reasonableness, can consider prior threats, violence, expert witness. b) 34(1) jury question now: whether accused reasonably believed that she faced force or threat of force. (reasonable mistakes will not defeat self defence claims; past acts may be relevant in determining reasonableness) c) R. v. Lavallee: held no legal requirement that accused wait until she faced imminent attack from deceased. Upheld acquittal. In spousal battering, the definition of what is reasonable must be adapted to circumstances, which are, foreign to the world inhabited by the hypothetical reasonable man.

79

d) Other cases: affirmed evidence of prior threats, beatings, relevant in determining whether D could perceive danger from an abuser. Ds knowledge of the complainants propensity for violence is also relevant. Relationship; imminent attackrelevant for Ds reasonable grounds that she faced force or threat of force. e) Jury should not be instructed about self defence if there is no air of reality to Ds claim that he had a reasonable belief that he was subject to force or threat of force. Question: whether a jury could reasonably conclude that there was a reasonable basis for the accuseds belief that he faced force or threat of force from the victim. d) Protection of others: can be claimed for unrelated third parties, broadened to include all. 34(1)(a) believe on reasonable grounds that other person is faced w/ force or threat of force, 34(1)(b) act with subjective purpose of defending the other person, 34(1)(c) force must be reasonable in the circumstances. e) Second requirement: subjective purpose of defending oneself or others under section 34(1)(b): will exclude those who do not subjective intend to defend themselves or others, but seek vengeance, punishment, or vindicate honour against someone who has used force against them or threatened to do so. For improper subjective purposes too. f) Third requirement: acts done in self-defence must be reasonable in the circumstances under section 34(1)(c): delegates to judge and jury to determine whether self defence is reasonable in the circumstances. Determine all relevant factors and circumstances. 34(2) Basically gives guidance as to whether third requirement exists - read all 9 factors, and other relevant factors. g) Contextual objective standard and the history of the relationship between the parties to the incident: Lavallee: used contextual objective approach in considering accuseds situation and experience. Battered woman can kill husband for other reasons than self defence, and non battered woman can kill in self defence. Other cases: consider diminished intelligence in determining self defence claim, aspergers syndrome. a) Jury should be instructed to consider reasonable person w/ any characteristics and experience that are relevant to the accuseds ability to perceive harm and respond to it. Age, gender, physical capabilities, past interaction, and communication may be relevant to his perception of harm and considered in determining reasonableness of response to threatened harm. b) Factors in 34(2)(e) which must be considered, which support the use of contextual objective standard: size, age, gender, and physical capabilities of parties to incident, 34(f) nature, duration, history of relationship, including prior use or threat of force and nature of that force or threat, 34(f.1) history of interaction or communication btn parties to the incident. c) Lavallee: expert witness on battering was relevant in determining reasonableness of response. Relevant in explaining why woman didnt leave abusive relationship. d) Reilly: accuseds intoxication should NOT be considered in determining whether he reasonably apprehended harm. h) Retreat from homes and other situations: Lavallee: no requirement that D retreat from his home before using self defence. Jury is told retreat is not a reasonable option for those attacked in their homes. 34(2)(b) courts may consider whether there were other means available to respond to the potential use of force. This could include retreat. i) The proportionality of the act done in self-defence: consider factors to determine if proportional: 34(2)(a) nature of force or threat; whether force was imminent and whether other means available to respond, 34(2)(b) whether weapons were used or threatened; 34(2)(d) nature and proportionality of persons response to use or threat of force. Only requirement of 34(1)(c) is that act be reasonable. All these factors are used to determine if reasonable. a) R. v. Cinous: held no air of reality to put self defence to the jury in a case in which a man shot another man in theb akc of the head while they were stopped at a service station en route to steal computers together. Jury could not have reasonably believed. No evidence supporting why D had no other alternatives. Fact that he reasonably believed cops would not protect him is not enough. Could have fled scene. j) The accuseds role in the incident: use this in determining if Ds act in self defence was reasonable in the circumstances. k) Excessive self-defence: this conclusion means that act was not reasonable under the circumstances, accused will be convicted, if no other defence. CC 26 anyone who uses force is criminally responsible for excessive force. Options are acquit or convict. l) Section 34(3): self-defence against law enforcement actions: prevented, unless D believes on reasonable grounds that those enforcing the law are acting unlawfully. D must both, subjectively and reasonably believe that law enforcement actions are unlawful. Issue is, whether accuseds belief that law enforcement actions were unlawful is reasonable. Give D benefit of the doubt, like all other self defence cases. If believe accepted as reasonable, must under 34(1)(a) have reasonable grounds to believe that they face force or threats of force, act for purpose of defending themselves or others, 34(1) (b), and acts must be reasonable in the circumstances 34(1)(c). m) Summary: elements: D must subjectively perceive a threat and respond for the purpose of defending themselves or others and there must be a reasonable basis both for Ds perceptions of force and the Ds response to the circumstances. a) to go to jury, it must reasonably find 1) a belief on reasonable grounds that force or threat of force is being made against accused or another, 2) act was done for subjective purpose of defending the accused or other person, 3) act was reasonable in circumstances. To justify acquittal, there must be reasonable doubt about each of the three requirements.

80

18. Necessity 1. R. v. Latimer 1. Facts: The accused was charged with first degree murder following the death of T, his 12-year-old daughter who had a severe form of cerebral palsy. T was quadriplegic and her physical condition rendered her immobile. She was said to have the mental capacity of a four-month-old baby, and could communicate only by means of facial expressions, laughter and crying. T was completely dependent on others for her care. She suffered five to six seizures daily, and it was thought that she experienced a great deal of pain. She had to be spoon-fed, and her lack of nutrients caused weight loss. There was evidence that T could have been fed with a feeding tube into her stomach, an option that would have improved her nutrition and health, and that might also have allowed for more effective pain medication to be administered, but the accused and his wife rejected this option. After learning that the doctors wished to perform additional surgery, which he perceived as mutilation, the accused decided to take his daughters life. He carried T to his pickup truck, seated her in the cab, and inserted a hose from the trucks exhaust pipe into the cab. T died from the carbon monoxide. 2. PH: The accused at first maintained that T had simply passed away in her sleep, but later confessed to having taken her life. The accused was found guilty of second degree murder and sentenced to life imprisonment without parole eligibility for 10 years; the Court of Appeal upheld the accuseds conviction and sentence, but this Court ordered a new trial. During 2nd trial, the jury recommended one year before parole eligibility. The trial judge then granted a constitutional exemption from the mandatory minimum sentence, sentencing the accused to one year of imprisonment and one year on probation. The Court of Appeal affirmed the conviction but reversed the sentence, imposing the mandatory minimum sentence of life imprisonment without parole eligibility for 10 years. 3. Issues: (no to all) 1. Did the trial judge mishandle the defence of necessity, resulting in an unfair trial? 2. Was the trial unfair because the trial judge misled the jury into believing it would have some input into the appropriate sentence? 3. Does the imposition of the mandatory minimum sentence for second degree murder constitute cruel and unusual punishment in this case, so that Mr. Latimer should receive a constitutional exemption from the minimum sentence? 4. Rule: Necessity; three elements 1. There is the requirement of imminent peril or danger. (objective) 2. The accused must have had no reasonable legal alternative to the course of action he or she undertook. (objective) 3. There must be proportionality between the harm inflicted and the harm avoided (objective) 1. The first and second requirements imminent peril and no reasonable legal alternative must be evaluated on the modified objective standard: It involves an objective evaluation, but one that takes into account the situation and characteristics of the particular accused person. The accused person must, at the time of the act, honestly believe, on reasonable grounds, that he faces a situation of imminent peril that leaves no reasonable legal alternative open. 2. The evaluation of the seriousness of the harms must be objective. 5. Summary of analysis (answering issues): 3. The defence of necessity is narrow and of limited application in criminal law. In this case, there was no air of reality to that defence. The trial judge was correct to conclude that the jury should not consider necessity. While the timing of the removal of this defence from the jurys consideration was later in the trial than usual, it did not render the appellants trial unfair or violate his constitutional rights. On the second issue, the trial judge did not prejudice the appellants rights in replying to a question from the jury on whether it could offer input on sentencing. In answer to the third question, we conclude that the mandatory minimum sentence for second degree murder in this case does not amount to cruel and unusual punishment within the meaning of s. 12 of the Canadian Charter of Rights and Freedoms. The test for what amounts to cruel and unusual punishment is a demanding one, and the appellant has not succeeded in showing that the sentence in his case is grossly disproportionate to the punishment required for the most serious crime known to law, murder. 6. Reasoning: 3. 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. 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. Moreover, the accused had at least one reasonable legal alternative to killing his daughter: he could have struggled on, with what was unquestionably a difficult situation, by helping T to live and by minimizing her pain as much as possible or by permitting an institution to do so. 4. Leaving open the question of whether the proportionality requirement could be met in a homicide situation, the harm inflicted in this case was immeasurably more serious than the pain resulting from Ts operation which the accused sought to avoid. 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. 5. It is customary and in most instances preferable for the trial judge to rule on the availability of a defence prior to closing addresses to the jury. While the timing of the removal of the defence of necessity from the jurys consideration was later in the trial than usual, it did not render the accuseds trial unfair or violate his constitutional rights.

81

6. The trial judge did not prejudice the accuseds rights in replying to the question from the jury on whether it could offer input on sentencing. Guarding against jury nullification is a desirable and legitimate exercise for a trial judge; in fact a judge is required to take steps to ensure that the jury will apply the law properly. 7. The mandatory minimum sentence for second degree murder in this case does not amount to cruel and unusual punishment within the meaning of s. 12 of the Canadian Charter of Rights and Freedoms. 8. this appeal is restricted to a consideration of the particularized inquiry and only the individual remedy sought by the accused a constitutional exemption is at issue 9. Here, the minimum mandatory sentence is not grossly disproportionate. Murder is the most serious crime known to law. Even if the gravity of second degree murder is reduced in comparison to first degree murder, it is an offence accompanied by an extremely high degree of criminal culpability. 10. On the one hand, due consideration must be given to the accuseds initial attempts to conceal his actions, his lack of remorse, his position of trust, the significant degree of planning and premeditation, and Ts extreme vulnerability. On the other hand, the accuseds good character and standing in the community, his tortured anxiety about Ts well-being, and his laudable perseverance as a caring and involved parent must be taken into account. 11. Although in this case the sentencing principles of rehabilitation, specific deterrence and protection are not triggered for consideration, the mandatory minimum sentence plays an important role in denouncing murder. Since there is no violation of the accuseds s. 12 right, there is no basis for granting a constitutional exemption. 7. Holding: The appeals against conviction and sentence should be dismissed. Conviction and sentence of life in prison with a mandatory minimum of 10 years imprisonment for second degree murder should be upheld. 2. Necessity (Roach 353-362): Perka: common law recognized in canada. Drug smugglers coming ashore to canada b/c of dangerous seas. Necessity restricted to circumstances of imminent risk where the action was taken to avoid a direct and immediate peril, where act was morally involuntary, as measured on basis of societys expectation of appropriate and normal resistance to pressure; and where it was clear that there was no reasonable legal alternative to avoid the peril. Its an excuse, not a justification. Ruzic: it was a principle of fundamental justice under s 7 Charter. Those who commit offence when there is no other realistic choice should not be punished b/c actions are morally involuntary. 1) Necessity an excuse and not a justification: R. v. Morgentaler: necessity not available as defence to doctors; needed committee approval before abortion performed. Perka: even if engaged in illegal conduct, defence should be left w/ the jury. Not available if act is not morally involuntary - situation was foreseeable to reasonable observer, if actor contemplated or ought to have contemplated that his actions would likely give rise to an emergency requiring the breaking of the law. 1) R. v. Latimer; Elements: 1) requirement of imminent peril or danger, 2) requirement of no reasonable legal alternative, 3) the requirement of proportionality between the harm inflicted and the harm avoided. First two requirements are evaluated according to modified objective standard that takes into the situation of the particular accused person, third is assessed on purely objective standard. 2) Before jury considers, judge must determine if there is air of reality: there must be evidence relating to each other of the three requirements of the test and that the evidence must be such that a properly instructed jury acting reasonably could acquit the accused. 1) Perka: yes air of reality - when D put into shire 33 tons of marijuana b/c faced imminent peril on ocea. 2) Latimer: no air of reality - when D killed daughter to prevent her suffering 2) First requirement: reasonable belief in imminent peril and danger: not restricted to immediate threats or peril. Latimer: disaster must be imminent, harm unavoidable, and near. Must be on verge of transpiring and virtually certain to occur. Cannot be subjective, but have a reasonable basis for that belief. 3) Second requirement: reasonable belief in no legal way out or safe avenue of escape: Perka: focus on whether D acted in a morally involuntary manner at time offence committed. Are there legal ways out? Kerr: D had reasonable belief that circumstances afforded him no legal way out. D, a prisoner, carried shank in a lawless prison and used the shank in self defence. Avoiding a lethal attack, outweighed the harm of the weapons offence. 4) Third requirement: proportionality between harm inflicted and harm avoided: doesnt have to clearly outweigh, but that the two harm be of a comparable gravity. 5) Modified and contextual objective standard for imminence and no legal way out but not proportionality: reasonable person will generally be tailored to reflect the past experiences and frailties of the particular accused. Modified objective standard should not be used in determining whether there was proportionality between the harm inflicted and the harm avoided. Proportionality to be determined on a purely objective standard that is not modified by the characteristics and experiences of the accused or the victim. 19. Duress 1. R. v. Hibbert 1. Facts: C, a close friend of the accused, was shot by B, a drug dealer. At the time of the incident, B was accompanied by the accused. C survived the shooting and, as a party to the offence, the accused was charged with attempted murder. At trial, the accused testified that on the night of the shooting he had accidentally run into B, who indicated to him that he was armed with a handgun and ordered the accused to take him to C's apartment. When the accused refused, B punched him in the face several times. The accused stated that he feared for his life and believed that B would shoot him if he did not cooperate with him. B drove the accused to a telephone booth

82

where the accused, following B's orders, called C to ask him to meet him in the lobby of C's apartment building in twenty minutes. Shortly thereafter, the accused called C from the intercom outside the lobby and asked him to "come down". Before leaving his apartment C unlocked the building front door. B and the accused went into the lobby and, when C arrived, he was grabbed by B. After some discussion, B pushed C away and shot him. The accused stated that he had repeatedly pleaded with B not to shoot C. C, however, testified that during the incident the accused said nothing and made no effort to intervene. After the shooting, B drove the accused away from the scene of the shooting. According to the accused's testimony, B then threatened to kill him if he went to the police. The next morning the accused turned himself in 2. PH: Under cross-examination, he declared that he believed that he had had no opportunity to run away or warn C without being shot. In his charge, the trial judge told the jury that "if [the accused] joined in the common plot to shoot [C], under threats of death or grievous bodily harm, that would negative his having a common intention with [B] to shoot [C], and you must find [the accused] not guilty". He added that "the accused [could] not rely on [the common law defence of duress] if a safe avenue of escape exist[ed], which . . . is a matter for you to find when you consider the evidence". The accused was acquitted of the charge of attempted murder, but was convicted of the included offence of aggravated assault. The Court of Appeal upheld the conviction. 3. Issue: whether it is open to a person charged as a party to an offence to argue that, because his or her actions were coerced, he or she did not possess the mens rea necessary for party liability. 4. Rule: 5. Reasoning: 1. The fact that a person who commits a criminal act does so as a result of threats of death or bodily harm can, in some instances, be relevant to the question of whether he possessed the mens rea necessary to commit an offence. Whether or not this is so will depend, among other things, on the structure of the particular offence in question -- that is, on whether or not the mental state specified by Parliament in its definition of the offence is such that the presence of coercion can, as a matter of logic, have a bearing on the existence of mens rea. If the offence is one where the presence of duress is of potential relevance to the existence of mens rea, the accused is entitled to point to the presence of threats when arguing that the Crown has not proven beyond a reasonable doubt that he possessed the mental state required for liability. 2. A person who commits a criminal act under threats of death or bodily harm may also be able to invoke an excuse-based defence (either the statutory defence set out in s. 17 of the Criminal Code or the common law defence of duress, depending on whether the accused is charged as a principal or as a party). This is so regardless of whether or not the offence at issue is one where the presence of coercion also has a bearing on the existence of mens rea. 3. The mental states specified in ss. 21(1)(b) and 21(2) of the Code are not susceptible to being "negated" by duress. This conclusion is based on an interpretation of the particular terms of the two provisions. Section 21(1)(b), which imposes criminal liability as a party on anyone who "does or omits to do anything for the purpose of aiding any person to commit" an offence, does not require that the accused actively view the commission of the offence he is aiding as desirable in and of itself. 4. Parliament's use of the term "purpose" in s. 21(1)(b) is essentially synonymous with "intention" and does not incorporate the notion of "desire" into the mental state for party liability. This interpretation, which best reflects the legislative intent underlying s. 21(1)(b), is in accord with the common law principles governing party liability, and avoids the absurdity that would flow from the equation of "purpose" with "desire". 5. As well, under s. 21(2), which provides that "persons [who] form an intention in common to carry out an unlawful purpose and to assist each other therein" are liable for criminal offences committed by the principal that are foreseeable and probable consequences of "carrying out the common purpose", the accused's subjective view as to the desirability of the commission of the offence is not relevant. 6. The expression "intention in common" in s. 21(2) means only that the party and the principal must have in mind the same unlawful purpose. The expression does not connote a mutuality of motives and desires between them. A person would thus fall within the ambit of s. 21(2) if he intended to assist in the commission of the same offence envisioned by the principal, regardless of the fact that their intention might be due solely to the principal's threats. 7. The comments in Paquette on the relation between duress and mens rea in the context of s. 21(2) can therefore no longer be considered the law in Canada. While it is not open to persons charged under ss. 21(1)(b) and 21(2) to argue that because their acts were coerced by threats they lacked the requisite mens rea, such persons may seek to have their conduct excused through the operation of the common law defence of duress. 8. An accused person cannot rely on the common law defence of duress if he had an opportunity to extricate himself safely from the situation of duress. The rationale for the "safe avenue of escape" rule is simply that, in such circumstances, the condition of "normative involuntariness" that provides the theoretical basis for the defences of both duress and necessity is absent. Indeed, if the accused had the chance to take action that would have allowed him to avoid committing an offence, it cannot be said that he had no real choice when deciding whether or not to break the law. Furthermore, the internal logic of the excuse-based defence, which has theoretical underpinnings directly analogous to those that support the defence of necessity, suggests that the question of whether or not a safe avenue of escape existed is to be determined according to an objective standard. When considering the perceptions of a "reasonable person", however, the personal circumstances of the accused are relevant and important, and should be taken into account. 9. The trial judge's charge to the jury contained several errors. First, the reference to the relevant mental state in this case as being a "common intention" to carry out an unlawful purpose was incorrect, since what was at issue here was s. 21(1)(b), as opposed to

83

s. 21(2). Second, the trial judge's instruction that the mens rea for party liability under s. 21(1)(b) could be "negated" by duress was also incorrect. Thirdly, and most importantly, the jury was not told that even if the accused possessed the requisite mens rea his conduct could be excused by operation of the common law defence of duress, if the jurors were of the view that the necessary conditions for this defence's application were present. 10. Since it cannot be said that the errors in the charge relating to the nature of the defence of duress necessarily had no effect on the verdict, a new trial should be ordered. It should be noted, however, that the trial judge did not err in instructing the jury that the accused could not rely on the defence of duress if the Crown established that he had failed to avail himself of a safe avenue of escape. Furthermore, while the trial judge should have instructed the jury that the existence of such an avenue was to be determined objectively, taking into account the personal circumstances of the accused, on the particular facts of this case his failure to do so did not affect the jury's decision, since there was no indication, on the facts, that any of the accused's personal attributes or frailties rendered him unable to identify any safe avenues of escape that would have been apparent to a reasonable person of ordinary capacities and abilities. 6. Holding: With respect, I am of the view that the trial judge erred in his instructions to the jury on the law of duress. The appeal is allowed, the appellants conviction is set aside, and a new trial is ordered. 2. R. v. Ruzic 5. Facts: The accused was tried before a judge and jury on charges of unlawfully importing two kilograms of heroin into Canada, contrary to s. 5(1) of the Narcotic Control Act, and of possession and use of a false passport contrary to s. 368 of the Criminal Code. The accused admitted having committed both offences but claimed that she was then acting under duress and should thus be relieved from any criminal liability. She testified that a man in Belgrade, where she lived in an apartment with her mother, had threatened to harm her mother unless she brought the heroin to Canada. She also said that she did not seek police protection because she believed the police in Belgrade were corrupt and would do nothing to assist her. 6. PH: The accused conceded that her claim of duress did not meet the immediacy and presence requirements of s. 17 of the Code, which provides a defence for a person who commits an offence under compulsion by threats of immediate death or bodily harm from a person who is present when the offence is committed. She successfully challenged the constitutionality of s. 17 under s. 7 of the Canadian Charter of Rights and Freedoms, raised the common law defence of duress and was acquitted. The Crown appealed the acquittal on the charge of importing heroin, but the Court of Appeal dismissed the appeal. 7. Issues: 1. Do the requirements in s. 17 of the Criminal Code, R.S.C. 1985, c. C-46, that a threat must be of immediate death or bodily harm and from a person who is present when the offence is committed infringe the rights of an accused person as guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms? If the answer to Question 1 is yes, is it justified under s. 1 of the Canadian Charter of Rights and Freedoms? (yes, and no) 2. Does s. 17 of the Criminal Code, R.S.C. 1985, c. C-46, infringe the rights of an accused person as guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms by precluding access to the defence of duress where the threat is to a third party? If the answer to Question 2 is yes, is it justified under s. 1 of the Canadian Charter of Rights and Freedoms? (no, and no) 8. Rule: 1. One: acts solely as a result of threats of death, or serious bodily harm to herself or another person.Two: the threats were of such gravity or seriousness that the accused believed that the threats would be carried out. 2. Three: the threats were of such gravity that they might well have caused a reasonable person placed in the same situation as the accused, to act in the same manner as she did. 3. To put that another way, would a person of reasonable firmness, sharing the characteristics of the accused, such as her age and her background, have responded to the threats. 4. Finally, the accused must not have had an obvious safe avenue of escape. 9. Reasoning: 1. Section 17 of the Code breaches s. 7 of the Charter because it allows individuals who acted involuntarily to be declared criminally liable. The section limits the defence of duress to a person who is compelled to commit an offence under threats of immediate death or bodily harm from a person who is present when the offence is committed. The plain meaning of s. 17 is quite restrictive in scope. 2. The phrase present when the offence is committed, coupled with the immediacy criterion, indicates that the person issuing the threat must be either at the scene of the crime or at whatever other location is necessary to make good on the threat without delay should the accused resist. Practically speaking, a threat of harm will seldom qualify as immediate if the threatener is not physically present at the scene of the crime. The immediacy and presence requirements, taken together, clearly preclude threats of future harm. 3. While s. 17 may capture threats to third parties, the immediacy and presence criteria continue to impose considerable obstacles to relying on the defence in hostage or other third party situations. The underinclusiveness of s. 17 infringes s. 7 of the Charter. The Crown made no attempt before this Court to justify the immediacy and presence criteria according to the s. 1 analysis and has therefore failed to satisfy its onus under s. 1. In any event, the criteria would likely not meet the proportionality branch of the s. 1 analysis. In particular, these requirements seemingly do not minimally impair the accuseds s. 7 rights.

84

4. The common law defence of duress was never completely superseded by s. 17 of the Code, and remains available to parties to an offence. The common law defence has freed itself from the constraints of immediacy and presence and thus appears more consonant with the values of the Charter. The common law of duress, as restated by this Court in Hibbert, recognizes that an accused in a situation of duress not only enjoys rights, but also has obligations towards others and society. The law includes a requirement of proportionality between the threat and the criminal act to be executed, measured on the objectivesubjective standard of the reasonable person similarly situated. 5. The accused should be expected to demonstrate some fortitude and to put up a normal resistance to the threat. The threat must be to the personal integrity of the person. In addition, it must deprive the accused of any safe avenue of escape in the eyes of a reasonable person, similarly situated. 6. The Court of Appeal and the trial judge were right in allowing the common law defence of duress to go to the jury, and the trial judge adequately instructed the jury on the defence. In the future, when the common law defence of duress is raised, the trial judge should instruct the jury clearly on the components of this defence including the need for a close temporal connection between the threat and the harm threatened. The jurys attention should also be drawn to the need for the application of an objective-subjective assessment of the safe avenue of escape test. 7. The criterion of the safe avenue of escape was well explained as was the objective component of this test. The law does not require an accused to seek the official protection of police in all cases. The requirement of objectivity must itself take into consideration the special circumstances in which the accused found herself as well as her perception of them. The trial judge drew the jurys attention both to that objective component and to the subjective elements of the defence. As to the immediacy of the threat, the trial judge brought home to the jury the fact that the threat had to be a real threat affecting the accused at the time of the offence. This instruction at least implied that the jury had to consider the temporal connection between the threat and the harm threatened, although it would have been preferable to say so in so many express words. 8. The accused must certainly raise the defence and introduce some evidence about it. Once this is done, the burden of proof shifts to the Crown under the general rule of criminal evidence. It must be shown, beyond a reasonable doubt, that the accused did not act under duress. 10. Holding: The immediacy and presence requirements of s. 17 of the Criminal Code infringe s. 7 of the Charter. As the infringement has not been justified under s. 1, the requirements of immediacy and presence must be struck down as unconstitutional. The Court of Appeal and the trial judge were right in allowing the common law defence of duress go to the jury, and the trial judge adequately instructed the jury on the defence. I would dismiss the appeal and confirm the acquittal of the respondent. 3. Duress (Roach 362-380): D commits crime in response to external pressure. Pressure is threats of harm by some person. Ie: person who commits a crime or assists in commission of crime w/ gun to head. Held that requirement of threats being immediate (sec 17) violate sec 7 Charter by denying those who have no realistic choice but to commit offence, thus act morally involuntary. Common law applies to parties to offence and principals. Sec 17 excludes offences and only applies to principals. Common law duress applies when D commits offence in morally involuntary response to threats where no safe avenue of escape. Applied through modified objective standard - characteristics and attributes of accused. Do not need threats to be immediate. Duress can refer to 1) CC sec 17 to principal offender, as modified by sec 7 Charter, 2) common law defence available to parties of offence, 3) factor that may in rare cases prevent crown from proving mens rea of some crimes. 1) Section 17 as applied to principal offenders: when an accused commits offence under compulsion of threats of immediate death or bodily harm from a person who is present when the offence is committed. R. v. Carker: defence not available b/c D and prisoners issuing threats were locked in cells - not threats of immediate death or bodily harm, and none present when committed property damage. R. v. Hebert: no threats when gave false testimony in court, could have told official for protection. a) First requirement: threats of death or bodily harm against the accused or third party: a) Ruzic: held that threats being immediate violated sec 7 b/c could result in punishment of person who committed crime in morally involuntary manner. Common law did not restrict requirement of immediate threats from person presenting at scene. Instead focus was on safe avenue of escape. Not justified under sec 1 in part b/c of less restrictive alternative CL a) Threats of death or bodily harm against third party (family) may be considered under sec 17 CC. Common law duress not a option b/c D was principal offender. Successful Charter challenge but sec 17 did not excuse offence b/c threats faced were not immediate from person who was present when D imported heroin. b) Did not strike down sec 17 CC but struck down provisions of immediacy and presence requirements. b) 17 applies to those who commit offence, under compulsion by threats of death or bodily harm if person believes that threats will be carried out and if the person is not a party to a conspiracy or association whereby the person is subject to compulsion. c) Threats need not be express from words or gestures, but can reasonably be implied from circumstances: instructing cousin to assist him after D killed two other people. b) Second requirement: subjective belief that threats will be carried out: even an unreasonable belief by D about threats of death and bodily harm may be sufficient basis for statutory defence of duress. 17 does not require safe avenue of escape or that there be proportionality between harm threatened and the harm caused by the accused. Other restrictions are excluded offences and exclusion of those who are threatened as a result of their criminal associations. c) No section 17 defence if offences are excluded: murder, attempted murder, sexual assault, forcible abduction, assault w/ deadly weapon or causing bodily harm, aggravated assault, unlawfully causing bodily harm, robbery, arson, and

85

abduction of a young person. These will have to be measured against constitutional principles that violated FJ to convict person who commits crime in morally involuntary manner. d) No section 17 defence if accused is party to a conspiracy or criminal association: association suggests that accused may be deprived of defence b/c of prior contact w/ those who issue threats, even though he had not entered into an agreement to commit a crime. May violate Charter sec 7. Focus should be on realistic choice but to commit offence at time it was committed, not on prior acts or associations of D. e) Summary: sec 17 has been killed off, but remains on life support. Applies to principal offenders, as opposed to parties of a crime. Applies w/o requirements of threat of immediate death or bodily harm from person who is present, punishes morally involuntary behavior. Too broad, does not require D to have reasonable belief (CL has this). Places restraints of categorical exclusion of list of offences and of accused who conspired or associated w/ those who threatened them before threats are made. Restrictions may violate sec 7. Should be struck down in its entirety and CL duress should apply to all Ds. 2) The common law defence of duress as it applies to parties to the offence: applies to all accused and accomplices under 21(1)(b) and (c) and 21(2). Generally require that D respond reasonably and in a morally involuntary manner to threats of imminent death or harm when there is no safe avenue of escape or legal way out. a) First requirement: reasonable belief in threats of death or bodily harm: Ruzic: threats need not be immediate. But, need of close temporal connection between the threat and the harm threatened. Court will interpret requirement in flexible manner. Ruzic was threatened over 2 months before she committed the crime of importing narcotics. Took 4 days to receive heroin and false passport to travel. People who threatened did not accompany her. a) If threat is far removed in time, would case doubt seriousness of the threat and on claims of an absence of safe avenue of escape. Ds subjective belief is not enough, there must be reasonable basis for such belief. Modified objevtive assessment of threat faced and whether safe avenue of escape. b) Second requirement: reasonable belief in no legal way out or safe avenue of escape: common law applies only if D had no realistic choice. D obliged to seek avenue. Albt Ct App: question is whether a reasonable person, w/ similar history, personal circumstances, abilities, capacities, and human frailties as accused would, in circumstances, reasonably believe there was no safe avenue of escape and that he had no choice but to yield to the coercion, after having taken reasonable steps such as contacting the police, to discover his full range of options. c) Third requirement: proportionality between harm inflicted and harm avoided: Ruzic: crime of importing drugs was clearly not disproportionate to threatened harm of physical violence. Similar to necessity requirement (but thats purely objective). Apply modified objective test. Murder can be proportionate if there were threats of death. Disproportionate if response to threat of infliction of non-life-threatening pain. d) Modified and contextual objective standard: tailored to circumstances of individuals or groups. Hibbert: take into account human frailties of D, personal characteristics. Look at Ds perceptions of surrounding facts - relevant in determining if conduct was reasonable under the circumstances, thus, if conduct is excusable. 3) Duress and mens rea: duress will not negate mens rea required to be party to an offence. Duress relevant to high levels of mens rea and even then, not sure if it will negate mens rea. Carker: no defence b/c D threatened w/ future not immediate death. No suggestion that D did not know what he was doing. 1) Herbert: D charged w/ perjury did not have CC 17 defence b/c not threatened w/ immediate death/bodily harm. Mental element of perjury requires more than a deliberate false statement. Statement must also have been made w/ intent to mislead. Court narrowed incidences in which duress could raise a reasonable doubt about mens rea. Held, duress could negate Ds intent required to form an unlawful purpose under 21(2) or intent required for doing something for purpose of aiding an offence under 21(1)(b). Thus, duress will rarely be relevant in determining mens rea. 2) Herbert:Overruled Paquette to extent that it suggested that accused who participated in a robbery under duress did not have the intent to carry out the unlawful purpose as required under 21(2) of CC. 4) Summary: Statutory law applies to principals. Common law applies to parties of offence and all offenders, regardless of whether they actually committed the offence or were parties to offence. CL remains superior. Reasonable person has same characteristics as accused. 5) Conclusion: Ds do not have to establish defence of self defence, necessity, and duress on a balance of probabilities (unlike due diligence, extreme intoxication, mental disorder, and automatism). 1) Modified and contextual objective approach taken 2) Self defence principles: 1) believe on reasonable grounds that either force or threat of force is being used against them or another 2) respond for subjective purpose of defending themselves, 3) must respond in a manner that is reasonable in the circumstances. 3) Defence of property: 1) reasonable belief in peaceful possession of property combined w/ a claim of right to the property 2) a reasonable belief that a person is threatening property 3) that the accused must act for the subjective purpose of protecting property. Must be air of reality for all four elements. 4) Common law duress or necessity: 1) reasonable perception of a threat to life or safety, 2) no reasonable alternative, 3) and proportionality between the harm done and the harm avoided. Threat need not be immediate but must be close in time to commission of crime. First two elements are contextual and modified objective, takes into account Ds characteristics, past experiences. Proportionality on objective standard.

86

20. Provocation: applies only to murder. Partial defence reducing conviction to manslaughter, where its elements are met. 1. R. v. Tran: 1. Facts: The accused had knowledge that his estranged wife was involved with another man. One afternoon, the accused entered his estranged wifes home, unexpected and uninvited, and he discovered his estranged wife in bed with her boyfriend. The accused viciously attacked them both, killing the boyfriend by repeatedly stabbing him. 2. PH: Having accepted the defence of provocation, the trial judge acquitted the accused of murder, but convicted him of manslaughter. The Court of Appeal allowed the Crowns appeal and substituted a conviction for second degree murder. 3. Issue: 4. Rule: . Provocation is a partial defence exclusive to homicide which reduces the conviction from murder to manslaughter. 1. Objective element may be viewed as two-fold: (1) there must be a wrongful act or insult; and (2) the wrongful act or insult must be sufficient to deprive an ordinary person of the power of self-control. 2. The subjective element can also be usefully described as two-fold: (1) the accused must have acted in response to the provocation; and (2) on the sudden before there was time for his or her passion to cool. 3. There is both an objective and a subjective component to provocation in s. 232 of the Criminal Code. Once it is established that the wrongful act or insult was sufficient to deprive an ordinary person of the power of self-control, the inquiry turns to a consideration of the subjective element of the defence, which is whether the accused acted in response to the provocation and on the sudden before there was time for his or her passion to cool. 5. Reasoning: 1. The accused must have a justifiable sense of being wronged. A central concern with the objective standard has been the extent to which the accuseds own personal characteristics and circumstances should be considered. A restrictive approach to the ordinary person approach ignores relevant contextual circumstances. Conversely, an individualized approach would lead to anomalous results if all the accuseds characteristics were taken into account; it would also ignore the cardinal principle that the criminal law is concerned with setting standards of human behaviour. 2. It is important not to subvert the logic of the objective inquiry. The proper approach is one that takes into account some, but not all, of the individual characteristics of the accused. Personal circumstances may be relevant to determining whether the accused was in fact provoked the subjective element of the defence but they do not shift the ordinary person standard to suit the individual accused. 3. The subjective element of the defence of provocation focuses on the accuseds subjective perceptions of the circumstances, including what the accused believed, intended or knew. The accused must have killed because he was provoked and not merely because the provocation existed. The requirement of suddenness serves to distinguish a response taken in vengeance from one that was provoked. Suddenness applies to both the act of provocation and the accuseds reaction to it. 4. Here, on the basis of the trial judges findings of fact and uncontested evidence, there was no air of reality to the defence of provocation. 5. The discovery of his estranged wifes involvement with another man is not an insult within the meaning of s. 232 of the Criminal Code. The accuseds view of his estranged wifes sexual involvement with another man after the couple had separated found at trial to be the insult cannot in law be sufficient to excuse a loss of control in the form of a homicidal rage and constitute an excuse for the ordinary person of whatever personal circumstances or background. Furthermore, there was nothing sudden about the accuseds discovery and it cannot be said that it struck upon a mind unprepared for it. 6. Holding: he Court of Appeal properly substituted a verdict of second degree murder and remitted the matter for sentencing. I would dismiss the appeal. 2. Provocation (Roach 405-427): partial defence that reduces murder to manslaughter. Requires 1) wrongful act or insult that is not provoked by the accused, 2) sudden provocation, 3) subjective provocation, 4) the wrongful act or insult must be of such nature as t o be sufficient to deprive an ordinary person of the power of self control. Anger alone will not suffice. Will not apply if calculatively act to retaliate an insult or wrong. Ordinary person standard designed to encourage reasonable and non violent behavior that is in accord w/ contemporary norms and values including equality under Charter. Contextualized so ordinary person has same age, gender as accused and same relevant experiences. Defence only applies if reasonable doubt about all elements. Left to jury if air of reality. a) A wrongful act or insult that is not incited by the accused or the result of the victim exercising a legal right: Tran: no wrongful insult or act when entering apartment of estranged wife and finding her naked w/ another man. a) There is no provocation when the accused has incited the victim to commit the act or insult claimed to be provocation. R. v. Squire: D was aggressor and was kicked in fight; no provocation. b) 232(3) no one shall be deemed to have given provocation to another by doing anything he has a legal right to do. R. v. Galgay: telling guy he was no good and was going to leave him. But legal right to leave him, not insult him. This restricts legal right to self defence. But what about when wife wants to leave husband, been abused, cannot insult him? Court recognizes this, insult would have to deprive ordinary person of self-control. c) Thibert: victim had no legal right to tell accused to shoot him while holding onto accuseds wife. Restricts legal right like above, to self defence.

