Criminal 2003-2004 Outline: Professor Trotter

CRIMINAL 2003-2004 OUTLINE: PROFESSOR TROTTER .........................................1 1. SOURCES OF CRIMINAL LAW.................................................................................5

Constitution Act, 1982.........................................................................................................................................................5 Constitution Act, 1982......................................................................................................................................5 Criminal Code of Canada.................................................................................................................................5 Frey v. Fedoruk ................................................................................................................................................5

2. SCOPE OF CRIMINAL LAW......................................................................................6

2.1. When Is An Act Criminal?..........................................................................................................................................6 Law Reform Commission of Canada, Report: Our Criminal Law ..................................................................6 2.1.1. Obscenity..........................................................................................................................................................6 R. v. Butler .......................................................................................................................................................6 Tests of Undue Exploitation of Sex................................................................................................................................6 R. v. Jacob ........................................................................................................................................................7 2.2. Presumption of Innocence............................................................................................................................................8 R. v. Oakes........................................................................................................................................................8

2.2.1. MEANING OF PROOF \BEYOND A REASONABLE DOUBT\...........................8

R. v. Lifchus.....................................................................................................................................................8 2.2.2. Burden of Proof on Crown...............................................................................................................................9 Woolmington v. D.P.P. ....................................................................................................................................9 R. v. Oakes .......................................................................................................................................................9 2.2.3. \Air of Reality\................................................................................................................................................9 R. v. Osolin.......................................................................................................................................................9 2.2.4. Where Accuseds Credibility in Issue............................................................................................................10 R. v. W.(D.) ...................................................................................................................................................10

2.3. VOID FOR VAGUENESS OR OVERBREADTH....................................................10

2.3. Void for Vagueness or Overbreadth.........................................................................................................................10 R. v. Pharmaceutical Society (NS) ................................................................................................................10 R. v. Heywood ...............................................................................................................................................10 2.4. Strict Interpretation of Penal Statutes.....................................................................................................................11 RE Xerox of Canada Ltd. And Regional Assessment Commissioner Region No. 10 ..................................11 R. v. Budget Car Rentals (Toronto) Ltd. .......................................................................................................11 R. v. Goulis ....................................................................................................................................................11 R. v. Pare ........................................................................................................................................................12

3. ACTUS REUS..........................................................................................................12
3.1. Voluntariness...............................................................................................................................................................12 R. v. King........................................................................................................................................................12

Rabey v. R. ....................................................................................................................................................12 R. v. Lucki .....................................................................................................................................................12 R. v. Wolfe .....................................................................................................................................................13 R. v. Ryan ......................................................................................................................................................13 Kilbride v. Lake..............................................................................................................................................13 3.2. Commission of an Unlawful Act................................................................................................................................14 3.2.1. Prostitution.....................................................................................................................................................14 Hutt v. R. ........................................................................................................................................................14 Reference Re ss. 193 & 195.1(1)(c) of the CCC (Prostitution Reference) ....................................................14 3.2.2. Consent and Constructive Possession............................................................................................................15 Marshall v. R. ................................................................................................................................................15 R. v. Terrence.................................................................................................................................................16 Re Chambers and The Queen ........................................................................................................................16 3.2.3. Consent and Assault.......................................................................................................................................17 R. v. Jobidon...................................................................................................................................................17 3.2.4. Consent and Fraud..........................................................................................................................................18 R. v. Cuerrier..................................................................................................................................................18 3.2.5. Public Disturbances........................................................................................................................................19 R. v. Lohnes....................................................................................................................................................19 3.2.6. No Liability in Absence of Wrongful Act......................................................................................................19 R. v. Burt ........................................................................................................................................................19 3.3. Omissions.....................................................................................................................................................................20 Fagan v. Commissioner of Metropolitan Police.............................................................................................20 R. v. Miller......................................................................................................................................................21 R. v. Thornton ................................................................................................................................................21 R. v. Browne ..................................................................................................................................................22 People v. Beardsley .......................................................................................................................................22 3.4. Causation......................................................................................................................................................................23 3.4.1. Unconscious Agent........................................................................................................................................23 R. v. Michael ..................................................................................................................................................23 3.4.2. Dangerous Driving Causing Bodily Harm.....................................................................................................23 R. v. F. (D.L.) ................................................................................................................................................23 3.4.3. Involuntary Manslaughter..............................................................................................................................24 Commonwealth v. Root .................................................................................................................................24 3.4.4. Manslaughter..................................................................................................................................................24 Smithers v. R. ................................................................................................................................................24 R. v. Cribbin ..................................................................................................................................................25 3.4.5. First Degree Murder.......................................................................................................................................25 R. v. Hardbottle...............................................................................................................................................25 3.4.6. Second Degree Murder...................................................................................................................................26

R. V. NETTE, [2001] 3 SCR 488..................................................................................26

R. v. Nette.......................................................................................................................................................26 3.4.7. Intervening Acts.............................................................................................................................................27 R. v. Smith......................................................................................................................................................27 The Queen v. Bingapore ................................................................................................................................27 3.4.7.1. Criminal \Thin Skull\.................................................................................................................................28 R. v. Blaue......................................................................................................................................................28

4. MENS REA...............................................................................................................28

4.1. Subjective and Objective Fault.................................................................................................................................28 R. v. Theroux..................................................................................................................................................29 4.2. Public Welfare and Regulatory Offences.................................................................................................................29 Beaver v. R. ...................................................................................................................................................29 R. v. Pierce Fisheries Ltd. ..............................................................................................................................29 R. v. Hickey ...................................................................................................................................................30 R. v. City of Sault Ste. Marie..........................................................................................................................30 R. v. Wholesale Travel Group Inc., ...............................................................................................................31 4.2.1. Charter Standards...........................................................................................................................................32 Reference re Section 94(2) of the Motor Vehicle Act (B.C.) ........................................................................32 R. v. Cancoil Thermal Corp. ..........................................................................................................................32 R. v. Wholesale Travel Group Inc. ................................................................................................................33 4.3. Criminal Offences.......................................................................................................................................................33 4.3.1. Murder s. 229..............................................................................................................................................33 Simpson v. R. .................................................................................................................................................33 4.3.2. Constructive Murder ss. 230 (a) and (d).....................................................................................................34 Vaillancourt v. R. ...........................................................................................................................................34 R. v. Martineau...............................................................................................................................................35 4.3.3. First Degree Murder s. 231(2).....................................................................................................................35 R. v. Smith.....................................................................................................................................................35 R. v. Nygaard and Schimmens.......................................................................................................................36 4.3.4. First Degree Murder of Police Officer s. 231(4)(a)....................................................................................36 R. v. Munro and Munro .................................................................................................................................37 R. v. Collins ...................................................................................................................................................37 4.3.5. Constructive First Degree Murder s. 231(5)...............................................................................................37 R. v. Arkell.....................................................................................................................................................37 4.4. Subjective Fault...........................................................................................................................................................38 4.4.1. Motive............................................................................................................................................................38 Lewis v. R.......................................................................................................................................................38 R. v. Mathe.....................................................................................................................................................38 4.4.2. Intention or Knowledge..................................................................................................................................39 R. v. Steane.....................................................................................................................................................39 R. v. Hibbert...................................................................................................................................................39 R. v. Buzzanga and Durocher.........................................................................................................................39 4.4.3. Recklessness and Wilful Blindness................................................................................................................40 Sansregret v. R................................................................................................................................................40 R. v. Theroux..................................................................................................................................................40 R. v. Currie.....................................................................................................................................................41 R. v. Blondin...................................................................................................................................................41 R. v. Sandhu....................................................................................................................................................41 R. v. Duong.....................................................................................................................................................42 4.5. Objective Fault............................................................................................................................................................42 4.5.1. Criminal Negligence......................................................................................................................................42 OGrady v. Sparling........................................................................................................................................42 R. v. Titchner..................................................................................................................................................42 R. v. Rogers....................................................................................................................................................43 R. v. Sharp......................................................................................................................................................43 R. v. Tutton and Tutton...................................................................................................................................44 Waite v. R.......................................................................................................................................................44 R. v. Anderson................................................................................................................................................44 R. v. Creighton................................................................................................................................................45

4.5.2. Predicate Offences..........................................................................................................................................46 R. v. Desousa..................................................................................................................................................46 R. v. Gosset.....................................................................................................................................................47 R. v. Creighton................................................................................................................................................47 R. v. Krushel...................................................................................................................................................47

5. SEXUAL ASSAULT.................................................................................................48
5.1. Crimes of Rape............................................................................................................................................................48 Pappajohn v. R................................................................................................................................................48 Sansregret v. R................................................................................................................................................48 5.2. Crimes of Sexual Assault............................................................................................................................................49 R. v. Chase......................................................................................................................................................49 5.2.1. Defence of Mistaken Belief in Consent.........................................................................................................50 R. v. Bulmer....................................................................................................................................................50 R. v. Osolin.....................................................................................................................................................50 5.2.2. Rape Shield Provisions...................................................................................................................................50 R. v. Seaboyer.................................................................................................................................................51 5.2.3. Reformulated Rape Shield Provision.............................................................................................................52 R. v. Darrach...................................................................................................................................................52 5.2.4. Consent and Sexual Assault...........................................................................................................................52 R. v. Ewanchuk...............................................................................................................................................53 R. v. Darrach...................................................................................................................................................53 Malcolm..........................................................................................................................................................54

6. DEFENCES..............................................................................................................54
6.1. Mistake of Fact............................................................................................................................................................54 R. v. Hess; R. v. Nguyen................................................................................................................................54 6.1.1. Transferring Mens Rea of One Offense to Another.......................................................................................55 R. v. Ladue......................................................................................................................................................55 R. v. Kundeus.................................................................................................................................................55 6.2. Mistake of Law............................................................................................................................................................55 R. v. Campbell and Mlynarchuk.....................................................................................................................56 R. v. Drainville...............................................................................................................................................56 R. v. MacLean.................................................................................................................................................56 R. v. Cancoil Thermal Corp............................................................................................................................57 6.3. Insanity.........................................................................................................................................................................57 Cooper v. R.....................................................................................................................................................57 Kjeldson v. R..................................................................................................................................................58 R. v. Abbey.....................................................................................................................................................58 R. v. Chaulk....................................................................................................................................................58 R. v. Oommen.................................................................................................................................................59 R. v. Swain......................................................................................................................................................59 R. v. Jacquard.................................................................................................................................................59 6.4. Automatism..................................................................................................................................................................59 R. v. Rabey.....................................................................................................................................................59 R. v. Parks.......................................................................................................................................................60 R. v. Stone.......................................................................................................................................................61

6.5. Intoxication..................................................................................................................................................................61 R. v. Bernard...................................................................................................................................................61 R. v. Daviault..................................................................................................................................................62 R. v. Robinson................................................................................................................................................63 6.6. Necessity.......................................................................................................................................................................63 Perka v. R........................................................................................................................................................63 R. v. Morgentaler, Smoling and Scott............................................................................................................64 R. v. Latimer...................................................................................................................................................64 6.7. Duress...........................................................................................................................................................................65 R. v. Carker (No. 2)........................................................................................................................................66 R. v. Paquette..................................................................................................................................................66 R. v. Hibbert...................................................................................................................................................66 R. v. Ruzic......................................................................................................................................................67 6.8. Self Defence..................................................................................................................................................................68 R. v. Pintar......................................................................................................................................................68 R. v. Cadwallader...........................................................................................................................................68 R. v. Bogue.....................................................................................................................................................68 R. v. Deegan...................................................................................................................................................69 R. v. Lavallee..................................................................................................................................................69 R. v. Petel........................................................................................................................................................70 R. v. Malott.....................................................................................................................................................70 R. v. Pawliuk...................................................................................................................................................71 6.9. Provocation..................................................................................................................................................................71 R. v. Cameron.................................................................................................................................................71 R. v. Hill.........................................................................................................................................................72 R. v. Thibert....................................................................................................................................................72 R. v. Nealy......................................................................................................................................................73

7. PARTIES TO A CRIME............................................................................................73
Dunlop and Sylvester v. R..............................................................................................................................73 R. v. Logan.....................................................................................................................................................74

1. Sources of Criminal Law

Constitution Act, 1982 s. 91(27) empowers Federal government to legislate on criminal matters. s. 91(24) empowers Federal government to establish penitentiaries. s. 92(6) empowers Provinces to establish public reformatory prisons. s. 92(13-15) empowers Provinces to legislate on matters of property and civil rights (13), administration of justice (courts) in Province (14) and punishment for infringing such laws (15). Criminal Code of Canada, RSC 1985, c. C-46 (at 6) s. 9 abolished all C/L criminal offences. s. 8 preserved all C/L defences. Frey v. Fedoruk [1950] SCR 517 (at 3)

f.: seen on property looking into mothers window. chased with knife and detained him. Policeman was called and arrested without a warrant. sued for malicious prosecution and false imprisonment. Dismissed at trial. BCCA affirmed arguing was guilty of crime at C/L and therefore there was a legal justification for detaining him. appealed. i.: Was guilty of a C/L criminal offence and therefore justified in being detained? r.: No one shall be convicted of a crime unless the offence is recognized in the CC. c.: Criminal offences are found in CC and established C/L. Since there was no offence for being a peeping tom, there was no justification for detaining . Appeal allowed.

2. Scope of Criminal Law

2.1. When Is An Act Criminal? Law Reform Commission of Canada, Report: Our Criminal Law (1976), 27-8 (at 169) An act is criminal when: 1. it is wrongful; 2. it causes harm to other people, to society or, in special cases to those needing protection from themselves; 3. it causes harm that is both serious in nature and degree; 4. it causes harm that is best dealt with through the criminal law. 2.1.1. Obscenity R. v. Butler [1992] 1 SCR 452 (at 174) f.: owned a shop where he sold pornographic videos and sexual paraphernalia. Charged with 200 counts of selling, possessing and exposing to public eye, obscene material, contrary to what is now s. 163(8) of CC. Trial judge found all materials obscene but said most was protected by s. 2(b) of Charter. 8 films were found to be obscene because they included violence and lack of consent with sexual activity and could be said to dehumanize men/women under s. 1. was convicted of 8 counts of obscenity and acquitted on all others. Crown appealed to CA, who said materials were outside of scope of Charter because they were constituted purely physical activity. appealed. i.: What is the meaning of obscenity under s. 163(8) of the CC? r.: s. 163(8) of CC defines obscenity a publication a dominant characteristic of which is the undue exploitation of sexand any one of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene. Interpretation of s. 163(8) s. 163(8) is exclusive, objective test that applies to both publications and objects which exploit sex as a dominant characteristic. Tests of Undue Exploitation of Sex (A) Community Standard of Tolerance Test must consider standards of community as a whole and not a small. The standard is a national standard must determine what Canadians would tolerate other Canadians being 6