87

b) Sudden provocation: suddenness must characterize insult and act of retaliation. Must be unexpected, cannot be manifestation of grudge, affirmation of suspected conduct or foreseeable response to something that accused has initiated. Will not be left w/ jury if there was no sudden provocation that would make unexpected impact on accuseds mind. a) Thibert: although knew that V was having affair w/ wife and was armed, wanting to talk to wife, sudden provocation in form of taunt can be found even if accused has taken initiative, produced confrontation w/ victim and had prior knowledge of victims relationship w/ wife. Distinguished b/c was reacting to taunts. b) Insult or acts must come from victim, although can be available if victim participated w/ third person in act or insult or where accused makes a reasonable mistake that the victim was involved in the provocation. Transferred intent, trying to kill one but kills another by mistake, may be mitigated by provocation defence even though accused was provoked by the person he intended to kill and not the person actually killed. c) Subjective provocation: must act before there was time for his passion to cool. Assess what actually occurred in Ds mind whether in fact acting as a result of provocation. Must have lost control. Consider intoxication, mental state, psychological temperament, history of Ds relationship w/ deceased. a) Mail fail to raise a reasonable doubt if killing involved an element of deliberation consistent w/ acting on the sudden and in the heat of passion. Thibert: held to be subjectively provoked by insult while pursuing to talk to his wife w/o deceased being present. d) Objective standard that the wrongful act or insult is capable of depriving an ordinary person of selfcontrol: R. v. Parnerkar: killed 16 yr old boy after he made sexual advances towards him. Should keep his youth in mind. Standard should not include race, if insulted about physical disability, sex not relevant in race insult. Would ordinary 16 yr old boy lose control? Did not instruct jury about youth (today they would). Standard should not be modified if person was homophobic or held antiquated beliefs about honor or adultery being the highest invasion of privacy. i. The modified objective and contextual standard: Thibert: ordinary person must have same age, sex, other facts that would give act or insult special significance and have experienced the same series of acts or insults as those experienced by accused. Married man, faced w/ break up of marriage. This man would lose control if taunted him to shoot while holding his wife in front of him. ii. Factors not relevant to an ordinary person: intoxication and temper that may affect self control. Homophobia. iii. Cultural background of the accused: not relevant to place the act or insult in context b/c racial slut not been used.Only considered to determine gravity of insult. Not be used to determine self control. (people have sexist cultural values) e) Proportionality not required: focus on loss of control, not if person would have done what D did. Thus, no proportionality. f) Provocation and the Charter: issues (1) whether objective standard violates sec 7, (2) whether abolition or tightening of provocation defence violates sec 7. Requirement that act/insult be sufficient to deprive ordinary person self control, attacked as being inconsistent w/ sec 7. Objective standard does not relieve crown of burden of proving the accused subjectively knew that victim was likely to die. a) Abolition of provocation would not violate sec 7 b/c not morally innocent, still have min mens rea, did not act in morally involuntary manner. If abolished would mean D would get life imprisonment. Could be found as disproportionate where D responded to sudden and extraordinary insult. b) More restrictive requirements instead. Make response to act/insult proportionate. g) Relation of provocation to the fault element: evidence of provocation could prevent D from proving mental element of murder. Anger alone cannot provoke, can be relevant evidence though, could raise reasonable doubt that D intended accused would die or knew would die. Consider it w/ all other evidence. h) Relation of provocation to other defences: can be explained w/ internal emotional make-up or that required the public to be protected from a continuing danger, then the defence would be mental disorder automatism. If provo explaiend by external factors: seeing loved one killed/harmed, defence might be non-mental disorder automatism, leading to complete acquittal. a) Intoxication and provocation may prevent crown from proving intent of murder beyond a reasonable doubt even though evidence considered separately would not be capable of producing either an intoxication or a provocation defence. 21. Entrapment: common law defence that applies even when D had committed crime w/ required fault. Results in stay of proceedings in cases where state agent has provided D w/ opportunity to commit a crime w/o either a reasonable suspicion that D was involved in crime or a bona fide inquiry into a particular type of crime in a high crime area. Even if there reasonable suspicion or bona fide inquiry, entrapment will apply and result in a stay if the state agent induces the commission of the crime. 1. R. v. Mack 1. Facts: refused the approaches of a police informer over the course of six months, and that he was only persuaded to sell him drugs because of the informer's persistence, his use of threats, and the inducement of a large amount of money. had given up his use of narcotics. 2. Ph: The application for a stay was refused and appellant was convicted of drug trafficking. The Court of Appeal dismissed an appeal from that conviction. 3. Issue: The central issue here concerns the conceptual basis of the doctrine of entrapment and the manner in which an entrapment claim should be dealt with by the courts. 4. Rule: Entrapment occurs when (a) the authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that this person is already engaged in criminal activity or pursuant to a bona fide inquiry, and, (b) although

88

having such a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunity and induce the commission of an offence. 1. Factors may be considered in determining if the police have gone further than providing an opportunity: (1) the type of crime being investigated and the availability of other techniques for the police detection of its commission; (2) whether an average person, with both strengths and weaknesses, in the position of the accused would be induced into the commission of a crime; (3) the persistence and number of attempts made by the police before the accused agreed to committing the offence; (4) the type of inducement used by the police including: deceit, fraud, trickery or reward; (5) the timing of the police conduct, in particular whether the police have instigated the offence or became involved in ongoing criminal activity; (6) whether the police conduct involves an exploitation of human characteristics such as the emotions of compassion, sympathy and friendship; (7) whether the police appear to have exploited a particular vulnerability of a person such as a mental handicap or a substance addiction; (8) the proportionality between the police involvement, as compared to the accused, including an assessment of the degree of harm caused or risked by the police, as compared to the accused, and the commission of any illegal acts by the police themselves; (9) the existence of any threats, implied or express, made to the accused by the police or their agents; (10) whether the police conduct is directed at undermining other constitutional values. This list is not exhaustive. 5. Reasoning: 1. An objective assessment of the conduct of the police and their agents is required. The predisposition, or the past, present or suspected criminal activity of the accused, is relevant only as a part of the determination of whether the provision of an opportunity by the authorities to the accused to commit the offence was justifiable. 2. Further, there must be sufficient connection between the accused's past conduct and the provision of an opportunity, since otherwise the police suspicion will not be reasonable. While the accused's predisposition is of some relevance, albeit not conclusive, in assessing initial approach by the police of a person with the offer of an opportunity to commit an offence, it is never relevant as regards whether they went beyond an offer, since that is to be assessed with regard to what the average non-predisposed person would have done. 3. The presence of reasonable suspicion or the mere existence of a bona fide inquiry will, however, never justify entrapment techniques: the police may not go beyond providing an opportunity regardless of their perception of the accused's character and regardless of the existence of an honest inquiry. 4. Objective entrapment involving police misconduct, and not the accused's state of mind, is a question to be decided by the trial judge, and the proper remedy is a stay of proceedings. 5. The issue of entrapment should be decided by the trial judge, as opposed to jury, for policy reasons. A judge should consider the question from the perspective of a reasonable person, dispassionate and fully apprised of all the circumstances, and the reasonable person is usually the average person in the community but only when that community's current mood is reasonable. The issue is maintaining respect for the values which, over the long term, hold the community together. One of those very fundamental values is the preservation of the purity of the administration of justice. 6. A judge is particularly well suited to make this determination. Then, too, the determination of whether the admission of evidence obtained in violation of a Charter right would bring the administration of justice into disrepute is one which should be made by a trial judge. If one of the advantages of allowing claims of entrapment is the development of standards of conduct on the part of the state, it is essential that decisions on entrapment, and those allowing the claim especially, be carefully explained so as to provide future guidance; this is not something the jury process lends itself to. 7. Before a judge considers whether a stay of proceedings lies because of entrapment, it must be absolutely clear that the Crown has discharged its burden of proving beyond a reasonable doubt that the accused had committed all the essential elements of the offence. If this is not clear and there is a jury, the guilt or innocence of the accused must be determined apart from evidence which is relevant only to the issue of entrapment. This protects the right of an accused to an acquittal where the circumstances so warrant. 8. If the jury decides the accused has committed all of the elements of the crime, it is then open to the judge to stay the proceedings because of entrapment by refusing to register a conviction. Because the guilt or innocence of the accused is not in issue at the time an entrapment claim is to be decided, the right of an accused to the benefit of a jury trial in s. 11(f) of the Charter is in no way infringed. 9. The police here were not interrupting an ongoing criminal enterprise; the offence was clearly brought about by their conduct and would not have occurred without their involvement. Nor were they exploiting appellant's narcotics addiction. The persistence of the police requests and the equally persistent refusals, and the length of time needed to secure appellant's participation in the offence, indicate that the police had tried to make appellant take up his former life style and had gone further than merely providing him with the opportunity. 10. The most important and determinative factor, however, was that appellant had been threatened and had been told to get his act together when he did not provide the requested drugs. This conduct was unacceptable and went beyond providing the appellant with an opportunity. The fact that the appellant eventually committed the offence when shown the money was not significant because he knew of the profit factor much earlier and still refused. The average person in appellant's position might also have committed the offence, if only to finally satisfy this threatening informer and end all further contact. 11. The police had reasonable suspicion that the appellant was involved in criminal conduct but they went too far in their efforts to attract him into the commission of the offence. The doctrine of entrapment was applicable to preclude appellant's prosecution and appellant met the burden of proof. The trial judge should have entered a stay of proceedings for abuse of process.

89

6. Holding: The appeal should be allowed. 2. R. v. Barnes 4. Facts: In a "buy-and-bust" operation, undercover police officers attempt to buy illicit drugs from individuals who appear, in the officers' opinion, to be inclined to sell drugs. The appellant, who in the words of a police officer was "dressed scruffy", was in the Granville Mall area when approached on a "hunch" by an undercover police officer. The officer asked him if he had any "weed". Despite a negative answer, the officer asked the question again and persisted until the appellant agreed to sell a small amount of cannabis resin. 5. Ph: he trial judge found, however, that the police officer had engaged in "random virtue testing" and granted a judicial stay for entrapment. The British Columbia Court of Appeal allowed the Crown's appeal of the finding of entrapment and ordered a new trial. 6. Issues: (1) whether appellant was subjected to random virtue-testing; and, (2) whether this Court, absent a cross-appeal by the Crown, has jurisdiction to modify the court of appeal's decision allowing the Crown's appeal from the judicial stay of proceedings and enter three convictions. 7. Rules: 1. The police may only present the opportunity to commit a particular crime to an individual who arouses a suspicion that he or she is already engaged in the particular criminal activity. An exception to this rule arises when the police undertake a bona fide investigation directed at an area where it is reasonably suspected that criminal activity is occurring. When such a location is defined with sufficient precision, the police may present any person associated with the area with the opportunity to commit the particular offence. The notion of being "associated" with a particular area for these purposes does not require more than being present in the area. Such randomness is permissible within the scope of a bona fide inquiry. 2. Random virtue-testing only arises when a police officer presents a person with the opportunity to commit an offence without a reasonable suspicion that: (a) the person is already engaged in the particular criminal activity, or (b) the physical location with which the person is associated is a place where the particular criminal activity is likely occurring. 8. Reasoning 1. The police officer here did not have a "reasonable suspicion" that the appellant was already engaged in unlawful drug-related activity. The factors drawing her attention to the appellant -- his manner of dress, the length of his hair -- were not sufficient to give rise to a reasonable suspicion that criminal acts were being committed. The subjectiveness of her decision to approach the appellant, based on a "hunch" or "feeling" rather than extrinsic evidence, also indicated that the appellant did not arouse a reasonable suspicion as an individual. The appellant, however, was presented with the opportunity to sell drugs in the course of a bona fide inquiry. The officer's conduct was motivated by the genuine purpose of investigating and repressing criminal activity and the investigation was directed at a suitable area within Vancouver. Although the size of the area itself may indicate that the investigation is not bona fide, it was reasonable for the Vancouver Police Department to focus its investigation on the Granville Mall. 2. The appellant, when he was in the Granville Mall, was in a location where it was reasonably believed that drug-related crimes were occurring. The officer's conduct was therefore justified. 3. This Court has jurisdiction under s. 695(1) to modify an order at the request of the Crown when there is an appeal by the Crown making such a request. When there is no appeal by the Crown, an appellant cannot leave this Court with less than what he gained from the Court of Appeal. 4. In the absence of an appeal by the Crown, this Court has no jurisdiction to allow the Crown's request that the order below be modified. To hold otherwise would allow the Crown to appeal to this Court where such an opportunity has not been provided by the Criminal Code or the Supreme Court Act. The Crown is not given by statute the ability to appeal to this Court a decision which allowed its appeal from an acquittal or judicial stay of proceedings, but which gave the Crown less than what had been requested. As a result, there is no statutory provision which would allow the Crown to appeal from the Court of Appeal's judgment. Absent a statutory right of appeal, there is no right of appeal. 9. Holding: The appeal should be dismissed. 10. Per L'Heureux-Dub J. (dissenting in part): 1. Rule: As a general rule, an appellate court cannot disturb a verdict of acquittal or modify an order directing a new trial, absent an appeal by the Crown asking it to do so. Appellate jurisdiction is conferred entirely by statute. An exception to the general rule regarding Crown appeals and appellate jurisdiction has been formulated. The continued effect of the "acquittal" is lifted and the conviction is reinstated should the Crown's appeal of the stay, by appealing the application of the rule itself, be successful or should the accused successfully appeal one of the convictions. 2. Reasoning: No "live" issue regarding the second branch of the entrapment test existed. In this light, it is as unreal to entertain arguments of prejudice to the accused in entering convictions as it is to order a new trial in such circumstances. The lack of adjudication by the trial judge regarding the second branch of the entrapment test can neither prevent the entering of a conviction nor justify the order for a new trial on that issue. Accordingly, the Court of Appeal erred in ordering a new trial on this second branch of the test of entrapment. 11. Per McLachlin J. (dissenting): 1. Rule: Determination of entrapment must involve a balancing between the individual interest in being left alone and the state's interest in the repression of crime. Only where considerations such as fairness, justice and the need for protection from crime tip the balance in favour of the state will police conduct which offends the individual interests at stake be acceptable.

90

2. Reasoning: Limits must be placed on the state's ability to intrude into the daily lives of its citizens. A further risk inherent in overbroad undercover operations is that of discriminatory police work, where people are interfered with not because of reasonable suspicion but because of the colour of their skin or the quality of their clothing and their age. 1. Test: In determining whether there was a bona fide inquiry, the court must consider not only the motive of the police and whether there is crime in the general area, but also other factors relevant to the balancing process, such as the likelihood of crime at the particular location targeted, the seriousness of the crime in question, the number of legitimate activities and persons who might be affected, and the availability of other less intrusive investigative techniques. 2. The question is whether the interception at the particular location was reasonable having regard to the conflicting interests of private citizens in being left alone from state interference and of the state in suppressing crime. If the answer to this question is yes, then the inquiry is bona fide. This test offers sufficient guidance to the police. 3. That crime may be said to occur generally within a given area does not suffice to establish a bona fide inquiry, given proper police motives. Other factors must be considered. The first is the likelihood of crime in the particular area targeted. The fact that trafficking occurred at different locations in the six-block area of the mall does not establish that trafficking was likely to occur at the time and place where the appellant was intercepted. The second relates to the possibility that this undercover operation would interfere with the legitimate activities of law-abiding citizens. This factor, while not in itself conclusive, weighed against the right of undercover police to intercede at will. On the other side of the balance must be weighed the seriousness of the criminal activity which the police have targeted. The offence here in question, while not to be condoned, could not be considered as one of the most serious and alternative investigatory techniques were available to detect it. 4. The individual interest in being left alone and free to pursue one's daily business without being confronted by undercover police operatives vastly outweighs the state interest in the repression of crime. The police officer here, therefore, was not acting pursuant to a bona fide inquiry. 3. Entrapment (Roach 42-44): R. v. Mack: recognized common law defence. Permanent stay of proceedings, rather than acquittal. Established by D on a balance of probabilities. Determination left until after Ds guilty established. Judge decides if entrapment made out (not jury) b/c in best position to decide if states activities would bring admin of justice into disrepute. 8. Definition: occurs when state offers person an opportunity to commit a crime w/o reasonable suspicion that person was engaged in criminal activity or while not engaged in a bona fide inquiry into crime in a high-crime area. 9. State must provide opportunity and simply drug buy may not be opportunity. If reasonable suspicion or bona fide, entrapment occurs if state goes beyond providing D w/ opportunity to commit a crime and induces its commission. 10. Reasonable suspicion: less than reasonable and probable grounds to believe a person has committed a specific crime. Mack: yes, b/c six month sting operation and D was former drug user w/ convictions even though told cops he was only interested in real estate. 2. Barnes: no; b/c cop acted on hunch that scruffily dressed male who looked around a lot was selling marijuana. Held no entrapment b/c police were acted pursuant to bona fide inquiry b/c he was present at place associated w/ criminal activities. Dissent: high crime area defined broadly. Majority would allow random virtue testing of those found in areas, even if no reasonable suspicion D engaged in the crime. 11. Police will go over the line and induce commission of crime, if conduct is so objectionable that it brings admin justice into disrepute and would have induced an average person into committing the crime. (Persistent solicitation w/ threats) May have defence of duress available. 12. None: Brief conversation btn cop and person selling drugs is not entrapment. Fact that state sold drugs will not be entrapment, unless shocks the conscience of the community. Focus on propreity of conduct. None if entrapped by private individual not acting on behalf of state. 13. Courts will examine proportionality btn conduct of state and D and whether state instigated the crime and exploited the accused. V. THE ADVERSARIAL PROCEEDING 22. The Adversarial Process: the trial process (criminal procedure; Coughlan 347-270) 1. Pleas: CC 606: guilty, not guilty, special: autrefois acquit, autrefois convict, and pardon. Special pleas man that the matter that D is called upon has already been dealt w/ - D previously was acquitted, convicted, pardoned for same offence. Rule against multiple convictions. 1. Guilty plea: is waiver to trial. Court should inquire to make sure D understands its effect, no obligation to do so. Can withdraw guilty plea later if there are valid grounds for being permitted to do so. (pressured by counsel, or plead to get fine rather than spend one week waiting trial, or charges laid) 1. Hanemaayer: withdrew after found evidence that someone else committed the offence. 2. Taillefer: can withdraw if later find out your constitutional rights were violated. Test: how a reasonable person would have behaved w/ knowledge of undisclosed evidence if there was a realistic possibility that the accused would have run the risk of a trial, if he she had been in possession of that information or those new avenues of investigation, leave must be given to withdraw the plea. 3. Generally no obligation of judge to hear evidence, but can. Judge should inquire into intention and only accept guilty plea if clear that D unequivocally wishes to plead, intends to admit all elements, defence counsel has ethical obligation in this regard.

91

2. Not guilty: innocence; demand that crown prove all elements and disproves the existence of any defences. Puts defence in issue. If refuses to play, court will enter not guilty. 3. CC 650: D must be present in court for plea. CC 800: D charged w/ summary conviction to appear by counsel. Counsel entered plea, when D present, is binding. Recently, enter plea via electronic appearance, if permits simultaneous visual and oral communication & D can still consult privately w/ counsel. 2. Order of trial 1) Trial procedures: D must be present, even though video link. If D absconds during trial, court can either issue a warrant w/o accused. Counsel can continue acting on Ds behalf. Judge has no discretion as to where D will set; normally prisoners dock. Not required to permit D to set elsewhere unless refusal will violate Ds right to full answer and defence. Judge can ask questions. Juries can too - but should not be interrogation; best left until the end, submitting in writing to trial judge who can discuss w/ counsel. 2) Opening statements: crown presents case first, begin w/ theory of face, evidence to be called. Not obligated to call every witness indicated, can modify, trial strategy as it develops. D can point this out to jury b/c adverse inferences can be drawn. In special circumstances, D allowed opening statement after the crowns, no obligation to call witnesses for direct and need that counsel acting reasonably cannot be expected to give undertaking at that stage to call evidence. Defence might adduce evidence through cross of crowns witnesses. 3) Presentation of the crown case: after opening, crown calls evidence proving charges laid. Same procedures as preliminary inquiry: evidence to be taken under oath in presence of accused, the accused is entitled to cross the crown witnesses, and the evidence is recorded. D can conceded parts of crown s case by agreed statement of facts. D can concede voluntariness of a statement and waive voir dire. 1) Crown has discretion in presenting case. No obligation to call particular witness. D can call any witness not part of Crowns case. Can apply canada evidence act to cross examine crowns witness,. 2) Evidence: testimony, documents, special rules for ownership and property, experts reports, dates of birth, previous convictions. Commission evidence for witnesses out of the country, or ill or other good sufficient cause cannot attend. Evidence at prelim can be used. Videotaped testimony of under 18 or w/ physical or mental disability for sexual offences. Use of technology. 3) CC 652: Jury can have view to see any place person or thing; any time prior to verdict, even after deliberations. 4) CC 545: Judge can imprison witness who refuses to testify for period of up to 8 days at time. 4)Presentation of the defence case: a) Application for a directed verdict: can do this after crowns case. Basically, no case to meet, judge tells jury to return verdict of non guilty. Now, withdraw case from jury and enter acquittal personally. Judge cannot direct acquittal on basis of crowns evidence of identification is unreliable, b/c trial judge is not permitted to weigh the strength of the evidence at all. a) Test: whether or not there is any evidence upon which reasonable jury properly instructed could return a verdict of guilty. (same as preliminary inquiries) b) Not available if crowns case is weak. Possible where there is a complete absence of evidence on some point to be proven. Also applies if crowns case is all based on circumstantial evidence. In such cases, jury can convict if no rational explanation for circumstantial evidence other than the accused committed the crime, and must be charged on that basis. c) Can be granted on charge laid but trial must be allowed to proceed in order to decide whether the accused is guilty of any included offence. b) Defence presentation of evidence: make full answer and defence. Defence has discretion: call witness, introduce evidence crown decided not to call. Failure of D to testify cannot be made subject of comment by judge/crown - right to silence and presumption of innocence, in Charter. 5) Reopening the crowns case: crown cannot split case and introduce more witnesses after defences case b/c D is entitled to know full case o meet before deciding to take stand or stay silent. Exceptional cases, crown may reopen as discretion of judge. Keystone principle: if D will be prejudiced in making a defence. Must act to protect Ds interests, interests of justice. 1) Evidence ought to be new, not foreseen by crown, and in interests of justice. Being new is not enough, allowed defence directly/indirectly contributed to crowns failure to lead the evidence, or where crown made mistake or omission on non controversial issue that was purely technical and had nothing to do w/substance of case. Focus is on prejudice to accused, regardless of crown being diligent or not. 2) R. v. Sylvester: crown re opened b/c witness lied on stand, called cop, and identified herself weekend before closing arguments. Defence cross examined. No problem arose w/ procedure since trial judge had adequately instructed jury on limited use they could make of new evidence. 6) Rebuttal evidence: permitted where defence raised new matter or defence which crown had no opportunity to deal w/ and which crown or plaintiff could not reasonably have anticipated. Not permitted to confirm or reinforce earlier evidence adduced in the crowns case which could have been brought before the defence was made. 1) R. v. Biddle: D testified about whereabouts during night of assault. Crown rebutted w/ witness who testified that D followed her to his car at that time. Held that this should not be allowed in b/c could have been part of crowns original case. Crown knew Ds statement about whereabouts made to police. 2) Cannot be made to reply to collateral issue, or be determinative essential issue. Rather, question is whether it relates to an essential issue which may be determinative of the case. If it does and crown could not have foreseen that evidence would be necessary, then it is generally admissible.

92

3) Defence has right to make full answer and defence CC 650(3), thus, can make surrebuttal evidence. 7) Reopening the defence case: judges discretionary decision. R. v. Scott: witness did not respond to subpoena, entered no evidence, crown made final submissions. Witness showed up and accused applied to reopen case. Held that trial judge did not exercise her discretion improperly in refusing to allow the accused to reopen case and call witness. Judge had obligation to conduct trial in an expeditious and orderly manner, had been given no explanation of the way in which the witness testimony would be relevant, and had to consider possible prejudice to the co-accused who objected to the adjournment. 1) Ont Ct App: case cannot be reopened after verdict reached by the jury or if judge acquitted accused. But can be re opened following judges guilty verdict in special circumstances. More stringent standard to be met if application after adjudication. 2) Sask Ct App if new evidence to be admitted after finding of guilt, test should not vary depending on which court is admitting the evidence. Test for judge to reopen defence case after guilty verdict should be the same for admitting fresh evidence on appeal. 8)Addresses to the jury: a) Closing arguments by counsel: if defence has not called witness then crown argues first, if defence has then it argues first. If crowns address threaten Ds fair right to trial, there are 2 options: Judge could give curative instruction to jury to ignore improper aspects of argument. Could grant defence limited right of reply following crowns address, where not doing so would prejudice the accuseds right to a fair trial and to make full answer and defence. a) Alternatives: allow D to speak last, or choice when to speak. b) Counsel cannot offer personal opinions, use inflammatory language, attack personal integrity of opposing counsel, misrepresent the evidence, or inject irrelevant issues. Cannot comment on Ds refusal to testify. Judge can intervene. b) Charging the jury: these are instructions. Purpose is to simplify the case and leave the jury w/ sufficient understanding of the facts as they relate to relevant legal issues. Judge has discretion for reviewing facts and directions, instructions. Judge can offer opinions. c) Re-charging the jury: considered part of the charge. Could rectify an error in original charge. a) The presumption of innocence and the Ultimate Standard of Proof: bb 1. R. v. Lifchus: 1. Facts: The accused, a stockbroker, was charged with fraud. The trial judge told the jury in her charge on the burden of proof that she used the words proof beyond a reasonable doubt . . . in their ordinary, natural every day sense, and that the words doubt and reasonable are ordinary, every day words that . . . you understand. The accused was convicted of fraud. 2. Ph: On appeal, he contended that the trial judge had erred in instructing the jury on the meaning of the expression proof beyond a reasonable doubt. The Court of Appeal allowed the appeal and ordered a new trial. 3. Issues: (1) Must a trial judge provide the jury with an explanation of the expression reasonable doubt? (2) If so, how should this concept be explained to the jury? (3) Did the charge in this case amount to a misdirection on the meaning of reasonable doubt? (4) If the charge in this case was insufficient, ought this Court give effect to the curative proviso set out at s. 686(1)( b)(iii) of the Criminal Code? 4. Rule: A jury must be provided with an explanation of the expression reasonable doubt. This expression, which is composed of words commonly used in everyday speech, has a specific meaning in the legal context. The trial judge must explain to the jury that the standard of proof beyond a reasonable doubt is inextricably intertwined with the presumption of innocence, the basic premise which is fundamental to all criminal trials, and that the burden of proof rests on the prosecution throughout the trial and never shifts to the accused. 1. It should be explained that: 1. the standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence; 2. the burden of proof rests on the prosecution throughout the trial and never shifts to the accused; 3. a reasonable doubt is not a doubt based upon sympathy or prejudice; 4. rather, it is based upon reason and common sense; 5. it is logically connected to the evidence or absence of evidence; 6. it does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and 7. more is required than proof that the accused is probably guilty -- a jury which concludes only that the accused is probably guilty must acquit. 2. On the other hand, certain references to the required standard of proof should be avoided. For example: 1. describing the term "reasonable doubt" as an ordinary expression which has no special meaning in the criminal law context; 2. inviting jurors to apply to the task before them the same standard of proof that they apply to important, or even the most important, decisions in their own lives; 3. equating proof "beyond a reasonable doubt" to proof "to a moral certainty"; 4. qualifying the word "doubt" with adjectives other than "reasonable", such as "serious", "substantial" or "haunting", which may mislead the jury; and

93

5. instructing jurors that they may convict if they are "sure" that the accused is guilty, before providing them with a proper definition as to the meaning of the words "beyond a reasonable doubt". 5. Reasoning: 1. The jury should be instructed that a reasonable doubt is not an imaginary or frivolous doubt, nor is it based upon sympathy or prejudice. A reasonable doubt is a doubt based on reason and common sense which must logically be derived from the evidence or absence of evidence. While more is required than proof that the accused is probably guilty, a reasonable doubt does not involve proof to an absolute certainty. Such a standard of proof is impossibly high. 2. Certain references to the required standard of proof should be avoided. A reasonable doubt should not be described as an ordinary expression which has no special meaning in the criminal law context, and jurors should not be invited to apply to the determination of guilt in a criminal trial the same standard of proof that they would apply to the decisions they are required to make in their everyday lives, or even to the most important of these decisions. Nor is it helpful to describe proof beyond a reasonable doubt simply as proof to a moral certainty. As well, the word doubt should not be qualified other than by way of the adjective reasonable. T 3. o instruct a jury that a reasonable doubt is a haunting doubt, a substantial doubt or a serious doubt may have the effect of misleading the jury. Lastly, it is only after proper instructions have been given as to the meaning of the expression beyond a reasonable doubt that jurors may be advised that they can convict if they are certain or sure that the accused is guilty. The model charge set out in the reasons may be useful but any charge which is consistent with these principles will suffice regardless of the particular words used by the trial judge. 4. Here, the trial judge failed to explain the standard of proof fully and properly to the jury. He did not provide a definition of reasonable doubt and told the jurors to evaluate the concept of reasonable doubt as if these were ordinary, every day words. This is an unacceptable direction. In the context of a criminal trial, the words reasonable and doubt have a specific meaning. 5. Since the trial judge did not provide any further guidance to the jury concerning the meaning of proof beyond a reasonable doubt, this serious error was not saved by further instructions and gave rise to the reasonable likelihood that the jury misapprehended the burden of proof which they were required to apply. Section 686(1)(b)(iii) of the Criminal Code is not applicable. The correct explanation of the requisite burden of proof is essential to ensure a fair criminal trial and a serious error was made on this fundamental principle of criminal law. It cannot be said that, had the trial judge not erred, the verdict would necessarily have been the same. 6. Holding: In the result, the appeal is dismissed and the order directing the new trial is confirmed. 7. Concurrence: Cory J.s approach and result on the question of reasonable doubt are agreed with. Section 686(1)( b)(iii) of the Criminal Code is an inappropriate remedy in this case. Given that the full trial record was not before the Court, and that the submissions on the miscarriage of justice aspect of the provision were insufficient, the Crown has failed to discharge its burden to satisfy the Court that the verdict would necessarily have been the same if the error had not been made. 2. R. v. Starr 4. Facts: The Crowns theory was that the killing was a gang-related execution perpetrated by the accused. W was an unfortunate witness who was killed simply because she was in the wrong place at the wrong time. The theory was that the accused had used an Autopac scam as a pretext to get C out into the countryside. The trial judge found that Gs anticipated testimony regarding the scam was admissible under the present intentions or state of mind exception to the hearsay rule. 1. The officer testified that B indicated that the man in one of the photographs she was shown looked like the man whom she had seen at the gas station talking to C and who was also probably driving the other car. The photograph was a photo of the accused. Following a voir dire the trial judge ruled that the officers anticipated testimony was admissible pursuant to the prior identification exception to the hearsay rule, notwithstanding the fact that B had not testified at trial as to having seen a man talking to C at the gas station, or as to having identified that man in one of the photographs presented to her by the police. 5. Ph: The Court of Appeal, in a majority decision, upheld the convictions. 6. Issue: whether the court erred in affirming the trial judges decision to admit Gs testimony regarding a statement of intention made by the deceased C, in affirming the trial judges decision to admit the testimony of the police officers regarding Bs out-of-court identification and in finding that the trial judge had explained the concept of reasonable doubt to the jury in an adequate manner. 7. Rules: 1. Two significant holdings came from Starr, which affected the way the principled approach was to be implemented. The first was that the traditional hearsay exceptions would continue to operate, but that they would have to conform to the principled approach's tenets of reliability and necessity (at paras. 202-07). Therefore, if a conflict arose between the traditional exceptions and the principled approach, it would be the principled approach that would prevail. The second, and most controversial aspect of the decision, was that in assessing threshold reliability, the trial judge must only consider the circumstances surrounding the making of the statement (at paras. 215-17). This holding effectively barred the consideration of corroborative evidence in the reliability assessment. This aspect of Starr was overruled by Khelawon, 2006 SCC 57 on December 14, 2006. 8. Reasoning:

94

1. The state of mind or present intentions exception to the hearsay rule as it has developed in Canada permits the admission into evidence of statements of intent or of other mental states for the truth of their contents and also, in the case of statements of intention in particular, to support an inference that the declarant followed through on the intended course of action, provided it is reasonable on the evidence for the trier of fact to infer that the declarant did so. A statement of intention cannot be admitted to prove the intentions of someone other than the declarant, unless a hearsay exception can be established for each level of hearsay. 2. The trial judge erred in admitting Cs statement to G under the present intentions exception and, having admitted it, in not limiting its use by the jury. The statement contained no indicia of reliability since it was made under circumstances of suspicion. 3. Moreover, the trial judge failed to instruct the jury that the statement was only admissible as evidence regarding the intentions of C, not the accused. 4. The prejudicial effect of the admission of Cs statement outweighed the statements probative value. Should have been excluded. 5. Cs statement to G was also inadmissible under the principled approach. Since it was made under circumstances of suspicion, the statement was not reliable. Nor are there any other circumstantial guarantees of trustworthiness that could render the statement reliable. 6. The trial judge erred in admitting the police evidence regarding Bs out-of-court identification under a traditional exception to the hearsay rule. Under the prior identification exception, prior statements identifying or describing the accused are admissible where the identifying witness identifies the accused at trial, or where the identifying witness is unable to identify the accused at trial, but can testify that he or she previously gave an accurate description or made an accurate identification. 7. a jury must be instructed that the standard of proof in a criminal trial is higher than the probability standard used in making everyday decisions and in civil trials. In this case the jury was not told that something more than probability was required in order to convict, and nearly all of the instructions they were given weakened the content of the reasonable doubt standard in such a manner as to suggest that probability was indeed the requisite standard of proof. The reasonable likelihood that the jury applied the wrong standard of proof raises a realistic possibility that the accuseds convictions constitute a miscarriage of justice. 8. 9. Holding: In a 5 to 4 decision the Court held that the evidence should not be admitted and sent the case back for a retrial. The appeal should be allowed and a new trial ordered. 10. Per LHeureux-Dub and Gonthier JJ. Dissenting: The following framework of analysis should be adopted for hearsay statements. First, it must be determined whether the statement is hearsay. Second, the trial judge should determine whether the hearsay statement falls within an established exception to the hearsay rule. Third, if the evidence does not fall within an established exception, the trial judge should determine whether it would still be admissible under the principled approach. Fourth, the trial judge maintains the limited residual discretion to exclude evidence where the risk of undue prejudice substantially exceeds the evidences probative value. Finally, once the statements are found admissible, it is for the trier of fact to weigh the evidence and make a determination as to the ultimate reliability of the hearsay evidence at issue. The case-by-case application of the principled approach to statements falling within accepted exceptions to the rule against hearsay should not be countenanced. 1. The charge communicated clearly to the jury that they could not find the accused guilty on a balance of probabilities. Moreover, the charge made it clear to them that the standard of proof beyond a reasonable doubt is inextricably linked to the presumption of innocence and that this burden never shifts to the accused. In light of the trial judges compliance with the bulk of the principles enunciated in Lifchus, the charge was not automatically vitiated by the failure to include a specific item mentioned inLifchus or by the inclusion of an improper item. 2. 11. Per McLachlin C.J. and Bastarache J. Dissenting: The following principles govern the admissibility of hearsay evidence: (1) Hearsay evidence is admissible if it falls under an exception to the hearsay rule; (2) The exceptions can be interpreted and reviewed as required to conform to the values of necessity and reliability that justify exceptions to the hearsay rule; (3) Where the evidence is admissible under an exception to the hearsay rule, the judge may still refuse to admit the evidence if its prejudicial effect outweighs its probative value; (4) Where evidence is not admissible under an exception to the hearsay rule, the judge may admit it provided that necessity and reliability are established. 3. R. v. J.H.S. 4. Facts: The accused was charged with sexual assault after the complainant alleged that the accused had sexually abused her over a number of years. The accused, who denied all allegations of impropriety, was tried before a judge and jury. The issue at trial was whether the alleged events had ever happened. The complainant and the accused were the principal witnesses. The trial judge charged the jury on the credibility of the witnesses and specifically instructed the jury that the trial was not a choice between two competing versions of events. The jury returned a verdict of guilty. 5. Ph: majority of the Court of Appeal set aside the conviction and ordered a new trial on the basis that the trial judge insufficiently explained the principles of reasonable doubt as they applied to credibility, concluding that the jury was not