exposed to on the basis of the degree of harm that may flow from such exposure. Harm means that it predisposes persons to act in an anti-social manner. Anti-social conduct is conduct which society formally recognizes and incompatible with it proper functioning. Community standards must respond to changing times. (B) Degradation or Dehumanization Test Includes scenes that portray violence and cruelty in conjunction with sex; performance of indignities which degrade/dehumanize people upon whom the are performed Materials that place women and men in positions of subordination, servile submission or humiliation which run against principles of equality and dignity of all human beings. Appearance of consent is not determinative. The line between mere portrayal of sex and dehumanization is the undueness concept. (C) Internal Necessities Test or Artistic Defence Genuine literary/artistic use of material to seriously look at the theme is not undue (e.g. a scholarly book). Must look at authors artistic purpose, the manner in which the story was portrayed/developed, the depiction and interplay of character, the creation of visual effect through skillful camera techniques. Must assess whether exploitation of sex has justifiable role in advancing plot or theme, and considering work as a whole, does not represent dirt for dirts sake but has legitimate role when measure by internal necessities of the work itself. (D) Relationship of Tests to Each Other Porn can be divided into 3 categories: (1) explicit sex with violence, (2) explicit sex without violence but is degrading or dehumanizing, (3) explicit sex without violence that is not degrading/dehumanizing. (1) is expressly mentioned in s. 163(8) of CCC. (2) may include sex coupled with crime, horror or cruelty. (3) is not covered. (1) will always constitute undue exploitation of sex. (2) may be undue of risk of harm is substantial. (3) will not be undue unless it employs children. c.: New trial ordered to determine if material is obscene. R. v. Jacob (1996), 4 C.R. (5th) 86 (Ont. CA) (at 7) f.: walked through streets of Guelph bare-breasted. Police asked her to cover up, declined stating it was her constitutional right. Mother of children requested she cover up - declined. Mother called police. charged with committing and indecent act in a public space contrary to s. 173(1)(a) of CCC. Trial judge found act beyond community standard of tolerance and ordered she pay a fine of $75. appealed. i.: Did commit an indecent act under s. 173(1)(a) of the CCC? r.: S. 173(1)(a) makes it criminal to willfully commint an indecent act in a public place in the presence of one or more persons. An indecent act is an act that involves the undue exploitation of sex. The test is objective community standard of tolerance. Therefore, not all acts beyond the community standard of tolerance will be indecent, because some acts (e.g. shooting heroin) do not involve a sexual context. Conduct has a sexual context when the act, viewed objectively in all

circumstances, is done for sexual gratification. Considering the circumstances includes any part of body touched, words and gestures, and the intent or purpose of the person committing the act, as appears from the evidence. a.: Weiler J.A.: Here there is no indication that was doing anything for sexual gratification, therefore she did not commit and indecent act. c.: Trial judge erred in law by applying the wrong test to determine if act was indecent. Appeal allowed. 2.2. Presumption of Innocence R. v. Oakes (1986), 50 CR (3d) 1 (SCC) (at 97) f.: found in possession of 10 vials of hashish oil. S. 8 of the Narcotic Control Act provides that if a person is found in possession of a narcotic, that person is assumed to be in possession for the purposes of trafficking, unless demonstrates otherwise. Trial judge found s. 8 unconstitutional as it contravenes the presumption of innocence under s. 11(d) of the Charter. Crown appealed. i.: Does requiring the accused to prove that he/she is not guilty of trafficking narcotics, as is assumed under s. 8 of the Act, contravene the presumption of innocence under s. 11(d)? r.: There is no rational connection between possessing a narcotic and the presumption that such a possessor will traffic the narcotic. Therefore s. 8 is not a justifiable limit of presumption of innocence under s. 11(d). a.: Why have presumption of innocence? Protects fundamental liberty of every accused person; accused faces grave social and personal consequences; essential in a society committed to fairness and social justice; POI confirms faith in humankind as law-abiding until proven otherwise. POI must have minimum 3 components: 1. must be proven guilty BARD; 2. Crown must carry burden of proof; 3. Criminal prosecution carried out in accordance with lawful procedures and fairness. c.: s. 8 of Narcotic Control Act does violate s. 11(d) of the Charter. 2.2.1. Meaning of Proof Beyond a Reasonable Doubt R. v. Lifchus, [1997] 3 SCR 320 (at 87) f.: convicted of fraud. Trial judge told jury that proof beyond a reasonable doubt is used in their ordinary, every day sense. appealed on meaning of proof beyond a reasonable doubt. i.: What does proof beyond a reasonable doubt mean? r.: proof beyond a reasonable doubt means: Presumption of innocence; 8

Burden of proof lies with Crown and not accused; Is not a doubt based on sympathy or prejudice but on reason and common sense; Logically connected to evidence or lack thereof; Does not mean absolute certainty; Does not mean probably guilty in such a case one should acquit.

Judges should not tell the jury: That the standard of proof is similar to that used by jurors in their everyday lives; Equating it to proof to a moral certainty; Do not use adjectives other than reasonable as they are misleading; Do not instruct jury to convict if they are sure the accused is guilty. c.: Appeal allowed. New trial ordered. 2.2.2. Burden of Proof on Crown Woolmington v. D.P.P., [1935] A.C. 462 (H.L.) (at 76) f.: (A) wife left him and moved in with her mother. said he took gun to threaten suicide and scare wife into returning. After he threatened to kill himself, he said he pulled out the gun to show her and it accidentally went off, killing her. was arrested and said I want to say nothing except I done it, and they can do what they like with me. It was jealousy I suppose Trial judge instructed jury that C/L was for Crown to demonstrate that killed his wife, and if so must assume malice and it is up to to prove accident, necessity or infirmity. Upheld on appeal. i.: Once killing has been established, is it a correct interpretation of the law that murder is presumed and the defendant must prove his innocence? r.: When dealing with murder case Crown carries burden of proof and must prove BARD (1) death was result of a voluntary act of the accused; (2) accused killed with malice Malice can be implied where the voluntary act is (a) intentional and (b) unprovoked. c.: Appeal allowed. Conviction quashed. R. v. Oakes (1986), 50 CR (3d) 1 (SCC) (at 97) Presumption of innocence requires that Crown carry burden of proof. 2.2.3. Air of Reality Test for Criminal Defences R. v. Osolin, [1993] 4 SCR 595 (at 82) f.: charged with sexual assault. argued that complainant was eager but not active participant in all acts, and argued defence of honest but mistaken belief in consent. Trial judge said no air of reality to the defence. convicted. i.: Must there be evidence to support a defence? r.: s. 265(4) of CCC sets out requirements of all defences, namely a defence should not be put to the jury if a reasonable jury properly instructed could not acquit on the basis of the evidence tendered to support the defence. This is a question of law and must be decided by trial judge using a 2 step test: 9

1. judge must review all evidence and decide if it is sufficient to warrant putting the defence to the jury; 2. If evidence meets that threshold (sufficient evidence), judge must put defence to jury, which in turn will weight it and decide whether it raises a reasonable doubt. 2.2.4. Where Accuseds Credibility in Issue R. v. W.(D.), [1991] 1 SCR 742 (at 85) f.: was convicted of sexual assault in trial that pitted credibility of against complainant. In recharge to jury, trial judge characterized core issue to be whether they believed the complainant or the . convicted. i.: Did the trial judges charge to jurors leave them with impression that they must accept accused evidence in order to acquit him? r.: Proper instructions to a jury where credibility is an issue would be: 1. if you believe , acquit. 2. if you do not believe but are left with reasonable doubt based on the evidence, acquit. 3. based on the s evidence you do accept, are you convinced beyond a reasonable doubt by that evidence of the s guilt? c.: The charge as a whole did no misdirect the jury. Conviction upheld. 2.3. Void for Vagueness or Overbreadth R. v. Pharmaceutical Society (NS) [1992] 2 SCR 606 (at 35) f.: (12 accused) charged with conspiracy to lessen competition unduly, contrary to s. 45(1)(c) of Competition Act, relating to sale of prescription drugs. Trial judge quashed charge citing word unduly as making law too vague. NSSC overturned trial judge. i.: Does the word unduly make s. 45(1)(c) of the Act too vague and therefore unlawful? r.: Gonthier J.: Doctrine of Vagueness is a principle of fundamental justice under s. 7 and s. 1 (prescribed by law) and is based on rationales of: 1. fair notice to the citizen formal aspect (actual knowledge of statute); substantive aspect (understanding that certain conduct is subject of legal restrictions) 2. limitation of enforcement discretion A law must not be so devoid of precision in its content that a conviction will automatically flow from the decision to prosecute; one must be able to mount a defence to a charge and allow judiciary to rule on conviction. R. v. Heywood [1994] 3 SCR 761 (at 42) f.: charged with vagrancy by being a person who was convicted of a sexual offence and found loitering at or near a school ground, playground, public park or bathing area contrary to s. 179(1) (b) of CCC. Trial judge found section violated s. 7 and 11(d) of Charter but found reasonable under s. 1. CA allowed appeal. Crown appealed, but Parliament had already replaced provision with a more narrowly worded s. 161.

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i.: Does some aspect of the prohibition on liberty contained in s. 179(1)(b) violate the principles of fundamental justice? r.: Overbreadth and vagueness are related in that both are the result of a lack of sufficient precision by a legislature in the means used to accomplish an objective. In case of vagueness, the means are not clearly defined; in overbreadth the means are too sweeping in relation to the objective. For an enactment to violate s. 7 due to overbreadth, there must be a restriction in life, liberty or security of the person in a manner that is unnecessarily broad, going beyond what is needed to achieve government objective. a.: Cory J.: Purpose of section is to protect children from becoming victims of sexual offences. Here the section is overly broad in its geographical ambit since some public parks, bathing areas (beaches) will not contain children. Also, section applies for life with no possibility of review. It applies to all convicted of serious personal injury offence but does not allow for determination if they are threats to children (new legislation passed by Parliament accounts for this). Section fails minimal impairment test under s. 1 Gonthier J. Interpreting section so it is read to only prohibit loitering with a malevolent purpose removes vagueness, since it narrows liability and creates a clear basis for legal debate. This restraint on liberty is minor, since it allows use of the enumerated locations (parks, bathing areas, etc.) unless it is a situation where a judge can draw and adverse inference (e.g. a person with history of offences against children hanging around a school yard with draw suspicion, but hanging around a park will not). c.: 5-4 for . Section is too overbroad and therefore infringes s. 7 and cannot be saved by s. 1. 2.4. Strict Interpretation of Penal Statutes RE Xerox of Canada Ltd. And Regional Assessment Commissioner Region No. 10 (1980), 30 OR (2d) 90 (CA), revd on other grounds [1981] 2 SCR 137 (at 49) a.: Jessup J.A.: Courts should use Interpretation Acts as source of rules for statutory interpretation, and not exclusively the rules of English C/L. Interpretation Acts provide for a large and liberal construction and interpretation as will best ensure the attainment of the object of the Act R. v. Budget Car Rentals (Toronto) Ltd. (1981), 57 CCC (2d) 201 (Ont. CA) (at 50) a.: Howland C.J.O.: Where there are two different reasonable constructions of a penal statute, employ strict or narrower interpretation i.e. the conduct of the person must be clearly and unmistakably fall within the kind of conduct which is proscribed by the statute. R. v. Goulis (1981), 20 C.R. (3d) 360 (Ont. CA) (at 52) a.: Martin J.A.:

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If a penal provision is reasonably capable of two interpretations the interpretation which is the more favourable to the must be adopted. R. v. Pare [1987] 2 SCR 618 (at 53) f.: indecently assaulted and then killed a 7 year old boy. was charged with first degree murder on basis of s. 214(5) [now s. 231(5)] of CC, in that murder is first degree murderwhen the death is causedwhile committing an indecent assault (now sexual assault). i.: Must court contruct s. 214(5) (while committing) such that murder only becomes first degree murder if the death and indecent assault occur simultaneously? r.: Where doubt or ambiguities arise in the construction and application of a statute affecting liberty, it should be applied in a manner as to favour the . a.: Wilson J.: Interpreting while committing such that murder only becomes first degree murder if the death and indecent assault occur simultaneously cannot reasonably reflect the intention of the legislature. Continuity is achieved because there is continuing domination, or exploitation of power, over the victim by the accused. c.: Appeal overturned, conviction re-instated.

3. Actus Reus
3.1. Voluntariness R. v. King, [1962] SCR 746 (at 292) There must be a willpower to do an act whether the accused knew or not that it was prohibited by law. Rabey v. R., [1980] 2 SCR 513 (at 292) No act can be criminal unless it is done voluntarily (consciously). R. v. Lucki (1955), 17 WWR 446 (Sask. Pol. Ct.) (at 297) f.: made a right turn onto a street. While doing so he skidded over onto the left side of the road and collided with another car. was charged with inconveniencing other persons using the highway, contrary to s. 125(9) of The Vehicles Act. i.: Did the voluntarily inconvenience other persons using the road? r.: A person who by an involuntary act for which he is not to blame gets onto the wrong side of the road is not guilty under s. 125(9). a.: Goldenberg QCPM.: was on wrong side of road by an involuntary act. It was not his faulty driving that placed him in position where he ended up. c.: For .

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R. v. Wolfe (1975), 20 CCC (2d) 382 (Ont. CA) (at 298) f.: was part-owner of a hotel in Kingston. told complainant that he was not allowed in the hotel. Complainant showed up anyway. went to call police. While doing so, complainant punched , who then, by reflex (as found by the trial judge), hit complainant in the head with the telephone receiver, causing a 4-inch cut. was convicted of assault causing bodily harm. i.: Did voluntarily and intentional strike the complainant with the phone receiver? a.: Gale CJO.: There must be intent in order to be guilty of assault causing bodily harm. c.: For . Conviction quashed. R. v. Ryan (1967), 40 ALJR 488 (Aus. HC) (at 299) f.: went into a service station with a sawed-off shotgun and demanded money from attendant. After getting money, told attendant to put hands behind his back, and while was tying them with a cord, attendant made sudden movement and, according to , gun accidentally discharged and killed attendant. It was shown that slight pressure on the trigger by caused the discharge - argued this was an involuntary reflex caused by attendants movement. Jury dismissed defence of accident and convicted of murder. i.: Was the pressure applied to the trigger by the an involuntary act that was sufficient to remove the actus reus component of murder? r.: A fully conscious man who has put himself in a situation where his finger is on a trigger of a loaded rifle levelled at another man, commits a voluntary act if he presses the trigger in immediate response to a sudden threat or apprehension of danger, and is criminally liable for the consequences of such an act. a.: Windeyer J.: In this case, though the , if given more time, may have chosen a different course of action, the law cannot call an act involuntary merely because the mind worked quickly and impulsively. c.: Appeal dismissed. conviction upheld. Kilbride v. Lake, [1962] NZLR 490 (SC) (at 301) f.: parked his car. At some point after leaving the car, the warrant of fitness (which proved was recently purchased) on the windshield had somehow fallen off and was lost. gave a ticket for having vehicle on road without warrant of fitness. i.: Can something done lawfully by become an offence by reason of an intervening cause beyond his influence or control, and which produced an effect entirely outside his means of knowledge? r.: A person cannot be made criminally responsible for an act or omission that is beyond a persons control there is no voluntariness.

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a.: Woodhouse J.: In this case the did place the vehicle on the road (this is a continuous act). Once the warrant disappeared during his absence (by some other act), could not voluntarily take another course, and any inactivity on his part after the warrant was removed was involuntary and unrelated to the offence. The resulting omission to carry the warrant was not within his conduct or control. c.: For . Conviction quashed. 3.2. Commission of an Unlawful Act 3.2.1. Prostitution Hutt v. R., [1978] 2 SCR 476 (at 187) f.: , after smiling at an undercover officer (who smiled back), entered his car and asked him if he wanted a girl and that she was a working girla prostitute. Officer said yes, and after going to a hotel, was arrested. convicted for soliciting a person in a public place for the purpose of prostitution under s. 195.1. i.: How does one interpret the word solicit in s. 195.1 of the CCC? r.: To solicit (with regards to prostitution) one must both confront a person and pressingly or persistently make it known that they are available for prostitution. a.: Spence J.: There is nothing in what said other than the demonstration that she was available for prostitution. For there to be solicitation, there must be something more (i.e. importune). Looking at history and development of the law, it is clear that Parliament wished to require some acts on the part of the person which would contribute to public inconvenience. The s acts do not satisfy this. c.: For A. Conviction quashed. Reference Re ss. 193 & 195.1(1)(c) of the CCC (Prostitution Reference), [1990] 1 SCR 1123 (at 196) f.: The offence of communicating for the purpose of prostitution was challenged under s. 2(b) of the Charter. Court agreed that the law did infringe s. 2(b) but was divided on question of whether s. 1 saved the law. All agreed that the law was not too vague as not to be prescribed by law. i.: Are ss. 193 and 195.1(1)(c) saved by s. 1? What is the act that is being criminalized? r.: Majority: Legislation is aimed at preventing nuisance-related problems identified with the solicitation for purposes of prostitution. Dissent not all public solicitation for the purposes of prostitution cause a nuisance therefore the legislation is overly broad and not justifiable. a.: Dickson CJC. (2 judges concurring):

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P & S Objective and Rational Connection: eradicate the various forms of social nuisance arising from public solicitation of sex (e.g. street congestion and noise, oral harassment of non-participants, general detrimental effects on bystanders, especially children.)The elimination of this is a pressing and substantial objective. A rational connection between the legislation and the prevention of social nuisance exists. Minimal Impairment: Here the expression concerns an economic transaction of sex for money, which does not lie at the core of the guarantee of FOE. Communication for the purposes of prostitution can be restricted (Hutt v. R.). Therefore, since the objective is the general curtailment of visible solicitation for purposes of prostitution, and not specifically to end street nuisance, the legislation is not unduly intrusive the scheme need not be the perfect scheme, rather it is sufficient if it is appropriately and carefully tailored in the context of the infringed right. Deleterious Effects: benefit of limits under which communication between prostitutes and customers can take place outweighs intrusiveness linked to enforcement of the provision.

Wilson J. (LHeureux-Dube concurring) (dissent): The legislation criminalizes public solicitation of sex in any public place (to which the public have access as of right or by express or implied invitation) or place open to public view. This includes places where they may be many people, or no people. This goes beyond the general concern over the nuisance caused by street solicitation in major centres of population. In fact, no nuisance or adverse impact needs to be shown. The public sale of sex does not always cause a nuisance. The legislation also prohibits all forms of communication a wink or nod could suffice this could trap innocent parties. Minimal impairment is therefore not met. 3.2.2. Consent and Constructive Possession Relating to drugs, weapons, stolen property, child pornography, etc. Actual possession [s. 4(3)(a)] or Constructive possession [s. 4(3)(b)] Marshall v. R., [1969] 3 CCC 149 (Alta. CA) (at 205) f.: was in a car that was stopped by the RCMP. The officer found marijuana in the car (2.2 lbs). did not touch the pot, nor did he smoke it (he did not control or take control of the pot, nor did he control the car), but he was aware that it was in the car and that the others were smoking it. There was no evidence that protested to the acts of the others, or try to separate himself from the actions of the others or their company. Trial judge found that, given the amount of time was in the car (from Vancouver to Calgary), the acquiesced to the others actions and was therefore in possession of the pot under the Narcotic Control Act and the CCC. i.: Was the in possession of the pot, as within the meaning of possession under the Narcotic Control Act? r.: In order for there to be constructive possession of a narcotic under s. 4(3)(b) there must be both knowledge that a person has a narcotic and consent to that person having the narcotic. However, in order to consent, one must have a measure of control over the narcotic. Passing a joint is not possession; it is a reflex action.

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a.: McDermid JA.: s. 4(3)(b) of the CC defines possession as where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody, it shall be deemed to be in the custody and possession of each and all of them. Consent is defined as voluntary agreement to or acquiescence in what another proposes or desires; compliance, concurrence, permission. A was faced with choice of getting out of car and hitching to Calgary (and possibly missing classes) or staying in the car. He consented to stay in the car, but this does not mean he consented to the presence of the pot. He had no control over the persons with the pot and was not owner of the car. c.: Appeal allowed. conviction quashed. R. v. Terrence, [1983] 1 SCR 357 (at 209) f.: was invited by Hayes to take a ride in his brother-in-laws new car. agreed. This had occurred in the past and since Hayes had keys, did not suspect at the time that the car was stolen. OPP cruiser chased car and was stopped at a road-block. Prior to it stopping, jumped from car and ran into a field. Trial judge found that consented to Hayes possession of a stolen car and therefore was in constructive possession of car. CA overturned trial judges decision, stating that possession requires some form of control over the subject matter. i.: Was the in possession of the car, as within the meaning of possession under s. 4(3)(b) of the CC? a.: Ritchie J.: For there to be possession under s. 4(3)(b) of the CC there must be knowledge, consent and a measure of control [over the subject matter] on the part of the person deemed to be in possession c.: Appeal allowed. conviction quashed. Re Chambers and The Queen (1985), 20 CCC (3d) 440 (Ont. CA) (at 212) f.: Cocaine was found on the top shelf of an open closet full of womens clothing, under womens sweaters and on top of photos of Chambers modeling womens clothing. There was mens clothing on the floor and a small rack hanger with mens clothing. A gym back with mens clothing and a deck holding a small amount of cocaine was also found these belonged to Chambers boyfriend. Chambers committed to trial for possession of cocaine with the purpose of trafficking. Trial judge quashed the trial commitment stating that although Chambers had knowledge that cocaine was in her room, she did not consent to it being there, since she did not have the necessary measure of control over it. i.: Is there evidence that Chambers had possession of the cocaine? r.: In order for there to be constructive possession of a narcotic under s. 4(3)(b) of CC there must be both knowledge that a person has a narcotic and consent to that person having the narcotic. To consent, one must have a measure of control over the narcotic. To have control, one must have

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the power to accept or refuse any various use of the narcotic (e.g. power to accept or refuse to store drugs in ones room is sufficient to form requisite consent for constructive possession). a.: Martin JA.: Here the drugs were found in Chambers room and she had the power to either consent or withhold her consent to her room being used to store the cocaine. Allowing the cocaine to remain was the requisite act that allows for a trial. It is not necessary that she have any interest in the cocaine itself or its sale. c.: Chambers should be committed to trial. 3.2.3. Consent and Assault S. 265 of CC defines assault as arising whenever a one intentionally applies force to a person directly or indirectly without the persons consent. R. v. Jobidon, [1991] 2 SCR 714 (at 219) f.: agreed to a fist fight with the victim. struck the victim with his fist and knocked unconscious onto the hood of a car. then struck the victim a further 4-6 times in the head. Victim died of contusions to the head caused by the blows. S. 222 of the CC provides that culpable homicide is either murder or manslaughter and that a person commits culpable homicide when he causes the death of a human being by means of an unlawful act. was charged with assault under s. 265 of the CCC (an unlawful act) and therefore was charged with manslaughter under s. 222. Trial judge found that there was consent between the men to a fair fight and that consent vitiates assault and therefore was acquitted. CA overturned, citing C/L limit that consent to a fight in private/public is not a defence to a charge of assault if actually bodily harm is intended or caused. appealed. i.: Must the Crown prove a lack of consent in all cases of assault or are there C/L limitations which restrict or negate the legal effectiveness of consent in certain types of cases? r.: Under s. 265 of CC (assault), consent between adults is vitiated when they intentionally apply force to cause serious hurt or non-trivial bodily harm in the course of a fist-fight or brawl. a.: Gonthier J.: Where the CC has not erased the C/L limit applicable to fist fights, it must continue to define the scope of legally effective consent concerning assault. This means consent is a defence in the criminal law. Public policy considerations supporting a limit on defence of consent in fist-fights include the uselessness of fights, the possibility of fights leading to larger brawls and the disturbance of the public peace, the sanctity of the human body. This does not affect ability to freely give consent to participate in rough sporting activities so long as the intentional application of force to which one consents are within the customary norms and rules of the game. This does not affect consent to medical procedures. This does not affect consent in activities that have positive social value (i.e. stunt people in a cultural product). This does not apply to force which causes minor hurt or trivial harm. This does not cover ordinary schoolyard scuffles, but leaves question open when there is true intent to harm and the result involves more than trivial bodily harm.

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c.: appeal dismissed. Victim did not give legal consent to the fight, therefore guilty of assault and manslaughter. 3.2.4. Consent and Fraud R. v. Cuerrier (1998), 127 CCC (3d) 1 (SCC) (at 241) f.: was charged with aggravated assault under s. 268 of the CC. was HIV positive. He had unprotected sex with 2 women, both of whom testified that they would not have consented to sex had they known he was HIV positive. was acquitted. i.: Did , by not informing his partners that he was HIV-positive, commit fraud against the complainants which then vitiates their consent to sexual intercourse and subsequently makes him liable to a charge of aggravated assault? r.: S. 265 applies to all forms of assault, including sexual assault [s. 265(2)]. S. 265(3)(c) states that no consent is obtained by reason of fraud. It is no longer necessary to consider whether the fraud related to the nature and quality of the act. Essential elements of the act of fraud are dishonesty, which can include non-disclosure of important facts, and deprivation or risk of deprivation. The existence of fraud should not vitiate consent unless Crown shows that there is a significant risk of serious bodily harm as a result of act of fraud. a.: Cory J. (3 others concurring): Persons who know they are HIV-positive and engage in intercourse without advising their partner of the disease may be found to fulfill the requirements for fraud, namely dishonesty and deprivation. This fraud may vitiate a partners consent to sex. LHeureux-Dube J.: To determine if fraud vitiates consent, one must determine if the deceit deprived the complainant of the ability to exercise his or her will in relation to his or her physical integrity with respect to the activity in question (in this case sexual intercourse). McLachlin J. (Gonthier J. concurring): Presently, it is consistent with needs and mores of society to return the C/L to the point where it recognized that deception as to sexually transmitted disease carrying a high risk of infection, constituted fraud vitiating consent to sexual intercourse. Test for deception and inducement of consent due to fraud would be objective. LHeureux-Dubes analysis is too broad, in that it could open up liability to people who promise marriage/fur coats for sex. Deceit as to venereal disease vitiates consent (rather than promises of fur coats) because the deceit goes to the nature of the act. A person who consents to sex believing that the partner is disease free is fraudulently deceived if that person is not disease free. Such a person does not consent to exchanging diseased bodily fluids (goes to nature and quality of the act). c.: Appeal allowed. New trial ordered.

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3.2.5. Public Disturbances R. v. Lohnes, [1992] 1 SCR 167 (at 253) f.: , on two separate occasions, yelled and swore, and at one time threatened to shoot his neighbour, Porter, if he had a gun, because Porter was given to collecting equipment on his premises and running motors that made loud noises. Porter complained that he was disturbed by impugned conduct. was charged and convicted with public disturbance. i.: What constitutes a public disturbance under s. 175(1)(a) of the CC? How does one define a disturbance? Did cause a disturbance? Was Porters sense of being emotionally/mentally disturbed enough to cause a disturbance? r.: s. 175(1)(a) requires an externally manifested disturbance in or near a public place, consisting either in the act itself or in a secondary consequence of the act, that interferes with the ordinary and customary use of the premises by the public (this can be as small as being distracted from ones work). Courts can infer from evidence of peace officer whether conduct of a person amounts to a public disturbance. Mental/emotional annoyance does not amount to a disturbance. a.: McLachlin J.: S. 175(1)(a) provides that: everyone who, not being in a dwelling house, causes a disturbance in or near a public place, (i) by fighting, screaming, shouting, swearing, singing or using insulting or obscene languageis guilty of an offence punishable on summary conviction. Statutory construction defines a disturbance as not merely mental or emotional annoyance. As a policy, employing the emotional disturbance interpretation would put an unfair burden on everyone to determine in every circumstance whether their actions would disturb the mental/emotional tranquility of others this would import great uncertainty in the criminal law. Using the public disturbance interpretation allows the courts to balance between individual liberty and public interest in peace/tranquility It is clear that committed one of the enumerated acts, but there is no evidence that s acts or the secondary consequences of the acts interfered with the ordinary and customary use of the premises by the public. c.: For . Conviction quashed. 3.2.6. No Liability in Absence of Wrongful Act R. v. Burt (1985), 47 CR (3d) 49 (Sask. QB) (at 259) f.: s car was being driven and squeeled its tires (leaving 25 feet of tire marks). An RCMP officer followed the car when it turned into the residence and stopped. As officer pulled up, he saw and called to him - ignored officer. was charged under s. 253 [now s. 169(1)] of the Vehicles Act which makes an owner of a vehicle vicariously liable for any violation of the Act in which his/her vehicle is involved he/she does not have to take part in the violation nor be aware of it (no need for actus reus or mens rea). A conviction involves any combination of fines, prison time, suspension of license. Trial judge found s. 253 violated s. 7 of the Charter. i.: Can one person be criminally liable on the basis of the acts of another? Does absence of actus reus requirement under s. 253 render the legislation constitutionally invalid?

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r.: Fundamental justice encompasses the concept that a person should not be punished in the absence of a wrongful act. a.: Gerein J.: Under traditional C/L, a person was not be convicted of an offence unless he committed the prohibited act (actus reus). Under criminal legislation there are cases of vicarious criminal liability, such as assisting, encouraging or counseling an offence. Also had three exceptions, which include public nuisance by employee, criminal libel and criminal contempt of Court. Though the purpose of the legislation is valid (to achieve safe and orderly operation of vehicles on public highways), the effect of the legislation is to convict an owner of a vehicle of a substantive offence or actual violation (in this case excessive noise) without requiring that the owner actually commit the offence. c.: For . Section violates s. 7 because it allows for criminal conviction without actus reus. 3.3. Omissions Fagan v. Commissioner of Metropolitan Police, [1968] 3 All ER 442 (Eng.CA) (at 269) f.: (A) was directed numerous times by Morris, a police constable, to park in a certain location. Morris told to park very near where he was standing. drove up and stopped the car, with the left wheel on Morriss left foot. Morris said, Get off my foot. responded, Fuck you, you can wait. Engine of the car stopped running. Morris repeated demand. slowly turned on car and reversed it off Morriss foot. It was not clear if turned ignition off to stop engine or turned it off after engine had stopped. convicted of assault, since he knowingly, provocatively and unnecessarily allowed the wheel to remain on the foot of officer. appealed. i.: After discovering the wheel of his car was on Morris foot, was leaving the wheel on Morris foot (while saying Fuck you, you can wait) an omission (an inactivity) by the , or was it an act that satisfies the actus reus and mens rea requirement of an assault? a.: James J.: The initial action by may have been unintentional, but the time when the knew the wheel was on Morris foot the (1) remained seated in car so his body through medium of car was in contact with Morris, (2) switched off ignition, (3) maintained wheel of car on Morris foot and (4) used words indicating intention to keep wheel on Morris foot. This is not an omission but is a continuous act that satisfies the actus reus and mens rea requirement of a battery. Bridge J. (dissent): Once wheel accidentally came to rest on Morris foot, did nothing that could amount to an assault remaining in the car and turning off the ignition is irrelevant, since Morris situation would have been no better had stepped out of the car and left it running. c.: For . committed the intentional tort of battery by intentionally not removing the wheel of the car from Morris foot (a continuing act).

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R. v. Miller [1983] 1 All ER 978 (Eng. HL) (at 272) f.: was out drinking, went back to where he was sleeping. He lay on his mattress and lit a cigarette. He then fell asleep and awoke to find the mattress on fire. He got up and went to sleep in the next room. was convicted with arson, under s. 1(1) and (3) of Criminal Damage Act, for damaging a house by fire, either intentionally or through recklessness, without lawful excuse. i.: Is actus reus of the offence of arson present when accidentally starts a fire and then, whether intentionally or through recklessness, fails to take steps to extinguish the? r.: Where an individual becomes aware that an act of his, whether intentional or not, presents a risk of damage to anothers property, that individual has a responsibility to take steps to try and prevent or reduce the damage. If he does not, either through not giving any thought to the risk or by recognizing the risk but choosing not to act to prevent/reduce damage, he will be liable. a.: Lord Diplock.: Takes position of Stephen J. in R. v. Tolson, that actus reus is not meant to be a verb but a noun, which allows both actions and omissions to fall under the expression. Should focus on the conduct of the accused and his state of mind at the time of the conduct. c.: appeal dismissed. R. v. Thornton (1991), 3 CR (4th) 381 (Ont. CA), affd [1993] 2 SCR 445 (at 285) f.: knew he was HIV positive but donated blood to the Red Cross anyways. Red Cross detected the HIV and put his blood aside. Accused was charged with committing a nuisance contrary to s. 180 of the CC, which provides that every one commits a common nuisance who does an unlawful act or fails to discharge a legal duty and thereby endangers the lives, safety or health of the public. Trial judge found that donating blood and knowing the purpose for which the donations are collected amount to involvement in a medical procedure. S. 216 of CC makes it a legal duty for those who participate in a medical procedure to have and use reasonable knowledge, skill and care in so doing. Judge ruled that failed to discharge this duty and was convicted. appealed. i.: Can a legal duty within meaning of s. 180 (nuisance) be one which arises at C/L or must it be from statute? Is there a legal duty at C/L to not donate contaminated blood? r.: At C/L there is a legal duty to refrain from conduct where it is reasonably foreseeable that such conduct would cause serious harm to other persons. (Ont. CA) Omitting to disclose that you are HIV-positive when donating blood violates the duty under s. 216 of the CC of those who participate in a medical procedure (donating blood) to have and use reasonable knowledge, skill and care in so doing. (SCC) a.: Lamer CJC.: S. 216 of CC imposed on a duty of care in giving his blood to Red Cross. This duty of care was breached by not disclosing that his blood contained HIV. This common nuisance obviously endangered the life, safety and health of the public. c.: appeal dismissed.