95

clearly instructed that lack of credibility on the part of the accused does not equate to proof of his guilt beyond a reasonable doubt. The dissenting judge would have upheld the conviction finding that the charge to the jury was sufficient. 6. Issue: 7. Rule: Where credibility is a central issue in a jury trial, the judge must explain the relationship between the assessment of credibility and the Crowns ultimate burden to prove the guilt of the accused to the criminal standard. 8. Reasoning: A general instruction on reasonable doubt without adverting to its relationship to the credibility (or lack of credibility) of the witnesses leaves open too great a possibility of confusion or misunderstanding. It must be made crystal clear to the jury that the burden never shifts from the Crown to prove every element of the offence beyond a reasonable doubt. Where credibility is important, the trial judges instructions must not leave the jury with the impression that it has to choose between the two versions of events. The credibility contest error must be avoided. Lack of credibility on the part of the accused does not equate to proof of his or her guilt beyond a reasonable doubt. 1. In this case, the reasoning of the majority brushes uncomfortably close to treatment of W. (D.) as a magic incantation. When read as a whole, the charge did not leave the jury with any misapprehension as to the correct burden and standard of proof to apply. The trial judge told the jury that they could not decide the case simply by choosing between the evidence of the complainant and that of the accused. She explained that even if they did not accept all of the accuseds testimony, they could still accept some of it. She also explained that any reasonable doubt must be resolved in favour of the accused and, in that context, she reminded the jury that they must consider all of the evidence when determining reasonable doubt. This was sufficient. 9. Holding: I would allow the appeal, set aside the judgment of the Court of Appeal, and restore the conviction. 4. Right to be presumed innocent (Roach 50-51): sec 11(d) - burden placed on crown to prove beyond a reasonable doubt i. Quantum of proof: crown must prove significantly higher likelihood that crime was committed (if balance of probabilities is 51%). ii. R. v. Lifchus: held that meaning of reasonable doubt must be explained to jury; told that it is realted to presumption of innocence, requires proof that accused is probably guilty but doe snot require absolute certainty. Not frivolous or imaginary doubt, but based on reason and common sense that must logically be derived from evidence or absence of evidence. iii.R. v. Starr: held that judges would err if they did not make clear to jury that reasonable doubt standard was much closer to absolute certainty than the balance of probabilities used in civil trials and everyday life. b)Other burdens 4. R. v. Oakes 1. Facts: Oakes charged with unlawful possession of narcotic for purpose of trafficking. Oakes claims s.8 of Narcotics Act violates presumption of innocence contained in s.11(d) of Charter. 2. Issue: Is s.8 of the Narcotic Control Act inconsistent with s.11(d) of the Canadian Charter of Rights and Freedoms and thus of no force and effect? If yes, is this violation of the Charter justified under s.1? 3. Rule: Oakes test 1. Prescribed by law? 2. Justifiable limit? is it justified in a free and democratic society a. Significant Objective (Pressing and substantial objective) i. Object must be of sufficient importance to warrant overriding of a constitutionally protected right or freedom. b. Proportionality Analysis means proportionate to objective i. Rational connection test: connected to the end the government seeks to achieve ii. Minimal infringement or least drastic means test: minimally impairs the rights in the Charter iii.No disproportionate effect/deleterious and salutary effect analysis: The law does not have a disproportionately severe effect on those whose rights it infringes (reworded in Degenais deleterious and salutary effects) a) Must be proportionality between effects of measures and objective identified as sufficient importance 4. Reasoning: 2. The presumption of innocence lies at the very heart of the criminal law and is protected expressly by s. 11(d) of the Charter and inferentially by the s. 7 right to life, liberty and security of the person. This presumption has enjoyed longstanding recognition at common law and has gained widespread acceptance as evidenced from its inclusion in major international human rights documents. In light of these sources, the right to be presumed innocent until proven guilty requires, at a minimum, that: (1) an individual be proven guilty beyond a reasonable doubt; (2) the State must bear the burden of proof; and (3) criminal prosecutions must be carried out in accordance with lawful procedures and fairness. 3. A provision which requires an accused to disprove on a balance of probabilities the existence of a presumed fact, which is an important element of the offence in question, violates the presumption of innocence in s. 11(d). The fact that the standard required on rebuttal is only a balance of probabilities does not render a reverse onus clause constitutional. 4. The rational connection test -- the potential for a rational connection between the basic fact and the presumed fact to justify a reverse onus provision -- does not apply to the interpretation of s. 11(d). A basic fact may rationally tend to prove a

96

presumed fact, but still not prove its existence beyond a reasonable doubt, which is an important aspect of the presumption of innocence. The appropriate stage for invoking the rational connection test is under s. 1 of the Charter. 5. Two central criteria must be satisfied to establish that a limit is reasonable and demonstrably justified in a free and democratic society. First, the objective to be served by the measures limiting a Charter right must be sufficiently important to warrant overriding a constitutionally protected right or freedom. The standard must be high to ensure that trivial objectives or those discordant with the principles of a free and democratic society do not gain protection. At a minimum, an objective must relate to societal concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important. Second, the party invoking s. 1 must show the means to be reasonable and demonstrably justified. This involves a form of proportionality test involving three important components. To begin, the measures must be fair and not arbitrary, carefully designed to achieve the objective in question and rationally connected to that objective. In addition, the means should impair the right in question as little as possible. Lastly, there must be a proportionality between the effects of the limiting measure and the objective -- the more severe the deleterious effects of a measure, the more important the objective must be. 5. Holding: S.8 of the Narcotic Control Act violates the Canadian Charter of Rights and Freedoms, and is therefore of no force or effect. S.8 imposes a limit of s.11(d) of the Charter which is not reasonable and not demonstrably justifiable. 2. R. v. Arcuri: meaning of prima facie 3. Facts: The accused was charged with first degree murder. At the preliminary inquiry, the Crowns case was entirely circumstantial and the accused called two witnesses whose testimony was arguably exculpatory. 4. Ph: the preliminary inquiry judge rejected the accuseds contention that he must weigh the evidence and, after viewing the evidence as a whole, determined that the accused should be committed to trial for second degree murder. The accuseds certiorari application was dismissed and that decision was affirmed by the Court of Appeal. 5. Issue: Did the preliminary inquiry judge, in determining whether the evidence was sufficient to commit the accused to trial, err in refusing to weigh the Crowns evidence against exculpatory evidence adduced by the defence? 6. Rule: a preliminary inquiry judge must determine whether there is sufficient evidence to permit a properly instructed jury, acting reasonably, to convict, and the corollary that the judge must weigh the evidence in the limited sense of assessing whether it is capable of supporting the inferences the Crown asks the jury to draw. 2. preliminary inquiry judge must, while giving full recognition to the right of the jury to draw justifiable inferences of fact and assess credibility, consider whether the evidence taken as a whole could reasonably support a verdict of guilty. 7. Reasoning: 2. The question to be asked by a preliminary inquiry judge under s. 548 of the Criminal Code is whether there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. The question that arises in this case is whether the preliminary inquiry judges task differs where the defence tenders exculpatory evidence. The task is essentially the same, in situations where the defence calls exculpatory evidence, whether it be direct or circumstantial. 3. Where the Crown adduces direct evidence on all the elements of the offence, the case must proceed to trial, regardless of the existence of defence evidence, as the only conclusion that needs to be reached is whether the evidence is true. However, where the Crowns evidence consists of, or includes, circumstantial evidence, the judge must engage in a limited weighing of the whole of the evidence (i.e. including any defence evidence) to determine whether a reasonable jury properly instructed could return a verdict of guilty. 4. In performing the task of limited weighing, the preliminary inquiry judge does not draw inferences from facts. Nor does she assess credibility. Rather, the judges task is to determine whether, if the Crowns evidence is believed, it would be reasonable for a properly instructed jury to infer guilt. This task of limited weighing never requires consideration of the inherent reliability of the evidence itself. 5. It should be regarded, instead, as an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence. In this case, before committing the accused to trial, the preliminary inquiry judge considered the evidence as a whole, surveying the circumstantial evidence presented by the Crown, as well as the allegedly exculpatory evidence tendered by the defence. There is no reason to believe that he arrived at the wrong result in committing the accused to trial. 8. Holding: The appeal should be dismissed. 3. R. v. Cinous 3. Facts: D was involved in criminal underworld. The accused said that he knew M and Y wanted to kill him when he saw the gloves that they were wearing. Y had on different gloves than the ones he had arrived with at the apartment and M got into the van wearing surgical latex gloves. The accused said he associated this type of gloves with situations where bloodshed was expected. The accused testified that in the van Y avoided making eye contact with him and kept touching his jacket as if he had a gun. He said he interpreted Ys hand inside his jacket as a threat. When came back saw an opportunity and shot. 4. Ph: At trial, the judge allowed the defence of self-defence to be put to the jury. The accused was nonetheless found guilty of second degree murder. The Court of Appeal held that the defence was not properly explained to the jury. It overturned the conviction and ordered a new trial. 5. Issue: Is there an air of reality to the defence of self-defence?

97

6. Rule: 2. Air of reality whether there is evidence on record upon which a properly instructed jury acting reasonably could acquit. 2. Must be some evidence on all 3 elements of the defence of self-defence to give it to the jury 3. Both a subjective and an objective elements (not a modified test) 3. Elements: 2. Unlawful attack, (C has this, both objective and subjective) 3. Reasonable apprehension of harm and death, and (C has this both ob and sub) 4. Reasonable apprehension of no alternative to not be hurt or killed (this is wear it fails, on the objective part) 3. It is not enough for an accused to establish a subjective conviction that he had no choice but to shoot the accused must be able to point to a reasonable ground for that belief 4. The belief he had no option but to kill must be objectively reasonable 5. For 34(2) to succeed at the end of the day a jury would have to accept that the accused believed on reasonable grounds that his own safety and survival depended on killing the victim at that moment 7. Reasoning: 2. When doing air of reality test for self-defence, must do it both objectively and subjectively. Therefore you would be looking at the 3 elements from the test 2 times. 3. A defence should be put to a jury if, and only if, there is an evidential foundation for it. A trial judge must thus put to the jury all defences that arise on the facts, whether or not they have been specifically raised by an accused, but he has a positive duty to keep from the jury defences lacking an evidential foundation or air of reality. This is so even if the defence is the only defence open to the accused. The air of reality test imposes a burden on the accused that is merely evidential, rather than persuasive. 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. 4. The question is whether there is (1) evidence (2) upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true. 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. The second part of this question can be rendered by asking whether the evidence put forth is reasonably capable of supporting the inferences required to acquit the accused. This is the current state of the law, uniformly applicable to all defences. 5. 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 8. Holding: The appeal should be allowed and the accuseds conviction restored 9. Per Iacobucci, Major and Arbour JJ. (dissenting): when examining whether there is evidence upon which a reasonable jury, properly instructed and acting judicially, could convict, it is the no evidence test, rather than the sufficient evidence test, which must be applied. The test should be substantially the same as the one applied to cases of directed verdicts of acquittal or motions for non-suit, as well as committal for trial under s. 548(1) of the Criminal Code. The test for committal for trial, directed verdicts of acquittal and the withdrawing of a defence from the jury strives to respect the long-standing divisions of tasks between judges and jury, and favours great deference to the wisdom of the jury. 2. Where a reasonableness requirement is involved in a defence, the air of reality test must focus on assessing whether there is any evidence of an explanation for the accuseds perceptions and conduct. The court should not embark upon an assessment of the reasonableness, or potential reasonableness, of this explanation for that is precisely the task that the law reserves for the jury. 4. R. v. Fontaine 3. Facts: The accused worked as a garage mechanic. He received a call from R, a disgruntled former employee, who said, Were coming to get you, pigs. The accused later heard from a co-worker that the victim had been offered a contract to kill both of them. Feeling that he was being watched and followed, the accused purchased a firearm. One evening, the accused thought he saw R lurking outside his home. The co-worker came by to check, but noticed nothing unusual. During the night, after smoking marijuana, the accused thought he heard someone breaking into his home. He fired the gun at doors and windows and into walls and concluded that he had shot the intruders. Seeing the victim at the garage the next day, the accused shot and killed him. 4. Ph: 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. The accused was convicted of first degree murder. The Court of Appeal quashed the conviction and ordered a new trial. 5. Issues: Did the Court of Appeal err in law as to the nature of the evidential burden on a defence of mental disorder automatism 6. Did the Court of Appeal err in law in concluding that the respondent had discharged that burden in this case and was therefore entitled to have his defence considered and decided by the jury? (resolve both in Ds favor). 7. Rule: 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.

98

2. 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. 8. Reasoning: 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. 2. The first is a matter of law; the second, a question of fact. Accordingly, on a trial before judge and jury, 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. 3. 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. Here, the persuasive burden is discharged by evidence on the balance of probabilities, a lesser standard than proof beyond a reasonable doubt. Reverse onus defences will therefore go to the jury where there is any evidence upon which a properly instructed jury, acting judicially, could reasonably conclude that the defence has been established in accordance with this lesser standard. 4. In determining whether the evidential burden has been discharged on any defence, trial judges, as a matter of judicial policy, should therefore always ask the very same question: Is there in the record any evidence upon which a reasonable trier of fact, properly instructed in law and acting judicially, could conclude that the defence succeeds? 5. 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. 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. 6. Accordingly, on a trial before judge and jury, 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. 7. 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. 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. 8. 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 expert which, 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. 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. 9. Applying the law to the facts, the Court of Appeal did not err as to the nature of the evidential burden on a defence of mental disorder automatism, nor did it err in concluding that the accused had discharged that burden and was entitled to have his defence considered and decided by the jury. 10. The accused gave evidence tending to establish that he was acting involuntarily at the time of the offence. He also adduced expert evidence to support his own testimony. The evidence clearly went beyond a mere allegation of the existence of a defence. It included a relatively detailed description of the accuseds perception of the facts at the moment of the criminal act. The main defence expert, a psychiatrist, concluded that the accused was suffering, at the time of the offence, from a psychotic episode induced by substance abuse. According to the expert, at the relevant times the accused was seeing things and making pathological connections between people, situations and events. 11. Taken as a whole, this evidence was sufficient to discharge the accuseds evidential burden on his defence of mental disorder automatism. 9. Holding: The appeal should be dismissed. The accuseds defence of mental disorder automatism should have been put to the jury. 5. Persuasive burdens (Roach 50-58) presumption of innocence infringed when accused is liable to be convicted despite existence of reasonable doubt about a factor essential for convictions. 3. Oakes: 11(d) violated by statutory provision, after crown proved beyond reasonable doubt, required that accused establish, on balance of prob that he did not have intent to traffic for offense of possession w/ intent to traffic. This makes it possible for conviction to occur despite existence of reasonable doubt (raised evidence of doubt, but did not convince jury on balance that presumed fact was untrue). 4. Alternative approach: Examine relationship between 1) element that the crown proves (possession of drugs) and 2) element that is presumed (intent to traffic). Substitution of one element for essential element of offense violates 11(d) unless if proof beyond a reasonable doubt of the substituted element it would be unreasonable for jury not to be satisfied beyond reasonable doubt of the essential element. 6. Presumption applies to elements of offenses, collateral factors, and defense: Whyte: provision: intoxicated person prove absence of intent to put car in motion to escape presumption that accused was in care and control of car. Violated 11(d) b/c required accused to be convicted even if raised reasonable doubt about intent to put vehicle in motion but unable to prove

99

on balance of probabilities that there was no such intent. This triggered mandatory presumption that accused was in care and control of car while impaired. 3. If accused required to prove defense on balance of probabilities, that also violates 11(d) b/c accused can be convicted even if reasonable doubt. If required to prove defense of due diligence for regulatory offense, will also offend 11(d). BUT this is justified under s. 1 as reasonable limit on section 11(d) b/c of difficulties requiring crown to prove beyond a reasonable doubt that accused did not have defenses. 4. Section 1 test: To justify, must prove compelling objective, there is a rational connection between the violation and objective, must be lease restrictive means of advancing the objective, and there must be proportionality between objective and the rights violated. 5. Do not need rationally connection between proven and presumed factors for presumption to be upheld. Even if evidential burden w/ mandatory presumption it self violates 11d, it can be a less drastic alternative to persuasive burden. 6. R. v. Laba: Held that its not necessary for there to be a rational connection btn the proven and presumed factors for reverse onus to be justified under sec 1. Reverse onus of requiring seller of metals to prove legal ownership was not proportionate limitation on presumption of innocence b/c the objective of deterring the theft of such metals could be as effectively advanced by the less restrictive alternative of requiring the accused to meet an evidential burden as to the presence of legal authorization. 7. R. v. Sault Ste Marie (city): imposed persuasive burden on D to establish a new defence, it would be presumed to have been negligent in allowing actus reus to have occurred. Court upholds reverse onuses under Charter as reasonable limit. 8. R. v. Daviault: persuasive burden imposed on D to prove defence of extreme intoxication to a general intent offence manslaughter or assault. 9. R. v. Stone: held D must establish defence of non mental disorder auto on balance of probabilities. Thus, no longer has benefit of reasonable doubt that he acted in an involuntary manner b/c of condition such as sleepwalking or severe physical or emotional blow. 7. Evidentiary burdens and mandatory presumptions: sect 11(d) violated by evidential burdens (and persuasive burdens) that require accused to point to evidence to raise reasonable doubt about mandatory presumption. R.v.Downey - BUT justified under s. 1 b/c of difficulties of requiring prostitutes to testify against pimps and the ease that a person in a lawful relationship w/ prostitute would have in pointing to some evidence that could raise a reasonable doubt about the presumption.. 8. Threshold air of realitytests: needed to justify judge in instructing the jury about a particular issue or defense. Can also help determine practical meaning of a defense. This test can be influenced by whether accused bears persuasive burden on the issue. Test depends on elements of particular defense. 3. Daviault & Stone: to establish air of reality for extreme intoxication and automatism defenses accused must point to evidence upon which jury will find that defense has been established on balance of probabilities. Fontaine: question for trial court is whether evidence discloses a real issue to be decided by the jury. 4. R. v. Cinous: must be air of reality on every requirement of a defense to justify instructing the jury about the defense, but judge should not determine credibility of evidence when assessing if there is air of reality. 5. Fontaine: question is, is there evidence upon which a reasonable trier of fact, could conclude the defence succeeds. 9. Summary: 11(d) only applies to evidential burdens that require D to point to evidence to reaise reasonable double about mandatory presumption. Violations are upheld under sec 1 by Court, and have on their own initiative imposed persuasive burden on D to establish defences of extreme intoxication and automatism. Difficult to prove mental disorder and due diligence defences. No need to have rational connection btn proven and presumed factors for a presumption to be upheld under sec 1 of Charter. Even though evidential burden w/ mandatory presumption itself violates sec 11(d), it can be less drastic alternative to a persuasive burden. c) The neutral impartial trier a) The powers of the court (Coughlan 379-390): can make rules, regarding pleading, practice, procedure at trials in sec 482 Code/ 1) Control over the court process: prevent harassing questions, ask witnesses questions, curtail cross, but must use w/ caution not to violated Ds right to fair trial. Limits on submissions, make them in writing, proof before lengthy voir dire, how to conduct it. 1) Test: whether a reasonably minded person who had been present throughout the trial would consider that the D had not had a fair trial. 2) Grant adjournments, fact specific. Had jdx over accused. relevant facts: if adjournments for same reason previously, if D warned trial would proceed w/ or w/o counsel, complexity of charges, Ds familiarity w/ legal system, public interest, Ds refusal in legal aid. Should be granted if D has been diligent and lack of counsel not his fault. But not if request is to delay proceedings. 3) Can make proceedings closed to public, but can conflict w/ freedom of press. Violates 2d but saved under 1. Must consider 1) available options and consider whether there are reasonable and effective alternatives available, 2) whether the order is limited as much as possible, 3) weigh importance of objectives of particular order and probable effects against importance of openness and particular express that will be limited in order to ensure that positive and negative effects of order are proportionate. 1) Burden on party trying to seek exclusion, show order is necessary.

100

4) Authority over manner witnesses testify. Can have support present, outside court room, behind screen. Grant applications for under 18 or disabled. 5) Must make sure not create a reasonable apprehension of bias. 2) Publication bans: exceptional cases, b/c conflict w/ open court principle. Question: to find a balance btn the many possible interests that made up the proper admin of justice on one hand, and freedom of expression on another. 3) Dagenais/Mentuck test for publication: ban ordered when a) order is necessary to prevent serious risk to proper admin of justice or b/c reasonably alternative measures will not prevent risk, b) salutory effects of publication ban outweigh the deleterious effects on the rights and interests of parties and the public, including effects on right to free expression, the right of accused to a fair and public trial, and efficacy of the admin of justice. 1) Test applies to all discretionary decisions that affect openness of proceedings and freedom of expression. (release exhibits from trial) 4) Dagenais: ban not justified b/c other alternatives: adjourning trials, changing venues, sequestering jurors, allowing challenges for cause and voir dires during jury selection, providing strong judicial direction to jury. 5) Mentuck: ban on names of officers justified b/c safety and integrity of other undercover investigations would have been jeopardized, b/c used their real names. 3) Contempt of court: common law power CC 9, appeal procedures in 10. Can be 1) contempt committed in face of court, 2) and not in face of court. Superior courts have jdx over both, inferior in punish 2). YCJA has jdx over both, broadly. 3) Behaviors covered: insolence of court, refusal to answer questions under oath. 4) Punishment intended to maintain dignity of court and ensure fair trial. 5) Judges response: 1) through ordinary procedure, which gives D usual procedural guarantees of criminal trial, 2) through a summary procedure - used only where urgent and imperative to act immediately and, other than in exceptional circumstances that procedure must comply w/ requirements of natural justice. (Only the least possible power adequate to the end proposed should be used). Three step process to be followed: (must follow steps, if not, its an error of law). 1) Person is to be put in notice that she will be required to show cause as to why she should not be found in contempt 2) Adjournment should be given, long enough to allow person opportunity to consult w/ counsel and possibly represented. 3) Person found in contempt, should be allowed to make representations as to sentence. 6) Mistrials: at any point in proceedings, early as jury selection, as to late as the post-conviction but pre-sentence stage. Even after appeal launched if sentence not handed down yet. Leading view, trial judge is functus and no longer has jdx to declare a mistrial once jury has rendered its verdict. D usually applies for mistrial, by Crown may too. 1) Leads to mistrial: inappropriate publicity, jury selection errors, improper comments by crown during opening or closing, inadmissible evidence. 2) Mistrial is last resort remedy, not easily granted. Should first try other remedies: adjournment, re opening case, instructing jury to ignore submissions or info. 3) General principle: mistrial declared if crowns jury address is so improper that it deprives the D of the right to fair trial. 4) Power comes from common law. Subject to appeal. App Ct does not interfere w/ judges exercise of discretion unless clearly satisfied that judge proceeded on some wrong principle or was wrong. 5) CC 653 mistrial if jury cannot agree on verdict. Discretion not reviewable here. But might not withstand Charter. 6) Generally, new trial can be held after mistrial and fact of mistrial doe snot allow D to plead autrefois acquit or autrefois convict. Charter may prevent new trial if principles of fundamental justice as in issue. b) R. v. Gunning a) Facts: The accused fatally shot C, a person unknown to the accused who had entered his home uninvited during a party. The accused denied that he intended to kill C. Although his memory was sketchy due to his consumption of alcohol, he testified that C had assaulted him and refused to leave his house after they had argued. He claimed that he was scared, so he took out and loaded the shotgun to intimidate C into leaving. He testified that the gun discharged accidentally. b) Ph: the focus of the trial was on whether the shooting was intentional or accidental. The trial judge, however, instructed the jury that the offence of careless use of a firearm had been made out and he refused to instruct the jury on defence of property. Later in his charge, he purported to correct the impugned instruction on careless use of a firearm. The accused was convicted of second degree murder. The Court of Appeal upheld the conviction. c) Issue d) Rule: jury trial, it is for the judge to decide all questions of law and to direct the jury accordingly; but the jury, who must take its direction on the law from the judge, is the sole arbiter on the facts. The judge also has the duty, insofar as it is necessary, to assist the jury by reviewing the evidence as it relates to the issues in the case. The judge is also entitled to give an opinion on a question of fact and express it as strongly as the circumstances permit, so long as it is made clear to the jury that the opinion is given as advice and not direction. Subject to one exception, it is also the exclusive domain of the jury to determine the verdict. An exception lies where the judge is satisfied that there is no evidence upon which a properly instructed jury could reasonably convict, in which case, it is the judges duty to direct the jury to acquit the accused.

101

e) Reasoning: a) The trial judge erred in instructing the jury that the Crown had proven the unlawful act necessary to prove murder or manslaughter and his recharge did not cure the error. It is a basic principle of law that the jury is to decide whether an offence has been proven on the facts. The judge is entitled to give an opinion on a question of fact but not a direction. b) A trial judge has no duty or entitlement to direct a verdict of guilty and the duty to keep from the jury affirmative defences lacking an evidential foundation does not detract from this principle. In this case, if the jury was satisfied that the accused intended to kill C, the unlawful act that caused the death would be the shooting itself and the accused would be guilty of murder. If the Crown failed to prove an intent to kill, the accused would be guilty of manslaughter only if he was guilty of the unlawful act of careless use of a firearm. c) If the jury had a reasonable doubt on this question, he was entitled to an acquittal. In finding that the accuseds use of the firearm was careless within the meaning of s. 86 of the Criminal Code, and an unlawful act that caused the death of C, the trial judge encroached on the exclusive domain of the jury. That issue, together with the question of intent to kill, were central in this trial. It was incumbent upon the trial judge to instruct the jury on the law in respect of the careless use of a firearm, including any defences that arose on the evidence, and to leave for the jury the application of the law to the facts. [5] [21-22] [35] d) The trial judge also erred in failing to instruct the jury on the defence of house or property under s. 41 of the Criminal Code. The accused advanced the defence in respect of his use of the firearm prior and up to what he alleged to have been an accidental shooting. On the evidence, this defence raised a real issue for the jury to decide, but the jurors were never told that a person is entitled at law to forcibly remove a trespasser from his home, so long as he uses no more force than necessary. They were directed, as a matter of law, that the accuseds conduct before the shooting was the unlawful act of careless use of a firearm. The trial judge effectively determined the merits of the defence, a matter that was for the jury to resolve. [6] [22] [37-38] e) the trial judge did not err by failing to put s. 41(2) to the jury in relation to the defence of provocation. Counsel did not refer the trial judge to s. 41(2) and, in my view, understandably so. The defence of provocation only applies in respect of the offence of murder, in this case the alleged intentional shooting of Mr. Charlie. Mr. Gunning never asserted that he shot Mr. Charlie for the purpose of removing him from his property. In any event, the defence of property would have no application to an intentional killing of a trespasser; the killing could only be justified in self-defence f) In view of the fact that the jury was not properly instructed in respect of matters fundamental to the defence, reliance cannot be placed on the verdict to conclude that there is no reasonable possibility that the verdict would have been different without these errors. f) Holding: The appeal should be allowed. The conviction should be set aside and a new trial ordered. c) R. v. Hamilton e) Facts: trial judge, concluded that the respondents should receive conditional sentences. He rested his conclusion that conditional sentences were appropriate primarily on his finding that the respondents, because of their race, gender, and poverty, were particularly vulnerable targets to those who sought out individuals to act as cocaine couriers. He made these findings based on material he had produced during the hearing and his own experiences as a judge. Ms. Hamilton received a conditional sentence of twenty months on terms that provided for partial house arrest in the first year of the sentence and a curfew for the remainder of the sentence. Ms. Mason received a conditional sentence of two years less a day on terms that provided for partial house arrest in the first fifteen months of the sentence and a curfew for the rest of the sentence. f) Reasoning: a) The imposition of a fit sentence can be as difficult a task as any faced by a trial judge. That task is particularly difficult where otherwise decent, law-abiding persons commit very serious crimes in circumstances that justifiably attract understanding and empathy. These two cases fall within that category of cases. b) As difficult as the determination of a fit sentence can be, that process has a narrow focus. It aims at imposing a sentence that reflects the circumstances of the specific offence and the attributes of the specific offender. Sentencing is not based on group characteristics, but on the facts relating to the specific offence and specific offender as revealed by the evidence adduced in the proceedings. A sentencing proceeding is also not the forum in which to right perceived societal wrongs, allocate responsibility for criminal conduct as between the offender and society, or make up for perceived social injustices by the imposition of sentences that do not reflect the seriousness of the crime. c) In the two sentences under appeal, the trial judge lost that narrow focus. He expanded the sentencing proceedings to include broad societal issues that were not raised by the parties. A proceeding that was intended to determine fit sentences for two specific offenders who committed two specific crimes became an inquiry by the trial judge into much broader and more complex issues. In conducting this inquiry, the trial judge stepped outside of the proper role of a judge on sentencing and ultimately imposed sentences that were inconsistent with the statutory principles of sentencing and binding authorities from this court. d) the trial judge effectively took over the sentencing proceedings, and in doing so went beyond the role assigned to a trial judge in such proceedings. I am also satisfied that the sentences imposed reflect errors in principle. While I would not hold that sentences of less than two years were inappropriate in all of the circumstances, I would hold that the trial judge fell into reversible error in imposing conditional sentences. On a proper application of the relevant principles of

102

sentencing and the authorities of this court, these offences merited substantial prison terms, despite the mitigating effect of the respondents personal circumstances. g) Holding: I would grant leave to appeal and dismiss the appeals. d)The role of the prosecutor b) Chapter IX The Lawyer as an advocate: When acting as an advocate, the lawyer must treat the court or tribunal with courtesy and respect and must represent the client resolutely, honourably and within the limits of the law. c) Boucher v. The Queen e) Facts: The appellant was found guilty of murder. His appeal to the Court of appeal was unanimously dismissed. He now appeals to this Court, by special leave, on grounds of misdirection with reference to reasonable doubt, circumstantial evidence and inflammatory language used by Crown counsel in his address to the jury. f) Issue: a) Were the jury misdirected by the learned trial judge with reference to the doctrine of reasonable doubt? b) Were the jury misdirected by the learned trial judge with reference to the rule as to circumstantial evidence? c) Was the appellant deprived of a trial according to law by reason of the fact that the crown counsel used inflammatory language in his address to the jury? g) Reasoning: a) First issue: b) Difficulties would be avoided if trial judges would use the well known and approved adjective "reasonable" or "raisonnable" when describing that doubt which is sufficient to require the jury to return a verdict of not guilty. c) There was misdirection by the trial judge with reference to the rule as to circumstantial evidence. Neither the language of Rex v. Hodge nor anything remotely approaching it was used. h) Holding: that the appeal should be allowed, the conviction quashed and a new trial ordered. i) Per Kerwin C.J. and Estey J.: Even though expressions other than the ones used in the Hodge case are permissible, a trial judge should use the well settled formula and so obviate questions arising as to what is its equivalent. a) The trial judge, in my view, did not misdirect the jury, but the difficulties occasioned by what he did say would not arise if trial judges would use the well-known and approved word "reasonable" or "raisonnable" when describing that doubt which is sufficient to enable a jury to return a verdict of not guilty. There was clear misdirection by the trial judge with respect to the second question of law which the appellant was permitted to raise: b) Crown counsel exceeded his duty when he expressed in his address by inflammatory and vindictive language his personal opinion that the accused was guilty and left with the jury the impression that the investigation made before the trial by the Crown officers was such that it had brought them to the conclusion that the accused was guilty. c) It is improper for counsel for the Crown or the defence to express his own opinion as to the guilt or innocence of the accused. The right of the accused to have his guilt or innocence decided upon the sworn evidence alone uninfluenced by statements of fact by the Crown prosecutor, is one of the most deeply rooted and jealously guarded principles of our law. j) Per Kerwin C.J., Rand, Kellock, Estey, Cartwright and Fauteux JJ. : It could not be safely affirmed that had such errors not occurred the verdict would necessarily have been the same. k) Per Taschereau and Abbott JJ. (dissenting): As the verdict would have necessarily been the same there had been no substantial wrong or miscarriage of justice. d) Krieger v. Law Society of Alberta e) Facts: Krieger was a Crown prosecutor who was subject to a complaint to the Law Society. He argued that the Law Society could not review the matter since it would interfere with the exercise of prosecutorial discretion. f) Ph: K sought an order that the Law Society had no jurisdiction to review the exercise of prosecutorial discretion by a Crown prosecutor and an order that the Rule of the Code of Professional Conduct requiring a prosecutor to make timely disclosure to the accused or defence counsel was of no force and effect. Ks application was dismissed by the Court of Queens Bench, but that decision was overturned by the Court of Appeal. g)Issues: a) Is the Rule and Commentary thereto intra vires the Act and the Legislature of Alberta? b) If so, what is the scope of the Law Societys jurisdiction to review the conduct of a Crown prosecutor? c) Does the Law Society have the jurisdiction to review the prosecutors conduct after the Attorney General has already reviewed the prosecutors conduct? h) Rule: The Courts should not interfere with prosecutorial discretion. The Law Society retains jurisdiction. i) Reasoning: a) The power to bring, manage and terminate prosecutions has given rise to an expectation that the AG will be fully independent from political pressure of the government b) Separation of powers: Courts do not interfere with prosecutorial discretion. Quoted JA Ramsay: Courts must remain independent: If the court is to review the prosecutors exercise of his discretion the court becomes a supervising prosecutor. It ceases to be an independent tribunal. (para 31) c) Issue 1: Since the federal government has jurisdiction over criminal law and procedure and the province has jurisdiction over the administration of justice, including the regulation of lawyers and reviews of alleged breaches of

103

ethics, there is a strong possibility of overlap between the provincial and federal spheres. Regard must be had to the pith and substance of the impugned rule to determine if it is an unconstitutional regulation by the province of criminal law and procedure. d) Here, the Rule requiring timely disclosure is directed at governing the ethical conduct of lawyers, is authorized by the Legal Profession Act, is limited to circumstances in which the lawyer acted dishonestly or in bad faith, and is not intended to interfere with the proper exercise of prosecutorial discretion. Accordingly, the Rule applies only to matters of professional discipline and does not intrude into the area of criminal law and procedure. e) A decision of the Attorney General within the authority delegated by the sovereign is not subject to interference by other arms of government. An exercise of prosecutorial discretion will, therefore, be treated with deference by the courts and by other members of the executive, as well as statutory bodies like provincial law societies. Prosecutorial discretion will not be reviewable except in cases of flagrant impropriety. f) Decisions that do not go to the nature and extent of the prosecution, such as the decisions that govern a Crown prosecutors tactics or conduct before the court, do not fall within the scope of prosecutorial discretion , however, but are governed by the inherent jurisdiction of the court to control its own processes once the Attorney General has elected to enter into that forum. g) Because Crown prosecutors must be members of the Law Society, they are subject to the Law Societys code of professional conduct, and all conduct that is not protected by the doctrine of prosecutorial discretion is subject to the conduct review process. As the disclosure of relevant evidence is not a matter of prosecutorial discretion but rather a legal duty, the Law Society possesses the jurisdiction to review an allegation that a Crown prosecutor acting dishonestly or in bad faith failed to disclose relevant information, notwithstanding that the Attorney General had reviewed it from the perspective of an employer. h) The Attorney Generals office has the ability to discipline a prosecutor for failing to meet the standards set by that office, but that is a different function from the ability to discipline the same prosecutor in his or her capacity as a member of the Law Society. Here, it appears that K failed to disclose relevant information, a violation of his duty, but later offered an explanation which would help to determine if he had acted dishonestly or in bad faith. If so, this would be an ethical breach falling within the Law Societys jurisdiction. The Law Societys jurisdiction to review Ks failure to disclose relevant evidence to the accused is limited to examining whether it was an ethical violation. j) Holding: The appeal is allowed, the judgment of the Alberta Court of Appeal is set aside, and the judgment of MacKenzie J. at trial is restored e) R. v. Nixon e) Facts: car accident, killed husband, wife, and injured son. When the Acting Assistant Deputy Minister of the Criminal Justice Division of the Office of the Attorney General saw the proposed resolution, he initiated an inquiry which led him to conclude that Crown counsels assessment of the strength of the case was flawed. In his view, a plea to careless driving in the circumstances was contrary to the interests of justice and would bring the administration of justice into disrepute. Crown counsel was thus instructed to withdraw the plea agreement and to proceed to trial. In response, the accused brought a s. 7 Charter application alleging abuse of process and seeking a court direction requiring the Crown to complete the plea agreement. The application judge held that negotiations between counsel after charges are laid are matters of tactics or conduct which are subject to review by the court, and that the repudiation of the plea agreement, in this case, was not justified. He concluded that the accuseds s. 7 Charter right to security of the person had been breached and he directed the Crown to proceed with the agreement. f) Ph: The Court of Appeal allowed the Crowns appeal, finding that the repudiation of a plea agreement is a matter of prosecutorial discretion not reviewable by the courts, subject to the doctrine of abuse of process. g) Issue: whether the trial judge erred in concluding that the Crowns repudiation of a plea agreement was an abuse of process in breach of the appellants rights under s. 7 of the Canadian Charter. The courts below were divided on the appropriate standard against which to measure the repudiation conduct. h)Reasoning: a) The crucial importance of the distinction between prosecutorial discretion reviewable only for abuse of process and matters of tactics or conduct before the court governed by the inherent jurisdiction of the criminal trial court to control its own process was fully canvassed and explained in Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372. Subject to the abuse of process doctrine, supervising one litigants decision-making process rather than the conduct of litigants before the court is beyond the legitimate reach of the court. The Crowns decision in this case to resile from the plea agreement and to continue the prosecution clearly constituted an act of prosecutorial discretion subject to the principles set out in Krieger: it is only reviewable for abuse of process. Prosecutorial discretion is not spent with the decision to initiate the proceedings, nor does it terminate with a plea agreement. So long as the proceedings are ongoing, the Crown may be required to make further decisions about whether the prosecution should be continued, and if so, in respect of what charges. b) There are two categories of abuse of process under s. 7 of the Charter: (1) prosecutorial conduct affecting the fairness of the trial; and (2) prosecutorial conduct that contravenes fundamental notions of justice and thus undermines the integrity of the judicial process. While s. 24(1) of the Charter allows for a wide range of remedies, this does not mean that abuse of process can be made out by demonstrating a lesser degree of harm, either to the accuseds fair trial