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R. v. Browne (1997), 116 CCC (3d) 183 (Ont. CA) (at 286) (leave to appeal to SCC refused) f.: and deceased were drug partners. Deceased swallowed bag of crack.. At 2 am found her shaking and sweating and said he would take her to the hospital. He called a cab, which took 10 minutes to arrive and 15 minutes to get to the hospital. She died shortly after arrival. was charged with criminal negligence causing death under s. 219(1) of the CC. Trial judge found that undertook (within meaning of s. 217 of CC) to take care of deceased while she had the crack in her body. S. 217 states that everyone who undertakes to do an act is under a legal duty to do it if an omission to do the act is or may be dangerous to life. This undertaking (which began at 11:30pm) imposed a duty on to take deceased to hospital immediately. Judge found that calling taxi instead of 911 reflected a wanton and reckless disregard for deceased, contrary to s. 219(1) of CC and convicted . i.: What kind of an undertaking gives rise to a legal duty within the meaning of s. 217, the breach of which (by omission) can result in criminal liability? r.: Must first determine if there was an undertaking in the nature of a binding commitment (higher than civil standard of care) in order for a legal duty to arise under s. 217, regardless of nature of relationship between the parties. a.: Abella JA.: In this case there is no evidence of a binding undertaking. said he would take deceased to hospital and he did. There was no evidence that calling 911 would have been a better option, or even that had she arrived earlier, her life could have been saved. c.: Appeal allowed. Conviction set aside. People v. Beardsley (1907), 113 NW 1128 (Mich. SC) (at 289) f.: (R), while his wife was away, had another woman stay with him. saw woman take many morphine tablets. was very drunk and asked a tenant to take woman into a room in the basement and look after her. She later died. was charged with manslaughter and was convicted. (A) argued that had a duty of care for the woman, which required him to take steps for her protection, the failure of which amounted to an omission that makes him responsible for her death. On appeal the conviction was overturned. appealed. i.: Was the under a duty of care to the woman? If so, did his inaction amount to an omission that makes him criminally responsible for her death? r.: A legal duty is not based on morality or moral duties. a.: McAlvay CJ.: In this case the and woman were companions. The woman was not owed a duty as a husband owes his wife. The fact that the woman was in the house created a moral duty but no legal duty of care. c.: conviction set aside.

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3.4. Causation In some offences, the actus reus requires the causing of certain circumstances. These include all homicides (s. 222), willful damage to property (s. 430), arson (s. 433), and causing bodily harm (s. 221) or death (s. 220) by criminal negligence.
E V E N T I n t e r v e n C a u s e s A c t O m m i s s i o n i n d g u t y

l u

t a r i n

e s s

3.4.1. Unconscious Agent R. v. Michael (1840), 9 C&P 356 (CCCR) (at 308) f.: purchased a poison (laudanum) with the intention of giving it to her baby son to kill him. gave poison to wet nurse and asked her to give a teaspoon every night to her son. Wet nurse did not, however while she was out of the room, the wet nurses 5 year-old child gave the baby of the bottle, and the baby died. was charged with murder. i.: Can , who had intended to kill her child through giving the wet nurse poison and instructing her to give a teaspoon each night, be convicted of the murder of her baby when the bottle of poison was delivered to her baby by the 5 year old child of the wet nurse? r.: Where death is caused by an unconscious agent, the principal is considered, at law, to have done the act causing death. a.: Since the gave the wet nurse the poison and asked her to deliver lethal dose, at law the 5 year old who delivered the poison was an unconscious agent and the delivery of the poison by the child can be considered to have been done by the herself. c.: convicted of murder. 3.4.2. Dangerous Driving Causing Bodily Harm R. v. F. (D.L.) (1989), 73 CR (3d) 391 (Alta. CA) (at 320) f.: The struck a jaywalking pedestrian and injured him. was charged with dangerous driving causing bodily harm under s. 249(3) of CC. Trial judge found that was guilty of dangerous driving under s. 249(1), but acquitted , finding that actions did not cause injury. Crown appealed. i.: Did the trial judge misdirected himself as to the legal effects of the facts found by him and thereby wrongly acquit? 23

r.: In cases under ss. 249(3) and (4), the court should (i) determine whether the driving has been proven to dangerous driving under s. 249(1); (ii) determine whether the injuries meet the test of bodily harm defined by s. 267(2) any hurt or injury that interferes with health or comfort that is more than merely transient or trifling in nature; (iii) Where preceding questions answered adversely to , determine correlative link between dangerous driving and bodily harm. a.: McClung JA.: was driving dangerously and should have seen the victim, but he did not, therefore he struck him and caused bodily harm. Under the trial judge's finding of dangerous driving, a s. 249(3) offence was proven. c.: Appeal allowed. convicted of dangerous driving causing bodily harm. 3.4.3. Involuntary Manslaughter Commonwealth v. Root (1961), 170 A. 2d 310 (Pa. SC) (at 338) f.: accepted deceased challenge to a car race. At time of accident, both were driving between 7090 mph (speed limit was 50 mph). was in lead and deceased attempted to pass him by driving in the left lane (where highway had narrowed to 2 lanes) and crashed into an oncoming truck and died. found guilty of involuntary manslaughter. i.: Was s unlawful and reckless conduct a sufficiently direct cause of death to warrant his being charged with criminal homicide? r.: Unlawful and reckless conduct is one part of crime of involuntary manslaughter. The other is that such conduct must be the direct cause of death (not tort principle of proximate cause). a.: Charles Alvin Jones CJ.: Tort liability of proximate cause was rejected in murder case Commonwealth v. Redline. The distinction between murder and involuntary manslaughter is not cause but the state of mind of the offender. Therefore it is consistent to reject proximate cause liability in involuntary manslaughter cases. In this case, reckless conduct was not sufficiently direct cause of deceased death to make him criminally liable. c.: Appeal allowed. conviction overturned. 3.4.4. Manslaughter Smithers v. R., [1978] 1 SCR 506 (at 310) f.: and deceased both young hockey players on two competing teams. was subjected to racial insults by the deceased (and others). Outside arena, attacked kicked deceased in abdomen and he died. 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. testified he had acted in self-defence but was convicted of manslaughter.

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i.: When does an act leading to death become a homicide? r.: A person commits homicide when he directly or indirectly, by any means (outside the de minimus range [not trivial]), causes the death of a human being (for manslaughter, there must be an anticipation that the act would cause harm/death). A jury is not limited by medical evidence, but can use logic and common sense, in determining causation. Legal principle one takes his/her victim as he/she finds them. a.: Dickson J.: The assault by was clearly an unlawful act and there was evidence (both medical and witness testimony) 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. c.: appeal dismissed. R. v. Cribbin (1994), 89 CCC (3d) 67 (Ont. CA) (at 326) f.: and CR were drunk. Deceased died following a serious beating by both CR and . However on the evidence the participation of the was significantly less compared to CR. charged with second degree murder and was convicted of manslaughter. appealed and challenged the constitutionality of the de minimus causation test for manslaughter. i.: Did judge err by not instructing the jury that to constitute a cause of death the injuries the inflicted must have been a substantial cause of death? Does the standard instruction for causation (a contributing cause of death outside the de minimis range) violate s. 7 of the Charter? r.: The requirement for the s acts to be a substantial cause of the death arises only in the context of s. 231(5) of the Code (first degree murder). The de minimus standard of causation is not too vague in context of s. 7 of Charter. When one combines mens rea for manslaughter (bodily harm flowing from the unlawful act must be objectively foreseeable) with causation requirement (a contributing cause of death outside the de minimis range), there is no danger that a morally innocent person will be convicted. a.: Arbour JA.: There was no realistic view of the evidence that there was some supervening or intervening cause of death. Whether CR's assaults or the s assaults were the more immediate factor in causing the victim's death could not relieve the of his legal responsibility for the death. c.: Appeal allowed on other grounds (instructions to jury). 3.4.5. First Degree Murder R. v. Hardbottle, [1993] 3 SCR 306 (at 324) f.: together with a companion forcibly confined a young woman; companion brutally sexually assaulted woman while watched. held womans legs so she couldnt kick while companion strangled woman to death. was convicted of first degree murder as a party. appealed.

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i.: Was s participation sufficient to find him guilty of first degree murder pursuant to s. 231(5) of CC? r.: Substantial Cause Test (only applies to first degree murder) guilty of first degree murder pursuant to s. 231(5) if Crown established BARD that: 1. was guilty of the underlying crime of domination (e.g. sexual assault; hijacking, kidnapping) or of attempting to commit that crime; 2. was guilty of the murder of the victim. 3. participated in murder in such a manner that he was a substantial cause of the death; 4. there was no intervening act of another which resulted in the no longer being substantially connected to the death of the victim; i.e. the death was caused while committing the offence of domination as part of the same series of events. a.: Cory J.: s. 231(5) is a sentencing provision and only comes into play after jury has concluded that is guilty of murder by causing death of victim. Jury must determine if aggravating circumstances exist that justify ineligibility of parole for 25 years there must be a substantial and high degree of blameworthiness, above and beyond that of murder. c.: Appeal dismissed. first-degree murder conviction upheld. 3.4.6. Second Degree Murder R. v. Nette, [2001] 3 SCR 488 f.: A 95-year-old widow was robbed and left bound with electrical wire on her bed with a garment around her head and neck. was charged with first degree murder under s. 231(5) of the CC. At trial, testified that he had gone alone to the victim's house only with intent to break and enter, that the back door to the house was open as though someone already had broken into the home, and that he left after finding the victim already dead in her bedroom. convicted of second degree murder. appealed. i.: What is the test of causation applicable to second degree murder? a.: Iacobucci, Major, Binnie, Arbour and LeBel JJ.: It is not appropriate in jury charges to formulate a separate causation test for second degree murder. The causation standard expressed in Smithers is still valid. The standard, however, need not be expressed as a contributing cause of death, outside the de minimis range. It is preferable to use positive terms such as significant contributing cause rather than not a trivial cause or not insignificant. McLachlin C.J. and L'Heureux-Dub, Gonthier and Bastarache JJ.: The test for causation 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 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

26

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. 3.4.7. Intervening Acts R. v. Smith, [1959] 2 All ER 193 (Cts.-Man. App. Ct.) (at 333) f.: was a soldier. He participated in a fight with other soldiers and stabbed one soldier with a bayonet in the back, puncturing the soldiers lung. Soldier was carried to medical station and was dropped twice on the way. Medical officer did not appreciate seriousness of the wound and did not give immediate or proper treatment. There was evidence that had deceased received immediate and proper treatment (blood transfusion), there was a 75% chance of recovery. was convicted and sentenced to life imprisonment. appealed. i.: Due to the detrimental events which occurred while transporting the deceased (dropping him twice) and given the improper treatment the deceased received, can it be said that the stabbing was the cause of death? r.: The original wound will be considered the cause of death unless a second cause is so overwhelming as to make the original wound merely part of history where death cannot be said to flow from the wound (e.g. bad faith treatment). a.: The Lord Chief Justice: In this case a man was stabbed in the back, his lung pierced and haemorrhage results. 2 hours later the man dies due to the haemorrhaging; in the interval there is no time for careful examination and the treatment turns out to be harmful. In these circumstances it is clear that death resulted from the original wound. c.: For . Conviction upheld. The Queen v. Bingapore (1974-5), 11 SASR 469 (S. Aus. SC) (at 336) f.: assaulted the deceased, who struggled to police headquarters and was rushed to the hospital, where a profusely bleeding artery was sutured. Deceased later left hospital against advice of medical officer who said he might die if he left. He returned by ambulance 6 hours later, was operated on 4 hours later and died the next day from brain damage cause by subdural haemorrhage which, in evidence, was consistent with trauma to the head caused by assault. convicted of murder. i.: Should gross negligence/unreasonable conduct/etc., if it contributes to the death of a victim, break the chain of causation? r.: The act of the causing injuries from which the victim dies does not cease to be a causative act because the victim thereafter acts to his detriment or because some 3rd part is negligent. a.: The Court:

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Cites with approval the rule set out in R. v. Smith: The original wound will be considered the cause of death unless a second cause is so overwhelming as to make the original wound merely part of history where death cannot be said to flow from the wound. The complaint that deceased departure from hospital denied him opportunity of earlier surgery that could have saved his life. This, however, is not a new cause of death but to a loss of opportunity of avoiding death from a still operating cause (in this case the injuries inflicted by the ). The act of the causing injuries from which the victim dies does not cease to be a causative act because the victim thereafter acts to his detriment or because some 3rd part is negligent.

c.: For . Conviction upheld. 3.4.7.1. Criminal Thin Skull Rule R. v. Blaue, [1975] 1 WLR 1411 (Eng. CA) (at 317) f.: JW was Jehovahs Witness. came into her house and asked for sexual intercourse. She refused and attacked her with knife, inflicting 4 serious wounds. Victim was taken to hospital. Victim refused a blood transfusion for religious reasons and acknowledged so in writing. Victim died the next day. charged with manslaughter. At trial, judge advised jury to use common sense in determining in determining what caused victims death (knife wound or her decision to not have a blood transfusion). i.: Does law envisage the possibility of unreasonable conduct on the part of the victim as breaking the chain of causation? Did judge err in directing jury to find that stab wound caused victims death? r.: It is the policy of the law that those who use violence on other people must take their victims as they find them; it is not for assailants to judge whether the religious beliefs which inhibit a victim from accepting certain treatments is unreasonable. a.: Lawton LJ.: If the victims representatives seek compensation for the victims death, the concept of foreseeability and requirement of victim mitigation can operate in favour of wrongdoer in assessment of compensation. Such a policy at C/L for tort is not appropriate for criminal law, which is concerned with maintenance of law and order and protection of the public. c.: appeal dismissed.

4. Mens Rea
Absolute liability offences with no fault requirement; only need evidence of prohibited act. Strict liability are public welfare/regulatory offences (outside CC) (e.g. environmental legislation; workers safety legislation). Crown must prove criminal act; can rely on defence of due diligence. Mens Rea requires a criminal act along with fault/moral blameworthiness. 4.1. Subjective and Objective Fault 28

Subjective standards of fault: (a) intention, purpose or willfulness (highest mens rea) not concerned with motive; (b) knowledge awareness of circumstances; (c) recklessness a person who sees the risk yet proceeds anyways (extension of intention); (d) willful blindness a person who can make an inquiry but chooses to remain ignorant (extension of knowledge). Objective standards of fault criminal negligence; where accuseds act is a marked and substantial departure of standards expected from all persons R. v. Theroux, [1993] 2 SCR 5 (at 351) McLachlin J.: Test for mens rea is subjective (except for offences where actus reus is negligence or offences of absolute liability). Test is whether the subjectively, at least as a possibility, appreciated the consequences of the prohibited acts. In applying test, look to s intention and facts as believed them to be. The Crown need not show in every case precisely what thought was in the accuseds mind at the time of the act. In certain cases subjective awareness can be inferred from the act itself. 4.2. Public Welfare and Regulatory Offences Beaver v. R., [1957] SCR 531 (at 360) f.: MB sold package to undercover police officer which in fact contained the narcotic diacetylmorphine. was party to the sale of the package and therefore had constructive possession of it and was convicted of selling and possessing the narcotic. argued that he had no knowledge that the substance in the package was a narcotic and believed it was sugar or milk. i.: Is the guilty of the offence even though he did not know that the package contained illegal narctotics? r.: 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 under s. 4(1)(d) of the Opium and Narcotic Drug Act, since the construction of that section requires mens rea. a.: Cartwright J.: Section 4(1)(d) is not an enactment of the class that excludes mens rea as an essential ingredient of the offence. c.: For . Conviction quashed. R. v. Pierce Fisheries Ltd., [1971] SCR 5 (at 368) f.: charged with the offence of being in possession of undersized lobsters contrary to s. 3(1)(b) of the Lobster Fishery Regulations. argued that they did not know they were in possession of the smaller lobsters. acquitted. Crown appealed.

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i.: Whether mens rea is an essential ingredient to be established by evidence on a charge of violating the said s. 3(1)(b) of the Lobster Fishery Regulations. r.: A criminal law is more likely one of strict liability (rather than requiring mens rea) if: (1) it does not contain words such as "knowingly", "wilfully", "with intent" or "without lawful excuse", particularly if these words are found in other sections of the same Act which create offences requiring mens rea; (2) there is no stigma attached to a conviction; a.: Ritchie J.: The regulation here was intended for the purpose of protecting lobster beds from depletion which is of general public interest. Words of regulation and lack of stigma attached to a person found to have been in breach of these regulations infer strict liability. c.: Appeal allowed; convicted. R. v. Hickey (1976), 30 CCC (2d) 416 (Ont. CA) (at 379) f.: was caught in a radar trap and charged with speeding contrary to s. 82 of the Highway Traffic Act. testified that he honestly believed because of the speedometer reading that he was not exceeding the speed limit. A test conducted by the police officer at the scene showed the speedometer was in fact not working properly. was convicted. Overturned on appeal. Crown appealed. i.: Can a mistake of fact ever amount to a valid defence to a charge of absolute liability? r.: Jessup JA.: Speeding is an offence of absolute liability therefore reasonable mistake of fact is not a defence. c.: Appeal allowed. conviction reinstated. R. v. City of Sault Ste. Marie, [1978] 2 SCR 1299 (at 380) f.: The entered into an agreement with company for the disposal of city refuse. A river was subsequently polluted. was charged under s. 32(1) of The Ontario Water Resources Commission Act with causing discharge of materials into a water course. Trial judge dismissed charge, finding that company was an independent contractor and that its employees were not employees of the . Gen. Div. judge found that the offence was one of strict liability and convicted . Div. Ct. set aside conviction and held that it required mens rea. Crown appealed. i.: Does a breach of s. 32(1) of The Ontario Water Resources Commission Act (causing or permitting the discharge or deposit of any material into any water course) require mens rea? r.: Three categories of offences: (1) Criminal offences mens rea must be established (statute uses words like willfully, with intent, knowingly, intentionally); (2) Strict liability (public welfare) offences no mens rea required but defence of reasonable mistake of fact or reasonable care (due diligence) are available; (statute uses words like cause,

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permit). Crown must demonstrate BARD that committed the unlawful act, however burden is on to prove defence; (3) Absolute liability offences no mens rea required and no defence. Where statute is clear that guilt would follow on mere proof of the unlawful act. If statute not clear, assume strict liability. a.: Dickson J.: S. 32(1) is provincial enactment and cannot create a criminal offence. Words of regulation do not clearly indicate absolute liability, therefore should be considered offence of strict liability (no mens rea). As did not lead evidence on defence of due diligence there should be a new trial. c.: Appeal dismissed. New trial ordered. R. v. Wholesale Travel Group Inc., [1991] 3 SCR 154 (at 396) f.: charged with misleading advertising contrary to s. 60(2) of the Competition Act. Offence caries sentence upon conviction (i) by indictment discretionary fine, imprisonment up to 5 years or both; (ii) by summary conviction a fine of $25,000, imprisonment up to 1 year or both. argued offence was criminal requiring full mens rea. i.: Is offence of misleading advertising under s. 60(2) of the Competition Act a criminal offence requiring full mens rea? r.: Regulatory offences are directed primarily at consequences of an act (not the act itself). They are concerned with the violation of a standard of reasonable care, through acts that are not on their face illegal but if left unchecked would lead to harmful consequences. True crimes are acts that are abhorrent to basic societal values. Therefore lesser fault requirement for regulatory offences (negligence) than for criminal offences (mens rea). Offence of misleading advertising is a strict liability regulatory offence that does not require full mens rea but rather negligence (lack of due diligence). Imprisonment is available for strict liability offences (since there is moral fault of negligence) but not for absolute liability offences (because there is no fault requirement and could imprison morally innocent). a.: Cory J.: The Competition Act is regulatory. The offence did not focus on dishonesty but rather on the harmful consequences of otherwise lawful conduct. Conviction would only suggest that has made misleading representation to the public and was unable to establish the due diligence in preventing the error. This connotes a fault element of negligence. Government cannot adequately monitor every industry so as to be able to prove actual intent or mens rea in each case. It can do no more than demonstrate that it has set reasonable standards to be met by persons in the regulated sphere, and to prove BARD that there has been a breach of those standards by the regulated . The regulated is taken to be aware of and to have accepted the imposition of a certain objective standard of conduct as a pre-condition engaging the regulated activity. c.: Appeal dismissed.

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4.2.1. Charter Standards Reference re Section 94(2) of the Motor Vehicle Act (B.C.) (1986), 48 CR (3d) 289 (SCC) (at 409) f.: The B.C. Motor Vehicle Act provided for minimum imprisonment for offence of driving on a highway without a valid driver's licence. Section 94(2) provided that this offence was one of absolute liability in which guilt was established by the proof of driving, whether or not the driver knew of the prohibition or suspension. BBCA found s. 94(2) unconstitutional as it was inconsistent with s. 7 of the Charter. i.: Does s. 94(2), which creates an absolute liability offence for driving without a valid licence punishable by jail time, violate s. 7 of the Charter? r.: Absolute liability does not per se violate s. 7 of the Charter. An absolute liability offence violates s. 7 only if it has the potential to deprive life, liberty or the security of the person. The combination of imprisonment and absolute liability violates s. 7. Generally, no imprisonment may be imposed for an absolute liability offence and an offence punishable by imprisonment cannot be an absolute liability offence. a.: Lamer J.: Section 94(2) enacts absolute liability offence for which conviction will result in a person's being deprived of his liberty. Notwithstanding the desirability of keeping bad drivers off the roads or of punishing them, no evidence was shown demonstrating this end or the risk of imprisonment of a few innocent people to be a reasonable and justifiable limit on s. 7. c.: s. 94(2) violates s. 7 of the Charter. R. v. Cancoil Thermal Corp. (1986), 52 CR (3d) 188 (Ont. CA) (at 417) f.: removed the guard surrounding the blade of a large metal shearing machine (thinking it was a hazard). An employee accidentally depressed the foot pedal when using the machine and cut off the tips of six fingers. charged with violating s. 14(1)(a) of the Occupational Health and Safety Act (employer ensuring protective devices are provided). S. 37(1) of Act makes offence punishable by fine not exceeding $25K or imprisonment not exceeding 12 months or both. A statutory due diligence defence under s. 37(2) was not available for s. 14(1)(a). Trial judge held that the foot pedal amounted to a guard or protective device and acquitted . Crown appealed. i.: Does s. 14(1)(a) create an absolute liability offence thus making it unconstitutional? r.: The combination of imprisonment and absolute liability violates s. 7 of the Charter. Can read down s. 14(1)(a) of the Occupational Health and Safety Act to create an offence of strict liability with availability to defence of due diligence. a.: Lacourciere JA.:

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S. 14(1)(a) suggests an offence of absolute liability which would, given the potential penalty of imprisonment, violate s. 7 of the Charter. To avoid Charter violation, the section must be treated as one of strict liability providing with the availability of the due diligence defence. c.: New trial ordered. R. v. Wholesale Travel Group Inc., [1991] 3 SCR 154 (at 421) f.: charged with misleading advertising contrary to s. 60(2) of the Competition Act. Offence caries sentence upon conviction (i) by indictment discretionary fine, imprisonment up to 5 years or both; (ii) by summary conviction a fine of $25,000, imprisonment up to 1 year or both. argued offence was criminal requiring full mens rea. i.: Does requiring the to prove due diligence on balance of probabilities as a defence to strict liability offences violate s. 11(d) of the Charter? r.: Reverse onus requiring to prove due diligence on balance of probabilities as defence to strict liability regulatory offences does not offend the presumption of innocence under s. 11(d) of the Charter. Government must have flexibility to implement public policy through regulation. The fact that a regulated is licensed implies that the has knowledge and acceptance of the standard of care requirement. To require Crown to disprove due diligence BARD would make it virtually impossible to prove regulatory offences since it is difficult to conceive of a situation where a regulated could not provide some evidence, no matter how inadequate, of due diligence and thus raise a RD. a.: Cory J.: To require the Crown to disprove due diligence BARD would make it virtually impossible for Crown to prove regulatory offences since it is difficult to conceive of a situation where a regulated could not provide some evidence, no matter how inadequate, of due diligence and thus raise a reasonable doubt. This would effectively prevent governments from implementing public policy through regulatory means. The fact that a regulated is licensed implies that the has knowledge and acceptance of the standard of care requirement. Crown must still prove actus reus BARD. Fault is then presumed unless the successfully raises due diligence. c.: appeal dismissed. Presumption of innocence is not violated by strict liability regulatory offences. 4.3. Criminal Offences 4.3.1. Murder s. 229 229. Culpable homicide is murder (a) where the person who causes the death of a human being (i) means to cause his death, or (ii) means to cause him bodily harm that he knows is likely to cause his death and is reckless whether death ensues or not. Simpson v. R. (1981), 20 CR (3d) 36 (Ont. CA) (at 435)

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f.: (A) was charged with attempted murder under s. 229(a)(ii) of the CC. i.: Did the judge err in directing the jury that to be found guilty of attempted murder the Crown must demonstrate BARD that the accused intended to cause the death, orintended to cause bodily harm that he knew or ought to have known was likely to cause death? r.: Martin JA.: For attempted murder under s. 229(a)(ii) must intend to cause bodily harm that he knew was likely to cause death (subjective test). An intention to cause harm that he ought to have known would cause death is merely evidence from which, along with the other circumstances, a jury may infer that the has the requisite intent. c.: New trial ordered. 4.3.2. Constructive Murder ss. 230 (a) and (d) 230. Culpable homicide is murder where a person causes the death of a human being while committing or attempting to commit another offence (listed), whether or not the person means to cause death to any human being and whether or not he knows that death is likely to be caused to any human being, if (a) he means to cause bodily harm for the purpose of (i) facilitating the commission of the offence, or (ii) facilitating his flight after committing or attempting to commit the offence, and the death ensues from the bodily harm; (d) he uses a weapon or has it upon his person (i) during or at the time he commits or attempts to commit the offence, or (ii) during or at the time of his flight after committing or attempting to commit the offence, and the death ensues as a consequence. Vaillancourt v. R., [1987] 2 SCR 636 (at 438) f.: (with knife) and accomplice (with gun) committed armed robbery in a pool hall. During robbery stayed near door while accomplice went to back. There was an altercation with a client, a shot was fired and client was killed. testified that they agreed to commit robbery only with knives, but accomplice showed up with gun. objected and insisted gun be unloaded. Accomplice took out three bullets and gave them to who put them in his glove in the bathroom (found by police). said that at time of robbery he was certain that gun was unloaded. convicted of second degree murder [s. 230(d)] as party [s. 21(2)]. appealed. i.: Does s. 230(d) of CC violate either ss. 7 or 11(d) of the Charter? r.: For homicide to be murder there must be a minimal degree of fault. The mental element required by s. 230(d) of the CC is so remote from the intention specific to murder that a conviction violates fundamental justice. The provision is so broad that under it a person may be found guilty of murder even though the death was the result of an accident, without intent.

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a.: Lamer J.: Due to special nature of the stigma attached to a conviction for murder, and in order to avoid punishing the morally innocent, principles of fundamental justice in s. 7 require proof of subjective mens rea. The presumption of innocence in s. 11(d) of the Charter is offended when a may be convicted despite the existence of a reasonable doubt on an essential element of the offence (e.g. mens rea). Section 213(d) cannot be saved by s. 1. It is clear that Parliament's objective to deter the use or carrying of a weapon in the commission of certain offences, because of the increased risk of death, was of sufficient importance for the purpose of s. 1. While these measures appear to be rationally connected to the objective, they unduly impair the rights and freedoms in question. It is not necessary to convict persons who did not intend or foresee the death of murder to deter others from using or carrying weapons. c.: appeal allowed. New trial ordered. R. v. Martineau, [1990] 2 SCR 633 (at 453) f.: and T set out armed knowing that they were going to commit a crime; testified that he thought it would only be a break and enter. T shot and killed two people after robbing them and their house. allegedly said or thought, after he heard the shot which killed the first victim, "Lady, say your prayers". was convicted of second degree murder under s. 230(a) as a party under ss. 21(1) and (2). CA held that s. 230(a) was inconsistent with ss. 7 and 11(d) of the Charter (based on Vaillancourt) and ordered new trial. Crown appealed. i. Does s. 230(a) of the CC infringe ss. 7 or 11(d) of the Charter? r.: The principles of fundamental justice require that a conviction for murder be based upon proof BARD of subjective foresight of death. S. 230(a) of the CC expressly eliminates the requirement for proof of subjective foresight and therefore infringes ss. 7 and 11(d) of the Charter. a.: Lamer J.: The stigma and punishment attached to murder should be reserved for those who intentionally cause death or inflict bodily harm knowing that it is likely to cause death. The objective of deterring the infliction of bodily harm during the commission of certain offences because of the increased risk of death is sufficiently important to warrant overriding a Charter right, however s. 230(a) unduly impairs Charter rights because it is not necessary to convict persons who do not intend or foresee the death of murder in order to achieve this objective. c.: appeal dismissed. Note: ss. 230(b) and (c) have also been struck down 4.3.3. First Degree Murder s. 231(2) 231(2). Murder is first degree murder when it is planned and deliberate. R. v. Smith (1979), 51 CCC (2d) 381 (Sask. CA) (at 463)

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f.: , deceased and M decided to go hunting and after several hours of shooting stopped at an abandoned house. M saw and deceased pointing their guns at each other apparently having an argument. shot and felled deceased while he was running away, then shot him in the head. shot deceased several more times in the head with Ms gun (as insurance so M wouldnt tell). was convicted of first degree murder and appealed. i.: Was there evidence of planning and deliberation by the to which a jury could properly find the guilty of first degree murder, rather than second degree murder? r.: Murder is first degree murder when it is planned and deliberate. Planned means arranged beforehand or calculated scheme or design; deliberate means considered, not impulsive but not intentional since intent to murder occurs prior to planning. There is a need for something beyond intent for murder to be first degree murder. a.: Culliton CJS.: In this case there was no evidence that the considered murdering the deceased prior to the argument. Trial judge ordered jury to determine whether had the time to deliberate and plan the murder. There is no evidence that the murder was planned, and it was likely the result of a sudden impulse. c.: Appeal dismissed. Conviction for second degree murder substituted. R. v. Nygaard and Schimmens, [1989] 2 S.C.R. 1074 (at 468) f.: M bought car stereo from N for $100 using a cheque signed jointly by T and H. Cheque bounced. N came to Ms motel and told him that there would be trouble if matter not cleared up. Later, N and S went to apartment. S struck M several times in forehead with baseball bat and broke Ms arm. S asked who signed cheque. M said it was H. S struck H three times between eyes with full two-handed swings. H died in hospital from multiple skull fractures. S and N convicted of first degree murder under ss. 229(a)(ii) [intent to cause bodily harm likely to cause death and reckless whether death ensues] and 231(2) [planned and deliberate murder]. i.: Did trial judge err in directing jury that they could return a verdict of first degree murder on the basis of a combination of ss 229(a)(ii) and 231(2)? r.: Cory J.: A person can plan and deliberate to cause bodily harm that he knows is likely to result in death and recklessly persist in that conduct despite the knowledge of the risk of death. Accordingly a may be convicted of first degree murder under s. 231(2) where the killing constitutes murder by virtue of s. 229(a)(ii). 4.3.4. First Degree Murder of Police Officer s. 231(4)(a) 231(4). Irrespective of whether a murder is planned and deliberatemurder is first degree murder when the victim is (a) a police officeremployed for the preservation and maintenance of the public peace, acting in the course of his duties;