104

interests or to the integrity of the justice system. Achieving the appropriate balance between societal and individual concerns defines the essential character of abuse of process. c) The repudiation of a plea agreement may well constitute an abuse of process, either because it results in trial unfairness or meets the narrow residual category of abuse that undermines the integrity of the judicial process. The more difficult question in this appeal is how the initial exercise of prosecutorial discretion Crown counsels offer to resolve the matter on the basis of a plea to a lesser charge should figure in the analysis regarding abuse of process. A plea agreement should not be regarded as a contractual undertaking. Vitiating factors, such as mistake, misrepresentation or fraud, which usually inform a private partys right to resile from a bargain, do not fully capture the public interest considerations which are at play. However, the analogy can usefully underscore the utmost importance of honouring the agreement. d) The situations in which the Crown can properly repudiate a plea agreement are, and must remain, very rare. Moreover, the reasonably defensible test applied by the application judge to Crown counsels decision to enter into a plea agreement is not the appropriate measure to determine whether there is an abuse of process. Indeed, it is the circumstances surrounding the repudiation of a plea agreement which should be reviewed to determine whether that decision amounts to an abuse of process. Reviewing for reasonableness a decision made in the exercise of prosecutorial discretion runs contrary to the constitutionally separate role of the Attorney General in the initiation and pursuit of criminal prosecutions as well as the principles set out in Krieger. e) Given that acts of prosecutorial discretion are generally beyond the reach of the court, there is good reason to impose a threshold burden on the applicant who alleges abuse of process. A court should not embark on an inquiry into the reasons behind the exercise of prosecutorial discretion without a proper evidentiary foundation. However, evidence that a plea agreement has been entered into and subsequently reneged by the Crown meets the requisite threshold. Further, to the extent that the Crown is the only party who is privy to the information, the evidentiary burden shifts to the Crown to enlighten the court on the circumstances and reasons behind its decision to resile from the agreement. The ultimate burden of proving abuse of process, however, remains on the applicant. f) In this case, the Crowns repudiation conduct cannot be considered so unfair or oppressive to the accused, or so tainted by bad faith or improper motive, that to allow the Crown to now proceed on the dangerous driving Criminal Code charges would tarnish the integrity of the judicial system and thus constitute an abuse of process. Indeed, the Acting Assistant Deputy Minister, in good faith, determined that Crown counsels assessment of the strength of the evidence was erroneous and, on that basis, having regard to the seriousness of the offences, concluded that it would not be in the public interest to terminate the prosecution on the criminal charges. This can hardly be regarded as evidence of misconduct. Finally, the accused was returned to the position she was in at the conclusion of the preliminary hearing before the plea agreement was entered into and thus suffered no prejudice as a result of the repudiation. i) Holding: the application judge applied the incorrect test for abuse of process. I also agree that there is no basis for finding that the appellants s. 7 rights were breached in the circumstances of this case. I would dismiss the appeal. e) The role of the Defence VI. GETTING TO THE TRIAL: THE CRIMINAL INVESTIGATION 23. Police Powers 1. General police powers (Coughlan 8-24) 1) Constitution: consider division of powers, police enacted by both levels, some provinces in contract w/ rcmp. All rely on CC powers. Authority to fed govt to make crim proc rules Con Act 91(27). 1) Role of Charter: 1) if law inconsistent w/ Charter it may be struck down unless justified, 2) investigation & prosecution must be conducted in consistence w/ Charter, failure will give rise to remedy under sec 24. 2) Charter sections: 7-14 legal rights: bail, trial procedure, sentencing. 8 to 10: search, detention, arrest. 7 may be invoked as principles of fundamental justice. Held to contain right to remain silent, constitutional protection against abuse of process. 3) Charters expansion of judicial interpretation: sec 8 - unreasonable search and seizure, 9: protects against arbitrary detention. Charter has also lead to indirect expansion of police powers. 2) Statute: main source CC. 1) Sections 494-528: allow cops to arrest accused or compel accuseds appearance in court via summons or appearance notice. Only time there is no arrest power is when cop does not find accused committing offence and offence is only summary conviction. 2) Sections 25-33: force can execute powers authorized by law, to prevent commission of offences, or prevent breacn of peace. 3) Section 487: general search warrant provision, justice issue warrant authorizing search of building or place, seizure of evidence found there. 1) Can also issue of reasonable grounds to believe that search will find: i) something in respect of which an offence has been committed, ii) the whereabouts of a person believed to have committed an offence, iii) property intended to be used to commit an offence, or, iv) property relating to a criminal organization. 2) Can seizue material searched for and material in addition to that specified in warrant.

105

3) General power to seize w/o warrant if anything cop reasonably believes was obtained in commission of offence, has been use in commission of offence, or will afford evidence in respect of an offence, provided officer was lawfully present. 4) Section 487.01: allows cop to apply for warrant to use any device or investigate technique or procedure or do anything that wold be an unreasonable search and seizure if it were not done under a warrant. 5) Section 487.11: cop may exercise any of the powers described in subsection 487(1) (search warrants) or 492.1 (tracking) w/o warrant if conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain a warrant. 6) Section 487.1: allows warrants for obtaining blood sample or search warrant by telephone. 7) Provision legislation: allows random stops of vehicles, used to check for mechanical fitness and impaired drivers. Fed & Prov legislation create investigative techniques. (Firearms Act: cops can enter dwellings to search for prohibited firearms on reasonable grounds) 8) Section 25.1: allows cops to perform acts that would constitute a crime - break the law - in course of investigations. 3) Common law: three senses cops have CL powers: 1) some powers historically given which continue to exist, 2) ancillary powers doctrine allows courts to create and authorize new common law police powers, 3) police have common law power to do anything that has no negative consequences for officer concerned and which results in evidence being admitted at trial. a) Historical common law powers: Search incident to arrest, & enter private dwelling in hot pursuit of person fleeing arrest. a) Cloutier v. Langlois: search incident to arrest for three purposes; 1) to seize anything in his possession or immediate surroundings, 2) guarantee safety of police, the accused, 3) prevent prisoners escape or provide evidence against him. b) R. v. Speid: Ont Ct App held search of vehicle that was in vicinity of arrest was validly incidental to arrest even though it did not take place at the time of the arrest, and despite the fact that a warrant had been refused. c) R. v. Stillman: broader search applied in case of searching a vehicle. Searches of person, did not extend beyond discovering evidence which might go out of existence. d) R. v. Caslake: new purposes of search incident to arrest: 1) ensure safety of police and public, 2) protection of evidence from destruction at hands of arrestee or others, 3) discovery of evidence which can be used at the arrestees trial. e) R. v. Golden: scope of search had not been fully delineated, whether it contained power to conduct strip searches had never been settled. Need further restrictions. Reasonable and probable grounds are not generally requirement for SIA. But to do more than a frisk search, held that police must have reasonable and probable grounds to believe that a strip search is necessary in the circumstances of the arrest. Must be conducted at police station unless have reasonable and probable grounds that it cannot be post-phoned. Restrictions placed to make balance btn individual privacy and needs of law enforcement. f) Eccles v. Bourque: police have power at common law to arrest w/n private dwelling and laid down rules for entering the dwelling w/o permission of the owner. Landry: held that rules applied to warrantless arrest outside of civil context of Eccles. In R.v. Macooh: held that in cases of hot pursuit, this right extended beyond indictable offences to cover principal offences as well. g) R. v. Feeney: common law rules that had developed pre-Charter needed to be re examined. Privacy interests of entering dwellings become more important in past decade. Warrantless entry, like warrantless search, in prima facie unreasonable. Exception for hot pursuit. Would prima facie violate Charter. b) New common law powers - the Ancillary Powers doctrine: Question whether office has power at common law - if D legally detained and not arbitrarily detained, question is whether detention was lawful due to a common law power. Test: a) R. v. Waterfield: Test 1) does conduct fall w/n general scope of any duty imposed by statute or recognized at common law; an 2) does the conduct, albeit w/n the general scope of such duty, involve an unjustifiable use of powers associated w/ the duty. a) Did not intend to create new common law powers, but for a way of understanding limits on existing police powers. b) Test relied on to support foreign dignitaries to enter premises w/o warrant, reasonable grounds for investigating shootings, stop cars randomly to check for impaired drivers, set up roadblocks to forcibly enter an apartment to investigate disconnected 911 call, detain for investigative purposes, conduct searches of those individuals. c) Test broad enough to justify range of police behavior. b) Davis v. Lisle: Held: if cop enters garage to make inquiry, becomes trespasser when asked to leave,thus, not acting w/n execution of duty. D cannot be convicted of assaulting or obstructing him in execution of duty. c) Stenning: even though cop was a trespasser, was in execution of duty b/c investigations, therefore, D was guilty of assaulting in officer in execution of duty d) Second branch of Waterfield test in Godoy: factors; duty being performed, extent of interference w/ individual liberty is necessitated to perform that duty, importance of performance of duty to public good, liberty interfered w/ and nature and extent of that interference.

106

c) Default common law powers: pre-Charter all reliable evidence is admitted, does not matter how it was obtained. Sec 24(2) allows exclusion if Charter violation, if non then pre-Charter position applies. Means that cops can engage in particular activities despite absence of statutory power. a) Sec 8 right to secure against unreasonable search & seizure: only applies if person has reasonable expectation of privacy. There is no REP in electricity consumption records -- no consequences, no stay, b/c no Charter breach. No REP for guest of apartment, passengers in a car. b) Seberu: person subject to an investigative detention has right to counsel. Means that in ambiguous cases where in fact no right to counsel given, trial judges are forced to choose btn finding that there was detention and violations of 9 and 10(b) and finding that there was no detention and no Charter violations. 4) Consent: cooperation by suspect is source of police power. Consider if person voluntarily spoke, appeared in lineup, provided DNA samples, stopped vehicle. No common law power to allow them to require to participate. But if they refuse, can bring that up in trial. If do not participate in line up, police can obtain id evidence through other ways - showing D to accused. Most people agree to show up in lineups b/c n one wants to see witness. 1) Ambiguity regarding consent: at certain point in interview, witness becomes suspect. Initially was consent, crosses over to where person should be considered detained and entitled to rights under 10(b) 2) Limits of consent: DNA sample for investigation of one offence, and using it for purposes other than consented to violates guarantee against unreasonable search and seizure, in the investigation of another offence. If, D gives DNA w/o attaching limits to use, then D no longer has REP in sample and cops are free to use it in any way they wish. 3) Real consent: mere compliance is not sufficient to show that D is actually consenting. Most people do not know about police powers and that they can refuse compliance. Cannot be said that D consented: pulling over to the side of the road, emptying contents of sports bag, complying w/ breathalyzer, demand w/o calling counsel first. 4) Revoking consent: R. v. Thomas: police entered house, noisy party, lead to arresting owner of house for assault cop in execution of duty. Held, only basis that cops were in house was by consent of owner, consent withdrawn before confrontation arose. Accordingly, cops were not acting in execution of duty, accused acquitted. 2. Search and seizure (Coughlan 63-140): A. Introduction: Baron v. Canada: decision to grant/withhold warrant requires balancing two interests: 1) that individual to be free of intrusions of the state and 2) that state to intrude on privacy of individual for purpose of law enforcement. 1. Hunter v. Southham: question whether in a particular situation publics interest in being left alone by govt must give way to the govts interest in intruding on the individuals privacy to advance its goals. Findings: the minimum constitutional requirements for a search with a warrant, and that a warrantless search is prima facie illegal. Two main headings: searches w/ warrants and without warrants. B. What is a search: state investigation is or is not a search depending on whether it infringes on a persons REP is itself a complex issue which will be discussed at greater length below. A. Searches: turning pockets inside out, bedpan vigil, installing tracking device and electronic monitoring of car. Inspection of work place, wiretap, video surveillance. Searching interior and perimeter of building. Knocking on door to see if they can smell marijuana. B. Not a search: if no REP, request for various docs by canadian officials to a foreign govt. C. Seizure: issue is whether the accuseds REP was infringed: making copies of companys docs is a seizure, doctor giving blood sample to cops. There is a distinction between evidence seized and found. D. No seizure: if blood sample taken from car seat at scene of accident, b/c no REP. No seizure in gathering evidence that was abandoned. E. Patrick: garbage left at back fence for collection. Cops did not breach air space when reached over to get them. But does not mean they can take them from porch, garage, w/n immediate vicinity of dwelling house b/c did not unequivocally abandon them. F. Stillman: held when D in custody discards kleenex or cigarette butt, police may ordinarily collect and test items w/o any concern about consent. Different situation if D in custody discards items w/ bodily fluids. In this case D had had not abandoned tissue b/c was in custody for days and could not avoid creating bodily samples. G. Nguyen: seizure, when offered D gum while driving him to court, knowing he would have to discard it before entering room. C. Searches with a warrant: searches of place or persons, 1) Searching places: section 487: warrant for building, receptacle, or place if satisfied on oath of reasonable grounds that is evidence falling into one of four categories will be found. Issued by justice - neutral, impartial. Balancing interests of individual to be free of intrusions of state and that of the state to intrude on the privacy of the individual for the purpose of law enforcement. To whom warrant is issued - some person responsible for way search is carried out. Person carrying out search has duty to have it w/ her where feasible and produce it on request. Cannot search person or take hair samples, b/c its for building, receptacle, or place. 1) Place: includes area surrounding building. Has 2 consequences: 1) Warrant is available to search the exterior of buildings and surrounding area. Leads to result that, since it would be possible to obtain a warrant to search the area around a house in principle, a search of that area w/o warrant is prima facie unreasonable.

107

2) When coupled w/ need for specificity in warrants, also means that a warrant to search area around house (curtilage) does not include ability to seize items found inside the house, while warrant to search house might not include the ability to search the area around the house. 2) Justice must be convinced that evidence will be found, be given facts that show basis for reasonable and probable grounds and not simply be satisfied that police officer in fact has such a belief. Affidavit supporting warrant - from those w/ first hand knowledge of investigation. Need facts fully and frankly, clear, concise, authorizing judge in order that he can make assessment of whether these rise to standard required in legal test for authorization. No boiler plate language. 3) Warrants given on ex parte basis. Information justifying warrant may be hearsay, or privileged. No need to disclose identity of informer unless D shows in trial its necessary to establish innocence. Need to protect identity, outweigh interests of accused to openness and disclosure. 4) Limits to info that can justify warrant: info be legally gathered, if obtained all through Charter violation it will be quashed. Kokesch: cops had no reasonable grounds to inspect perimeter of residence, inspection was itself a search, observations and thus evidence all violated Charter. Could not be used as basis for warrant. 5) Knocking on door: for other purposes (smelling marijuana), behavior is warrantless search, which is prima facie unreasonable. If police approach for legitimate reasons, the discover evidence giving them reasonable grounds to search, there will be no Charter violation. 6) Warrant based on illegal evidence: court required to decide whether untainted evidence would, on its own, justified issuing warrant and either quash or uphold warrant based on that determination. 7) Categories warrants given for: 1) Anything on or in respect of which an offence has been committed 2) Anything that will provide evidence regarding an offene or the location of a persons suspected of committing an offence 3) Anything reasonably believed to be intended to be used to commit an offence which the person could be arrested w/o warrant 4) Offence related property: property that has or will be used in committing an indictable offence. 8) Must indicate what type of evidence will be found (reasonably) Degree of specificity varies w/ type of offence. 9) CC 489: can seize items not mentioned in warrant if believe on reasonable grounds that they were obtained by or afford evidence concerning an offence. 10)Warrant must be available to public unless applicant seeking sealing order can demonstrate that public access would subvert the ends of justice. Should also be executed by day unless reasonable grounds for executing warrants by night. 2) Search of the person: DNA warrants: can obtain hair, buccal swabs, blood samples. Rules are similar to other search warrants. Greater intrusiveness of allowing a search directly affecting bodily integrity is balanced by greater protections for privacy. Held, these provisions do not violate sec 8 Charter. 1) Requirements: prov ct judge satisfied by info on oath that bodily substance connected w/ offence has been found, person was party to offence, DNA analysis of substance will provide evidence about whether bodily substance was from that person. Cannot apply to justice of peace. 2) Limits to DNA: example, Designated offences which consist of lists in 487.94 3) 487.05: requires judge to have regard to all relevant matters which will include nature of offence, circumstances of its commission, and whether a qualified peace officer or other person is available to take the sample. 4) Other provisions: cop executing warrant, must inform suspect of its contents, nature of procedures for taking sample, purpose for taking, cops authorization to use force. Must use results for purpose in investigation, otherwise its an offence not to do so. 5) Youth: right to reasonable opportunity to consult w/ and have warrant executed in the presence of counsel, a parent, or other adult. 6) Databank: offences are divided into primary designated offences (sexual assault or homicide) and secondary designated offences. If person convicted of primary, court shall order sample to be taken for bank. If secondary, court can make order if satisfied its in the best interests of admin of justice to do so. Best interests: deterring repeat offenders, promoting safety, detecting serial offender at work, assisting in solving of cold crimes, streamlining investigations, assisting innocent through early exclusion from suspicion or by exonerating the wrongfully convicted. 1) No order for database: if person establishes impact of order on his privacy would be grossly disproportionate to public interest in protection of society and proper admin o justice. This is rare. Must prove that circumstances depart markedly from cases parliament is likely to have in mind in drafting provisions, no terms imposed on taking order could adequately restore balance. 2) Not a violation of sec 7, 8, 11(h) and 11(i) Charter 7) Impression warrant: allows cop to obtain handprint, footprint, tooth impression, impression of any part of body. Less invasive of bodily integrity and privacy than obtaining Dna samples. But any part of body could be more intrusive. 1) Issued by justice in respect of offence, based on reasonable grounds to believe that print will provide info concerning offence. Seems that person taken from does not have to be suspect.

108

3) Other statutory search warrant provisions: same characteristic as 487 - issued if justice satisfied by info on oath that there are reasonable grounds to authorize particular intervention sought. 1) Order to produce or prepare documents or data. - evidence respecting to offence. (banks, phone companies, internet providers). Get no compensation. If cost of compliance is unreasonable, can get exemption from complying. 2) 256: investigative purposes - blood sample from person suspected of driving while impaired. 3) Other: tracking device on car, number record in phone, wiretaps. 4) Must balance interests of individual and state. 5) Wise: tracking device which determines location of item to which it is attached is minimal intrusion on privacy. (number recorded that doesnt record conversations may also be minimally intrusive). Both expire after 60 days. 6) Nature of item dictates warrant: for preventative aspect, not investigative. Hate propaganda, gaming houses, valuable minerals, obscene materials, crime comics, child pornography. 4) Reviewing warrants: no appeal from issuing warrant, even if issue about it violating sec 8. Certiorari available for challenging process by which warrant issued. Even if quashed, have to determine if evidence can be excluded under 24(2) determined at trial. 1) Issue is whether requirements for issuance were met: describe premises or problem w/ information to obtain (ITO). Review can take place on facial and sub-facial basis; determining whether ITO contains sufficient info to justify the warrant, and whether by going behind the form of the affidavit, it is possible to attack the reliability of its content. 2) Gorofoli: cross exam should not be general rule and that leave of reviewing judge was required, standard of prima facie case was too high. All that is necessary is basis for view that cross exam will elicit testimony intending to discredit the existence of one of the preconditions to the authorization, for example, existence of reasonable and probable grounds. 3) On review, remove info that was misleading, or obtained through Charter breach. 4) Amplification: if evidence obtained through good faith police work but was an error. Crown try to amplify the grounds. 5) Bisson: errors in info presented to judge whether advertent or fraudulent are only factors to be considered in deciding to set aside authorization and do not by themselves lead to automatic vitiation of the wiretap authorization. Issue, whether once fraudulent info removed, remaining info sufficient to justify issuance of warrant. 6) Courts can quash warrant if: inadequacy of material remaining after some info is excised, or based on behavior of police that intentionally mislead or otherwise subverted the process of prior authorization. If quashed, search that ensued is determined to have concluded on a warrantless basis. D. Searches without a warrant: Hunter found warrantless search prima facie unreasonable under sec 8; must be consistent w/ min Charter. R. v. Collins: set out framework indicating what min Charter standards are. Warrantless search powers, framed around case law on which sec 8. Two issues: whether REP exists in order to invoke sec 8, and whether Collins criteria are met. 1) Reasonable expectation of privacy: reasonable - assessing entitlement to privacy, not measure whether person as a matter of fact, has privacy. Normative standard, based on value judgments. Wong: question is: standard of privacy that persons can expect to enjoy in a free and democratic society. 1) R. v. Boersma: D growing marijuana on crown land had no REP based on whether they were susceptible to being seen by other people. 2) Nature of activity being investigate is irrelevant to analysis. D involved in illegal activity is not taken into account. Issue is whether D has REP in hotel room, or opaque and concealed bag. 3) Gomboc: REP approach 1) Determine REP 2) Whether search was reasonable 1) If search involved Charter protected interest, search will be reasonable if police authorized to conduct search and if law authorizing search it is reasonable, and if search conducted in reasonable manner. 2) Warrant requiring reasonable and probable grounds to believe search will reveal evidence of offence. 3) Lowered expectation of privacy, police must have reasonable suspicion that search will uncover evidence of an offence before they may undertake it. 4) Where no REP, no threshold justification os required b/c search does not trigger Charter protection. 4) How reasonable in intrusion was: get into balancing individual and state interests. 2) Individual: greater privacy is involves body cavity vs. trunk of car. If D has some no REP, then state interest will outweigh. If has some interest, reduced, there will be limits on states search. 3) State: less privacy if crossing international border, placing items in school locker, or engaged in activity that is closely regulated by govt 4) It is possible to give up interest. Must allege your own privacy interest, not of another persons. 5) Factors: look at impact on Charter protected interests of the accused. 5) Edwards Factors for REP: totality of circumstances; presence at time of search, possession or control of property or place searched; ownership of property or place, historical use of property or item; the ability to regulate access, including the right to admit or exclude others from the place; the existence of a subjective expectation of privacy, and the objective reasonableness of the expectation. 2) Edwards: No REP in girlfriends apartment. No sec 8 violation.

109

3) Belnavis: passenger in car is no REP. No sec 8 violation. 6)Three types of interests: 2) Personal privacy: attracts high level of protection (strip searches) 3) Territorial privacy: searching places, highest degree in home, lowest in car, less in prison. 4) Informational privacy: intimidate details of life style, personal choices of individual. 7) Tessling: includes info D wants to keep confidential, protected under sec 8. Wanted too have a warrantless overflight by cops, forward looking infrared camera on his house b/c of marijuana tip. No Rep. Issue was informational privacy of heat emanating from house. 2) Are the Collins criteria met? once REP, issue becomes whether search itself is reasonable. 3 part test for answering question in Collins: 1) is search authorized by law, 2) is law itself reasonable, 3) was the manner in which the search was carried out reasonable? a) Is the warrantless search authorized by law? main sources are: statute, common law, consent. Allow warrantless searches in some circumstances, and all three are relevant in determining if search is unreasonable. i. Authorization by statute: sec 11 CDSA allows cop to obtain warrant to search place for controlled substance for anything in which it is concealed, offence related property, or evidence in respect of an offence under CDSA. While executing search warrant, cop is entitled to search any person found in the place. i. 11(d) CDSA conduct warrantless search when grounds for warrant exist but exigent circumstances make it impracticable to obtain a warrant. (exigent circumstances: imminent danger of loss, removal, destruction or disappearance of the evidence if the search or seizure is delayed). ii. Authorization by common law a. General: person searches are more authorized warrantless than property searches. There is no common law power to search property unless SIA. Searches of person, warrants for blood are not authorized by warrant provisions. b. Search incident to law: SIA does not require police to have reasonable grounds for search, just followed from D being arrested. Not justified by REP of D but by cops increased need to gain control of things or info following arrest which outweighs Ds privacy. a. Cloutier v. Langlois: properly delimited power was consistent w/ Charter protections. Held, search can extend to Ds surrounding area - building, vehicle, depends on situation. b. Ground for arrest must already exist, no strict time limit when after arrest. Power of search depends on: 1) was arrest lawful, 2) was search truly incidental to arrest (*most disputed), 3) was search conducted in a reasonable manner? c. Search truly incidental to arrest: depends on purpose behind that search. Cops motives and purposes are central issues. Must be incidental both objective and subjective criteria. Objectively valid purpose; subjectively cop have made an individualized decision to conduct search for that purpose. (policy to search everyone arrested is not sufficiently incidental). d. Caslake: purposes include; safety of public and police, protecting evidence from destruction, discovering evidence that can be used at trial. e. Stillman: cannot justify taking blood samples, teeth impressions. f. Strip searches: REP becomes higher in strip searches. Cannot be justified routinely following SIA. Will violate sec 8 if no compelling reasons for search in circumstances. g. Body cavity: more intrusive than strip searches. Cannot proceed w/o at least same level of justification as strip searches. h. Home: Ont Ct App: searches of home not allowed in SIA, unless exceptional circumstances - where compelling state interest (risk of physical harm to people at scene, but not b/c you need evidence). i. Other limitations: must be related to arrest made (if arrested for traffic violation, searching trunk is not justified - look for relevant evidence, neither is looking for drugs if D has history for drug); cop must be able to explain valid purpose of search related to arrest. Goal is to prevent unreasonable searches. j. Electronic storage devices: cell phones, digital cameras, laptops. Some treat them as anything else found on D, others recognize enhanced privacy interest in cell phones. Held, cops power is limited to seizing a cell phone where they believe it may contain evidence of a crime and holding it until warrant can be obtained. c. Search during an investigative detention: R. v. Mann: court created CL power to search during an investigative detention. Defined as absence of reasonable grounds for an arrest. Held search cannot automatically be conducted in such circumstances. Rather, there must be independent reasonable grounds specifically justifying the search. Limited to officer safety (more limited than SIA). Search must be conducted in a reasonable manner; limited to pat down. Must be objectively and subjectively justified. Held in Mann, pat down reasonable, but not beyond that. Feeling something soft in pocket does not give rise to safety concerns, not justified in reaching in. Violated sec 8. Excluded under 24(2).

110

d. Exigent circumstances: justifies proceeding w/o warrant. Defined: an imminent danger of the loss, removal, destruction, disappearance of evidence if the search or seizure is delayed. Decision made on case by case basis. Also, emergency for search of weapons that might pose immediate threat and would be be unsafe to wait to conduct strip search at police station. iii. Authorization by consent: questions are whether consent was valid and extent of consent. Valid wavier requires D to have at lease sufficient available info to make preference meaningful. i. R. v. Willis: conditions i) consent express or implied, ii) giver of consent had authority to give consent, iii) consent was voluntary and was not the product of police oppression, coercion, or other external conduct which negated the freedom to choose whether to not to allow the police to pursue the course of conduct requested, iv) the giver of the consent was aware of the nature of the police conduct to which he or she was being asked to give consent, v) the giver of consent was aware of his right to refuse to permit police to engage in conduct requested, vi) giver of consent was aware of potential consequences of giving consent. ii. Although no constitutional obligation to inform suspect of right to refuse a search, failure to do so will result in search being involuntary. iii. Counsel: not always necessary to inform of counsel right prior to consented search. If detained then 10(b) triggers counsel. If then not informed, violations of 10(b) and 8. If search nominally conducted with consent, police are required to suspend search until suspect has opportunity to consult w/ counsel. iv. Scope: can be limited, or limits attached. i. Borden did not consent to use of bodily samples for first offence, only second offence (cops trying to connect both offenes, asked for sample on purpose to do this). Sec 8 violated b/c no statutory or common law authority to do this. ii. Arp: cops must disclose specific uses they intend the time they take the sample. Acquitted during prelim after consented to DNA. Cops used DNA three years later and found him connected. Court rejected Borden. Held that if neither police nor D limit use which may be made of evidence then, general rule no limitation or restriction should be placed on the use of that evidence. the obligation imposed on the police obtaining a valid consent extends only to disclosure of those anticipated purposes known to the police at the time the consent was given. Cops did not know he would be suspect in later offence, told him it would be used in court. Absence of limitation, accused gave up REP in hair sample. Sec 8 not violated. v. Mistake: officers mistaken belief that D consented to search makes sec 8 breach less serious. b) Is the law itself reasonable? where statutory warrantless power exists, it is read down to coincide w/ minimum constitutional standards. When law interpreted this way, no real scope to ask separately whether law is reasonable. If law is common law, asking whether search is authorized by law requires court to decide extent of CL power. since it is to be developed in a way that is consistent w/ Charter, result will be to settle question of whether law is reasonable. c) Is the manner in which the search is carried out reasonable? manner is physical way in which search carried out. If search carried out w/ violation of 10(b), not relevant to manner in which search was carried out. a) Golden: guideline for manners, look at number and gender of cops, location of search, how quickly the search is conducted b) Hard entry or dynamic entry to execute search warrant: occurs in connection w/ drug searches where cops believe that the inhabitants of building might be armed or evidence might be quickly destroyed. Normal rule: cops must knock and announce give notice of presence as cops, show warrant. If not, onus is on them why of why they didnt do it a) Will be found unreasonable if cops follow blanket policy to use them in all drug raids. c) Cornell: principles for dynamic entries a) Must be justified on info known to police at time, cannot be justified post facto but equally the discovery that no weapons were in the place searched after all does not automatically invalidate the search b) The police must be allowed a certain amount of latitude in the manner in which they choose to enter premises b/c they cannot be expected in advance to measure precisely the amount of force which will be required. c) On review trial judges assessment of the facts in these regards must be accorded substantial deference. d) R. v. Thompson: charter rights of others relevant to manner in which search conducted. Held, can wire tap public pay phones in case D uses them, but had no restrictions they were listening in on anyone, should only be activated if D comes along. E. Variations on the Hunter v. Southam Standard: although governing authority for min requirements w/ search and rule that w/o warrant search is unreasonable. There are variations: 1) searches under an admin scheme and 2) searches of press offices 2) Administrative or regulatory searches: restaurants compliance w/ public health regulations, employment standards, safety regulation, homeowners w/ building codes and zoning, min wage, employment equity, human rights legislation. These may require surprise inspections or exams of records, people engaged in these activities have lower expectation of privacy. Searches that do not comply with Hunter may be reasonable under sec 8.

111

1) To produce docs under certain documents is not unreasonable search or seizure. Can be reasonable even if Hunter protections are in place. 2) Colarusso: corner seized blood samples after traffic accident, no need for judicial pre authorization. 3) Jarvis: different levels of Charter protection might be found w/n same statute. Broad inspection and audit powers to maintain tax system b/c depends on honesty of self reporting people. Admin officials should cease to use broader investigative powers, such as, mandatory inspection or production of docs where purpose is penal liability. 1) To determine if officials have crossed line: factors; income tax content, if reasonable grounds to lay charges, general conduct was consistent w/ criminal investigation, if files have been transferred to investigators, auditor acted as agent for investigators, whether evidence concerns liability to taxation or prosecution. 4) General justification for departing from Hunter is principle that Charter rights must be interpreted in context. 5) Nolet: cop stopped tractor relying on regulatory powers to stop and search for registration. While examining truck, cop became suspicious of criminal activity, and found large sum of cash inside duffel bag. Further search lead to drugs in hidden compartment. Held that as long as cop had continuing regulatory purpose upon which to justify search, it did not matter what his predominant purpose was. Cannot rely on Jarvis b/c it was about civil dispute for penal proceeding. Nolet in context was always penal. 6) Less clear when regulatory search powers can and cannot be used. 2) Searches of media offices: guarantee of freedom of press 2(b) becomes relevant. Alternative sources of info are relevant factor for justice of peace to consider in deciding whether to issue a warrant; and info in that regard should normally be disclosed in warrant application. Other factors: whether search would unduly impede the gathering of dissemination of news, or whether the info had already been broadcast of published. 3) Canadian broadcasting corp v. Lessard: warrant application did not disclose anything about alternative sources of info. Disclosure of such info would have been preferred. However, search was conducted reasonably and there was no interference w/ the operation of the television station. Further, news had already been broadcast; seizure of tapes would not have chilling effect on sources for media. Held, warrant was properly issued. F. Other investigative powers A. Introduction: 487.01 creates general warrants. 1) Principles of above apply here. Can authorize techniques that infringe REP, go beyond traditional search, cops can do anything. 2) Police powers of detention will be considered. Statutory powers, occur during investigative process (breathalyzer) CC 25.1 authorizes designated officers to break the law. B. General warrants: sections 487.01 A. Wong: absence of authorization, video surveillance fell into general category of warrantless searches, which are prima facie unreasonable. B. 487.01 enacted to avoid loss of evidence in cases of video surveillance and other cases. Creates warrants to use any device or investigate technique or procedure or do anything described in the warrant that would, if not authorized constitute an unreasonable search and seizure. C. It has two investigative techniques: 1) the very general power to create range of police power investigative techniques, 2) video surveillance power. D. General power: different yet alike to 487. Both do not permit interference w/ bodily integrity. More broad, b/c allows any device, technique, procedure to do anything. Allows warrant not just on reasonable grounds but also on grounds that believe offence has been committed. Thus, creates anticipatory search warrant. E. What provision does not mean: does not prevent cops from obtaining general warrant even though search warrant might already be available; can use other techniques. F. Noseworthy: found that general warrants provision authorized anticipatory warrants - warrant to search place issued at time where there is not yet reasonable grounds to believe item sought is there. G. R. v. Kokesch: unavailability of other investigative techniques is not an excuse nor justification for using constitutionally impermissible investigative techniques. Held, where cops have suspicions but no legal way to obtain other evidence they must leave suspect alone. H. Requirements that make it more restrictive than 487: 1)warrant can only be issued by judge or justice not justice of peace 2) judge can attach conditions to ensure that any search or seizure authorized by the investigative technique, the duration of the warrant, and existence of conditions in the warrant is reasonable in the circumstances. 3) judge be satisfied it is in the best interests of admin of justice to issue the warrant. A. Best interests of admin of justice: some additional requirement beyond those necessary to obtain a search warrant in 487. B. Ha: found that best interests requirement meant at least that general warrant could not be used in circumstances that would amount to a fishing expedition. Looked at nature of offence being investigated, the need for investigative technique, duration of warrant, and existence of conditions in the warrant. (Ont Ct App). I. 487.01 incorporates all other general warrant requirements, and additional ones as well. 481.01(4) imposes particular obligation that warrant for video surveillance in circumstances where a suspect has a reasonable expectation of privacy shall contain conditions that respect privacy of the individual as much as possible. 481.01(3) judge can attach conditions to warrant to make it reasonable. J. Videotaping can only be used when other techniques have failed or are doubtful to succeed.