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R. v. Munro and Munro (1983), 8 CCC (3d) 260 (Ont. CA), leave to appeal to SCC refused (at 470) f.: s (brothers) involved in robbery. Police came to back door and one fired and killed police officer. s convicted of first degree murder under s. 231(4)(a) of CC. s testified that they didnt know it was a police officer. i.: Does need to know he was murdering a police officer to be convicted of first degree murder under s. 231(4)(a)? r.: If is reckless as to the identity of the person he murdered and that person is a police officer acting in the course of his duties, that recklessness is sufficient to provide the requisite mens rea for first degree murder under s. 231(4)(a). a.: Martin JA.: In this case, knew a police officer acting in the course of his duties was entering the premises. Accordingly, his recklessness with respect to whether he was shooting at a police officer supplied the necessary mens rea for murder under s. 231(4), if mens rea with respect to that element was necessary. c.: appeal dismissed. R. v. Collins (1989), 48 CCC (3d) 343 (Ont. CA) (at 472) f.: killed a police officer in a shopping mall and was convicted of first degree murder under s. 231(4)(a). r.: S. 231(4)(a) requires the Crown prove BARD that the victim was a police officer acting the course of his duties and that the murderer had knowledge of the identity of the victim as a police officer acting in the course of his duties or was reckless as to such identity and acts of the victim. a.: Goodman JA.: To not require this knowledge as to the identity of the victim on the part of the murderer would offend s. 7 of the Charter, since a person who intentionally kills a plain-clothed victim (without planning or deliberation) without knowing their identity would be convicted of second degree murder if the victim is a civilian but first degree murder if the victim is a plain-clothes police officer. 4.3.5. Constructive First Degree Murder s. 231(5) 231(5). Irrespective of whether a murder is planned and deliberatemurder is first degree murderwhen the death is causedwhile committing or attempting to commit an offence under one of the following sections (b) section 271 (sexual assault) R. v. Arkell, [1990] 2 SCR 695 (at 474) f.: was convicted of first degree murder under s. 231(5). Crown argued victim was killed while attempted to sexually assault her.

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i.: Does s. 231(5) contravene s. 7 of the Charter as being arbitrary and irrational? r.: s. 231(5) requires proof BARD of subjective foresight (intentional killing). Parliament has chosen to impose a heavier punishment for murders committed by someone already abusing his power by illegally dominating another (see list of offences in section) due to the greater moral blameworthiness of the crime. This is not arbitrary or irrational, c.: S. 231(5) does not infringe s. 7. 4.4. Subjective Fault 4.4.1. Motive generally the law does not care about motive (except in some defences) role of motive to determine intent. Lewis v. R., [1979] 2 SCR 821 (at 479) f.: and T were charged with murder of Ts daughter and son-in-law. admitted mailing a package to victims on behalf of T but denied knowledge that it contained a bomb. i.: What is the legal relevance of motive in criminal law mens rea? r.: Intent v. Motive Intent is the mens rea, i.e. the exercise of free will to use particular means to produce a particular result; Motive is what precedes and induces the exercise of the will. Mens rea of a crime takes no heed of motive. a.: Dickson CJC.: In criminal sense, motive means ulterior intention Motive is a relevant and admissible as evidence Motive is legally irrelevant to mens rea (intent) in criminal law Proved absence of motive is important fact for accused and is worthy to be noted in charge to jury; vice versa if proven motive (for Crown) Issue of motive will turn on the unique circumstances of each case. c.: For Crown. Appeal dismissed. R. v. Mathe (1973), 11 CCC (2d) 427 (BCCA) (at 482) f.: , a bank security guard off-duty, was drunk and as a joke went over to a teller and told her that he had a 38 in his pocket and wanted the cash. She hit a silent alarm. He then told her he was joking and shook her hand and left. He was later arrested and charged. i.: Did have the requisite intent to hold up the bank in order to be charged with attempted robbery? a.: Branca JA.: Where the evidence both points to guilty intent to attempt robbery but also to a lack of intent (a joke) there is no mens rea and therefore no crime of attempted robbery. 38

c.: For . 4.4.2. Intention or Knowledge R. v. Steane [1947] 1 All ER 813 (Eng. CCA) (at 485) f.: was an actor employed in Germany. When WWII broke out he was arrested. Through various brutalities and threats to his family, agreed to broadcast for the Germans and make some films (there was no evidence that these films were beneficial to Germany and harmful to Britain). swore he was in continual fear for his family and had no intention to help the enemy but did what he did to save his family. He was convicted with doing acts likely to assist the enemy with intent to assist the enemy. appealed. i.: Did the intend to assist the enemy? r.: Lord Goddard CJ.: In cannot be inferred that a under the subjection of the enemy necessarily intends the natural consequences of his/her action. Intent to do the actual criminal act must be proven by the Crown. There is no guilt if there is no intent. c.: For . Appeal allowed; conviction quashed. R. v. Hibbert, [1995] 2 SCR 973 (SCC) (at 489) f.: was charged under s. 21(1)(b) (aiding and abetting) with attempted murder for being a party to the shooting of C by B. says B threatened to shoot him if he didnt come with C to Bs place of residence and arrange for C to come to the lobby. did so and C was shot 4 times by B. i.: What is the meaning of purpose in the context of s. 21(1)(b) of the CC which imposes criminal liability as a party to anyone who does or omits to do anything for the purpose of aiding any person to commit an offence. r.: Under s. 21(1)(b) purpose means intention i.e. a person who consciously performs an act knowing the consequences that will flow from it intends these consequences or causes them on purpose, irrespective of whether he/she desired those consequences. a.: Lamer CJC.: Using the definition of purpose as intention will not result in unjust convictions because of the availability of the defence of duress. R. v. Buzzanga and Durocher (1979), 49 CCC (2d) 369 (Ont. CA) (at 493) f.: s were active in promoting construction of French language HS in Essex County. Believing that the francophone community was apathetic about the issue, they caused to be printed, under the name of the Essex County Ratepayers Association (who did not know of this), a parody pamphlet which suggests that the English community should rid itself of the French. s were charged with willfully promoting hatred against francophones pursuant to s. 319(2) of CC.

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i.: What does wilfully, which modifies the words promotes hatred, mean under s. 319(2) of the CC? r.: Wilfully, for the purposes of s. 319(2) of the CC, means intentionally but excludes recklessly. Therefore in order to wilfully promote hatred, one must either (a) have conscious purpose to bring about the consequence or (b) a person 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. a.: Martin JA.: A jury must determine the s actual intent by their own testimony (if believable), the likelihood of the relevant consequences ensuing from the act (if more likely, then it is more likely that accused intended consequences), and from inferences from the relevant circumstances. c.: For . Appeal allowed. New trial ordered. 4.4.3. Recklessness and Wilful Blindness Sansregret v. R. (1985), 45 CR (3d) 193 (SCC) (at 508) i.: What is recklessness and wilful blindness? a.: McIntyre J.: 1. recklessness as part of criminal mens rea must have a subjective element. It is the attitude of one who, aware that there is danger that his conduct could bring about the result prohibited by law, persists despite the risk. 2. wilful blindness arises where a person who has become aware of the need for some inquiry declines to do so because he does not wish to know the truth. The law assumes that this person has the knowledge of which he wished to remain ignorant. R. v. Theroux, [1993] 2 SCR 5 (at 506) f.: was head of company doing residential construction. Company entered into K with potential home-owners and received deposits by misrepresenting that the deposits were insured. Company went insolvent and deposits were lost. Trial judge found that sincerely believed that residential project would be completed and deposits would then not be lost; was found guilty of fraud under s. 380(1)(a) of CC. i.: Does the fact that sincerely believed that residential project would be completed and deposits would then not be lost (he was reckless regarding risk to others pecuniary interests) negate the mens rea for the offence of fraud? r.: It does not matter if believed that deposits would not be lost. Mens rea for fraud in this case would be the subjective awareness that one was undertaking a prohibited act which could have as a consequence the deprivation of another. When this mens rea is established is guilty whether he actually intended the prohibited consequence or was reckless as to whether it would occur. a.: McLachlin J.: The accuseds knowledge of the risk to anothers pecuniary interest through a dishonest act can be inferred from evidence ( is free to counter inference with evidence).

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R. v. Currie (1975), 24 CCC (2d) 292 (Ont. CA) (at 510) f.: was approached by an unknown man who asked him to cash a cheque (to one EG whose name was endorsed on the back) for him, saying he would pay him $5 for doing so. did so, signing his own name, address and telephone # on the back. was convicted of uttering a forged document (a cheque), by being wilfully blind to the forged nature of the endorsement on the cheque. appealed. i.: Did the trial judge err in the application of the wilful blindness rule by importing the civil doctrine of constructive knowledge into the rule? r.: Martin JA.: The rule of wilful blindness does not import civil constructive knowledge (i.e. what a person should or ought to have known). The rule is that if a party has his suspicion aroused but then deliberately omits to make further enquiries because he wished to remain ignorant, he is deemed to have knowledge. c.: For . Appeal allowed. R. v. Blondin (1971), 2 CCC (2d) 118 (BCCA) (at 513) f.: flew into Vancouver with a suspiciously heavy scuba-diving tank. Upon inspection it was discovered that the tank contained 23 lbs of hashish. said he was paid to bring the tank to Canada from Japan and that he knew what was in the tank was illegal. The trial judge instructed the jury that in order to find guilty of importing a narcotic, they must find that knew that the substance in the tank was hashish. was found not guilty. Crown appealed. i.: Did the trial judge err by instructing the jury that in order to convict they had to find that he knew that the substance in the tank was hashish? r.: Robertson JA.: To be convicted of illegally importing a narcotic into Canada, mens rea requires that it be found BARD that the brought the illegal substance into Canada and knew it was a narcotic or the brought the illegal substance into Canada and was either reckless about what it was or was wilfully blind to what it was, inferring that he suspected it might be a narcotic. c.: Appeal allowed; verdict set aside; new trial ordered. R. v. Sandhu (1989), 50 CCC (3d) 492 (Ont. CA) (at 516) (INCORRECTLY DECIDED) f.: was man of modest means who took an expensive trip to India to, as he says, settle a family estate. Upon returning to Canada, a pound of heroin was found sewn into jackets in his luggage as well as in his wallet. argued that while in India he had an affair with a widow (K). K testified that drugs were placed in s wallet by her lover (S) without her knowledge. S also gave her the clothing which she gave to to give to her relatives in Canada. was convicted for importing and possessing heroin contrary to ss. 5(1) and 4(2) of the Narcotic Control Act.

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i.: Did the possess the requisite mens rea required for the offence of importing and possessing an illegal narcotic? Was the wilfully blind or reckless? r.: Recklessness is not equivalent to knowledge. Wilful blindness is the equivalent of actual knowledge (imputing knowledge). a.: Finlayson JA.: In this case, while it may have been reckless of the to believe K and accept the clothing, it does not follow that he had knowledge that the clothes contained a narcotic. c.: For ; appeal allowed; new trial ordered. R. v. Duong (1998), 124 CCC (3d) 392 (Ont. CA) (at 521) f.: was friends with L. L was linked to the murders of two people, and called and asked if he could hide at his place. agreed, but police later raided apartment and found L. Police asked what L told him and said he didnt want to know anything because he knew that he would get in trouble for hiding L. was convicted with being an accessory after the fact to a murder under s. 23(1) of the CC. i.: What is the knowledge requirement for being an accessory after the fact to murder under s. 23(1) of the CC? r.: Doherty JA.: Liability based on wilful blindness is subjective. Actual suspicion, combined with a conscious decision not to make inquiries that would confirm the suspicion, is equated with actual knowledge for the purposes of the criminal law. Liability turns on the decision not to inquire once real suspicions arise. . Speculation as to what the accused may learn from the inquiry is irrelevant. c.: Appeal dismissed. Conviction upheld. 4.5. Objective Fault 4.5.1. Criminal Negligence 219. (1) Every one is criminally negligent who (a) in doing anything, or (b) in omitting to do anything it is his [legal] duty to do, shows wanton or reckless disregard for the lives or safety of others. OGrady v. Sparling, [1960] SCR 804 (at 534) At the federal level, criminal negligence involves advertant (intention or awareness of the negligent act) or reckless negligence. Reckless does not mean intent as in subjective offences. R. v. Titchner (1961), 131 CCC 64 (Ont. CA) (at 535) f.: was driving down 401 near Ingersoll and had passed numerous cars (75 mph in 60 mph zone). As she was pulling up to Js car, she was about to pass on the left but J braked car slowed down

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quickly; slammed on brakes but skidded and side-swiped Js car, killing J. was convicted of criminal negligence in the operation of a motor vehicle causing death. appealed. i.: What constitutes criminal negligence? a.: Morden JA.: To be found guilty of criminal negligence a jury should be satisfied BARD that the acted either (a) with deliberate intention of doing or omitting to do something which it was his legal duty to do, the consequences of which he knew or should have known would endanger the lives or safety of others or (b) with such disregard for the lives and safety of other as would indicate that he was heedless of what the consequences of his conduct might be. c.: Appeal allowed. New trial ordered. R. v. Rogers, [1968] 4 CCC 278 (BCCA) (at 537) f.: was an MD but struck from rolls in 1960. He took on a young boy (1-2 years) who had chicken pox at 4 months and now had eczema and was underweight. prescribed boy a lowprotein diet (contrary to what other doctors said the boy needed). The childs health severely deteriorated and told boys father that this was the result of the poison working out of the childs system. Child died and was convicted of criminal negligence causing death (manslaughter) under ss. 216 (those who administer medical treatment under a duty to use reasonable knowledge, skill and care), 219 and 220. appealed. i.: Can a doctor be charged with criminal negligence causing death (manslaughter) when he honestly believed, however incorrectly, that the treatment he was prescribing was beneficial? r.: Under ss. 216, 219 and 220 of the CC, the s conduct as a doctor providing medical services that could place a patient at risk (criminal negligence) is judged by an objective standard his subjective belief is not relevant. a.: Nemetz JA.: was under duty to have the reasonable knowledge of his peers, which in this case was to have the foresight that the diet he prescribed would have placed the life of the child in danger. By continuing with his prescription, he was reckless and brought about the death of the child. c.: Appeal dismissed. R. v. Sharp (1984), 12 CCC (3d) 428 (Ont. CA) (at 543) f.: was charged with 4 counts criminal negligence causing death (by car) and dangerous driving and was acquitted. Crown appealed. i.: Does criminal negligence causing death require a mental element of intent or knowledge on the part of the accused? a.: Morden JA.: Criminal negligence and dangerous driving requires voluntary fault or blameworthy state of mind. Fault can be ascribed if the driving amounted to a marked and substantial departure from the