112

C. Powers of Detention (Coughlan 141-157) 1)Definition of Detention A. R. v. Thomsen: 1) sec 10 Charter, restraint on liberty other than arrest where person may require assistance of counsel. 2) s 10 charter when cop or agent of state assumes control over movement of person by demand or direction which may have significant legal consequence and which prevents or impedes access to counsel. 3) compulsion or coercion to constitute a detention may arise from criminal liability for refusal to comply with a demand or direction, or from a reasonable belief that one does not have a choice as to whether or not to comply. 4) habeas corpus - sec 10 applies to B. Other forms: Also includes psychological detention, breath samples, breathalyzer demand. Can be restrained despite lack of physical restraint, or if complied w/ request to stop by cop. - Purpose of having right to counsel is to prevent self incrimination. C. Grant: whether there was detention, settled by: objective detainee centered approach. Psychological detention determined by whether the reasonable person in the individuals circumstances would conclude that he had been deprived by the state of the liberty of choice as to whether to stay or go A. Factors: A. Circumstances giving rise as perceived by individual: whether police provided general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or; singlining out the individual for focused investigation. B. Nature of police conduct, language used, use of physical contact, place where interaction occurred, presence of others, duration of encounter. C. Characteristics or circumstances of individual where relevant, including age, physical statute, minority status, level of sophistication. 2)Common law powers of Detention a) Introduction: Waterfield test relied on to create powers: random stops of cars, detention short of arrest and permit police roadblock - done in Dedman - held they were authorized at CL to randomly stop cars w/ goal of detecting impaired drivers. Random stops do not violate the Charter a) Waterfield test: 1) such conduct falls within the general scope of any duty imposed by statute or recognized at common law, and 2) whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty. b) Arbitrary detention sec 9: Random stops do not violate the Charter, but violate arbitrary detention in sec 9. a) Calderon: found sec 9 violation when cops stopped car based on drug interdiction course taught them - pager, cell phone, fast food wrappers, road map, bags, car was expensive for what passenger looked. Unreliable factors lead to arbitrary detention. b) Racial profiling: inferred from circumstances, b/c rarely proved on direct. b) Investigative detention: Simpson: person could be briefly detained for questioning if the detaining officer has some articulable cause for the detention. b) Mann: cops can detain for investigative detention. Must be viewed as reasonably necessary on an objective view of totality of circumstances, informing officers suspicion that there is a clear nexus btn individual to be detained and recent or ongoing criminal offence. (more narrow than nexus test - individual decision to detain must be justified on basis of circumstances). c) Nesbeth: cops need not identify w/ absolute precision the particular crime of which they suspect the detainee. (relaxes the Mann standard) d) Yeh: said that Mann should be read as authorizing investigative detentions in relation to offences which are only reasonably suspected at the time of the detention. Once offence identified,cops need only suspect that it has been committed rather than know that fact (relaxes the Mann standard). e) Grant: for decision to be non-arbitrary it must be authorized by a law which is itself non-arbitrary. f) Court has adopted for sec 9 the three step Collins approach: 1) to avoid sec 9 violation, detention must have been authorized by law, 2) law itself must not be arbitrary , which means that it can be random and must be based on criteria that are reasonable and can be clearly expressed, 3) manner in which the detention is effected must not be arbitrary, in the sense that a lawful power must have been used for an improper purpose such as racial profiling. g) Suberu: cops have obligation to inform detainee of the right to counsel w/o delay as soon as an investigative detention begins. Immediate obligation is subject only to concerns for officer or public safety or to limits under sec 1 Charter. Dissent: Grant is mistaken and underestimates the coercive power of police commands. On facts, D had been leaving and had been told by officer to wait and answer questions. Holding that generally speaking, the police mean what they say when they direct a citizen to stay put, he concludes that the accused was detained. c) Police roadblocks: Waterfield test relied on.

113

b) Clayton Held that no violation if cops had acted lawfully , and so real issue in case became whether the police had power to set up road block. Since no statutory power, authorized under common law. a) Minority judges: proper method of analysis was 1) first to ask whether police acted lawfully in stopping D - which lead to asking whether there was common law power to do so. 2) Whether common law power resulted in arbitrary detention. If so, 3) Can it be justified under sec 1, 4) some cases may have to ask if whether the power was exercised reasonably in totality of circumstances. Held a new CL power should be made: law allows, detention then authorized by law, would create arbitrary detention, that would be justified under sec 1. b) Majority: waterfield depends on 1) that police were acting in general course of their duties and 2) that the actions they took were not an unjustifiable use of powers associated w/ those duties. Here, reduced the question to whether, in totality of circumstances, the detention of a particular individual is reasonably necessary. c) Basically; Police can do anything that is reasonable. 3. R. v. Grant 1. Facts: Police officers were on patrol in school areas. 2 of the officers were dressed in plain clothes. 1 in uniform in a different vehicle. (3 officers were larger then Grant). 2 officers felt Grant looked suspicious, and asked the other office to go talk to him. He went to talk to him, Mr. Grant was nervous. Grant was told to keep his hands in front of him. The other two officers were watching and saw Mr. Grant behaving in a strange way so they went to go stand with the other officer talking to Mr. Grant. Mr. Grant was asked a series of questions, when he told them he had a firearm they immediately arrested him. 2. Issues: Has Grant's right to be free of arbitrary detention as protected s.9 been breached? At what point during the interaction was Grant detained? 3. Rule: If reasonable person feels they do not have the choice to walk away from police, either by physical or psychological constraints, they are therefore detained. 4. Reasoning: 1. Sections 9 and 10 1. "Detention" refers to a suspension of an individual's liberty interest by a significant physical or psychological restraint. 2. Psychological detention is established either where the individual has 1. A legal obligation to comply with the restrictive request or demand, or 2. A reasonable person would conclude by reason of the state conduct that they had no choice but to comply. 3. Claim of psychological detention must meet: 1. Police command or direction 2. Compliance by the person now claiming a s. 9 detention 3. Grounds for a reasonable belief that there was no choice but to comply 4. Reasonable Person Test: In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individuals circumstances would conclude the state had deprived them of the liberty of choice, the court may consider, inter alia, the following factors: 1. The circumstances giving rise to the encounter as would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focused investigation. 2. The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter. 3. The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication. 5. Mr. Grant was psychologically detained when he was told to keep his hands in front of him and when the other officers moved into position to prevent him from walking forward. Therefore, he was arbitrarily detained, and denied his right to counsel. 6. The officers acknowledged at trial that they did not have legal grounds or a reasonable suspicion to detain the accused prior to his incriminating statements. Therefore, the detention was arbitrary. The police also failed to advise the accused of his right to speak to a lawyer before the questioning that led to the discovery of the firearm. The right to counsel arises immediately upon detention, whether or not the detention is solely for investigative purposes 7. "Transfer" in such a context required some type of transaction. 2. Section 24(2) 2. Once a violation was found, the case turned on the application of section 24(2), which states that once a violation of an individual's Charter rights have been found, the evidence obtained through the violation must be excluded if its inclusion would bring the administration of justice into disrepute. 3. The analytical framework found in the prior leading cases of R. v. Collins and R. v. Stillman had created justifiable criticisms, and the majority set out a revised test, consisting of three parts:

114

1. Seriousness of the Charter-Infringing State Conduct, which requires an assessment of whether the admission of the evidence would bring the administration of justice into disrepute, and focuses on the severity of the state conduct that led to the Charter breach (which includes an analysis of whether the breach was deliberate or willful, and whether the officers were acting in good faith), 2. Impact on the Charter-Protected Interests of the Accused, which focuses on how the accused person was affected by the state conduct (which includes an analysis of the intrusiveness into the person's privacy, the direct impact on the right not to be forced to self-incriminate, and the effect on the person's human dignity), and 3. Society's Interest in an Adjudication on the Merits, which focuses on how reliable the evidence is in light of the nature of the Charter breach. 4. At the first stage, the court considers the nature of the police conduct that infringed the Charter and led to the discovery of the evidence. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law. 5. The second stage of the inquiry calls for an evaluation of the extent to which the breach actually undermined the interests protected by the infringed right. The more serious the incursion on these interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute. 6. At the third stage, a court asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion. Factors such as the reliability of the evidence and its importance to the Crowns case should be considered at this stage. The weighing process and the balancing of these concerns is a matter for the trial judge in each case 7. The accuseds conviction for possession of a firearm for the purposes of weapons trafficking under s. 100(1) of the Criminal Code should be quashed on the ground that he did not transfer the firearm within the meaning of that section. 5. Holding: The detention was arbitrary and in breach of s.9. the gun should not be excluded as evidence against Mr. Grant. 4. R. v. Suberu 4. Facts: two partners using stolen credit cards. R entered the store and saw a police officer talking to an employee and a male customer. S walked past R and said He did this, not me, so I guess I can go. R followed S outside and said Wait a minute. I need to talk to you before you go anywhere, while S was getting into the drivers seat of a minivan. After a brief exchange, R received further information by radio, including the description and licence plate number of the van driven by the men who had used a stolen credit card at another store earlier that day. The description and the licence plate number both matched that of the van in which S was sitting. R also saw shopping bags between and behind the front seats. At this point, R decided that he had reasonable and probable grounds to arrest S for fraud. He advised S of the reason for his arrest and cautioned him as to his right to counsel. 5. Ph: S brought an application under s. 24(2) of the Canadian Charter of Rights and Freedoms seeking the exclusion of any statements made by him and of the physical evidence seized at the time of his arrest, on the ground that this evidence had been obtained in a manner that infringed his s. 10(b) right to counsel. S did not testify on the application but argued that he was detained as soon as he was told to wait and was engaged in questioning by R. He also argued that Rs failure to inform him of his s. 10(b) right to counsel at that point in time constituted a Charter breach. 6. Issue: whether the police duty to inform an individual of his or her s. 10(b) Charter right to retain and instruct counsel is triggered at the outset of an investigative detention? 7. Rules: 1. The police duty to inform an individual of his or her s. 10(b) Charter right to retain and instruct counsel is triggered at the outset of an investigative detention. From the moment an individual is detained, the police have the obligation to inform the detainee of his or her right to counsel. The phrase without delay in s. 10(b) must be interpreted as immediately. 2. R. v. Grant, 2009, detention under ss. 9 and 10 of the Charter refers to a suspension of the individuals liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply. 8. Reasoning: 1. Not every interaction with the police, however, will amount to a detention for the purposes of the Charter, even when a person is under investigation for criminal activity, is asked questions, or is physically delayed by contact with the police. Likewise, not every police encounter, even with a suspect, will trigger an individuals right to counsel under s. 10(b). 2. The onus is on the applicant to show that, in the circumstances, he or she was effectively deprived of his or her liberty of choice. The test is an objective one and the failure of the applicant to testify as to his or her perceptions of the encounter is not fatal to the application. However, the applicants contention that the police by their conduct effected a significant deprivation of his or her liberty must find support in the evidence. The line between general questioning and focussed interrogation amounting to detention may be difficult to draw in particular cases. It is the task of the trial judge on a Charter

115

application to assess the circumstances and determine whether the line between general questioning and detention has been crossed. 3. while S was momentarily delayed when the police asked to speak to him, he was not subjected to physical or psychological restraint so as to ground a detention within the meaning of the Charter. S did not testify and the evidence does not support his contention that his freedom to choose whether or not to cooperate with the police was removed during the period of time prior to his arrest. The trial judges findings on the facts, supported by the evidence, lead to the view that a reasonable person in the circumstances would have concluded that the initial encounter was preliminary investigative questioning falling short of detention. Thus, Ss s. 10(b) right to counsel was not engaged during this period. 4. it has not been demonstrated that a general suspension of the right to counsel during the course of short investigatory detentions is necessary and justified under s. 1 of the Charter. Because the definition of detention gives the police leeway to engage members of the public in non-coercive, exploratory questioning without necessarily triggering their Charter rights relating to detention, s. 1 need not be invoked in order to allow the police to fulfill their investigative duties effectively 9. Holding: the appeal should be dismissed. VII. GETTING TO THE TRIAL: TAKING CONTROL OVER THE ACCUSED 24. Securing jurisdiction over the accused and interim release 1. Jurisdiction over the accused (Coughlan 53-54): court will have jdx if person is within territorial limits of the courts jdx or D has otherwise been lawfully ordered to appear before that court. Questions: 1) if jdx can be lost by errors or omissions relating to appearances, adjournments, conduct of proceedings in absence of accused 2) if jdx lost can be regained? There is no jdx over people under 12, presumed by sec 13 to be incapable of crime, persons immune from prosecution for policy reasons (diplomats) 2. Arrest (Coughlan 185-214). A. Introduction: Part XVI arrest is one of the ways of compelling Ds court appearance; theres also summons and appearance notice. Balances legitimate state interests in prosecuting crime against individual freedom. In principle, cop cannot compel appearance in court. Decision must be confirmed by judicial officer before or after. D may receive request in writing to appear on day, or physically taken by cop. A. 4 possibilities: 1) least intrusive - cop shows justice there are reasonable grounds to believe that person has committed an offence and thus obtain summons requiring them to appear for date. 2) If cop first encounters person on street committing offence can require appearance by appearance notice - confirmed by justice subsequently. B. Least intrusive yet effective means possible; issue summons unless shown that necessary in public interest to issue a warrant. Even if already arrested w/ warrant, cop required to release him as soon as practicable and use a summons or appearance notice instead. B. Arrest with a warrant: issued only after information sets out reasonable grounds to believe that person has committed an offence is laid out before justice. Justice can issue summons or warrant. Usually summons unless evidence discloses reasonable grounds to believe that it is necessary in the public interest to issue a warrant. A. Warrant issued by prov judge can be executed anywhere in canada. Issued in one jdx can be endorsed by justice of another jdx and become executable there if D is believed to be there. B. Warrant must name or describe D, offence charged w/, order that D be brought before justice to be dealt w/ according to law. C. 29(c) cop should carry warrant and produce it when requested, and if anyone arrested w/ or w/o a warrant to give notice to arrested person of 1) process or warrant under which he makes the arrest, 2) the reason for the arrest. D. R. v. Gamracy: saying that there is a warrant is sufficient reason for making an arrest even if cop does not have warrant or know which offence the warrant dealt with. Pre charter case. Unclear if still the law. E. Now Charter 10(b) requires D be given sufficient info to decide whether to submit to arrest and make an informed choice about whether to exercise the right to counsel. C. Arrest without warrant: 494 and 495 of CC. 494(1) arrest powers for anyone. 494(2) special arrest power relating to property owners, 495(1) arrest powers available only to peace officers. Different powers are defined by: indictable offences vs. criminal offences; finds committing powers (saw offence) vs. reasonable belief powers (subjective belief that be objectively justifiable). 2nd categories are more limited. Being acquitted after the fact does not mean that arrest under finds committing was invalid. Today might argue violates sec 9 arbitrary detention. Reasonable grounds requires reasonable person see it as more likely than not that D committed the offence. 1) Section 494 arrest powers: 494(1) given to anyone, most limited powers, can arrest anyone if found committing indictable offence. Or if believes on reasonable grounds, that some one has committed offence and escaping and being freshly pursued by some other person w/ authority to arrest. subsection. 494(2) broader power for property owners and designates. Anyone who owns or is in lawful possession of property can arrest for indictable offence, and for criminal offence they find being committed on or in relation to their property. (personal or real property). Required to deliver the arrested person forthwith - as soon as reasonably possible or practicable under the circumstances. 2) Section 495 arrest powers: 495(1)(a) and (b) allow cops to arrest in any situation but except i) where cop did not find accused committing the offence, the offence is only summary conviction, and no arrest warrant issued, or ii) where cop believes that a summary conviction offence is about to be committed.

116

1) 495(1)(a) permits arresting anyone who has committed indictable offence or who on reasonable grounds believes he has committed or is about to commit indictable offence. -- interpreted as cop witnessing the offence personally, believes on reasonable grounds that offence been committed, or believes on reasonable grounds that offence is about to be committed. 2) 495(1)(c) permits cop to arrest if he reasonably believes warrant exists for persons arrest. 3) 495(2) applies to less serious offences. (a) to (c) applies to indictable offences in absolute jdx of prov ct judge, to hybrid offences and to summary conviction offences. Cant just arrest, but need another factor present as well. 1) May arrest if believes on reasonable grounds that arrest is only way to: i) establish the identity of the person, ii) secure or preserve evidence of or relating to the offence, iii) prevent the continuation or repetition of the offence or the commission of another offence. 2) May also arrest if reasonably believes that person will not attend court unless arrested. 495(2) sets out situations where appearance notice should be sought instead of arresting. 3) 495(3) makes it clear that cops power to arrest still exists. As long as power to arrest is created by (1), subsection (2) did not remove it 3) Other Criminal Code arrest powers: 199(2) warrantless, if cop finds someone keeping common gaming house or anyone therein. 31 allows cop who witnesses breach of peace or who on reasonable grounds believes is about to join or renew the breach of the peace - limited to breaches of peace that have already occurred. D. Supporting powers: anyone making lawful arrest is justified in using as much force as necessary to do so, provided she is acting on reasonable grounds A. Special rule for use of force likely to cause death or grievous bodily harm to effect an arrest. Permitted when: even if a warrant, a warrantless arrest would be allowable; person has taken flight to avoid arrest, person using the force believes on reasonable grounds it is necessary for the purpose of protecting the officer or some other person from imminent or future death or grievous bodily harm; and finally that the flight of the person cannot be prevented in a less violent manner. B. Anyone arresting wrong person under warrant is not criminally responsible provided he believed in good faith and on reasonable grounds that the correct person was being arrested. C.Entering homes A. Dwelling house: need special authorization on arrest warrant, to effect arrest. Must be satisfied on reasonable grounds that person to be arrested will be present immediately before entering the dwelling house (person who issues warrant). B. Exigent circumstances: can enter w/o warrant if cop has reasonable grounds to believe entry is necessary to prevent imminent harm or death to some person, or necessary to prevent imminent loss or destruction of evidence relating to an indictable offence. Even then warrantless entry only allowed where there are reasonable ground that D is in the house and circumstances make it impracticable to obtain a warrant. C. Prior announcement: Must first announce his presence, unless justice is satisfied that announcing would expose cop or someone else to imminent bodily harm or death, or lead to immediate loss or destruction of evidence of an indictable offence. Cop must have reasonable grounds to believe these things. D. Hot pursuit: common law exception. refers to situations where there is continuous pursuit conducted w/ reasonable diligence, so that pursuit and capture along with the commission of the offence may be considered as forming part of a single transaction. No strict requirement to observe offence. Applies broadly, even to prov offences. Not sure if there is prior announcement requirement for this. E. Rights arising on arrest 1) Statutory protections: 503: requires that an arrested person be taken in front of a justice of the peace to consider the issue of release. This must occur w/o unreasonable delay and w/n 24 hours. 2) Charter rights arising on arrest: sec 10(a) D to be informed promptly of the reasons for the arrest or detention. Test: what the accused can be reasonably supposed to have understood, rather than on any precise words used. Smith: even if D was not aware of specific charge, he had sufficient information to know the extent of his jeopardy, and therefore his waiver of counsel was valid despite the section 10(a) violation. i. If D arrested for one reason but reason for continued detention changes. Held, it is necessary to re advice accused so that he can consider again whether to seek legal advice. ii. 10(b) guarantees right to retain and instruct counsel w/o delay and to be informed of that right. Purpose is for rights and obligations informed, deprived of liberty, legal assistance in regaining it, prevent self incrimination. Does not include right to assistance during interrogation. Subject to reasonable limits - sec 1 analysis arises infrequently w/ regards to right to counsel since they are settled in his straightforward step prior to getting into balancing. Statutory limits that prevent D from having access to counsel prior to blowing into roadside screening device or sobriety can be justified. a) Informational duties: 10(b) rights w/o delay read w/ standard caution that is distributed to police officers. Might be language difficulties, mental disabilities, genuine inability to comprehend the right on part of D. Other info included: info about access to counsel free of charge for persons who meet financial status for legal aid plans; immediate temporary legal advice; how to gain access to service - phone number.

117

a) Latimer: no sec 10b violation when cop did not give D the phone numbers of either duty counsel in province or local legal aid office. Held, legal aid not available in since it operated only outside normal business hours, and number for other was easily available in yellow book. b) R. v. Prosper: 10b does not impose obligation on provinces actually to have such a scheme. Police must hold off from attempting to gain incriminatory evidence from D who expresses the wish to contact counsel. c) Failure to reward of degree of jeopardy (if change in circumstances) could violate 10b and 10a. d) If person wants to talk to lawyer then changes his mind, cops have obligation to re-warn person of his right and inform him of obligation to hold off from eliciting evidence. Cannot make commentss about counsels loyalty, commitment, availability, legal fees. Offering one on one plea bargaining w/ time limit before reaching counsel violates 10b - should do this w/ counsel unless D waived counsel. b)Implementation duties: a) Where arrested person has indicated wish to speak to counsel, 1) police must provide that person w/ reasonable opportunity to do so. Reasonable opportunity includes right to do so in private, maybe contacting counsel of ones choice. 2) police must hold off from questioning or seeking to elicit evidence until reasonable opportunity to contact counsel. b) R. v. Ross: could not contact counsel at 2am, unsurprisingly, yet went ahead and conducted line up. Should have held off. Violation of 10b. c) Implementation duties arise when: 1) when D has actually indicated a wish to speak to counsel; 2) these are treated differently when considering waiver. Cannot waive Info right, even if person says they dont want to hear the info. Implementation duties can be lost. If arrested person is not being reasonably diligent in exercise of his rights then duties of Manninen are not a bar to police continuing their investigation. a) R. v. Trembley: found D actively obstructing investigation, was using right to counsel as means of stalling a breathalyzer test. Still found 10b violation and created reasonable diligence rule and did not exclude breathalyzer evidence under 24(2). d) What are not implementation duties: a) Person who arrested, spoke to counsel, or waived right, may be questioned by police, person is not required to answer questions but that does not mean police are not entitled to ask them. b) Fact that person being questioned wants to talk to counsel again does not by itself automatically trigger an obligation on the part of the police to allow such contact. Obligation only arises under changed circumstances: a) Use of new procedures involving the accused (line up), change in the jeopardy facing the accused (death of an assault victim), reason to believe that first information provided was deficient (b/c police have acted to undermine it). Circumstances must be objectively observable. c) If D talks to lawyer, even if briefly, police will assume that they have fulfilled their 10b obligations. 3. Compelling appearance without arrest B. Laying charges: informed is laid when someone goes beyond a suspect to the accused. Process has ministerial and judicial function. 504 justice will perform bureaucratic and non discretionary function of receiving the information. Indictable offences are charged when an information is sworn, received, and approved by a judicial officer, in accordance w/ 504. Applies to summary offences too. When judge acting as ministerial, has no discretion over whether to receive the information. A. Information may be sworn by any person who has reasonable grounds to believe that an offence has been committed. Info can be laid by cop, prosecutor, or private prosecutor, depending on jdx. B. Information must be in writing, oath, must allege commission of offence by identifiable person. Contain allegations that affirm territorial jdx of justice before whom it is laid. C. 506: provides info that may be laid in form 2. D. Once info received under 504, justice must consider substance of informants allegations under 507. Justice exercises discretion as to whether it is appropriate to take any action or to require the accused person to answer the charges A. Process above = pre-enquete. Held ex parte, not held in open court. Justice will examine allegations and may ask questions. B. Then decides whether to endorse the information - need only be satisfied that there are reasonable grounds to believe that offence was committed by person (not ruling or making judgment). If satisfied, signs information. Charge formally laid, prosecution begins. Now suspect is the accused. C. If refused, does not prevent informant from seeking summons or warrant from different justice based on information. D. Different rules of pre-enquete apply to private informations: hearing held by judge, attorney general must be given copy of information notice of the hearing, opportunity to attend and take part. If justice does not issue warrant then private prosecutor is obliged to bring forward new evidence to have a new hearing. AG may intervene. Power to stay charges may be used any time after info laid under 504: in contrast, power to withdraw charges may only be exercised after pre-enquete has been held, and cannot be used to prevent one from taking place. C. Compelling appearance: ensure Ds are present for their trials while using powers w/ as much restraint as possible. If possible, appearance should be sought w/o arrest and detention. Where a person is released, preference should be given to means of

118

compelling appearance that is least onerous. Not just cop, but judicial officer must confirm decisions of D should be made to attend court. (either justice reviews cops actions or charges are laid in front of justice first). 1) Compelling appearance pre-charge: arrest without warrant - can compel appearance by doing this. For less serious offences, use appearance notice instead unless there is a good reason to arrest - D may not show up to court unless arrested if there is a need to 1) establish the identity of the person, 2) secure or preserve evidence of or relating to the offence, and 3) prevent the continuation or repetition of the offence or the commission of another offence. 1) Even after person arrested, cop can decide under 497(1) to release that person w/ intention to compel her appearance by means of summons or appearance notice. Can also release under 498. 2) Cop can impose restrictive conditions for him to be released. 3) Failure to comply with promise to appear, appearance notice, compelling appearance, punishable under 145. 2) Compelling appearance post-charge: use same procedure as above, whether cops lay information before meeting the accused or after. However, justice will issue process in the form of either a summons or a warrant for the arrest of the accused if the charge is endorsed. Just can choose between summons or arrest, 507(4) directs summons unless reasonable grounds to believe that warrant is necessary in public interest. 1) Optional conditions: remain in specified jdx for time period, notify change of address, employment, occupation, abstain from communicating w/ certain people, abstain from going certain places, deposit a passport, abstain from possessing a firearm, report as required, abstain from the use of drugs or alcohol; and comply w/ any other conditions necessary for the safety and security of victims or witnesses. 4. The bail hearings D. Judicial interim release: general approach: accused should be released pending trial with as few restrictions as possible. 1. After bail hearing, 515 directs justice to order accused released on understanding w/o conditions unless crown can show cause as to why something more restrictive is justified = show cause hearings. 2. 515 (2) sets out range of restrictions on liberty, short of detention, imposed on D for conditions of release. Cannot make order for b - e unless pros can show cause as to why order under immediately preceding paragraph would be inadequate. 3. 515(4) to 515(4.3) sets out restrictions. Must be connection between crime and restriction. 4. 515(1) only three grounds for continued detention: 1) necessary to ensure Ds attendance in court, 2) detention is necessary for protection or safety of the public, 3) necessary to maintain confidence in admin of justice, having regard to all circumstances, including strength of prosecutions case, gravity of nature of offence, circumstances surrounding its commission, and potential for a lengthy term of imprisonment. 5. 515(10)(c) any other just cause were struck down on grounds of vagueness. 6. General scheme for bail hearings: prosecutor justifies continued detention by showing cause, just must add statement of reasons for this decision to warrant of committal. 1. Exception: 515(6), offences listed in which onus is reversed - accused detained unless can show cause not to do so. Other cases where a) offence charged w/ was alleged to be committed while D already out on bail, b) offence charged was a criminal organization, terrorism, national security offence, c) the offence related to failing to attend court as ordered by some previous process, or d) the offence was punishable by life imprisonment under Controlled Drugs and Substances Act. 2. Exception applies to 469; commonly murder: 515(11) states that justice has no authority to release the accused and must order her detained to be dealt w/ according to the law. Accused will (522) be taken to judge of superior court no one else is authorized to release a person charged w/ a section 469 offence before trial. 3. Justice decision may be reviewed by judge upon application of D or pros. Review can adjust or correct the order at original bail hearing, provide opportunity to reconsider the appropriateness of the order if circumstances have changed. 4. If not amended, judicial interim release lasts until end of trial, if D found guilty of non section 469 offence, term of release will last until time of sentencing. 5. 518: principles of evidence at bail hearing. 5. R. v. Hall 1. Facts: In 1999, a womans body was found with 37 wounds to her hands, forearms, shoulder, neck and face. Her assailant had tried to cut off her head. The murder caused significant public concern and a general fear that a killer was at large. Based on compelling evidence linking the accused to the crime, he was charged with first degree murder. He applied for bail pending trial. The judge denied the application--not for reasons of ensuring appearance in court or protecting the public--but in order "to maintain confidence in the administration of justice". Paragraph 515(10)(c) of the Criminal Code allows the denial of bail for this reason. 2. Ph: Hall appealed the decision on the basis that section 515(10)(c) violated the right "not to be denied reasonable bail without just cause" under section section 11(e). 3. Issue: whether Bolan J. erred in denying bail on the basis that this was necessary to maintain confidence in the administration of justice. 4. Rule: a judge can only deny bail if satisfied that, in view of the four specified factors and related circumstances, a reasonable member of the community would be satisfied that denial of bail is necessary to maintain confidence in the administration of justice. 5. Reasoning:

119

1. The Act identified two branches for refusing bail: (1) where the accuseds detention was necessary to ensure his attendance in Court; or (2) where detention was necessary in the public interest or for the protection or safety of the public against the accused re-offending or interfering with the administration of justice. The use of or in the second branch led to the view that there were in effect three grounds for denying bail: (1) ensuring appearance at trial; (2) protection against criminal offences pending trial; and (3) the public interest. These grounds were originally enacted as s. 457(7)(a) and (b) of the Criminal Code, and later became s. 515(10)(a) and (b). 2. 1992, this Court first considered the application of s. 11(e) of the Charter to the law of bail in the cases of Pearson and Morales, supra. In Pearson, Lamer C.J., for the majority, held that s. 11(e) contained two distinct elements: (1) the right to reasonable bail in terms of quantum of any monetary component and other applicable restrictions; and (2) the right not to be denied bail without just cause. He interpreted the term just cause as meaning that bail could only be denied (1) in a narrow set of circumstances, where (2) denial was necessary to promote the proper functioning of the bail system. 3. Determining the constitutionality of denying bail in order to maintain confidence in the administration of justice requires considering s. 515(10)(c) as a whole. The portion of s. 515(10)(c) permitting detention on any other just cause being shown is unconstitutional. Because the impugned phrase confers an open-ended judicial discretion to refuse bail, it is inconsistent with both s. 11(e) of the Canadian Charter of Rights and Freedoms, which guarantees a right not to be denied reasonable bail without just cause, and the presumption of innocence. 4. It is a fundamental principle of justice that an individual cannot be detained by virtue of a vague legal provision. Parliament must lay out narrow and precise circumstances in which bail can be denied. The impugned phrase is not justified under s. 1 of the Charter. Its generality impels its failure of the proportionality branch of the Oakes test. To the extent the phrase is inconsistent with the Charter, it is void. The next phrase in s. 515(10)(c) (without limiting the generality of the foregoing) is also void since it only confirms the generality of the preceding phrase. 5. The balance of s. 515(10)(c), which authorizes the denial of bail in order to maintain confidence in the administration of justice, is valid. It provides a basis for denying bail not covered by s. 515(10)(a) and (b). Although the circumstances in which recourse to this ground for bail denial may not arise frequently, when they do it is essential that a means of denying bail be available because public confidence is essential to the proper functioning of the bail system and the justice system as a whole. 6. Denial of bail to maintain confidence in the administration of justice having regard to the factors set out in s. 515(10)(c) complies with s. 11(e) of the Charter. This ground is narrower and more precise than the old public interest ground which was struck down as vague in 1992 and provides an intelligible standard for debate and for the exercise of discretion. The means chosen do not go further than necessary to achieve Parliaments purpose of maintaining public confidence in the bail system and the justice system as whole. Parliament has hedged the provision with important safeguards: a judge can only deny bail if satisfied that, in view of the four specified factors and related circumstances, a reasonable member of the community would be satisfied that denial of bail is necessary to maintain confidence in the administration of justice. The provision is not overbroad but strikes an appropriate balance between the rights of the accused and the need to maintain justice in the community. 7. I conclude that a provision that allows bail to be denied on the basis that the accuseds detention is required to maintain confidence in the administration of justice is neither superfluous nor unjustified. It serves a very real need to permit a bail judge to detain an accused pending trial for the purpose of maintaining the publics confidence if the circumstances of the case so warrant. Without public confidence, the bail system and the justice system generally stand compromised. While the circumstances in which recourse to this ground for bail denial may not arise frequently, when they do it is essential that a means of denying bail be available. 8. The appropriate remedy in this case is to sever the phrase on any other just cause being shown, and without limiting the generality of the foregoing,. The balance of s. 515(10)(c) can stand alone as a functioning whole without doing damage to Parliaments intention. 9. The bail judge in this case considered the relevant factors and held that it was necessary to deny bail in order to maintain public confidence in the justice system. There is no error in his reasoning. 10. The portion of section 515(10)(c) permitting detention "on any other just cause being shown" was unconstitutional as it gave too much discretion to the judge to deny bail without just cause. The violation could not be upheld under section 1 due to proportionality. 11. The Court however upheld the portion of section 515(10)(c), which allows the denial of bail "to maintain confidence in the administration of justice" as it was a valid and just reason to deny bail. The standard is based on the view that the reasonable member of the community would be satisfied that the denial of bail would be necessary to maintain confidence in the system. 12. Section 515(10)(c) contains two separate phrases. The first phrase confers a broad discretion on judges to deny bail for any other just cause. As stated above, this phrase is inconsistent with the presumption of innocence and s. 11( e) of the Charter. As such, it is void under s. 52 of the Constitution Act, 1982. However, the second phrase, which provides an example of any other just cause, is capable of standing alone without doing damage to Parliaments intention. As such, the just cause component of s. 515(10)(c) can be severed and the balance of the provision, which states that judges can deny bail in order to maintain confidence in the administration of justice, can stand as a functioning whole.

120

6. Holding: the appeal should be dismissed. VIII. GETTING READY FOR TRIAL 25. Disclosure 1. R. v. Stinchcombe 1. Facts: The accused, a lawyer, was charged with breach of trust, theft and fraud. A former secretary of his was a Crown witness at the preliminary inquiry, where she gave evidence apparently favourable to the defence. After the preliminary inquiry but prior to trial, the witness was interviewed by an RCMP officer and a tape-recorded statement was taken. Later, during the course of the trial, the witness was again interviewed by a police officer and a written statement taken. Defence counsel was informed of the existence but not of the content of the statements. His requests for disclosure were refused. 2. Ph: During the trial defence counsel learned conclusively that the witness would not be called by the Crown and sought an order that the witness be called or that the Crown disclose the contents of the statements to the defence. The trial judge dismissed the application. The trial proceeded and the accused was convicted of breach of trust and fraud. Conditional stays were entered with respect to the theft counts. The Court of Appeal affirmed the convictions without giving reasons. 3. Issue: does crown have a duty to disclose? 4. Rule: The Crown has a legal duty to disclose all relevant information to the defence. The fruits of the investigation which are in its possession are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done. 5. Reasoning: 1. The obligation to disclose is subject to a discretion with respect to the withholding of information and to the timing and manner of disclosure. Crown counsel has a duty to respect the rules of privilege and to protect the identity of informers. A discretion must also be exercised with respect to the relevance of information. 2. The Crown's discretion is reviewable by the trial judge, who should be guided by the general principle that information should not be withheld if there is a reasonable possibility that this will impair the right of the accused to make full answer and defence. The absolute withholding of information which is relevant to the defence can only be justified on the basis of the existence of a legal privilege which excludes the information from disclosure. 3. This privilege is reviewable, however, on the ground that it is not a reasonable limit on the right to make full answer and defence in a particular case. 4. Initial disclosure should occur before the accused is called upon to elect the mode of trial or plead. Subject to the Crown's discretion, all relevant information must be disclosed, both that which the Crown intends to introduce into evidence and that which it does not, and whether the evidence is inculpatory or exculpatory. All statements obtained from persons who have provided relevant information to the authorities should be produced, even if they are not proposed as Crown witnesses. 5. Where statements are not in existence, other information such as notes should be produced. If there are no notes, all information in the prosecution's possession relating to any relevant evidence the person could give should be supplied. 6. Crown counsel was not justified in refusing disclosure here on the ground that the witness was not worthy of credit: whether the witness is credible is for the trial judge to determine after hearing the evidence. The trial judge ought to have examined the statements. Since the information withheld might have affected the outcome of the trial, the failure to disclose impaired the right to make full answer and defence. There should be a new trial at which the statements are produced. 6. Holding: The appeal should be allowed and a new trial ordered. 2. R. v. OConnor 5. Facts: trial judge said letters written by Crown counsel to the counsellors had unacceptably limited the scope of the disclosure to only those portions of the records which related directly to the incidents involving the accused. This resulted in the full therapy records not being disclosed to the defence until just before the trial. He concluded that while the conduct of the Crown was "disturbing", he did not believe that there was a "grand design" to conceal evidence, nor any "deliberate plan to subvert justice". In light of the difficulties encountered during discovery, Crown counsel then agreed to waive any privilege with respect to the contents of the Crown's file and to prepare a binder in relation to each of the complainants containing all information in the Crown's possession relating to each of them. On the second day of the trial, counsel for the accused made another application for a judicial stay of proceedings based largely on the fact that the Crown was still unable to guarantee to the accused that full disclosure had been made. The trial judge stayed proceedings on all four counts. He noted the constant intervention required by the court to ensure full compliance with the disclosure order and found that the Crown's earlier conduct had created "an aura" that had pervaded and ultimately destroyed the case. 6. Issues: (1) when non-disclosure by the Crown justifies an order that the proceedings be stayed and (2) the appropriate procedure to be followed when an accused seeks production of documents such as medical or therapeutic records that are in the hands of third parties. 7. Rule: the medical and counselling records of a complainant in a sexual assault case that are held by a third party can be disclosed by order of the judge if they meet two requirements. 1. First, the applicant must establish, without seeing them, that the records are likely to be relevant to the case. 2. Second, the judge must review the records and decide whether to disclose them based on the balancing the right to make full answer and defence, and the right to privacy. 8. Reasoning:

121

1. Stay of proceedings 1. Where an accused seeks to establish that non-disclosure by the Crown has violated s. 7, he or she must establish that the impugned non-disclosure has, on the balance of probabilities, prejudiced or had an adverse effect on his or her ability to make full answer and defence. Such a determination requires reasonable inquiry into the materiality of the non-disclosed information. 2. Once a violation is made out, the court must fashion a just and appropriate remedy, pursuant to s. 24(1). Where the adverse impact upon the accused's ability to make full answer and defence is curable by a disclosure order, then such a remedy, combined with an adjournment where necessary to enable defence counsel to review the disclosed information, will generally be appropriate. There may, however, be exceptional situations where, given the advanced state of the proceedings, it is simply not possible to remedy the prejudice. In those "clearest of cases", a stay of proceedings will be appropriate. 3. When choosing a remedy for a non-disclosure that has violated s. 7, the court should also consider whether the Crown's breach of its disclosure obligations has violated fundamental principles underlying the community's sense of decency and fair play and thereby caused prejudice to the integrity of the judicial system. If so, it should be asked whether this prejudice is remediable, having regard to the seriousness of the violation and to the societal and individual interests in obtaining a determination of guilt or innocence. 4. While the Crown's conduct in this case was shoddy and inappropriate, the non-disclosure cannot be said to have violated the accused's right to full answer and defence. The whole issue of disclosure in this case arose out of the order requiring that the Crown "disclose" records in the hands of third parties and that the complainants authorize production of such records. This order was issued without any form of inquiry into their relevance, let alone a balancing of the privacy rights of the complainants and the accused's right to a fair trial, and was thus wrong. 5. The Crown was ultimately right in trying to protect the interests of justice, and the fact that it did so in such a clumsy way should not result in a stay of proceedings, particularly when no prejudice was demonstrated to the fairness of the accused's trial or to his ability to make full answer and defence. Even had a violation of s. 7 been found, this cannot be said to be one of the "clearest of cases" which would mandate a stay of proceedings. 2. Production of Records in the Possession of the Crown 1. Per Lamer C.J. and Sopinka J.: The Crown's disclosure obligations established in Stinchcombe are unaffected by the confidential nature of therapeutic records when the records are in the possession of the Crown. The complainant's privacy interests in therapeutic records need not be balanced against the right of the accused to make full answer and defence in the context of disclosure, since concerns relating to privacy or privilege disappear where the documents in question have fallen into the Crown's possession. 2. The complainant's lack of a privacy interest in records that are possessed by the Crown counsels against a finding of privilege in such records. Fairness must require that if the complainant is willing to release this information in order to further the criminal prosecution, then the accused should be entitled to use the information in the preparation of his or her defence. 3. Moreover, any form of privilege may be forced to yield where such a privilege would preclude the accused's right to make full answer and defence. Information in the possession of the Crown which is clearly relevant and important to the ability of the accused to raise a defence must be disclosed to the accused, regardless of any potential claim of privilege that might arise. While the mere existence of therapeutic records is insufficient to establish the relevance of those records to the defence, their relevance must be presumed where the records are in the Crown's possession. 3. Production of Records in the Possession of Third Parties 1. When the defence seeks information in the hands of a third party (as compared to the state), the onus should be on the accused to satisfy a judge that the information is likely to be relevant. In order to initiate the production procedure, the accused must bring a formal written application supported by an affidavit setting out the specific grounds for production. However, the court should be able, in the interests of justice, to waive the need for a formal application in some cases. In either event, notice must be given to third parties in possession of the documents as well as to those persons who have a privacy interest in the records. 2. The accused must also ensure that the custodian and the records are subpoenaed to ensure their attendance in the court. The initial application for disclosure should be made to the judge seized of the trial, but may be brought before the trial judge prior to the empanelling of the jury, at the same time that other motions are heard. 3. In the disclosure context, the meaning of "relevance" is expressed in terms of whether the information may be useful to the defence. 4. In the context of production, the test of relevance should be higher: the presiding judge must be satisfied that there is a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify. While "likely relevance" is the appropriate threshold for the first stage of the two-step procedure, it should not be interpreted as an onerous burden upon the accused. A relevance threshold, at this stage, is simply a requirement to prevent the defence from engaging in speculative, fanciful, disruptive, unmeritorious, obstructive and time-consuming requests for production. 5. Upon their production to the court, the judge should examine the records to determine whether, and to what extent, they should be produced to the accused. In making that determination, the judge must examine and weigh the salutary and

122

deleterious effects of a production order and determine whether a non-production order would constitute a reasonable limit on the ability of the accused to make full answer and defence. 6. In balancing the competing rights in question, the following factors should be considered: (1) the extent to which the record is necessary for the accused to make full answer and defence; (2) the probative value of the record; (3) the nature and extent of the reasonable expectation of privacy vested in the record; (4) whether production of the record would be premised upon any discriminatory belief or bias; and (5) the potential prejudice to the complainant's dignity, privacy or security of the person that would be occasioned by production of the record. 7. The effect on the integrity of the trial process of producing, or failing to produce, the record, having in mind the need to maintain consideration in the outcome, is more appropriately dealt with at the admissibility stage and not in deciding whether the information should be produced. 8. As for society's interest in the reporting of sexual crimes, there are other avenues available to the judge to ensure that production does not frustrate the societal interests that may be implicated by the production of the records to the defence. 9. In applying these factors, it is also appropriate to bear in mind that production of third party records is always available to the Crown provided it can obtain a search warrant. 5. Holding: the appeal should be dismissed. 3. CC Sections 278.1-278.91 4. 278.1: Definition of record 5. 278.2: Production of record to accused 6. 278.3: Application for production 7. 278.4: Hearing in camera 8. 278.5: Judge may order production of record for review 9. 278.6: Review of record by justice 10. 278.7: Judge may order production of record to accused 11. 278.8: Reasons for decision 12. 278.9: Publication prohibited 13. 278.91: Appeal 4. R. v. McNeil 4. Facts: The accused was convicted on multiple drug charges. The arresting officer was the Crowns main witness. After his conviction but before sentencing, the accused learned that the arresting officer was engaged in drug-related misconduct that had led to both internal disciplinary proceedings under the Ontario Police Services Act and to criminal charges. In a preliminary motion before the Court of Appeal, the accused sought production of all documents related to the arresting officers misconduct, claiming that he required this material to assist him in preparing an application to introduce fresh evidence on his appeal from conviction. The Court of Appeal held that an OConnor-type procedure is only required in cases where third party records attract a reasonable expectation of privacy, and concluded that no expectation of privacy existed in respect of the criminal investigation files. Subject to appropriate redactions and the resolution of any privilege claims, the Court of Appeal ordered the third parties to produce the criminal investigation files in their possession related to the charges against the arresting officer to the federal Crown prosecuting the accuseds case. Subsequently, the arresting officer pleaded guilty to one of the criminal charges brought against him. Evidence of the officers conviction was admitted on the accuseds appeal, and the accuseds convictions were set aside, following which the Crown undertook not to re-prosecute him. The production issue in this case was rendered moot and the accused withdrew his participation in this appeal. The Court appointed an amicus curiae and heard this appeal despite its mootness. 5. Issue: 6. Rule: In OConnor, this Court set out a two-part test for production of third party records. First, the applicant must demonstrate that the information contained in the records is likely relevant. In the appellate context, it was therefore incumbent on McNeil to show that the targeted documents were likely relevant to his proposed application to introduce fresh evidence on his appeal from conviction. Second, if the threshold test of likely relevance is met, the court may order production of the records for its inspection. With the targeted documents before it, the court weighs the positive and negative consequences of production, with a view to determining whether, and to what extent, production should be ordered 1. The second part of the OConnor test essentially requires a court to conduct a balancing of the third partys privacy interest in the targeted documents, if any, and the accuseds interest in making full answer and defence. 2. The Crowns obligation to disclose all relevant information in its possession to an accused is well established at common law under the Stinchcombe regime. Under Stinchcombe, the Crowns first party disclosure obligation extends only to material relating to the accuseds case in the possession or control of the prosecuting Crown. 7. Reasoning: 1. A question then arises as to whether the Crown for disclosure purposes encompasses other state authorities. While the roles of the Crown and the police are separate and distinct, the police have a duty to participate in the disclosure process. The necessary corollary to the Crowns disclosure duty under Stinchombe is the obligation of police to disclose to the Crown all material pertaining to its investigation of the accused. For the purposes of fulfilling this corollary obligation, the investigating police force, although distinct and independent from the Crown at law, is not a third party. Rather, it acts on the same first

123

party footing as the Crown. Records relating to findings of serious misconduct by police officers involved in the investigation against the accused properly fall within the scope of the first party disclosure package due to the Crown from police, where the police misconduct is either related to the investigation, or the finding of misconduct could reasonably impact on the case against the accused. 2. Production of disciplinary records and criminal investigation files in the possession of the police that do not fall within the scope of this first party disclosure package is governed by the OConnor regime for third party production. The OConnor procedure provides a general mechanism at common law for ordering production of any record beyond the possession or control of the prosecuting Crown, and is not limited to cases where third party records attract a reasonable expectation of privacy. To limit the applicability of the OConnor regime to those cases where a third party has an expectation of privacy in the targeted documents would raise some uncertainty concerning the appropriate mechanism for accessing third party records when it is unknown whether a reasonable expectation of privacy attaches. 3. The first step in the OConnor procedure for production of documents in the possession of a third party is for the person seeking production to satisfy the court that the documents are likely relevant to the proceedings. If likely relevance is demonstrated by the applicant, the third party record holder may be ordered to produce the documents for inspection by the court in order to determine whether production should be ordered. Ultimately, what is required at this second stage of the common law regime is a balancing of the competing interests at stake in the particular circumstances of the case. 4. In balancing the competing interests at the second stage of an OConnor application will be to assess the true relevancy of the targeted record in the case against the accused. Once a court has ascertained upon inspection that third party records are indeed relevant to the accuseds case, in the sense that they pertain to an issue in the trial, the second stage balancing exercise is easily performed. In effect, a finding of true relevance puts the third party records in the same category for disclosure purposes as the fruits of the investigation against the accused in the hands of the prosecuting Crown under Stinchcombe. 5. It may be useful to pose the question in this way: If the third party record in question had found its way into the Crown prosecutors file, would there be any basis under the first party Stinchcombe disclosure regime for not disclosing it to the accused? If the answer to that question is no, there can be no principled reason to arrive at a different outcome on the third party production application. The accuseds interest in obtaining disclosure for the purpose of making full answer and defence will, as a general rule, outweigh any residual privacy interest held by third parties in the material. This is particularly so in respect of criminal investigation files concerning third party accused. 6. That is not to say that residual privacy interests in the contents of criminal investigation files, police disciplinary records or any other third party records should be disregarded. The court should ensure that a production order is properly tailored to meet the exigencies of the case but do no more. To ensure that only relevant material is produced and that no unwarranted invasion of privacy interests occurs, the court may find it necessary to make a production order subject to redactions or other conditions. In addition, when just and appropriate to do so, the court may well impose restrictions on the dissemination of the information produced for purposes unrelated to the accuseds full answer and defence or prosecution of an appeal 8. Holding: The appeal is allowed and the order in the court below is set aside. The application having become moot, the Court makes no further order. 5. Disclosure and production (Coughlan 216-250) A. Introduction: crown must disclose all relevant info to accused, whether inculpatory or exculpatory, subject to the exercise of the crowns discretion to refuse to disclose info that is privileged or plainly irrelevant. B. Disclosure 1) Creation of the right: R. v. Stinchcombe: found duty on crown to disclose its evidence to the accused. Role of crown is not to obtain conviction but to lay all relevant evidence before court. It is a property of the public to ensure justice is done. Duty on crown to disclose all material it proposes to use at trial and especially all evidence which may assist the accused even if the crown does not propose to adduce it. D has right under sec 7 Charter to make full answer and defence. 2) Structure of the right: crown required to disclose on request of accused, made any time after charge laid. Disclosure prior to election or plea; include all witness statements, whether crown calls them or not, and will stay statements; if no notes then name, address, occupation of witness. Triggered whenever reasonable possibility of info being useful to the D in making full answer and defence. Obligation on crown and police, must continue to disclose, defence has continuing obligation to seek disclosure. Right is not absolute - do not give irrelevant info, protect id of informers. 1) Burden on crown to justify non disclosure - demonstrate that info is beyond its control, or that it is clearly irrelevant or privileged. 3) Remedy for breach of what right: disclosure or full answer and defence? Stinchcome, disclosure can be reviewed by the trial judge if defence disagrees w/ the way it was exercised. Onus on crown to justify an exception to the rule of complete disclosure. Remedies: new trial, stay of proceedings. No remedy given for breach of Charter right unless it amounts to a breach of the right to full answer and defence. a) The original position: remedy for non-disclosure: OConnor: simple breach of Ds right to disclosure does not violate Charter and entitle remedy under 24(1). If right is of full answer and defence, then non disclosure may harm case. If D has Charter right to disclosure itself, the n non disclosure of any info will automatically constitute breach of that right. No need to consider actual effect of non disclosure on accused.

124

a) Carosella: opposite conclusion (rape victims therapist notes shredded), held breach of obligaton to disclose is a breach of Ds constitutional rights w/o requirement of additional showing of prejudice, the breach of this principle of fundamental justice is in itself prejudicial. Remedies range from adjournements to stay of proceedings. A stay justified on two basis i) where prejudice to D cannot be remedied, ii) where there would be irreparable prejudice to the integrity of the justice system if the prosecution were continued. b) Major finding: removed need for D to show prejudice to show a Charter breach. Held disclosure was independent right under sec 7, no need to show prejudice for whether right breached. (Court moved directly to remedy after breach). b) The current position: remedy for failure of full answer and defence: R. v. La: reaffirms principle that disclosure is an independent right guaranteed by sec 7, not merely an aspect of the right to full answer and defence. Held, non disclosure of cops tape of 13 year old sexual assault victim (she lied in tape) impaired Ds ability to cross examine and entered stay of proceedings. Found that sec 7 right Not violated. Evidence will sometimes be lost. If crown can show that evidence not lost due to unacceptable negligence, duty to disclose is not breached. Still possible for Ds right to full answer and defence to be breached. This is only the case if D can establish actual prejudice. a) Here No disclosure = violation of sec 7 w/o showing of prejudice. Prejudice stronger b/c lied in tape. In Carosella, notes were another persons; less reason to think material was actually of any use to D. b) Dixon failure to disclose became apparent after trial. Difference in timing relevant to whether there is a Charter breach and to the remedy being granted. Although Stinchome test met. Held, right to disclosure is one component of right to make full answer and defence. Although disclosure violated, right to make full answer and defence may not be impaired. Considered remedy after finding breach of full answer and defence c) Taillefer: agreed w/ above. to determine whether infringement on right to make full answer and defence, D will have to show that there was a reasonable possibility that failure to disclose affected the outcome at trial or the overall fairness of the trial process. Considered remedy after finding breach of full answer and defence d) Changed approach after Carosella: 1) was the accuseds right to disclosure breached? 2) if so, did that breach violate the accuseds right to make full answer and defence, 3) if so, what remedy should be granted? -- disclosure is an independent right and it is not necessary to show prejudice to establish a breach of that right. e) Test for whether breach of disclosure violated full answer and defence : (Dixon) D must show reasonable possibility that 1) the non disclosure affected the outcome at trial, 2) it affected the overall fairness of the trial process. a) First asks whether additional evidence could have created reasonable doubt in jurys mind, second asks whether undisclosed evidence could have been used to impeach credibility of prosecution witness, or assisted defence in its pre-trial investigations and preparations or in its tactical decisions at trial. b) Burden on D to show reasonable possibility - whether evidence could have made difference. c) First prong: look at evidence as a whole and not at each undisclosed info f) Bjelland: availability of order for exclusion of evidence under 24(1) where non disclosure is discovered mid trial but only in exceptional circumstances where 1) the late disclosure renders the trial process unfair and the unfairness cannot be remedied by disclosure and an adjournment or 2) where exclusion is necessary to maintain the integrity of the justice system. a) First may met where evidence is only disclosed after important and irrevocable decisions about how to conduct the defence have ben made. b) Second may be met where adjournment would significantly prolong the period of time an accused is held in custody pending the conclusion of the trial. c) Either case, crown placed burden on accused to show why exclusion was necessary and why disclosure and an adjournment would not be sufficient. 4) Conflicting protections: disclosure and privileged information: informer privilege, solicitor-client privilege, national security privilege. b) Informer privilege: cop guarantees protection and confidentiality to a prospective informer in exchange for useful info that would be difficult or impossible to obtain. Identity of informers has highest level of protection. Privilege belongs to informer and crown jointly, cannot disclose w/o informers consent, and informer cannot unilaterally waive privilege. Rule is not just limited to court room. e) Innocence at stake exception: (common law rule) only if evidence establishes a basis for this exception, such that informer is a material witness to the crime, acted as agent provocateur, or planted material found under search warrant, will identity information be revealed. f) Also extends to information that may enable identification. g) Claim depends on guarantee of protection and confidentiality having been given. When arises, judge should settle question w/ in camera first stage hearing. Privilege must be established on a balance of probabilities. h) D and his counsel are not entitled to be present at first hearing. Counsel should only be excluded to extent necessary to protect identity of informant. c) Solicitor-client privilege: may be required for full answer and defence. e) McClure test:

125

a) Threshold test; must establish that: 1) info he seeks from solicitor client communication is not available from any other source; and 2) he is otherwise unable to raise a reasonable doubt. b) If threshold satisfied, proceed to innocence at stake test a) Stage 1: accused seeking production of solicitor client info has to demonstrate an evidentiary basis to conclude that a communication exists that could raise a reasonable doubt as to his guilt. b) Stage 2: if such an evidentiary basis exists, trial judge should examine the communication to determine whether in fact is likely to raise a reasonable doubt as to the guilt of the accused. b) Initial question: whether info is available in an admissible form from some other source. c) If crown has not proven its case beyond a reasonable doubt, then McClure application is unnecessary. Can still post phone application until D presents his case to see whether a reasonable doubt has arisen in some other way. d) After stage 1 passes, judge should determine if useful evidence in it. Unless solicitor privilege goes to elements of the offence, it will not be sufficient to meet this requirement. Judge can ask for privileged file, take out third party info, only info necessary to raise reasonable doubt should be released. Person whose privilege is bring infringed will enjoy use and derivative use immunity concerning the information released. c) National security privilege: canada evidence act requires anyone who is required to disclose or expects to disclose sensitive information to give notice to the AG of canada of possibility and proceeding in which it might occur. Pending action by AG, person giving notice cannot disclose info. Ag can authorize disclosure of any or all info. If does not want to disclose, can apply to fed court for order. Judge will decide then to hold a hearing, whom notice of hearing should be given, may afford other people the right to make representations. In no damage to international relations, national defence, national security, can authorize disclosure. If injury, can still order it but only if public interest outweighs public interest in non disclosure. Disclosure can be subject to conditions and might take the form of info itself, a summary of info, or facts relating to the info. Judge can order notice of decision given to any person. a) AG can prohibit disclosure w/ certificate. Notice of certificate given to judge, parties. Judge can make order to protect right of the accused in a fair trial. b) Potential exception to disclosure is that judge deciding matter may not be Ds trial judge. c) If judge unsatisfied that non disclosure has not adversely affected trial fairness, and no lesser step or remedy can assure it, a stay of proceedings under s. 38 must issue. Doubt should be in favor of Ds right to full answer and defence. C.Production: 4) Introduction: different from disclosure; third parties in control of records have no obligation to assist defence. Records are not part of the case the D has to meet. D faces higher burden in obtaining access to this material. 5) Production under OConnor: question is procedure to be applied when D seeks documents (counseling records) in hands of a third party. 1) Two stage process for determining whether third party records should be produced: 1) D must persuade judge to examine record personally. 2) Judge required to decide whether to release it or some portions to D. 1) Majority held first stage, must weigh third partys privacy interests in balance, not just Ds answer and defence. Must satisfy judge that there is a reasonable possibility that information is logically probative to an issue at trial or the competence of a witness to testify. 2) Second stage, judge decides whether to order any portion of the record produced, factors: 1) Extent to which record is necessary for D to make full answer and defence 2) Probative value of record in question 3) The nature and extent of the reasonable expectation of privacy vested in that record 4) Whether production of the record would be premised upon any discriminatory belief or bias AND 5) The potential prejudice to the complainants dignity, privacy, or security of the person that would be occasioned by production of the record in question. 2) Case created scheme that was intended to engage in potentially difficult balancing between an accuseds fair trial interests and the privacy interests of others. 3) Cases analyzed under this case are those where competing interest is likely to be much less compelling than the accuseds fair trial interest. 3) Production under the statutory scheme (R. v. Mills): In response to OConnor, parliament enacted 278.91. OConnor developed in context of counseling records, but apply to all in hands of third party. Statutory scheme applies to some records in hands of third parties- counseling and similar records for sexual assault complainants. OConnor still governs production w/ regard to records not explicitly covered by statutory scheme. 1) Statutory scheme: Record means where there is REP and includes w/o limiting the generality of the foregoing, medical, psychiatric, therapeutic, counseling, education, employment, child welfare, adoption, social services records, personal journals and diaries, and records containing personal information the production or disclose of which is protected by any other Act of parl or prov leg, but does not include records made by persons responsible for investigation or prosecution of the offence.

126

2) OConnor: records w/ crown not subject REP, so Stinchombe rules still apply. 278.2(2) makes law applicable to crowns records unless witness has expressly waived application of those sections. 3) 278.5(2): judge balance salutory and deleterious effects of producing record of judges own inspection. D required to show record is likely relevant, and production of record is necessary in the interests of justice. Decision at first and second stage should be based on 5 factors of majority and minority. 4) Not every type of record attracts REP, only the ones listed will. 5) Scheme is broader than OConnor b/c applies to crowns records, unless waived by victim. 6) Scheme requires in first stage to show production is necessary in interests of justice.Mills upheld this requirement. Judge required to protect right of D, D must have access to all docs that might be constitutionally required, judge should take into account at both stages the factors that OConnor said were not to be considered at all or were to be considered in second stage. In final analysis, judge is free to make whatever order is necessary in the interests of justice - a mandate that includes all of the applicable principles of fundamental justice at stake. 7) Mills asserts relevant of complainants privacy and equality rights. Analysis has not changed much. Final word on third party productions is in Mills upholding 278.1 to 278.91. Mills did not shift the balance away from the primary emphasis on the rights of the accused. D. Bridging the gap (R. v. McNeil): this simplifies process for producing records to accused that D ought to have even if not in the hands of crown. When crown becomes aware of relevant docs in third party hands, has duty to inquire and obtain the evidence, rather than require accused to pursue an OConnor application. A. McNeil: cops records of criminal investigation. Cops have duty to disclose disciplinary records that would be relevant to crown. 5 types of records that fall within cops duty (Ferguson Five) A. Any conviction or finding of guilt under CC or controlled drugs and substances act for which pardon not granted B. Any outstanding charges under CC or controlled drugs and substances act C. Any conviction or finding of guilt under any other federal or prov statute D. Any current charge of misconduct under police services act for which a notice of hearing has been issued. B. McNeil hearing - decide what needs to be disclosed. 26. Preliminary (Coughlan 253-277) A. Introduction: can be done at request of prosecutor, unless offence is in absolute jdx of prov court judge. Entitlement can be overridden by AG elects to proceed by way of direct indictment, pursuant to 577 of CC. No entitlement to prelim in summary conviction matters. No constitutional right to prelim. Function is to screen unmeritorious prosecutions. 1) Since 2004, amendments, no longer role to test sufficiency of pross case. Prelim held upon request of a party (usually D). Inquiry made towards issues and witnesses; these should be agreed upon by parties. If so, justice may commit D w/o recording evidence on any other issue of case. 2) Now, prelim inquiry is limited examination of sufficiency of the prosec case w/ regard to specific issues and evidence of specific witnesses. B. Jurisdiction: authority for justice under part xviii CC; no inherent jdx, power to expand in 537(1)(i): judge can regulate inquiry in any way desirable and not inconsistent w/ Code. Judge who fails to act according to CC or who exceeds authority, may be subject to review by superior court. No power to grant remedy other than ones in CC (not charter - delay, non disclosure, production of evidence in violation of right). 1) Commencement: 536 states that D charged w/ indictable offence w/n absolute jdx of prov court judge shall be remanded to appear before judge for trial w/n territorial jdx in which offence was allegedly committed. Possibility of having prelim for indictable offence will depend on 1) classification of offence, 2) election of D as to mode of trial. Judge cannot to trial and prelim for same D simultaneously. 1) At first appearance, there is an arraignment, charges will be read to D. D submits to jdx of court and sets later date for prelim. Once evidence adduced, prelim will continue in front of same judge, before that D may appear in front of many judges. 2) Scope: defined in 525, directs justice/judge to inquire into charge of indictable offence in respect of the same transaction disclosed by the evidence take in accordance with part xviii. Now allows judge to commit D for trial on any indictable offence disclosed by evidence at prelim. Offences other than those stated may be disclosed through evidence. 1) Inquiry extends to any offence, provided it comes from same transaction: narrative of conduct that may comprise of several acts and may disclose several offences. 2) Code allows D to call evidence, can include exculpatory evidence on a matter of defence. Purpose is to allow D opportunity to test it and to record in preparation for trial. 3) Can use prelim to lay evidentiary foundation for issue that can only be decided at trial. Judge may permit cross of witness to lay basis for motion under the Charter at trial. Can also allow to call defence witness on trial matters. 4) Cannot make formal challenges to charges validity. Judge cannot question if info was properly sworn, inquire into special plea based on double jeopardy. 5) Judge can amend charges in information at prelim. 3) Multiple accused and multiple accounts: judge has no power to order the severance of accused or counts. If multiple charged, each can ask for prelim. If request, inquiry held in respect of all Ds and each entitled to participate. May have same or different issues in case. Prelim will proceed on issues and witnesses identified by parties in same matter as if they were for single D. If law favors prosecution of multiple accused together, and only one D elects prelim, election will mean inquiry for all Ds.

127

1) Judge cannot inquire into summary conviction and indictable offences w/n absolute jdx of prov court; they can remain on info pending. If D elects trial in prov ct, she waives prelim and thus no issue arises b/c prov ct judge has jdx over all offences. If elects trial by judge alone or judge and jury, prelim will proceed on electable offences and others would have to be separately charged in another info. 4) Presence of the accused: entitled to be present at prelim. 537(1)(j.1) judge has discretion to excuse D from all or part of inquiry. This section and (k) allows D to be present through electronic communication. D is right to attend and will be required to attend unless excused be justice. This will follow upon request of D or agreement of parties. If D absconds during prelim. 544 provides D deemed to have waived right to be present. Justice may continue inquiry to conclusion, or if an arrest warrant issued, adjourn it. Even if adjourned, justice may resume. D cannot demand inquiry be reopened although justice has discretion to make order if exceptional circumstances. Counsel of D entitled to act for absconding D during absence if inquiry continued. Judge can make adverse inference if D absconds. 5) Constitutional issues: Mills and Hynes, court conducting prelim is not a court of competent jdx under Charter. Thus, accused seeks to apply for a constitutional remedy under 24 or 52 the only forum for such motion is trial. Prelim does not extend to constitutional issues. Thus, judge cannot terminate prosecution by granting stay under Charter. 1) Justice can exclude evidence from prelim inquiry on basis that it does not comply w/ ordinary requirements for admissibility (voluntariness). C.Evidence 1) Admissibility: evidence taken under oath and recorded. 540(2) and (3) depositions before judge, rarely used. Depos are statements made and sworn before justice and they were commonly used when no stenographers and no electronic means for recording presentation of oral evidence. Modernly, recorded on stenographer or electric means. 1) Evidence must comply w/ principles and rules of admissibility that apply at trial (statement be proven voluntary beyond reasonable doubt). 2) Judge has no authority to call witnesses or force parties to produce witnesses. No jdx to hear Charter matters and no jdx to exclude evidence or grant other remedy under 24. 3) 540(7): justice may receive any info that would not otherwise be admissible but that the justice considers credible or trustworthy in circumstances of case, including statement that is made by witness in writing or otherwise recorded. Judge can call person for cross that would not otherwise be required to appear b/c of 540(7). 4) will say statement at prelim or to introduce a video taped version of statement rather than calling a complainant to testify. 5) Evidence must be credible and trustworthy. Voir dire be held during prelim. Relevant factors: non leading questions used, transcript reliable, ability of child to understand importance of telling the truth. 6) Exception under 540(7): allows decision to commit at prelim to based, upon evidence that cannot be tendered at trial. 7) 540(7) too broad. Contrary to principle by Court that justice has no function or jdx to assess credibility of evidence at prelim. 2) Cross-examine of prosecution witness: entitled to cross them at prelim, contained by relevance criteria to scope of inquiry, and sufficiency of prosecution evidence. Can cross on any matter that leads to conclusion that pros evidence in insufficient. D may cross on matter that has central significance at trial but outside scope at prelim (for subsequent challenge of credibility of witness, or laying factual foundation for issue under Charter right). 1) Justice can stop any part that is abusive, too repetitive, or inappropriate. 2) Not clear if pros calls a witness at trial is also a pros witness for cross examination at prelim. Judge can ask pros to consent to call a witness for purpose of cross examination by D. 3) Address to accused: 541(2) requires caution be given to unrepresented D only, on assumption that D w/ representation will be competently advised of her position, thus dispensing w/ need for the address. 4) Defence evidence: defence can adduce evidence on behalf of D, including testimony of D, but not call witnesses. Advantage and hearing and see prosecutions witnesses, assessing evidence, credibility. Evidence at prelim can potentially be admitted in trial. 715 provides that evidence taken on oath at prelim in presence of D, and witnesses refuses to testify or is dead, insane, too ill to travel, or absent from canada, then evidence can be introduced at trial. Depends on whether D had full opportunity to cross examine witness. R. v. Hawkins: witness testified, later married the D and was so incompetent to testify at trial. Her prelim testimony was admissible b/c met criteria and reliability that make up the exception. 5) Publication bans: proceedings are open unless basis for exception. Can be subject to public comment unless judge orders otherwise. Rarely used for prelims. Ban from publication in newspaper or broadcast, rationale is that D who is presumed innocent and not in jeopardy of conviction at prelim should be shielded from adverse publicity before trial. 1) Ban issued by order of justice before evidence taken, discretionary if sought by pros, mandatory if sought by D. If sought after evidence has begun, judge has discretion in matter. 2) If D not represented by counsel, judge obliged to inform D of right to seek publication ban. 3) Ban, if ordered, remains in effect until D is discharged or if accused is committed for trial, the trial is ended. Bans infringe freedom of expression but reasonable limits upon those rights. D. Committal: 548 directs judge at prelim to commit D for trial on any indictable offence if evidence in support of that charge is sufficient. Sufficient evidence test at prelim: 1. Shepard: whether a reasonable jury, properly instructed, could find the charge proved beyond a reasonable doubt? (degree to which assessment of evidence permits judge to consider the probative force of evidence. 2. Look at criteria of completeness and weight:

128

1. Completeness: Evidence leads to all elements of offence as defined, including identification. 2. Weight: judge must not assess credibility of witnesses. Opposing views about this. 3. Ferras: modified the Shepard test in extradition contest. No longer symmetry between extradition and preliminary inquiry tests. 4. Argued that justice should discharge D is no reasonable trier of act could find essential elements of offence proved beyond a reasonable doubt . 5. If sufficiency test met at prelim, judge will order committal on any indictable offence charged or supported by the evidence. Judge is limited to charges in respect of same transaction (not limited to those in information or lesser included offences). Committal order must refer to offences that are related to even that form factual basis of charges in info at prelim. 6. If evidence identifies another victim than original one in charge, there may be order of committal for an offence in relation to that victim, provided it happened w/ same events. 7. If D discharged at prelim, there is no acquittal, cannot claim protection against double jeopardy if crown proceeds against him on same charge or related, by fresh information or direct indictment. Prelim is not a final judgment. 8. If D committed for trial, justice who presided at prelim is required to transmit record to court of trial. Record comprises the info as endorsed, evidence (exhibits), statement made by D after justices address, and any paper proceedings relating to compelling the appearance of the accused. E. R. v. Arcuri: 2. Facts: The accused was charged with first degree murder. At the preliminary inquiry, the Crowns case was entirely circumstantial and the accused called two witnesses whose testimony was arguably exculpatory. The preliminary inquiry judge rejected the accuseds contention that he must weigh the evidence and, after viewing the evidence as a whole, determined that the accused should be committed to trial for second degree murder. 3. Ph: The accuseds certiorari application was dismissed and that decision was affirmed by the Court of Appeal. 4. Issue: whether a preliminary inquiry judge may weigh the evidence in assessing whether it is sufficient to warrant committing an accused to trial. 5. Rules: 1. The question to be asked by a preliminary inquiry judge under s. 548 of the Criminal Code is whether there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. 2. A preliminary inquiry judge must determine whether there is sufficient evidence to permit a properly instructed jury, acting reasonably, to convict, and the corollary that the judge must weigh the evidence in the limited sense of assessing whether it is capable of supporting the inferences the Crown asks the jury to draw. 1. This task does not require the preliminary judge to draw inferences from the facts or to assess credibility. Rather, the preliminary inquiry judge must, while giving full recognition to the right of the jury to draw justifiable inferences of fact and assess credibility, consider whether the evidence taken as a whole could reasonably support a verdict of guilty. 5. Reasoning: 2. The question that arises in this case is whether the preliminary inquiry judges task differs where the defence tenders exculpatory evidence. The task is essentially the same, in situations where the defence calls exculpatory evidence, whether it be direct or circumstantial. 3. Where the Crown adduces direct evidence on all the elements of the offence, the case must proceed to trial, regardless of the existence of defence evidence, as the only conclusion that needs to be reached is whether the evidence is true. However, where the Crowns evidence consists of, or includes, circumstantial evidence, the judge must engage in a limited weighing of the whole of the evidence (i.e. including any defence evidence) to determine whether a reasonable jury properly instructed could return a verdict of guilty. 4. In performing the task of limited weighing, the preliminary inquiry judge does not draw inferences from facts. Nor does she assess credibility. Rather, the judges task is to determine whether, if the Crowns evidence is believed, it would be reasonable for a properly instructed jury to infer guilt. 5. This task of limited weighing never requires consideration of the inherent reliability of the evidence itself. It should be regarded, instead, as an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence. 6. In this case, before committing the accused to trial, the preliminary inquiry judge considered the evidence as a whole, surveying the circumstantial evidence presented by the Crown, as well as the allegedly exculpatory evidence tendered by the defence. There is no reason to believe that he arrived at the wrong result in committing the accused to trial. 7. Notwithstanding certain confusing language in Mezzo and Monteleone, nothing in this Courts jurisprudence calls into question the continuing validity of the common law rule in Shephard. 6. Holding: The appeal should be dismissed. 27. The jury trial (Coughlan 306-326) 1. Jury selection - Introduction: can do trial w/ prov judge, sup ct judge, or by sup ct judge w/ jury. Indictable offences tried by judge and jury except where otherwise expressly provided by law. Murder and treason require jury, few others such as theft do not. 1. Selection procedure has mix fed and prov laws. 92(14): prov jdx over admin of justice. 12 members in jury, prospective summoned for selection. Rules of qualifications, disqualifications, sources to be selected, compensation. Once in court room, CC governs actual selection. Rules deal w/ challenges for cause, peremptory challenges, excusing jurors.