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standard of a reasonable driver under the circumstances (objective) and that the driver either realized and ran an obvious and serious risk to the lives and safety of others, or gave no thought to that risk (subjective). If there is a reasonable explanation for the marked and substantial departure (e.g. a bee sting), there can be no fault. c.: Appeal dismissed. R. v. Tutton and Tutton, [1989] 1 SCR 1392 (at 545) f.: s were accused and convicted of manslaughter for failing to provide the necessities of life to their son under s. 215(2) of the CC. Son was diabetic. s were members of religious sect that believed in faith healing. On two occasions stopped administering insulin by Gods authority, believing that their son was being cured by the Holy Spirit. After the second occasion the son died. CA set aside conviction and ordered new trial. Crown appealed. i.: What is the test for criminal negligence? a.: McIntyre J. (eventual majority position in this case there was 3-3 split): There is no distinction to be made between actions or omissions in criminal negligence. The meaning of reckless in conjunction with criminal negligence under s. 219 does not import a subjective requirement (e.g. malice or intention). The test is an objective test of reasonableness, and proof of conduct that reveals marked and significant departure from the standard that could be expected from a reasonably prudent person in the context of the particular circumstances. The s perception of the facts are irrelevant except when forming a basis for concluding whether or not the s conduct, in view of his perception of the facts, was reasonable Can rely on defence of mistake of fact if it is honestly held and is reasonable (given the objective test of criminal negligence). Waite v. R., [1989] 1 SCR 1436 (at 559) f.: was drinking and passed hayride with young children. turned car around and approached hayride on wrong side of road with lights out, stating lets see how close we get. struck and killed 4 children and injured one other. was found not guilty of criminal negligence causing death but was convicted of 5 counts of dangerous driving. CA overturned trial judge, stating that trial judge erred by instructing jury that criminal negligence required a subjective element. A new trial was ordered. appealed. i.: Is the test for criminal negligence causing death (s. 220) objective or subjective? a.: McIntyre J.: Test for criminal negligence causing death is objective. c.: Appeal dismissed. R. v. Anderson (1990), 75 CR (3d) 50 (SCC) (at 560) f.: was charged with criminal negligence causing death; he was thinking of something else, ran a red light and struck a car, killing a passenger. was legally impaired but did not show signs of

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impairment. acquitted at trial, with judge stating that neither mens rea nor consequences were material in decision as to guilt/innocence. CA overturned. appealed. i.: Whether the trial judges comments relating to the relevance of consequences and intention affected the outcome? r.: In a criminal negligence case there must be a more substantial connection between conduct and consequences; the greater the risk of harm created, the easier it is to conclude that a reasonable man would foresee the consequences. Crown is solely concerned with whether action was a marked departure from the standard of a reasonable man the s intention, and the results of the action are not relevant to this point. a.: Sopinka J.: The trial judge said that neither mens rea or the consequences of the manner of driving were material. This does not mean that evidence that the drove his car after drinking was not relevant judge was indicating that if the drinking and driving and running a red light was not a marked departure from the standard, it did not become so because a collision occurred. c.: For . Appeal allowed. acquittal reinstated. R. v. Creighton, [1993] 3 SCR 3 (at 563) f.: injected cocaine into deceaseds body. This was conceded to constitute trafficking under s. 4(1) of the Narcotic Control Act. Deceased then died. was convicted of unlawful act (drug trafficking) manslaughter contrary to s. 222(5)(a) of the CC. The C/L had decided that where had committed unlawful act, objective foreseeability of risk of bodily harm which is neither trivial nor transitory was sufficient (does not include foreseeability of death). appealed. i.: Does unlawful act manslaughter contravene s. 7 of the Charter? r.: To be convicted of criminal negligence, the carelessness or negligence must involve a marked departure from the standard of a reasonable person in the particular circumstances, with exception to those incapable of appreciating the nature of the risk which the activity entails. Other personal factors should not be considered (e.g. age, education, etc.) a.: McLachlin J. (3 others concurring): Objective mens rea is not concerned with what intended or knew. Mental fault lies in failure to direct mind to risk which reasonable person would have known. Being held criminally negligent by this standard does not alone violate s. 7 that the penalty of an offence should be commensurate with its moral fault. Lamer CJC. (3 others concurring): Modified Objective Test is: 1. Would a reasonable person in same circumstances have been aware that the likely consequences of his/her unlawful conduct create risk of death? If no acquit. If yes, 45

2. Was the unaware (a) because did not turn mind to the consequences of the conduct and thus to the risk of death likely to result; or (b) because lacked capacity to turn his/her mind to the consequences of the conduct and thus to the risk of death likely to result, due to human frailties? If (a) convict (cannot allow absence of actual awareness to be an excuse); If (b), 3. In the context of the particular offence, would the reasonable person with (frail) capacities of the have made himself aware of the likely consequences of the unlawful conduct and the resulting risk of death? c.: Appeal dismissed. 4.5.2. Predicate Offences Liability ascribed by proof of commission of an underlying offence accompanied by certain consequences. Three types of predicate offences 1. Unlawful act manslaughter [s. 222(5)(a)] 2. Unlawful act causing bodily harm [s. 269] 3. Aggravated assault [s. 268] The fault requirement (mens rea) for these offences is rooted in the predicate offences: there must be proper fault for the predicate offence (or unlawful act); The fault requirement of the consequence of the unlawful act (e.g. death) is an objective one: reasonable foreseeability of bodily harm that is not transitory or trivial (e.g. inherently dangerous conduct). There is no need for reasonable foreseeability of death. When a predicate offence is based in negligence, Crown must still show marked and substantial departure.

R. v. Desousa, [1992] 2 SCR 944 (at 571) f.: allegedly threw a bottle against a wall during a fight; the broken glass injured the arm of a bystander. was charged with unlawfully causing bodily harm contrary to s. 269 of the CC. Trial judge stated that s. 269 created criminal responsibility for causing bodily harm by way of an unlawful act. The unlawful act could be the violation of a federal or provincial statute, including an absolute liability offence, therefore since s. 269 allowed possibility of prison, it violated s. 7 of the Charter. CA overturned. appealed. i.: What are the constitutional requirements under s. 7 for the predicate offence of unlawful act causing bodily harm? a.: Sopinka J.: The predicate offence must be constitutional and must not be one of absolute liability. The unlawful act must be a breach of valid federal or provincial statute involving an act that is objectively dangerous. The fault requirement of the resulting harm caused by the predicate offence is an objective one reasonable foreseeability of non-trivial harm (not death).

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R. v. Gosset (1993), 23 CR (4th) 280 at 284 (SCC) When the predicate offence is one of criminal negligence, the marked and substantial departure test is also required. R. v. Creighton, [1993] 3 SCR 3 (at 579) f.: was charged with C/L unlawful act manslaughter. He injected cocaine into deceaseds body. This was conceded to constitute trafficking under s. 4(1) of the Narcotic Control Act. Crown argued was guilty of manslaughter as death was direct consequence of this unlawful act, contrary to s. 225(5)(a) of the CC the C/L had decided that where had committed unlawful act, objective foreseeability of risk of bodily harm which is neither trivial nor transitory was sufficient (does not include foreseeability of death). was convicted. CA upheld conviction. appealed. i.: Whether the objective test for unlawful act manslaughter required reasonable foresight of death or merely reasonable foresight of bodily harm under s. 7 of the Charter? r.: In determining the constitutionality of a mens rea requirement, the court must consider: (1) the stigma attached to the offence; (2) the proportionality of moral blameworthiness with punishment; (3) the idea that those causing intentional harm should be more severely punished than those causing harm unintentionally (Martineau) The mens rea of unlawful act manslaughter requires objective foreseeability of risk of bodily harm that is not trivial/transitory, in the context of a dangerous act. There is no requirement of foreseeability of a risk of death. Requiring foreseeability of death we would remove the thin skull rule requiring that you take your victim as you find them a.: McLachlin J.: Applying the principles from Martineau: 1. The stigma associated with manslaughter is proper; it would shock the conscience of the public if the only time a person could be convicted of unlawful or negligent death (manslaughter) was when they were guilty of aggravated assault (where risk of death is foreseeable). Therefore a risk of foreseeable harm is appropriate. 2. Manslaughter has no minimum sentence, which allows for the appropriate flexibility in sentencing give the plurality of circumstances that surround manslaughter, and the concomitant plurality of moral fault of the offender. 3. Manslaughter is an unintentional crime and therefore the penalties are lighter than those for intentional crimes like murder. R. v. Krushel (2000), 31 CR (5th) 295 (Ont. CA) (at 586) f.: was convicted of criminal harassment under s. 264(2)(c) of the CC, which provides that no person shallknowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct[(2)(c) besetting or watching the dwelling-house, (etc.)]that causes the other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them. appealed. i.: Does s. 264 violate s. 7 of the Charter by failing to require the to have the intention to cause the victim to fear for their safety or the safety of anyone known to them?

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r.: There is no constitutional requirement that the rule of symmetry (that mens rea should relate to the consequences prohibited by the offence) be perfect in all cases; there must simply be sufficient blameworthiness in the actus reus to which the culpable mental state attaches. a.: Catzman JA.: Parliament has outlined culpable activities in s. 264(2) that, by objective standards, would reasonably cause fear. Given that there is a sufficiently blameworthy element in the actus reus to which the culpable mental state attaches, there is no mens rea requirement of foresight that the unlawful activities would cause actual fear. c.: Appeal dismissed.

5. Sexual Assault
The Victim Credibility No effect Sexual history with rd Sexual history with 3 No effect** parties **promiscuity is not correlative with honesty Consent Some effect No effect Mistake Some effect Some effect?

5.1. Crimes of Rape Pappajohn v. R., [1980] 2 SCR 120 (at 616) f.: was charged with raping real estate saleswoman after a lunch where both parties consumed alcohol. The complainant ran out of the house naked with a man's bow tie around her neck and her hands tightly tied behind her back with a bathrobe sash. She was upset and exhibited great fear and emotional stress. claims she only coyly objected and that the sex was consensual. Trial judge refused to put defence of mistake of fact to jury. was convicted. appealed. i.: Does the crime of rape require mens rea? Can the defence of mistake of fact be raised against a charge of rape? r.: Dickson J. (dissenting): Mens rea of rape When one commits the actus reus (sexual intercourse without consent) with the intention to commit sexual intercourse and with knowledge that consent was withheld, or recklessness as to the withholding of consent. McIntyre J.: Defence of mistake of fact The trial judge must put before the jury any defences where there is evidence which would convey a sense of reality in the defence. In order to raise the defence of mistaken belief in consent, the belief needs to be honestly held, but need not be reasonable (objective); the evidence must be supported by sources other than the in order to give it any air of reality. c.: Appeal dismissed. Sansregret v. R., [1985] 1 SCR 570 (at 640)

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f.: lived with complainant (C), for 1 year. She ended relationship and asked him to leave. He later broke into her house and threatened her. To calm him down she feigned a possibility of reconciliation and they had sex. C complained to police but was convinced by s PO to not press charges. broke into her home a second time and, inter alia, threatened her with a butcher knife. She again feigned a possibility of reconciliation to calm him down, and consented to have sex sole purpose of calming him down for fear that he might kill her. She called police and was arrested and charged . was acquitted of rape at trial, as the trial judge found that honestly believed C consented and that C agreed that held such and honest belief. was convicted on appeal. appealed to SCC arguing defence of mistake of fact. i.: Can rely on the defence of mistake of fact to a charge of rape, when he unreasonably but honestly believed that consent was given? r.: cannot defend charge of rape through the defence of mistake of fact where it is found that he was wilfully blind to the existing facts suggesting no consent at law he is presumed to know that no consent was given (therefore there is not mistake of fact) and his belief in another state of facts is irrelevant. However if is reckless (sees the risk that no consent was given but takes the chance) and holds an honest belief that consent was given, he may rely on the defence of mistake of fact even if his honest belief was unreasonable. a.: McIntyre J.: Trial judge found that was wilfully blind to the reality of his behaviour after the second incident. Therefore it is presumed that knew that C only consented because of his threats therefore he cannot argue that he honestly believed she consented c.: appeal dismissed. 5.2. Crimes of Sexual Assault New Sexual Assault Provisions 271. Basic sexual assault provision (10 years); Spousal immunity was abrogated; 272. Sexual assault with weapon; threats to third party/bodily harm (14 years) 273. Aggravated sexual assault; maimed, disfigured, wounded or life threatened (life) 273(1). Meaning of consent 273(2). Defence of mistaken belief in consent 274. Corroboration requirements and warnings abolished 275. Doctrine of recent complaint abrogated 276, 277. Restrictions placed on cross-x of witness as to her previous sexual history 265. Assault [read with s. 273.1(2)] 265(4). General application of consent; honest and mistaken belief in consent R. v. Chase, [1987] 2 SCR 293 (at 650) f.: grabbed 15 year-old complainants (C) breasts and tried to grab her genitals but was unsuccessful. C, with help of 11 year-old brother, were able to call for help and left. was convicted of sexual assault. On appeal the conviction was set aside because did not make contact with Cs genitals; conviction for common assault was substituted. Crown appealed.

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i.: What is the meaning of sexual assault as it is used in ss. 265 and 271of the CC?

r.: McIntyre J.: Sexual assault is a general intent assault which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated. The test to determine whether the impugned conduct has the requisite sexual nature is objective: In light of all the circumstances, is the sexual context of the assault visible to a reasonable observer? Can consider part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, threats which may or may not be accompanied by force, the intent of the person committing the act, or any other circumstances surrounding the conduct. c.: Crown appeal allowed. convicted of sexual assault. 5.2.1. Defence of Mistaken Belief in Consent R. v. Bulmer, [1987] 1 SCR 782 (at 655) f.: Complainant (C), a prostitute, had agreed to provide services to L. They went to hotel room and and X were there. X wanted her services told C she would have to provide services for free. Frightened, she performed sexual acts for all three. She denied consent and receiving payment. argued that C consented or in the alternative that he held an honest but mistaken belief that C consented. was convicted of indecent assault. appealed. i.: What is required to raise the defence of mistake of fact? a.: McIntyre J.: Two distinct steps involved in raising defence of mistaken belief in consent. (1) Judge must decide if the defence should be put to the jury, based on the air of reality test. (2) If judge puts defence to jury, he must explain the law (particularly that an honest, mistaken belief need not be reasonable), review the relevant evidence, and leave the jury to be satisfied BARD that no consent was given. c.: appeal allowed. New trial ordered. R. v. Osolin, [1993] 4 SCR 595 (at 659) Mistaken belief in consent does not require corroborating evidence outside of the testimony of the . Like other defences, judge must assess whether there is evidentiary basis providing air of reality to the defence. 5.2.2. Rape Shield Provisions 277. Excludes evidence of sexual reputation for the purpose of challenging or supporting the credibility of the complainant. 276. (pre-1992) Constitutes a blanket exclusion of evidence of sexual activity of the complainant, subject to 3 exceptions rebuttal evidence, evidence going to identity, and evidence relating to consent to sexual activity on the same occasion as the trial incident. (UNCONSTITUTIONAL Seaboyer)

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R. v. Seaboyer, [1991] 2 SCR 577 (at 666) f.: S was charged with sexual assault of woman he was drinking with at a bar. Crown gave evidence that S used force (physical bruises). S denied opportunity to cross-x complainant on her previous sexual conduct which may have caused bruises (s. 276). G was charged with sexually assaulting friend at school. G contends that there was no assault and that complainant was sexual aggressor. G denied chance to cross-examine complainant and present evidence of prior and subsequent sexual conduct of complainant to support this defence (s. 277). i.: Do the rape shield provisions of the CC (ss. 276, 277) violate the right to a fair trial under s. 7 of the Charter? r.: A persons prior sexual experience has no link to determining whether she is truthful, therefore s. 277 of the CC does not infringe right to a fair trial under s. 7 of the Charter. S. 276 violates s. 7 of the Charter. Principles for judiciary to follow in allowing evidence of past sexual conduct with the or other persons (exceptional circumstances): 1. Evidence of past consensual sexual conduct is not admissible to support general inference that complainant was (a) more likely to have consented to the sexual conduct at trial, or (b) less worthy of belief. 2. Evidence of past consensual sexual conduct is admissible where it possesses probative value on an issue at trial that is not substantially outweighed by danger of unfair prejudice to complainant. Non-exhaustive examples of admissible evidence evidence that tends to (i) prove other person than caused physical consequences of alleged rape; (ii) prove bias or motive to fabricate on part of complainant; (iii) prove accused believed complainant was consenting ; (iv) show a pattern of sexual conduct similar to accuseds version of the alleged encounter; (v) rebut Crown evidence regarding complainants sexual conduct. 3. Such evidence of past sexual conduct must be established as legitimate by affidavit or testimony absent the jury (voir dire). 4. Once such evidence is admitted in jury trial, Judge must warn jury against inferring from the evidence of past sexual conduct that the complainant might have consented to the alleged act or is less worthy of credit (not allowed by s. 277). a.: McLachlin J.: However s. 276 can be expected to exclude relevant evidence and is therefore unconstitutional. Examples: (1) Defence of honest, mistaken, but not necessarily reasonable, belief of consent may be based on evidence of acts performed by complainant at some other time or place; (2) Right of defence to attack credibility on ground that complainant was biased or had motive to fabricate evidence may require evidence of acts performed by complainant at some other time or place; (3) Evidence of sexual activity may be relevant to explain physical conditions which Crown relies on to establish intercourse or use of force, e.g. semen, pregnancy, injury or disease. (4) Evidence on pattern of conduct may be relevant, though this must be carefully scrutinized.