129

2. Provincial legislation jury selection procedures - creating the jury array: 626 CC specifies jurors must be qualified in accordance w/ laws of prov, no one can be disqualified based on sex; Jury array assembled from broad inclusive source. 1. Juror required to be age of majority, resident of province, canadian citizen. 2. Disqualification based on 1) that potential juror would face conflict in serving on jury, 2) what juror does in every day life is more important than or for some reason justifies general exemption from serving on jury. (cops, judges, lawyers, law clerks). Also if criminal record, governor general, lieutenant governor, MP, MLA, senators. Sometimes doctors, veterinarians, health professions in some provinces. ALso look at religion, conscience, physical mental disabilities. 3. Criminal Code jury selection procedures - choosing the jury form the jury array: a) Mechanics of selecting jurors: if array accepted then selection procedure begins, names of those present randomly pulled from box in accordance w/ procedures set out in 631. Continues until after methods of excluding jurors have been considered, enough jurors selected. a) Challenge for cause, need for someone to decide that challenge: if for name not in panel, judge decides. If other, two persons will decide. b) Two unsworn jurors or two others present will be sworn in as triers of challenge. Other two will hear challenges for cause until jury of 12 has been selected and will not themselves become part of jury (static triers approach). Purpose above is to prevent jurors from becoming contaminated by hearing other challenges for cause and issues which arise. c) If entire jury array is run through w/o sufficient number of jurors having been selected, 644 allows judge to order the sheriff to forthwith summon other jurors to the court room. (go across street and ask passersby) These jurors (talesmen) selected from same manner as original array. d) 644(1) allows judge to discharge juror based on illness or other reasonable charge, and juror previously selected might seek to be excused under this. Original jury array from which jury to be selected will not be present. a) Amendments to deal w/ above: a) 644(1) provided jury has not begun to hear evidence, judge can choose replacement juror either from some other jury array that happens to be available. b) 631(2.1) of Code allows judge to direct the selection of one or two alternate jurors then attend at the commencement of trial: if full jury is not present then alternate jurors can be substituted, but if they are not required then alternate judges are excused. (alternates cannot be substituted once evidence heard) e) 644(2) directs that jury remains properly constituted unless judge orders otherwise, provided number of jurors is not reduced below ten. f) Three ways jury array might be excluded from jury: 1) exemption, 2) challenge for cause, 3) peremptory challenge. First judge decides if request to be exempted should be granted, parties called to make challenges (for cause precede peremptory challenges), b) Exemptions: 632 allows judge to excuse jurors based on 1) personal interest in matter tried, 2) relationship w/ judge, prosecutor, accused, counsel for accused, prospective witness, 3) personal hardship or other reasonable cause. d) 633: judge can stand jurors aside, only re called for possible selection if the array is exhausted w/o complete jury. Lhipimited to jurors based on personal hardship or other reasonable grounds (2 and 3 grounds) c) Challenges for cause: 638: sets out cause, a) to f) , prosecutor and accused have unlimited challenges for cause. May include name not in panel, alien, convicted of offence for which sentence was death/imprisonment exceeding 12 months, physical incapacity to perform duties, inability to speak language. Controversy 638(f)(1) on basis that juror is not indifferent btn queen and accused. d) Exception when race in issue; e) Approach in Canada: where counsel will not be allowed to ask any questions regarding a challenge for cause w/o first satisfying the judge that there is some reason to doubt the jurors indifference (presumed impartial, opposite of US method where challenge for cause is automatic and have right to question every juror to see whether they are appropriate from the start) f) Not indifferent: not impartial or not prejudiced. g)Four types of juror prejudice: a) 1) direct interest in trial (relative), b) 2) specific prejudice (attitudes or beliefs about case gained through media coverage or other source that may prevent being impartial, c) 3) generic prejudice (stereotypical attitudes about accused, victims, witnesses, nature of crime, d) 4) conformity prejudice (juror influenced by strong community feelings about expected outcome) h) Presumption of partiality means that counsel is not permitted to routinely challenge jurors. Two step process: a) 1) counsel must satify judge that challenge for cause should be permitted (tell judge basis for challenge) Test: whether realistic possibility for partiality. b) 2) Challenge itself - counsel asks questions to determine whether juror will be able to act impartially. i) Counsel must state basis for challenging juror beforehand, but will likely in fact know very little about the juror there are practical obstacles that prevent challenges for cause occurring. Because system presumed partiality of every juror, showing realistic possibility of partiality is difficult.

130

j) Exception: Williams D was aboriginal and wanted to challenge jurors for cause based on racial attitudes. Lead evidence showing widespread bias against aboriginal peoples. Court held lower courts set too high a standard for showing realistic possibility of prejudice in these circumstances. Unrealistic test, as was expectation that jurors would be cleansed by instructions. Racist attitudes are sometimes unconsciously held, juror may not be able to set them aside. a) Trial courts should be more open to being persuaded that there is a realistic potential for partiality. Racial prejudice as a characteristic of a community could be subject of judicial notice. (If proved wide spread prejudice in one case). k) R. v. Koh: allow challenge for cause by any D belonging to visible minority. l) R. v. Find: D wished to allow question to jurors to decide whether challenge them for cause on that basis. Case concerned sexual assault against child. Argued that there was realistic potential that some jurors would be unable to act impartially b/c of nature of charges. Tried to apply Williams to similar situation (described racial prejudice as generic prejudice) a) D argued that previous victims or family may be no panel, myths and stereotypes, emotional nature of sexual assault, history of challenge for cause showed 1/3 disqualified in Ontario, social science suggesting widespread bias. b) Court rejected appeal. Found evidence presented did not show a realistic possibility of prejudice, any prejudice of this sort can be cured by judicial direction to jurors or other trial safeguards. c) Outside context of racial prejudice, challenge for cause is intended to be no more freely available than was pre Williams. m) R. v. Spence: witnesses might fail to be impartial b/c they would feel race based sympathy for victim rather than race based antipathy to D as in Williams and Parks. D black, victim of robbery east Indian. Judge allowed D to challenge potential jurors for bias, not allowed to ask whether jurors would be affected by fact the robbed east indian. Argued that east indian jurors would feel natural sympathy, asking this question was progression of Williams. Held trial judge correct in refusing question. Previous cases dealt w/ potential prejudice against a member of visible minority, none established bias in favor of members of group. Natural sympathy was not matter of which court could take judicial notice. Rejected argument. n) Process for cause: crown and D take turns. If judge permits challenge for cause, its tried by two jurors most recently sworn or by two people appointed by judge if no jurors sworn. Judge has discretion to exclude other members of panel from jury room while challenge heard, and to permit submissions by counsel following the questioning. o) New trial if process not followed: judge permitting jurors to request exemption on basis that unable to decide impartiality b/c of pre trial publicity; took place w/o D and held to usurp portion of challenge for cause process. Judge taking over rules of questioning jurors and deciding their impartiality. d) Peremptory challenges: D and P dismiss potential juror w/o explanation, 634 CC. Limited in number, each has 20 in first degree murder or high treason, 12 in other offences that carry 5 years or more, and 4 in all other. If in trial for more than one charge, the highest number given. If more than one D, each D receives prescribed number and crown receives same. d) Ont Ct APp held that crown must use its challenges in conformity w/ Charter e) R. v. Pizzacalla: Ont Ct App ordered new trial b/c crown used its stand aside power to produce all female jury in sexual assault cause. f) Source of dispute is, whether reasonable people will see the conscious exclusion of one race or one sex from a jury as violating that principle. Its possible that all women may act impartial but in cases where crown consciously set out to achieve that result, crown acted on irrational belief that jurors decision would be predicted based on sex. g) R. v. Latimer: rcmp made questionnaire in cooperation w/ crown, and administered it to 30 prospective jurors on issues: religion, abortion, euthanasia. Crown did not disclose this to jurors or defence or judge. Court found abuse of process and interference w/ admin of justice. Violated principle that justice had to not only by done but be seen to be done. h) Crown will ask cops for info concerning prospective jurors and have acted on it. Issue whether this creates appearance of unfairness. Also depends if defence knows, if cops acted on personal knowledge or databases. Held by Ct of App that if disclosed to D will not create appearance of unfairness. (being appealed to Court as of now) i) D cannot insist that jury contain members of his own race. Cannot object on ground that crown used challenge the only jurors of the same race as D., unless conscious effort to keep members of one race from jury then will constitute basis to challenge. j) Crowns use does not have to have a good reason, but could lead to Charter right violation. 4. R. v. Williams 1. Facts: The accused, an aboriginal, pleaded not guilty to a robbery charge and elected a trial by judge and jury. The trial judge at the first trial allowed questions to be put to potential jurors but the Crown successfully applied for a mistrial on the basis of procedural errors and the unfortunate publicity of the jury selection process. At the second trial, the judge who heard the accuseds motion for an order permitting him to challenge jurors for cause dismissed the motion. The judge who presided at the trial dismissed a renewed application and did not warn the jury, either in his opening or closing addresses, to be aware of or to disregard any bias or prejudice that they might feel towards the accused as a native person. 2. Ph: The Court of Appeal dismissed an appeal from conviction. The courts below accepted that there was widespread prejudice against aboriginal people in the community. 3. Issue: Mr. Williams has the right to question (challenge for cause) potential jurors to determine whether they possess prejudice against aboriginals which might impair their impartiality. 4. Rule: discretion on the trial judge to permit challenges for cause. The judge should do so where there is a realistic potential of juror partiality. 1. The prosecution and the defence are entitled to challenge potential jurors for cause on the ground of partiality. Candidates for jury duty are presumed to be indifferent or impartial and this presumption must be displaced before they can be challenged and

131

questioned. Usually the party seeking the challenge calls evidence substantiating the basis of the concern. Alternatively, where the basis of the concern is widely known and accepted, the law of evidence may permit a judge to take judicial notice of it. The judge has a wide discretion in controlling the challenge process and should permit challenges if there is a realistic possibility that the jury pool may contain people whose racial prejudice might incline them to favour the Crown rather than the accused in deciding the matters that fall to them in the course of the trial. 2. Section 638(2) of the Criminal Code requires two inquiries and entails two different decisions. 1. The first stage is the inquiry before the judge to determine whether challenges for cause should be permitted. The test at this stage is whether there is a realistic potential or possibility for partiality. If the judge permits challenges for cause, a second inquiry occurs on the challenge itself. The defence may question potential jurors as to whether they harbour prejudices against people of the accuseds race, and if so, whether they are able to set those prejudices aside and act as impartial jurors. At this stage, the question to be determined by the triers is whether the candidate in question will be able to act impartially. 5. Reasoning: 2. Judicial directions to act impartially cannot always be assumed to be effective in countering racial prejudice. Where doubts are raised, the better policy is to err on the side of caution and permit prejudice to be examined. A motion to challenge for cause therefore need not be dismissed if there was no concrete evidence that any of the prospective jurors could not set aside their biases. The expectation that jurors usually behave in accordance with their oaths does not obviate the need to permit challenges for cause where it is established that the community suffers from widespread prejudice against people of the accuseds race sufficient to create a realistic potential for partiality. 3. The contention that there need be some evidence of bias of a particular nature and extent against aboriginal persons, or even further, that racial prejudice in the community must be linked to specific aspects of the trial, is unduly restrictive. Evidence of widespread racial prejudice may, depending on the nature of the evidence and the circumstances of the case, lead to the conclusion that there is a realistic potential for partiality. 4. The trial judge has the discretion to determine whether widespread racial prejudice in the community, absent specific links to the trial, is sufficient to give an air of reality to the challenge in the particular circumstances of each case. It is impossible to provide an exhaustive catalogue of those circumstances. Where specific links to the trial exist, the trial judge must allow the challenge to proceed. 5. Section s. 638(1)(b) is intended to prevent persons who may not be able to act impartially from sitting as jurors. To require evidence that some jurors will be unable to set their prejudices aside is to ask the impossible. 6. The appropriate evidentiary standard on applications to challenge for cause based on racial prejudice is a realistic potential for partiality (the rule in R. v. Sherratt). Absent evidence to the contrary, where widespread prejudice against people of the accuseds race is demonstrated at a national or provincial level, it will often be reasonable to infer that such prejudice is replicated at the community level. Prejudice less than widespread might in some circumstances meet this test. 7. A judges discretion to allow challenge for cause must be exercised in accordance with the Canadian Charter of Rights and Freedoms. Section s. 638(1)(b) should be read in light of the fundamental rights to a fair trial by an impartial jury and to equality before and under the law. The rule in Sherratt suffices to maintain these rights without adopting the United States model or a variant on it. It protects the accuseds right to a fair trial by an impartial jury and the privacy interests of prospective jurors while avoiding lengthening trials or increasing their cost. 6. Holding: I conclude that in the circumstances of this case, that prejudice established a realistic potential of partiality and that the trial judge should have exercised his discretion to allow the challenge for cause. The appeal is allowed, new trial ordered. 5. R. v. Find 4. Facts: The accused was charged with 21 counts of sexual offences involving complainants ranging between 6 and 12 years of age at the time of the alleged offences. Prior to jury selection, he applied to challenge potential jurors for cause, arguing that the nature of the charges against him gave rise to a realistic possibility that some jurors might be unable to try the case against him impartially and solely on the evidence before them. The trial judge rejected the application. 5. Ph: The majority of the Court of Appeal dismissed the accuseds appeal, upholding the trial judges ruling not to permit the accused to challenge prospective jurors for cause 6. Issue: Did the nature of the charges against the accused give rise to the right to challenge jurors for cause on the ground of partiality 7. Rules: 2. Section 638(1)(b) of the Criminal Code permits a party to challenge for cause where a prospective juror is not indifferent between the Crown and accused. Lack of indifference constitutes partiality. Establishing a realistic potential for juror partiality generally requires satisfying the court on two matters: (1) that a widespread bias exists in the community; and (2) that some jurors may be incapable of setting aside this bias, despite trial safeguards, to render an impartial decision . 1. The first branch of the test is concerned with the existence of a material bias, while the second is concerned with the potential effect of the bias on the trial process. However, the overarching consideration, in all cases, is whether there exists a realistic potential for partial juror behaviour. The first branch involves two concepts: bias and

132

widespread. Bias in the context of challenges for cause refers to an attitude that could lead jurors to decide the case in a prejudicial and unfair manner. 2. The second concept, widespread, relates to the prevalence or incidence of the bias in question. The bias must be sufficiently pervasive in the community to raise the possibility that it may be harboured by members of a jury pool. If widespread bias is shown, the second branch of the test requires an accused to show that some jurors may not be able to set aside their bias despite the cleansing effect of the trial judges instructions and the trial process itself. 3. The threshold for judicial notice is strict: a court may properly take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy. 8. Reasoning: 2. First branch 1. Ultimately, the decision to allow or deny an application to challenge for cause falls to the discretion of the trial judge. Where a realistic potential for partiality is shown to exist, the right to challenge must follow. If in doubt, the judge should err on the side of permitting challenges. Since jurors are presumed to be impartial, in order to rebut the presumption of impartiality, a party must call evidence or ask the trial judge to take judicial notice of facts, or both. In addition, the judge may draw inferences from events that occur in the proceedings and may make common sense inferences about how certain biases, if proved, may affect the decision-making process. 2. The accused did not call any evidence in support of his application but relied heavily on proof by judicial notice. 3. Here, the material presented by the accused falls short of grounding judicial notice of widespread bias in Canadian society against an accused in sexual assault trials. 4. First, while the widespread nature of abuse and its potentially traumatic impact are not disputed, widespread victimization, standing alone, fails to establish widespread bias that might lead jurors to discharge their task in a prejudicial and unfair manner. 5. Second, strong views about a serious offence do not ordinarily indicate bias and nothing in the material supports the contention, nor is it self-evident, that an exception arises in the case of sexual assaults on children. 6. Third, there was also no proof that widespread myths and stereotypes undermine juror impartiality. 7. Fourth, although crimes arouse deep and strong emotions, one cannot automatically equate strong emotions with an unfair and prejudicial bias against the accused. 8. Fifth, the survey of past challenge for cause cases involving sexual offences does not, without more, establish widespread bias arising from sexual assault charges. 9. Lastly, the theory of generic prejudice against accused persons in sexual assault trials has not been proved, nor could judicial notice be taken of the proposition that such prejudice exists. While judicial notice could be taken of the fact that sexual crimes are almost universally abhorred, this does not establish widespread bias arising from sexual assault trials. 3. Although the accused failed to satisfy the first branch of the test for partiality, it is prudent to consider the second branch. 1. It is open to a trial judge reasonably to infer, in the absence of direct evidence, that some strains of bias by their very nature may prove difficult for jurors to identify and eliminate from their reasoning. The strength of the inference varies with the nature of the bias in issue, and its amenability to judicial cleansing. Fundamental distinctions exist between racial bias and the more general bias relating to the nature of the offence itself. 2. Firstly, racial bias may impact more directly on a jurys decision than bias stemming from the nature of the offence because it is directed against a particular class of accused by virtue of an identifiable immutable characteristic. 3. Secondly, trial safeguards may be less successful in cleansing racial prejudice because of its subtle, systemic and often unconscious operation. 4. The trial judge is more likely to address these concerns in the course of directions to the jury. Moreover, many of the safeguards the law has developed may be seen as a response to this type of bias. In the absence of evidence that strongly held beliefs or attitudes may affect jury behaviour in an unfair manner, it is difficult to conclude that they could not be cleansed by the trial process. 5. It is speculative to assume that jurors will act on their beliefs to the detriment of an accused, in violation of their oath or affirmation, the presumption of innocence and the directions of the trial judge. 6. It follows that such myths and stereotypes, even if widespread, provide little support for any inference of a behavioural link between these beliefs and the potential for juror partiality. 7. Finally, absent evidence, it is highly speculative to suggest that the emotions surrounding sexual crimes will lead to prejudicial and unfair juror behaviour. 8. The safeguards of the trial process and the instructions of the trial judge are designed to replace emotional reactions with rational, dispassionate assessment. Our long experience in the context of the trial of other serious offences suggests that our faith in this cleansing process is not misplaced. 9. The accused failed to establish that sexual offences give rise to a strain of bias that is uniquely capable of eluding the cleansing effect of trial safeguards. 9. Held: the appeal should be dismissed, convictions affirmed. The nature of the charges against the accused did not give rise to the right to challenge prospective jurors for cause on the ground of partiality. 28. Pre-trial motions (Coughlan 283-306)

133

1) Timing and means: charged with an offence and commencement of trial do not have fixed meanings. R. v. Litchfield, held that only trial court judge has jdx to issue severance orders,no need to wait until trial date to bring application. 645(5) authorizes judge in jury trial before jury has been selected, to deal w/ any matter that would be dealt w/ in absence of jury. Judge can also hear pre trial motions before hearing evidence. 1) For Charter motions, prelim judge is not a court of competent jdx for granting remedy of excluding evidence under 24(2). However, some motions may be permitted at earlier times or in front of someone else other than trial judge. 2) Some pr trial motions permitted in code: change of venue, public ban, sever counts. 3) Pre-hearing conference 625.1: permits hearings to consider matters that to promote a fair and expeditious hearing, would be better decided before the start of the proceedings and other similar matters, and to make arrangements for decisions on those matters. Allow parties to see if agreement can be reached on issues. Judge can determine whether voluntariness of statements will be admitted, whether identity will be an issue, or continuity of exhibits will be challenged. Unlike pre trial motions, conferences are not intended to determine matters: parties can change positions, strategies, defence is not bound by representations. 2) Particular pre-trial motions: include application for challenge form of indictment, publication ban, Charter issues, venue, fitness to stand trial, right to a trial w/n reasonable time (Charter). a) Change of venue: trial held in area where they occurred, b/c approach services in interests of both D and community. Can change according to 599, if a) it appears expedient to the ends of justice, b) a competent authority has directed that a jury is not to be summoned at the time appointed in a territorial division where the trial would otherwise by law be held. a) Practically, change of venue turns on whether publicity has made it difficult for D to obtain fair trial w/o one. b) Issue: whether there is strong evidence of a general prejudicial attitude in the community as a whole. (cannot be cured by safeguards of jury selection, judges instructions to jury, rules of evidence). c) Questioning jurors whether pre trial publicity has affected their ability to be impartial has been relied on to dismiss change of venue applications. d) Where pre trial publicity is province wide, held that leaving trial in larger center and using challenge for cause process is more likely to protect Ds rights than changing venue to smaller center. Date of publicity will also be relevant. e) R. v. Eng: where the real potential for prejudice lies in the evidence which the jury eventually selected to try the case will hear, a change of venue does not assist in protecting an accuseds right to a fair trial. f) When D applies, D must show that change is needed. Onus is on D but does not violate the Charter. b) Fitness to stand trial: whether D suffers from mental disorder, so related to ultimate issue of whether D will be found not criminally responsible under 16. Found in Part XX.1. a) Unfit to stand trial in CC 2 requires that 1) D suffers from a mental disorder (same requirement as in section 16 from D to be not criminally responsible) 2) D is unable on that account to conduct defence in an stage of proceedings before verdict rendered, instruct counsel, unable to account on mental disorder to a) understand nature of proceedings, b) understand the possible consequences of the proceedings, or c) communicate w/ counsel. b) Communicate w/ counsel: low standard, be able to communicate facts relating to offence provided that D possesses this limited capacity, it is not a prerequisite that he be capable of exercising analytical reasoning in making a choice to accept the evidence of counsel or in coming to a decision that best serves her interests. c) Court can order fitness hearing, on its own motions, application by D or pros. d) Party arguing unfitness has burden of proof on balance of probabilities. e) Fitness hearing stages: 1) judge must consider whether there are reasonable grounds to decide whether D is unfit to stand trial. 2) if threshold met, actual question of fitness is decided. f) Court can order assessment to help determine fitness, by courts own motion or by pros or D. If P applies for it court cannot grant unless P shows reasonable grounds to believe that D is unfit or the D raises the issue. g) In non jury trials or prelims, judge determines whether D is fit. In jury cases where jury given charge, jury decides; if jury not given charge, jury must be sworn to decide fitness issue, w/ consent of D that jury can also hear the trial. h) Applications can be brought any time before verdict. a) If hybrid offence, judge must postpone hearing until after P elected whether to proceed summary or indictment. b) If application brought at prelim, judge has discretion to postpone until opening of Ds case. c) Rationale for delays 672.3: if D discharged at prelim or acquitted at close of Ps case, fitness issue not tried at all. i) If D found unfit, must have disposition hearing. May also have regular reviews so crown may prove case. Same rules as disposition hearings when D found NCRMD. Cannot be discharged absolutely but can be confined in hospital or discharged subject to conditions. If no prima facie case, entitled to acquittal. j) If D found fit, can have later application on same issue if change in circumstances. c) Charter motions: (1) applications concerning the right to a trial w/n reasonable time, (2) applications dealing w/ abuse of process. i) Trial within a reasonable time: sec 11(b) guarantee of Charter, during pre trial, violation leads to stay. i) Exceptional delay: delay that is out of ordinary. Rahey: nineteen times delayed a decision, should have taken two days, delayed for 11 months. ii) Institutional delay R. v. Askov: court suggested guideline of 6 to 8 months delay from time of committal to start of trial. Lead to large number of cases being dismissed.

134

iii) Held that the right does not include pre-charge delay (arrested, fingerprinted but no charges laid). iv) Test for 11(b) Smith & Askov, current form in Morin: when does delay become unreasonable. Four considerations weighed: i) Length of delay (whether there is a delay that needs explaining, other three ask whether delay can be explained) ii) Waiver of time periods iii) The reasons for the delay, including i) Inherent time requirement of the case, ii) Actions of the accused, iii) Actions of the crown iv) Limits on institution resources, and v) Other reasons for delay iv) Prejudice to the accused. v) Burden to show charter violation rests on D. If the delay is not unusual, secondary burden shifts to Crown to explain it. vi) Waiver relevant where D cannot agree to certain delay and later complain of it. Held, waiver of Charter rights can be explicit or implicit but must be clear and unambiguous. iii) Morin: resisted the call to lay down general guidelines regarding how long ordinary requirements should take. Instead, held that courts would need to develop guide lines locally. vii)Ds actions contributing to delay (change of venue application, solicitors, request re-election to trial by judge alone). Morin: steps taken in good faith, may contribute to duration of time so must be taken into account in assessing whether delay was unreasonable. Same is true for Crown - delay than attributed to him. viii) Askov; laid down 6 to 8 months committal to trial. In Morin, guideline for committal to trial, added suggestion that delay in provincial courts should be between 8 and 10 months. These are not absolute limitation periods. Differed from Askov - A relied on stats showing showing one court slower than any other in North America. M suggested this was misleading comparison b/c manner in which criminal charges laid in Montreal and Brampton is dissimilar to make stats down from two jdx of limited comparative value. M gave greater prominence to factor of D showing prejudice. ix) Morin stated that prejudice should be presumed and need not be proven under 11d. Many D want unreasonable delay to lead to Charter remedy than trial on merits. Crown can disprove prejudice by showing that D is in majority group that do not want early trial and delay benefitted rather than prejudiced D. Court concluded Ds failure to try to expediate her trial that she was content w/ pace, therefore little or no prejudice. 11b not violated. x) This risk eliminating presumption of prejudice. D would have to prove prolonger incarceration, loss of witnesses. xi) Godin: new case, recognizes notion that prejudice can be presumed where there has been an unreasonable delay. Supreme court restored stay, prejudice may be inferred from the length of the delay. Longer the delay, the more likely that such an inference will be drawn. Reiterated that prejudice to Ds security of person, liberty, fair trial were all relevant. Held D had made virtually no contribution to delay and prejudice to fair trial was not essential. (greater significance to 11b right) ii) Abuse of process and fair trial rights: motion for this doesnt have to be brought in pre trial, but are available b/c issue is whether case is tainted to such degree that to allow it to proceed would tarnish the integrity of the court. Two issues arise together: (1) whether there is an abuse of process, and (2) if there is, whether a stay is the appropriate remedy, they are separate questions. a. Abuse of process: proceeds are oppressive, or vexatious and violate fundamental principles of justice underlying communitys sense of fair play and decency. Aop claims can be decided on whether they violate Ds right to fair trial. a. Two types of AOP under sec 7 Charter: 1) prosecutorial conduct affecting the fairness of trial, and 2) prosecutorial conduct that contravenes fundamental fundamental notions of justice and thus undermines the integrity of the judicial process, 2) b. Residual category of AOP claims that may lead to stay: addresses the panoply of diverse and some times unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process. a. Important when Charter does not apply or abuse does not threaten Charter right. b. D needs to demonstrate prejudice to her interests in some significant way but such prejudice is only relevant, not determinative. c. Stay for no impartial jury b/c of publicity: only when the jury has to be selected, could lead to challenge for cause at trial. Court has not completely precluded this. d. Jewitt: issue whether D was entrapped; could lead to stay of proceedings based on AOP. e. List for AOP: conflict of interest for Ds lawyers, pre-charge collaboration between police and crown that lead to loss of objectivity on crowns part, reliance by cops on advice as to whether their investigation would be illegal, non-disclosure of evidence, and repudiating a plea agreement.

135

f. Threshold burden for D to meet for judge to look into issue: if crown pursuing charges against one D but not another, is not sufficient. Where crown repudiates plea, threshold burden met b/c action is rare and exceptional. Crown may have burden in plea agreement, why he failed to honour the bargain. b. Stay of proceedings: b. Even if AOP has caused prejudice to D or threatened integrity of system, two criteria must be met before stay is given as remedy a. The prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome, and b. No other remedy is reasonably capable of removing that prejudice. c. Purpose of stay: to prevent perpetuation of a wrong that will otherwise continue to affect the parties and the community. d. Other remedies: further disclosure, adjournment. Stay only granted where it is the only remedy that will serve. Without stay, trial would not be fair (b/c AOP and sec 7 are closely aligned). e. Held, stay should only be granted if prejudice is ongoing, cases in which past misconduct is so egregious that mere fact of going forward in the light of it will be offensive such cases would be exceptional and relatively very rare. f. If doubt about stay, look at third criterion: a balancing between the interests of the accused served by granting a stay, and the interest of society in having a final decision on the merits. IX. SENTENCING 29. General principles of sentencing 1. CC 718, 718.01, 718.1, 718.2, 718.3, 719 1. 718: purpose 2. 718.01: objective - offences against children - abuse of under 18, court shall consider denunciation and deterrence of such conduct. 3. 718.1: fundamental principle - sentence must be proportionate to gravity of offence and degree of responsibility of offender. 4. 718.2: other sentencing principles - aggravating or mitigating circumstances; motive of bias, prejudice, hate based on race, ethnic national origin, language, colour, religion, sex, age mental or physical disability, sexual orientation. Abusing spouse, common law partner; abused under 18; was in position of trust/authority; benefit or direction of criminal organization; terrorism offence. Etc. 5. 718.3: degrees of punishment - in discretion of court that convicts. 6. 719: commencement of sentence - commences when it is imposed except where relevant enactment otherwise provides. 2. R. v. Nasogaluak: 1. Facts: after chase, At the police detachment following the arrest, the accused provided breath samples that placed him over the legal blood alcohol limit. The officers did not report the force they had used during the arrest and provided little to no information about the incident. The accused had no obvious signs of injury and did not expressly request medical assistance and no attempts were made to ensure that the accused received medical attention. He, however, twice told an officer that he was hurt. As well, he was observed crying, was heard to say that he could not breathe, and was observed leaning over and moaning. The accused was released the following morning and checked himself into a hospital. He was found to have suffered broken ribs and a collapsed lung that required emergency surgery. 2. Ph: 1. The accused entered a guilty plea to charges of impaired driving and flight from police. At sentencing, the trial judge held that the police had used excessive force in arresting the accused and breached his rights, inter alia, under s. 7 of the Canadian Charter of Rights and Freedoms. As a remedy under s. 24(1) of the Charter, he reduced the accuseds sentence below what he otherwise would have imposed and he ordered a 12-month conditional discharge on each count, served concurrently, with a one-year driving prohibition. 2. The majority of the Court of Appeal held there was sufficient evidence to support the trial judges conclusion that the officers used excessive force in breach of s. 7 and upheld the decision to grant reduced sentences under s. 24(1). They added, however, that a sentencing judge has no discretion to reduce a sentence below a statutorily mandated minimum sentence. The majority thus set aside the conditional discharge on the impaired driving offence, entered a conviction, and ordered the minimum fine for a first offence mandated by s. 255(1) of the Criminal Code. They did not interfere with the conditional discharge for the offence of evading a police officer. 3. Issue: whether a court may grant a sentence reduction under s. 24(1) of the Charter to remedy a Charter breach by state actors. 1. Did the Court of Appeal err in upholding the trial judges conclusion that the police had used excessive force to arrest Mr. Nasogaluak, and that the circumstances of Mr. Nasogaluaks arrest and detention amounted to a violation of s. 7 of the Charter? 2. Was the Court of Appeal wrong in deciding that sentence reduction can be a just and appropriate remedy for an established Charter breach under s. 24(1) of the Charter? May breaches of fundamental rights be addressed through the sentencing process under the Criminal Code? If the Court of Appeal did not err, then what, if any, limitations may circumscribe a judges discretion to reduce a sentence as a Charter remedy? 4. Rules:

136

1. Under s. 25(1) of the Criminal Code, the use of force to effect a lawful arrest is justified if the police officer believes on reasonable and probable grounds that it is necessary and if only as much force as necessary is used. Further, under s. 25(3), force intended or likely to cause death or grievous bodily harm is prohibited unless the officer has an objectively reasonable belief that the amount of force used is necessary for self-protection or for the protection of another person. Degree of force is constrained by the principles of proportionality, necessity and reasonableness. 2. The determination of a fit sentence is, subject to some specific statutory rules, an individualized process that requires the judge to weigh the objectives of sentencing in a manner that best reflects the circumstances of the case. 5. Reasoning: 1. the Court of Appeal did not err in upholding the trial judges findings that the police used excessive force and breached s. 7 of the Charter. The accused was pinned beneath C at the time of Ds punches which were forceful enough to break two of the accuseds ribs. D did admit at the sentencing hearing that he did not believe that Cs third punch was necessary. The arresting officers failed to report the extent of the accuseds injuries and failed to ensure that he received medical attention. Their conduct was a substantial interference with the accuseds physical and psychological integrity and security of the person. The breach of the accuseds s. 7 rights was not in accordance with any principle of fundamental justice. 2. The sentencing judges discretion to craft a sentence which is tailored to the nature of the offence and the circumstances of the offender, while broad, is not without limits. His discretion is limited by case law, which sets down general ranges of sentences for particular offences which are to be used as guidelines in order to encourage consistency between sentencing decisions. It is also limited by statutes through the general sentencing principles and objectives enshrined in the Criminal Code and through legislated restrictions on the availability of certain sanctions for certain offences. Sentencing judges, while they can order a sentence outside the general range set by case law as long as it is in accordance with the principles and objectives of sentencing, cannot override a clear statement of legislative intent and reduce a sentence below a statutory mandated minimum, absent a declaration that the minimum sentence is unconstitutional. 3. Where the police or state misconduct relates to the circumstances of the offence or the offender, the sentencing judge may properly take the relevant facts into account in determining a fit and proportionate sentence, without having to resort to s. 24(1) of the Charter. The circumstances of an alleged Charter breach which align with the circumstances of the offence or the offender such that they are pertinent to the sentencing regime may be relevant mitigating factors warranting a reduced sentence. 4. As a general rule, it is neither necessary nor useful to invoke s. 24(1) of the Charter to effect an appropriate reduction of sentence to account for any harm flowing from unconstitutional acts of state agents consequent to the offence charged. Focusing on whether impugned acts constitute Charter breaches and relying on s. 24(1) as the authority to reduce a sentence misapprehends the flexible and contextual nature of the sentencing process. The sentencing provisions of the Criminal Code, on their own, provide remedial protection to individuals whose rights have been infringed. 5. The broad discretion of the sentencing judge, however, must be exercised within the parameters of the Code. The sentence must respect statutory minimums and other provisions which prohibit certain forms of sentence available in the case of specific offences. Although in some exceptional cases a sentence reduction outside statutory limits may be possible under s. 24(1) of the Charter as the sole effective remedy for egregious misconduct by state agents, this is not such a case. 6. Held: The police officers excessive use of force amounted to a violation of the respondents right to life, liberty and security of the person under s. 7 of the Charter. The sentencing judge committed no error of law or principle in choosing to take this conduct into account as a factor tending toward a reduced sentence. However, he erred in ordering a sentence that fell below the statutory minimum in the Code. The Court of Appeal correctly substituted the order of a conditional discharge on the offence of impaired driving with the statutorily mandated minimum fine. 7. Disposition: dismiss the appeal and the cross-appeal. 3. R. v. C.A.M. 2. Facts: The accused pleaded guilty to numerous counts of sexual assault, incest and assault with a weapon, in addition to other lesser offences, arising from a largely uncontested pattern of sexual, physical and emotional abuse inflicted upon his children over a number of years. None of the offences committed carried a penalty of life imprisonment. The trial judge, remarking that the offences were as egregious as any he had ever had occasion to deal with, sentenced the accused to a cumulative sentence of 25 years' imprisonment, with individual sentences running both consecutively and concurrently. 3. Ph: The Court of Appeal reduced the sentence to 18 years and 8 months. Following a line of jurisprudence it had developed in recent years, the court concluded that where life imprisonment is not available as a penalty, the totality principle requires trial judges to limit fixed-term cumulative sentences under the Criminal Code to a term of imprisonment of 20 years, absent special circumstances. 4. Issue: 5. Rule: It is a well established tenet of our criminal law that the quantum of sentence imposed should be broadly commensurate with the gravity of the offence committed and the moral blameworthiness of the offender. 6. Reasoning: 1. For offences where imprisonment is available, the Code sets maximum terms of incarceration in accordance with the relative severity of each crime. The Code staggers maximum sentences for the full range of offences at numerical intervals ranging from one year to 14 years, followed by the most severe punishment, life imprisonment. The Code is silent, however, with regard to whether there is an upper limit on fixed-term or numerical (i.e., non-life) terms of imprisonment, both as sentences for single

137

offences where life imprisonment is available but unwarranted, and as sentences for multiple offences involving consecutive terms of imprisonment. 2. A legislative or judicial sentence that is grossly disproportionate, in the sense that it is so excessive as to outrage standards of decency, will violate the constitutional prohibition against cruel and unusual punishment under s. 12 of the Canadian Charter of Rights and Freedoms. In the context of consecutive sentences, this general principle of proportionality expresses itself through the more particular form of the totality principle, which requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. 3. There is no evidence in either the Code or the Corrections Act that Parliament intended to constrain a trial judge's traditionally broad sentencing discretion through the imposition of a qualified legal ceiling on numerical sentences pegged at 20 years' imprisonment. Parliament was principally motivated by the sentencing goals of deterrence and denunciation. 4. Within the broad statutory maximum and minimum penalties defined for particular offences under the Code, trial judges enjoy a wide ambit of discretion under s. 717 in selecting a just and appropriate fixed-term sentence which adequately promotes the traditional goals of sentencing, subject only to the fundamental principle that the global sentence imposed should reflect the overall culpability of the offender and the circumstances of the offence. There is no pre-fixed boundary to the sentencing discretion of a trial judge, whether at 20 or 25 years' imprisonment. 5. Whether a fixed-term sentence beyond 20 years is imposed as a sentence for a single offence where life imprisonment is available but not imposed, or as a cumulative sentence for multiple offences where life imprisonment is not available, there is no a priori ceiling on fixed-term sentences under the Code. 6. Retribution requires that a judicial sentence properly reflect the moral blameworthiness of the particular offender. Retribution must be considered in conjunction with the other legitimate objectives of sentencing. 7. a court of appeal should only intervene to minimize the disparity of sentences where the sentence imposed is in substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes. 8. The accused committed a vile pattern of physical and sexual abuse against the very children he was entrusted to protect. The degree of violence exhibited in these crimes was disturbingly high, and the children will undoubtedly be scarred for life. The psychiatrist and psychologist who examined the accused agree that he faces dim prospects of rehabilitation. Without doubt, the accused deserves a severe sentence which expresses society's revulsion at his crimes. 7. Held: The appeal should be allowed and the sentence of 25 years' imprisonsment restored. 4. R. v. Gladue 2. Facts: On September 16, 1995 Jamie Tanis Gladue was drinking and celebrating her 19th birthday with some friends. She suspected that the victim, her boyfriend, was having an affair with the offender's older sister, Tara. Gladue made specific threats that "he was going to get it." Following a confrontation, the victim uttered many insults at the offender, at which point the offender stabbed the victim in the chest. She was subsequently charged with second degree murder and ultimately convicted of manslaughter. At her sentencing hearing the judge took into account many aggravating factors including the fact that the offender was not afraid of the victim, The accused was a young mother and, apart from an impaired driving conviction, she had no criminal record. Her family was supportive and, while on bail, she had attended alcohol abuse counselling and upgraded her education. The accused was provoked by the victims insulting behaviour and remarks. At the time of the offence, the accused had a hyperthyroid condition which caused her to overreact to emotional situations. She showed some signs of remorse and entered a plea of guilty. . The court also took into account several mitigating factors such as her youth, her status as a mother and the absence of any serious criminal history. She was sentenced to three years imprisonment. 3. Ph: At her trial and at the Court of Appeal for British Columbia the court upheld the sentence, finding that s. 718.2(e) did not apply to off-reserve Aboriginals. 4. Issue: Should s.718.2(e) be understood as being remedial in nature? should they use different framework when sentencing Aboriginal peoples. The proper interpretation and application to be given to s. 718.2(e) 5. Rule: s.718.2(e) is remedial in nature and particular attention should be paid to Aboriginal persons, as well this sections plus all other in Part XXIII should be considered when sentencing someone. Judges are encouraged to look at restorative sentencing approaches. Judges should look at systemic factors when sentencing Aboriginal Offenders 1. Section 718.2(e) directs judges to undertake the sentencing of such offenders individually, but also differently, because the circumstances of aboriginal people are unique. In sentencing an aboriginal offender, the judge must consider: (a) the unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts; and (b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection. 6. Reasoning: Sentencing is an individual process should be looked at in particular situation. Restorative justice should involve restitution and reintegration into the community. 1. s.718.2(e) treat Aboriginal offenders differently. 1. Background unique, types of sentencing procedures. 2. May take judicial notice of the broad systematic background affecting Aboriginal people. 3. Applies to all Aboriginal people wherever they reside. 4. A jail term for an Aboriginal person may be less then a non-Aboriginal person of the same offence

138

2. You begin by looking at restorative purposes first when sentencing Aboriginals. Judge erred because he said she didnt live on the reserve so she didnt have the same systemic factors as someone would who lived in the reserve. Section 718.2(e) applies to all aboriginal persons wherever they reside, whether on- or off-reserve, in a large city or a rural area. 3. The courts below erred in taking an overly narrow approach of s. 718.2(e). The purpose of this provision is to address the historical over-representation of Aboriginals in the criminal justice system. This applied to Aboriginals, regardless of place of residence or lifestyle. However, the court ultimately dismissed the appeal, finding that the sentence was fit given the seriousness of the offence. S.718.2(e) there is a new framework that judges should consider when sentencing Aboriginal offenders 6. Holding: appeal dismissed. 5. R. v. Ferguson 5. Facts: During an altercation with a detainee held in a cell at an RCMP detachment, the accused, an RCMP officer, shot and killed the detainee. The accused was charged with second-degree murder but was convicted by a jury of the lesser offence of manslaughter. Notwithstanding the mandatory minimum sentence of four years imposed by s. 236(a) of the Criminal Code for manslaughter with a firearm, the trial judge imposed a conditional sentence of two years less a day. He granted the accused a constitutional exemption from the four-year sentence because, on the circumstances of this case, he found that the minimum mandatory sentence constituted cruel and unusual punishment in violation of s. 12 of the Canadian Charter of Rights and Freedoms. The majority of the Court of Appeal overturned that sentence and held that the mandatory minimum must be imposed. 6. Issues: 1. First, does imposition of the four-year mandatory minimum sentence for manslaughter with a firearm constitute cruel and unusual punishment contrary to s. 12 of the Canadian Charter of Rights and Freedoms in the circumstances of this case? (no) 2. Second, can an offender who demonstrates that a mandatory minimum sentence would constitute cruel and unusual punishment in his case obtain a stand-alone constitutional exemption from the application of that minimum sentence? (no) 7. Rules: 1. The test for whether a particular sentence constitutes cruel and unusual punishment is whether the sentence is grossly disproportionate. The sentence must be so excessive as to outrage standards of decency and disproportionate to the extent that Canadians would find the punishment abhorrent or intolerable.? 2. If the law imposing a minimum sentence is found to be unconstitutional on the facts of a particular case, it should be declared inconsistent with the Charter and hence of no force or effect under s. 52 of the Constitution Act, 1982. 8. Reasoning: 1. Issue #1 Four year sentence 1. The question becomes: is a four-year sentence of imprisonment grossly disproportionate to the offence of manslaughter as committed by Constable Ferguson 2. There is no basis for concluding that the four-year minimum sentence prescribed by Parliament amounts to cruel and unusual punishment on the facts of this case. In the absence of any s. 12 violation, the trial judges proper course in the circumstances was to apply the four-year minimum sentence. 3. The appropriateness of the minimum sentence of four years that Parliament has prescribed for the offence of manslaughter committed with the use of a firearm depends on what the jury concluded about the accuseds conduct. The trial judge in this case was required to find facts consistent with the jurys manslaughter verdict, to the extent that this was necessary to enable him to sentence the accused. The sentencing inquiry was shaped by a four-year mandatory minimum sentence prescribed by s. 236(a) of the Criminal Code and the only issues were whether the sentence should be more than four years, or whether the facts of the case were such that a four-year sentence would be grossly disproportionate. 4. The trial judge correctly concluded that on the basis of the jurys verdict, he must find facts consistent with the jurys rejection of both self-defence and intent for murder. On the basis of the jurys rejection of intent for murder, the trial judge then properly concluded that the jury had found that when he fired the second shot, the accused neither intended to cause death nor bodily harm that he knew was likely to cause death. The trial judge, however, erred when he went on to make detailed findings of fact on the accuseds conduct and went beyond what was required to deal with the sentencing issues before him. It was not open to him to attempt to reconstruct the logical process of the jury and, more critically, to develop a theory to support the jurys verdict which was not only speculative, but contrary to the evidence 2. Issue #2 Constitutional exemption 1. In any event, a constitutional exemption is not an appropriate remedy for a s. 12 violation. If the law imposing a minimum sentence is found to be unconstitutional on the facts of a particular case, it should be declared inconsistent with the Charter and hence of no force or effect under s. 52 of the Constitution Act, 1982. The arguments for a constitutional exemption under s. 24(1) of the Charter are outweighed and undermined by counter-considerations. 1. First, while the availability of constitutional exemptions for mandatory minimum sentencing laws has not been conclusively decided, the weight of authority thus far is against them and sounds a cautionary note. 2. Second, since Parliaments intention in passing mandatory minimum sentence laws is to remove judicial discretion to impose a sentence below the stipulated minimum, to allow courts to grant constitutional exemptions

139

for mandatory minimum sentences would directly contradict Parliaments intent and represent an inappropriate intrusion into the legislative sphere. 3. Third, it is apparent that s. 52(1) of the Constitution Act, 1982 and s. 24(1) of the Charter serve different remedial purposes. Section 52(1) provides a remedy for laws that violate Charter rights either in purpose or in effect; s. 24(1), by contrast, provides a remedy for government acts that violate Charter rights. 4. Fourth, constitutional exemptions for mandatory minimum sentence laws buy flexibility at the cost of undermining the rule of law and the values that underpin it: certainty, accessibility, intelligibility, clarity and predictability. 5. Held: On the facts of this case, the minimum sentence imposed by s. 236(a) of the Criminal Code, R.S.C. 1985, c. C-46, is not grossly disproportionate and so does not constitute cruel and unusual punishment in violation of s. 12 of the Charter. In any event, a constitutional exemption is not an appropriate remedy for a s. 12 violation. If a minimum sentence is found to be unconstitutional on the facts of a particular case, the law imposing the sentence is inconsistent with the Charter and therefore falls under s. 52 of the Constitution Act, 1982. Appeal dismissed. 6. R. v. Morrisey 4. Facts: Marty Morrisey, a 36 year old from Belmont, Nova Scotia, was drinking with two friends in a cabin. Morrisey and his friend Adrian Teed sawed the barrel off a shotgun. Morrisey told Teed the gun was for the purpose of committing a robbery when in fact he was intending to kill himself due to recent relationship problems. Morrisey drove the third bud home, and when he returned to the cabin Teed was sleeping in a bunk bed. Morrisey leapt onto the bunk bed while holding the loaded shotgun. He subsequently fell off the bed, likely due to his intoxication, and the gun accidentally discharged, fatally wounding Teed. 5. Ph: Morrisey was charged with criminal negligence causing death under section 220(a) of the Criminal Code of Canada. At trial the judge found that the mandatory four-year sentence required under section 220(a) violated section 12 of the Charter. Instead, Morrisey was sentenced to two years including the time he spent in pre-trial custody. The Court of Appeal overturned the ruling. 6. Issues: 2. Does s. 220(a) of the Criminal Code infringe the right in s. 12 of the Canadian Charter of Rights and Freedoms not to be subjected to any cruel and unusual treatment or punishment in that it establishes a minimum sentence of four years imprisonment for the offence of criminal negligence causing death when a firearm is used in the commission of that offence? 3. If the answer to the first question is yes, is the infringement demonstrably justified in a free and democratic society as a reasonable limit pursuant to s. 1 of the Canadian Charter of Rights and Freedoms? 7. Rule: there can be exemptions for mandatory prison sentences where the sentence is unreasonable or has an effect upon the accused that may be considered harsh. 2. Two situations where section 12 can be invoked for cruel and unusual sentences. 1. First, there are situations where the sentence itself is reasonable but for a particular person may have an effect on the accused that would be overly harsh. 2. Second, if the sentence is reasonable for the particular person then the court must consider whether it would be harsh in a reasonable hypothetical situation. 8. Reasoning: 2. The court must be satisfied that the punishment imposed is grossly disproportionate for the offender, such that Canadians would find the punishment abhorrent or intolerable. In assessing whether a sentence is grossly disproportionate, the court must first consider the gravity of the offence, the personal characteristics of the offender and the particular circumstances of the case in order to determine what range of sentences would have been appropriate to punish, rehabilitate or deter this particular offender or to protect the public from him or her. As well, a court is to consider the actual effect of the punishment on the individual, the penological goals and sentencing principles 3. These contextual factors must be first evaluated in light of the particular circumstances of the offender before the court. If the sentence is grossly disproportionate for the individual offender, the court then proceeds to analyse whether the infringement of s. 12 can be justified under s. 1 of the Charter. If it is not disproportionate for the individual offender, then the court is still to consider the constitutionality of the sentence with reasonable hypotheticals. 4. When a sentence is merely disproportionate to the offence it is not enough to invoke section 12. The true purpose of section 12 is to protect "against punishment which is so excessive as to outrage our society's sense of decency", which he admitted is a high standard as the court should not be "quick to invalidate sentences crafted by legislators." 5. Both the courts below agreed, and the defence has conceded, that a four-year minimum sentence would not be cruel and unusual punishment for this offender. 6. The proper approach to reasonable hypotheticals is to develop imaginable circumstances which could commonly arise with a degree of generality appropriate to the particular offence. In both of the hypotheticals that commonly arise from the reported cases, a four-year imprisonment would not be cruel and unusual punishment for such offenders. 7. The trial judge credited the accused with one year for the five months spent in pre-trial custody, taking into account the fact that he pleaded guilty at the outset. Since this one-year credit was not demonstrably unfit, the accused must serve the four-year minimum sentence, less the one-year credit for pre-trial custody.

140

9. Held: this punishment does not constitute cruel and unusual punishment. The offence of criminal negligence causing death requires proof of wanton and reckless disregard for the lives and safety of other people a high threshold to pass. This offence does not punish accidents. Nor does it punish the merely unfortunate. It punishes those who use firearms in a manner that represents a marked departure from the standard of care employed by a reasonable person, resulting in death. The minimum sentence does not infringe s. 12 of the Canadian Charter of Rights and Freedoms, 10. The appeal should be dismissed in all respects except one. The accuseds sentence should be adjusted to take pre-trial custody into account. 7. The principles and purposes of sentencing (Roach 475-486): three principles of criminal justice requiring consideration in punishment: deterrence, reformation, and retribution. First two look at future, retribution looks at pasts and severity of crime. Sentencing is trial judges competence and expertise. Must weigh normative principles: 1) objectives of denunciation, deterrence, separation of offenders from society, rehabilitation of offenders, acknowledgement and reparations for the harm they have done, 2) fundamental principle that sentence must be proportionate to gravity of offence and degree of responsibility to offender, 3) principles that sentence should be increased/reduced to account for aggravating or mitigating circumstances, should be similar to other sentences imposed in similar circumstances; lease restrictive sanctions should be identified, available sanctions other than imprisonment should be considered. 1) The fundamental principle of proportionality: sentence must be proportionate to gravity of offence and degree of responsibility of offender CC 718.1. Pay attn to Ds actual conduct. Sentence should not be more than what is needed to recognize blame worthiness. Proportionality focusses on past conduct, should not punish more than necessary. 1) Retribution: objective, reasoned, and measured determination of appropriate punishment which reflects moral culpability of D. Makes sure sentence is juut and appropriate punishment. 2) Disproportionate sentence may be struck down as violating sec 12 Charter, cruel and unusual. 2) The fundamental purpose of sentencing: CC 718, fundamental purpose is to contribute, to respect for law and maintenance of just, peaceful, safe society by imposing just sanctions. Concerns proportionality and recognizes sentencing discretion through its recognition. Retribution alone does not determine punishment, other legitimate purposes (deterrence, rehabilitation, protection of society) should be considered. 3) Denouncing unlawful conduct: denunciation is a retributive concept that focusses on the past. Emphasis on societys disapproval of crime committed as opposed to judging the culpability of the particular D. Some courts find that custodial sentence should be imposed for domestic violence. Could aim for denunciation by imposing min sentence for crimes; for sympathetic and least blame worthy person that nevertheless committed crime w/ act and fault w/o valid defence. 4) Deterring and incapacitating offenders: CC 718, general deterrence: effect of punishment in deterring others from committing similar offences. Specific deterrence: effect of punishment in deterring the particular D from committing subsequent crimes; concerns about incapacitation or rehabilitation of D, if thats the only way to prevent him from committing future crimes. a) General deterrence: R. v. Sweeney: deterrence of others, discouraging future offenders. Factor in crimes: drunk driving, sexual assault, domestic violence, where widespread concern about prevalence of such crimes and desire to change human behaviour. 718(b) desire to deter both offender and others from committing offences as legitimate objective in sentencing. 718.2 hate crimes, spousal and child abuse, crimes based on abuse of position of trust or authority should be punished more severely. b) Specific deterrence: goal of preventing D from committing another criminal offence. Consider Ds history, other info that would help predict dangerousness. Can look at rehabilitation so does not reoffend. Advocate harsher punishments as means to prevent future crimes. Indeterminate detention of repeat offenders, upheld under Charter for preventing future crimes. a) New amendments: remove judicial discretion to impose determinate sentence on person found as dangerous offender and delay first parole hearing to determine if D is no longer danger from 3 to 7 years w/ subsequent hearings every 2 years. Allow sexual offenders who present risk of reoffending min 2 years and then supervised in community for up to 10 years after their release. 5) Rehabilitating offenders: under 718(d). 718.2(d) encourages courts not to deprive offenders of their liberty or to imprison them when less restrictive sanctions are appropriate and reasonable in the circumstances. 6) Providing reparations and promoting a sense of responsibility: judges can stress idea of reparation to community more than reparation to victim. 718(f) another purpose of sentencing is to promote sense of responsibility in Ds and acknowledgement of harm done to victims and to community. R. v. Gladue: 718e and f introduce new concerns w/ sentencing, promote restorative justice. This is offered especially for aboriginals b/c of over-incarceration and ideals of in it aboriginal traditions. 7) Sentencing aboriginal offenders: 718.(2) judges must consider all available sanctions other than imprisonment that are reasonable in the circumstances for all Ds, but w/ particular attention to the circumstances of aboriginal offenders. Designed to remedy over-incarceration, pay attention to systematic discrimination, availability of restorative and other approaches. The more violent and serious offence, the more likely that aboriginals will receive same sentence as non aboriginals. 1) R. v. Ipeelee. Court reaffirmed that courts may make judicial notice of systematic and background factors affecting aboriginals to explain why aboriginal D is in front of court and what sentencing procedures and objectives should be like. 718.2(e) continues to apply in cases that are serious and violent. 8. Aggravating and mitigating factors in sentencing: Ds degree of participation in crime (b/c parties convicted even if did not commit crime), planning and deliberation, breach of trust, use of violence and weapons, harm to victims as aggravating factors. 718.2

141

directs them to consider whether crime was motivated by bias, prejudice, or hate on group characteristics, involved spousal or child abuse, or abuse of position of trust or authority. 1. Also consider prior convictions, Ds good character, youth, old age, illness, remorse, early guilty plea. 2. Provocation as factor, depending. (reduces murder to manslaughter). 3. Ds social status, can be related to rehabilitation and future danger or goals of general deterrence and denunciation. 4. Time served in custody, combined effect of consecutive sentences. 5. Charter breaches and abuses of state power, can be mitigating, subject to statutory mins and provided that impugned conduct relates to individual offender and circumstances of his offence. 6. 718 fundamental purpose of sentencing is to contribute to respect for law and maintenance of just, peace, and safe society (upheld conditional discharge of guilty pleas to impaired driving and flight from police b/c excessive force by police in arrest which broke s ribs and punctured his lung. X. APPEALS AND REVIEW 30. Appeals of final decisions and judicial review of interim decisions 1. Appeals (Coughlan 392-423) A. Introduction: different rules for indictable and summary offences. For indictable, different rights for D and crown. For summary, rights are parallel. B. Appeals of indictable offences 1)Appeals by accused a) Overview of appeal provisions: 675(1)(a) appeal based on question of law, question of fact, mixed question of law and fact, or any grounds that appear to the court of appeal to be sufficient ground of appeal. Must pass through three filters 686(1)(a) -- First two found. 675 sets out bases upon which appeal made, grounds upon which appeal granted. i) 686(1)(a) three filters: i) Verdict should be set aside on ground that it is unreasonable or cannot be supported by evidence, ii) Judgment of trial court should be set aside on grown of wrong decision on a question of law, or iii) On any ground there was a miscarriage of justice. ii) First filter: 675 appeal for basis of question of law or fact or mixed, but appeal granted if error leads to unreasonable verdict or miscarriage of justice -- first filter. iii) Second filter: appeal on question of law; this has broader meaning in 675 than in 686(1)(a). Conclusion that issue is a question of law for jdx purpose of deciding whether a ground of appeal exists does not necessarily mean that it is a question of law for purposes of deciding whether appeal granted. May be treated as law and fact. iv) Third filter: even if appeal meets 686(1)(a) might not be granted, even if requirements met. 686(1)(b) sets out grounds for dismissing appeals. Can dismiss if D was properly convicted on another count or part of the indictment. Other grounds: No substantial wrong or miscarriage of justice, no prejudice b/c ct had jdx. No appeal for v) If appeal granted: court quashes conviction and can either acquit D or order new trial. If dismissed, then appeal ct can substitute a verdict, affirm sentence, impose new sentence, remit matter back to trial court for sentencing. vi) Other appeals: Can also hear appeals relating to findings that D was unfit to stand trial, not NCRMD, special verdicts, can vary sentence imposed on D. b)Appeal provisions in depth i) Standard of review: Housen v. Nikolaisen: standards listed in this cases: a. Pure questions of law: standard is correctness. App Ct can substitute its sentence for trial courts. b. Questions of fact: reviewable on higher standard. Not overturned in absence of palpable and overriding error which amounts to prohibiting an appellate court from reviewing a trial courts decision if there was some evidence upon which he could have relied to reach that conclusion. 3 rationales a. Given number, length,cost of appeals, there should be a trial judges findings of fact helps to impose a limit and does so on principles basis. b. Trial judges presumed to be competent and able to decide cases justly and fairly - allowing regular appeals would undermine that presumption as well as public confidence in trial process. c. Trial judges better situated to make factual findings b/c they hear testimony given, exposed to evidence, familiar w/ case as a whole. Role is to weigh, assess evidence, expertise should be respected. c. Inferences of fact: same as findings of fact. Question is whether some palpable and overriding error can be shown from drawing the inference. d. Questions of mixed law and fact: fall on spectrum. General rule, where an issue on appeal involves a trial judges interpretation of evidence as a whole, it should only be overturned in the case of palpable and overriding error.

142

ii) Unreasonable verdicts: standard - whether the verdict is one that a properly instructed jury acting judicially, could reasonably have rendered. Has objective and subjective elements. Ct of appeal does some weighing, but cannot substitute its view for trier of facts. Must ask whether trier of fact could reasonably have reached the conclusion it did on evidence before it. b. Ground of appeal available whether verdict reached by judge or jury. Differences in both situations. c. Juries: do not give reasons, cannot reveal anything about deliberations. If charged correctly, then error of law and appeal based on 686(1)(a)(ii) rather than (i). d. Unreasonable verdict appeal arises when jury charged correctly but returns verdict that seems unreasonable. Jury not acting judicially. To judicially, must be dispassionate, apply the law, adjudicate on basis of record. Conclusion should not conflict w/ bulk of judicial expertise. e. Judges: issue reasons for verdict reached. Reasons have impact on appeal cts assessment. f. Beaudry: 686(a)(i) has two different bases for which appeal could succeed. Below makes evidence unreasonable under this section: a. Might be in case of verdict could be supported by evidence, but nonetheless unreasonable. Illogical or irrational: contradictory inference, inference or finding that is demonstrably incompatible w/ evidence which was neither contradicted or rejected. b. If appeal granted b/c unreasonable: new trial (Judge made illogical reasoning but evidence capable of supporting conviction) c. If appeal granted b/c cannot be supported by evidence: D gets acquittal. g. Unreasonable when multiple Ds or multiple counts, and inconsistent verdicts. R. v. J.F: D charged w/ two counts of manslaughter by omission, one for criminal negligence, one for failure to provide necessaries of life. Exactly same omission constituted both. Jury found guilty for failing to provide necessaries of life, not guilty for criminal negligence. Held, those were inconsistent verdicts. a. Difficult to prove inconsistent verdicts w/ multiple Ds even if some convicted, some acquitted. iii) Errors of law and miscarriages of justice: 686(1)(a)(ii) allows appeal in case of wrong decision on question of law. 686(1)(a)(iii) allows appeal based on miscarriage of justice. Same rationales. Error of law presumed to be miscarriage of justice unless contrary is shown by the crown. i) Both have in common: no requirement that verdict was not supportable on the evidence; even if ct of appeal concludes that jury could have convicted despite legal error or miscarriage, fact is not basis for rejecting the appeal. ii) Most errors of law that are not based on the unreasonableness of a verdict will relate to an error of law. Distinction btn both is availability of curative proviso - cannot be resorted in miscarriage of justice. Any mistake at trial that leads to miscarriage, cannot meet test of curative proviso. iii) D must show that there was an error of law or miscarriage of justice. Crown, in case of error of law, required to show that the curative proviso applied, and would have to meet a very high standard to demonstrate that claim. iv) Error of law: any decision that was an erroneous interpretation or application of the law (instructing jury on defence when no air of reality to it, or fail to instruct when there is; factual finding when no evidence) v) Miscarriage of justice: substantive or procedural. Error that deprives D of fair trial is a legal error. If error is mixed law and fact, then issue is whether miscarriage occurred. i) Failing to cross would raise miscarriage. ii) Judges misapprehension of evidence at trial - must go to substance of evidence, concern material part of reasoning. Means that D did not receive a fair trial (R. v. CLY: judge had bad reasons to accept Ds evidence) vi) Same conclusion reached w/ both: if error of law causing prejudice is miscarriage, then curative proviso does not apply. If error causes prejudice then curative proviso potentially applies, but would not succeed. Either the error is miscarriage not subject to curative proviso or that error is an error that was not harmless in first place. vii) Differences: some miscarriages are matters of mixed law and fact. iv) The curative proviso: 686(1)(b)(iii) allows appeal ct to dismiss despite error of law provided that no substantial wrong or miscarriage has occurred. Test: there is a reasonable possibility that verdict would have been different had the error not bee made. v) Two ways of satisfying the test: 1) show that error is harmless in itself. Then error cannot cause prejudice to D. 2) show that evidence against D is so overwhelming that even if appeal granted and re trial ordered, result would inevitably be a conviction. vi) In both above, burden on Crown to show curative proviso applies, is high. Standard is that error was harmless. Will not be met if there was prejudice. vii) Apply curative proviso based on two branches above,

143

i) Harmless error branch of curative proviso: Asks whether error was so minor, irrelevant, or clearly non prejudicial that any reasonable judge or jury could not possibily have rendered a different verdict if the error had not been made. (Ie: judge articulates stricter standard for guilt that required error but did not prejudice D. Or if hearsay admitted but no effect on Ds guilt, then curative p can be applied) Criteria met when only single error in issue rather than cumulative effect of number of errors, but no absolute rule. ii) Overwhelming evidence: When test of evidence is so overwhelming that conviction on re trial is inevitable. v) Procedural irregularities: 686(1)(b)(iv) allows appeal to dismiss appeal on basis that notwithstanding any procedural irregularities at trial, ct had jdx over class of offence of which appellant was convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby. Simplifies appeals by eliminating questions from analysis. v) Appeals based on technicalities can be dismissed, provided no harm to Ds interests in doing so. vi) Section does not apply if ct did not have jdx over class of offence, as opposed to losing jdx over offence or D through procedural irregularity. Would not apply if indictable offence under 469 were tried in prov court. vii) Section applies if procedural irregularity caused D no prejudice. Infer that the irregularity did cause prejudice, and inference must be rebutted. viii) Approach: i) If procedural irregularity amounts to or is based on error of law, falls under 686(1)(a)(ii) and 686(1)(b) (ii) ii) If procedural irregularity was previously (before 1985) classified as an irregularity causing loss of jdx, 686(1)(b)(iv) provides that this is no longer fatal to the conviction, and analysis of prejudice must be undertaken, in accordance w/ principles set out in 686(1)(b)(iii) iii) If procedural error did not amount to, or originate in an error of law, (rare) 686(1)(a)(iii) applies and reviewing court must determine whether miscarriage of justice occurred. If so, there are no remedial provisions in 686(1)(b) that can cure such defect, and appeal must be allowed, and either acquittal entered or new trial ordered. 2) Appeals by the crown: 676(1)(a) any ground of appeal that involves a question of law alone. Applies to verdicts of acquittal or NCRMD, order of superior court of crim jdx to quash indictment or fails to exercise jdx on an indictment, and an order of a trial that stays proceedings or quashes in indictment - stay of proceedings for entrapment or Charter violation, or offenec in question was invalid or ultra vires. 1) Acquittals: crown must satisfy the court that the verdict would not necessarily have been the same had the errors not occurred, and the crown has a heavy onus in doing so. 2) Question of law: admissibility of evidence, interpretation of statute, whether evidence is capable of being corroborative, conclusion for Charter question, or if evidence should be excluded under 24(2). Examples: 3) Error of law based on how judge assess evidence, 4 ways: 1) Error to make factual finding for which there is no evidence 2) Question of law could concern the legal effect of undisputed facts. 3) Misdirection as to evidence can be question of law but only in limited circumstances. 4) Error for judge to consider (or instruct jury to consider) individual pieces of evidence separately to decide whether they constitute proof beyond a reasonable doubt. Must consider all. 4) Where ct of appeal grants appeal from acquittal, two choices: 1) Order a new trial or 2) Enter a conviction: can impose sentence, remit matter back to trail court for conviction. Only chose this if trial judge has already made all findings to support guilty verdict, or facts not in dispute. Not permitted to enter this if trial by judge and jury, in that case only option is to order a new trial. 3)Other appeal related issues a) Statutory powers on appeal: 683, court can order exhibits or other items produced, hear witnesses or admit an examination of a witness, and refer questions to a special commissioner; amend indictment where the accused has not been mislead or prejudiced. a) To be released from conviction: D has to show that appeal is not frivolous, will surrender into custody in accordance w/ terms of order, detention is not necessarily in public interest. b) D has right to be present at appeal: May not apply if appeal is based on question of law alone and D is both in custody and represented by counsel. Can be ordered to appear by electronic means. b)Fresh evidence on appeal a) R. v. Palmer: guidelines for introducing new evidence to appeal: a) Evidence should generally not be admitted if it could have been adduced at trial by due diligence (prevent reassessment of strategic decision made at trial)

144

b) Evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial. (reason to doubt other evidence that was relied on at trial) c) Evidence must be credible in the sense that it is reasonably capable of belief; (and d) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. b) Evidence must be capable of admission in initial trial. c) Evidence showing that validity of trial is in issue, trial process, rather than evidence - Palmer criteria do not apply. c) Duty to give reasons: judge has this duty. R. v. Sheppard: in certain cases, failure to give sufficient reasons will amount to error of law giving rise to ground of appeal. R. v. REM: a criminal trial where Ds innocence is at stake, is always one of those circumstances. a) Three main functions of reasons: a) They tell parties why the decision was made, heard both sides evidence, not taking anything outside into account. b) Reasons make decision publicly accountable, so that justice is not only done but seen to be done. c) Reasons permit effective appellate review; can assess error. b) Direct judges attention and reduces likelihood of over or under emphasizing some point. Help law to develop uniformly. c) What in the context of a particular case, constitutes sufficient reasons? d) Need a logical connection btn what - the verdict - and the why - the basis for the verdict. Does not require judge to explain how decision was reached. Only explain whats in dispute, not every piece of evidence. Important if law is unsettled area or confused and contradictory evidence on key issue. Give reasons that allow for parties to understand and permit appellate review. e) R v. Dinardo: approach for assessing reasons for sufficiency: a) Appellate courts are to take a functional, substantive approach to sufficiency of reasons, reading them as a whole, in the context of the evidence, the arguments and the trial, w/ appreciation of the purpose so functions for which they are delivered. b) Basis for trial judges verdict must be intelligible or capable of being made out. Logical connection btn the verdict and the basis for the verdict must be apparent. Detailed description of the judges process in arriving at the verdict in unnecessary. c) In determining logical connection btn verdict and basis for verdict is established, one looks to the evidence, the submissions of counsel and the history of the trial to determine the live issues as they emerged during the trial. f) Duty also applies to acquittals. g) Issues w/ timing when reasons released. If delayed, seem more impartial. C. Appeals of summary conviction offences: different than indictable, these are taken to app ct of province. Summary are taken to provinces superior court of criminal jdx that is not an appeal courrt. A. Grounds of appeal: broader grounds for summary (D and crown) CC 813: D for conviction, crown for stay or dismissal of info, NCRDM, fitness to stand trial. B. Basis for granting appeals: narrower than grounds for launching them. 822(2) incorporates 683 to 689, so 686(1) that concerns appeals for convictions is applicable for summary. Appeals for indictable and summary can be combined if together. Powers of court in 683, also same. C. Differences w/ indictable: A. 822(4) possible for appeal of summary to take place by trial de novo - justified if b/c of condition of the record - a grounds of decreasing relevance given the methods of recording proceedings in common use today - or for any other reason, the interests of justice would be better served in this way. B. 829 to 838: alternative methods of appeal. Either party can appeal if erroneous in law, in excess of jdx or constitutes a refusal or failure to exercise jdx. D can only opt one of the two methods of appeal. 830 can be brought by transcript or agreed statement of facts. C. Whatever method of appeal brought at first level, Code permits second level of appeal from summary conviction matters to the court of appeal. Depend on leave of the court and can be brought only on a question of law. 673 to 689 which apply to indictable are incorporated by reference. D. Second level is exception, rather than rule b/c prov cts of appeal dont want it routinely granted. Second level considers whether summary appeal court judge committed any legal error - it is not a second review of the trial judges decision. A. R. v. R.R: leave to appeal when question of law, or when there is a clear error. B. Yukon App Ct: 1) ground of appeal involves question of law alone, 2) issue is one of importance and 3) there is sufficient merit in the proposed appeal that it has a reasonable possibility of success. D. Appeals to Supreme Court of Canada: 691 to 695 create right to appeal decisions of a court of appeal regarding indictable offences to Supreme Court. C. Based on question of law only.

145

A. 686(1)(a)(i) can allow appeal based on finding that it was unreasonable or cannot be supported by the evidence. because question of law, possible to bring appeal to Court based on whether appeal court ought to have allowed the appeal. B. 686(1)(b)(iii) ct of appeal can use curative proviso and dismiss appeal based on finding that there was no substantial wrong or miscarriage of justice. Whether app ct made correct decision in apply curative is also question of law, so can be appealed. Same rationale should apply to procedural irregularity under 686(1)(b)(iv). D. Appeals allowed only when 1) where a judge of the court of app dissents on a question of law, or 2) when Court gives leave to appeal a question of law. These are only circumstances under which Crown can appeal, or D. A. Ds exception: If D acquitted at trial, but replaced w/ conviction at appeal, that is a basis for appeal. D can appeal question of law, whether there was a dissent in ct of app or not. B. If Ct of app overturns actual conviction at trial but substitutes conviction for some other count = both Crown and D can appeal. C. Even if Court grants leave of appeal on question of law it can ultimately conclude that issue raised is not one of law. E. Powers: to appoint counsel to D (like ct of app); make any order that court of app could make. If orders a new trial that would be held before a judge and jury, D has right to re-elect another mode of trial. 2. R. v. Lutoslawski 1. Issue: whether the Court of Appeal for Ontario erred in substituting a conviction instead of ordering a new trial on three counts of sexual assault. 2. Rule: Section 686(4)(b)(ii) of the Criminal Code, R.S.C. 1985, c. C-46, permits an appellate court on appeal from a judge alone to enter a verdict of guilty with respect to the offence of which, in its opinion, the accused should have been found guilty but for the error in law 3. Reasoning: 1. [t]he 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? 2. the trial judge misdirected himself on this question of law. Sexual assault does not require proof of an improper or ulterior purpose. The Crown at trial proved beyond a reasonable doubt that the touching of the complainants occurred in circumstances of a sexual nature such as to compromise the sexual integrity of the complainants. 3. Here the Crown established that an error of law was committed at trial, and that but for that error the appellant would necessarily have been convicted. 4. Accordingly, despite the able submissions of Mr. Kapoor, we are all of the view that the Court of Appeal reached the proper conclusion. Accordingly, the appeal is dismissed. 4. Holding: Appeal dismissed. 3. Review of preliminary inquiry decisions (Coughlan 277-279) 3. Code sets out no procedure for appealing decision to commit or discharge at prelim, and so no appeal is possible. Review can only be made by certiorari. Part XXVI. 4. Open to crown to seek certiorari in case of discharge. Crown has option 577, preferring direct indictment despite discharge, so more frequently certiorari applications involve an accused seeking review of a decision to commit. 5. Because its not appeal but certiorari, not sufficient to show an error of law on part of the preliminary inquiry judge. Cert only granted if judge has fallen into jurisdictional error. 6. Jurisdictional error: 1. Denial of natural justice 2. If trial judge fails to comply w/ mandatory provision of code. 548 requires judge to commit the accused for trial if there is sufficient evidence. 1. Means that if prelim judge does not weigh evidence where crown has adduced direct evidence on all elements, prelim judge must commit D even if defence has offered exculpatory evidence. 2. If no evidence on some element of charge, then it will be jdx error to commit D to trial. 3. Discharge D if on whole of evidence no sufficient case is made out. Means that if prelim grants w.o considering whole evidence, that will be jdx error. 3. Sazant: judge found no evidence of no consent. D said that he did not want to take part in sexual activity. No dispute that judge made error, was it jdx error? Could held three possible explanations for judges mistakes: 1. Misunderstood elements of offence and given effect to non existent defence - would not have tested crowns evidence against actual elements of offence charged = jdx error 2. Prelim judge might have found the complainants statement to be ambiguous, capable of interpretation either as expression of after the fact regret or as statement of during the fact non consent = issue for trial judge = 3. Overlooking evidence of non consent in testimony, thus, failed to consider the whole of the evidence as required by 548 = jdx error. 4. If D wants to bring certiorari application, must do so before plea to charge. Once plea entered, jdx is transferred to superior court for trial, and issue becomes whether crown can prove its case, not how the D came to be there.

146