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c.: S. 276 offends s. 7 of the Charter. S. 277 does not. 5.2.3. Reformulated Rape Shield Provision S. 276 was reformed and came into force in August, 1992. It appeared to completely prohibit the use of prior sexual history of the complainant on the issue of consent or to show that the complainant was less worthy of belief which would be unconstitutional as Seaboyer called for discretion (e.g. using such evidence to prove motive for complainant to fabricate accusations). S. 276.1 required written notice for a hearing to determine admissibility of evidence of prior sexual history under s. 276(2). S. 276.2 provides for exclusion of public and the noncompellability of the complainant at the hearing to determine admissibility of evidence of past sexual conduct. R. v. Darrach, [2000] 2 SCR 443 (at 684) f.: charged with sexual assault. After voir dire judge refused to allow evidence of complainants past sexual conduct. convicted. challenged s. 276, 276.1 and 276.2. i.: Does s. 276 of the CC violate the right to a fair trial under ss. 7 and 11(d) of the Charter? r.: S. 276(1): Evidence of previous consensual or non-consensual sexual activity with or someone else is only prohibited when making two general inferences from the sexual nature of the activity that the complainant is more likely to have consented or is a less worthy of belief. Such evidence may be admissible to (i) draw non-sexual inferences; (ii) substantiate other specific, legitimate sexual inferences. S. 276(2): For evidence to be considered relevant, it must have significant probative value that is not substantially outweighed by the danger of prejudice to the administration of justice. a.: Gonthier J.: Right to full answer and defence under ss. 7 and 11(d) does not entitle to the most favourable procedures imaginable. The right to a fair trial under s. 7 and 11(d) is not automatically breached when a party is deprived of relevant information because it is not significantly probative. Evidence of complainants sexual history will likely be allowed more often when it refers to past sexual encounters with the rather than third parties. It is likely most relevant when dealing with issues of identity, motivation for falsification, mistake of fact, etc. c.: Appeal dismissed. S. 276 is constitutional. 5.2.4. Consent and Sexual Assault 273.1.(1) Consent means the voluntary agreement of the complainant to engage in the sexual activity in question. (2) No consent when it is obtained by person other than complainant; complainant is incapable of consenting (e.g. intoxication); induces consent through abuse of position of trust, power or authority; complainant expresses by words/conduct lack of agreement; complainant having consented to engage in sexual activity, expresses by words/conduct a lack of agreement to continue. (3) ss. (2) is non-exhaustive

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273.2. Belief in consent is no defence to sexual assault where (a) s belief arose from self-induced intoxication, or recklessness or willful blindness; (b) did not take responsible steps, in the circumstances known to him/her at the time, to determine if complainant was consenting. R. v. Ewanchuk, [1999] 1 SCR 330 (at 691) f.: Complainant interviewed by for a job in his van. After interview, invited complainant to see some of his work in the trailer behind the van. initiated a number of touching involving touching, each more intimate than the previous, notwithstanding the fact that the complainant said "no" on each occasion. Any compliance by complainant was done out of fear and it was clear that knew complainant was afraid and was not a willing participant. Trial judge acquitted the of sexual assault relying on the defence of implied consent. CA upheld. Crown appealed. i.: Whether the trial judge erred in his conclusion that the defence of "implied consent" exists? r.: Major J.: Actus reus of sexual assault is unwanted sexual touching which violates persons sexual integrity. Three elements: (i) objective touching; (ii) objective sexual nature of contact; (iii) absence of complainants subjective consent to the contact. There is no defence of implied consent in assault, as this incorrectly implies that complainants consent can be determined objectively. Complainant who did consent can have that consent vitiated if she honestly feared (subjectively) that she would open herself to use of force by if she did not consent. The fear need not be reasonable nor be communicated to . Requisite mens rea of sexual assault is the intention to touch, knowing of, or being reckless of or wilfully blind to, a lack of consent, either by words or actions, from person being touched. can rely on defence of honest but mistaken belief in consent. The evidence must show that the subjectively believed that the complainant effectively said yes through her words or actions.. Belief that silence, passivity or ambiguous conduct constitutes consent is error in law. cannot rely on his belief that no means yes. There can be no testing the waters as this is reckless conduct; Per LH-D: Until first takes reasonable steps to assure there is consent, he cannot rely on defence of honest but mistaken belief in consent. c.: Appeal allowed. convicted of sexual assault. R. v. Darrach (1998), 122 CCC (3d) 225 (Ont. CA), affd, [2002] 2 SCR 443 (at 708) f.: s. 273.2(b) of the CC (which states that an cannot rely on the defence of mistaken belief in consent to a charge of sexual assault if he did not take reasonable steps, in the circumstances know to the at the time, to ascertain that the complainant was consenting.) was challenged under s. 7. Argued that s. 273.2(b) creates objective standard (reasonable steps to ascertain consent) that does not require a marked departure from the objective norm (re: Creighton). i.: Does s. 273.2(b) of the CC violate s. 7 of the Charter by creating an objective standard that does not require the s conduct to be a marked departure from the objective norm. r.: Quasi-objective test for s. 273.2(b): (1) Must ascertain circumstances known to at time (2) would reasonable person in such circumstances have taken further steps to ascertain consent before proceeding with sexual activity? If no/maybe then not required to take more steps.

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a.: Morden ACJO.: Sexual assault is not one of those very few offences which carries a sufficient stigma to require that its mens rea must be completely subjective. This is because it is an offence of general intent, covering broad range of conduct, with no minimum penalty and maximum is 10 years. Introducing objective component is not unconstitutional as it does not require all reasonable steps to be taken by the , as the standard must consider what steps should have taken in the particular circumstances of the time. The provision does not require that a mistaken belief in consent be reasonable. Malcolm (2000), 35 CR (5th) 366 (Man CA) (at 709) Helper J.: Quasi-Objective Test for s. 273.2(b) (1) Ascertain circumstances known to . (2) Ask if reasonable man, aware of these circumstances, would take further steps before proceeding with sexual activity. If yes, and has not taken further steps, cannot rely on defence of honest but mistaken belief in consent. If no or maybe, not required to take further steps and can rely on the defence.

6. Defences
6.1. Mistake of Fact 1. Where there is subjective mens rea, the mistake need only be honest and need not be reasonable (reasonableness only relevant to assessment of credibility); 2. Where there is objective mens rea, mistake must be both honest and reasonable; 3. Were there is due diligence defence (regulatory offences), mistake must be both honest and reasonable, with onus of proof on ; 4. Where offence is one of absolute liability, mistake cannot be a defence R. v. Hess; R. v. Nguyen, [1990] 2 SCR 906 (at 715) f.: s were charged with sexual intercourse with female under 14 under s. 146(1) of CC (since repealed) and were denied use of defence of mistaken belief that female was over 14. s constitutionally challenged section. i.: Does s. 146(1) of the CC violate s. 7 of the Charter given that it is an offence of strict liability that does not allow the defence of honest but mistaken belief that the female was over 14? r.: For non-regulatory mens rea offences, absolute liability (not allowing a defence of honest mistake of fact or due diligence to counter mens rea) violates s. 7 of the Charter. a.: Wilson J.: In 1987 Parliament replaced s. 146(1) with s. 150.1, which allows a due diligence defence (defence to sexual acts with female under 14 if took all reasonable steps to ascertain age of complainant). Since Parliament has concluded that it can meet objective of protecting young females in a manner that restricts s rights less that s. 146(1), it can be concluded that s. 146(1) does not minimally impair the s rights. c.: For . S. 146(1) violates s. 7 and cannot be saved by s. 1.

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6.1.1. Transferring Mens Rea of One Offense to Another R. v. Ladue, [1965] 4 CCC 264 (YTCA) (at 726) f.: copulated or attempted to copulate with a dead woman contrary to what is now s. 182(b) of the CC. tried to raise defence of honest but mistaken belief that woman was not dead. i.: Is defence of honest but mistaken belief that woman was not dead available? r.: Davey JA.: In this case intention to rape was transferred to the crime of copulating with a dead person. cannot rely on honest but mistaken belief that woman was not dead since were she in fact not dead he would have been guilty of raping her since he did not obtain her consent. c.: appeal dismissed. R. v. Kundeus, [1976] 2 SCR 272 (at 728) f.: offered to sell undercover police officer two caplets of mescaline. He in fact gave the officer LSD. was convicted of drug trafficking, contrary to the Food and Drugs Act. BCCA overturned conviction, stating that requisite mens rea was not present since intended to sell mescaline and not LSD CA held that trial judge misdirected himself by transferring the mens rea to traffic mescaline to satisfy the requisite mens rea to traffic LSD. Crown appealed. i.: In order to be guilty of trafficking LSD, must the know and intend to sell LSD, or is it sufficient for the to know and intend to sell an illicit drug, regardless of what drug he in fact sells? r.: De Grandpre J.: If it is found that the has the requisite mens rea to traffic any illicit drug, that mens rea will be sufficient to uphold a conviction for trafficking LSD even though believed he was trafficking a different drug in a lower scale of prohibition and regulation (e.g. mescaline). To exonerate himself must tender evidence that he had honestly believed he was not selling an illicit drug (defence of mistake). a.: Laskin CJC. (dissenting): It is not enough for the Crown to show that the intended to traffick a lesser illicit drug (mescaline) to support a conviction for trafficking a greater illicit drug (LSD) when the sanctions for trafficking the greater drug are higher than those for the lesser drug. In general it is not possible to transfer the mens rea of one crime to the actus reus of another. can rely on the defence of honest but mistaken belief even though by doing so he would be admitting to committing a different offence than the one charged. c.: Crown appeal allowed. conviction re-instated. 6.2. Mistake of Law 55

R. v. Campbell and Mlynarchuk (1973), 10 CCC (2d) 26 (Alta. Dist. Ct.) (at 740) f.: stripped at a place over 12 days. She original had declined to engage in the dance, but was told by the manager that a Supreme Court Judge had ruled that bottomless dancing was ok, and that it was reported in the papers (in fact, this decision was over-turned on appeal). She was charged under s. 167(2) of the CC for appearing as a performer in an immoral, indecent or obscene performance. convicted and appealed. i.: Can the rely on the defence of mistake of law since she relied on the widely reported statement of law by a Supreme Court of Alberta Justice which was later over-turned on appeal? r.: Kerans DCJ.: Mistake of law is not a criminal defence unless the mistake (i) negatives a requisite malicious intent; (ii) was authorized by another law that is intra vires (if the law is ultra vires there can be no defence). An honest mistake of law can be a mitigating factor in sentencing. c.: Appeal dismissed. But given absolute discharge. R. v. Drainville (1991), 5 CR (4th) 38 (Ont. Prov. Div.) (at 752) f.: was charged with mischief under s. 430(1)(c) of the CC for blocking a parcel of land to protest the construction of a road. The CA held that aboriginal rights to the land had been extinguished by a 1850 treaty, but the protesters believed that those rights should prevail. was convicted and appealed arguing colour of right defence.. i.: Is passive civil disobedience a defence to mischief? Can the rely on a defence to mischief by colour of right (i.e. honest belief in existence of facts or law which, if they actually existed, would at law justify or excuse the act?) r.: Fournier Prov. Div. J.: Civil disobedience does not make an illegal action legal. The nature and degree of the disobedience should only be a consideration in sentencing. Colour of right defence can arise from honest mistake in fact or law; test is subjective and the belief need not be reasonable. One can have an honest belief that they have a legal right, but not a moral right, to rely on the colour of right defence. c.: appeal dismissed. R. v. MacLean (1974), 17 CCC (2d) 84 (NS Co. Ct.) (at 758) f.: had license suspended; he worked at a federal airport. Regulations required that a person must hold all valid provincial licenses and permits in order to operate a car on airport property. phoned the Registrar of Motor Vehicles and asked if he needed a valid license to drive at the airport. The person indicated that he did not and only required permission from his boss. boss gave him permission. was involved in an accident while driving at the airport and was charged under s. 259(4) of the CC for driving while disqualified. was acquitted. Crown appealed. i.: Is s ignorance of the Regulations a valid excuse?

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r.: Mistake of law will be allowed as a criminal defence where made bona fide diligent effort to ascertain and abide by law and acted in good faith reliance on results of such effort. a.: OHearn Co. Ct. J.: There is a distinction between statute and regulations as the public are generally more aware of statute than regulations, statutes are easier to find that regulations and promulgation is more effective with statute than with regulations. in this case made a bona fide and diligent effort to determine what the law was by approaching the Registrar. c.: Appeal dismissed. R. v. Cancoil Thermal Corp. (1986), 27 CCC (3d) 295 (Ont. CA) (at 768) f.: told by government safety inspector that it was allowed to remove a guard on a metal shear. Two months later a worker was injured by the metal shear. was charged and acquitted for safety violations. Crown appealed. i.: Is there a defence of officially induced error of law? r.: Defence of officially induced error is available to an alleged violation of a criminal, qausicriminal or regulatory offence where has reasonably relied upon erroneous legal opinion or advice of an official who is responsible for administration/enforcement of the particular law. The trier of fact will determine on preponderance of evidence if was misled by the official. The reasonableness of the s reliance on the official will depend on several factors including s efforts to ascertain the proper law, complexity/obscurity of the law, position of the official and reasonableness of the advice given. a.: Lacourciere JA.: The evidence in case is too sparse to determine availability of the defence. c.: Appeal allowed. New trial ordered. 6.3. Insanity 16. provides a defence to a criminal act or omission while suffering from mental disorder that rendered person incapable of: 1. appreciating nature and quality of act or omission or 2. knowing that the act or omission was wrong. is presumed competent until shown to have a mental disorder on balance of probabilities, with the burden of proof lying on the party that raises the issue. Cooper v. R., [1980] 1 SCR 1149 (at 788) f.: , an out-patient at a psychiatric hospital convicted of murder (by choking) of an in-patient at the hospital. Defence of insanity was not raised at trial but judge put defence to jury. appealed stating that trial judge inadequately put defence of insanity to the jury. i.: What is the test for s. 16 defence of insanity?

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r.: Dickson J.: Two-step test for s. 16 defence of insanity: (1) A judge must determine whether the evidence is sufficient to indicate the suffers from a condition that could, at law, constitute a disease of the mind. (2) If so, it is up to the trier of fact to determine whether was capable of appreciating the nature and quality of the act, or of knowing that it was legally wrong. Disease of the mind is a legal concept. It embraces any illness, disorder or abnormal condition which impairs the human mind and its functioning. However self-induced states caused by alcohol/drugs, as well as transitory states like hysteria or concussion, are not included. The disease must be of such intensity as to render the accused incapable of appreciating the nature/quality of the act or of knowing that it was legally wrong. Appreciating requires more than mere knowledge that the act is being committed; it involves estimation and understanding of the consequences of the act. c.: appeal allowed. New trial ordered. Kjeldson v. R., [1981] 2 SCR 617 (at 799) a.: McIntyre J.: S. 16 defence of insanity does not extend to those who have the necessary understanding of the nature, character and consequences of the act, but merely lack appropriate feelings of remorse/guilt for what he has done, even though the lack of feeling comes from a disease of the mind. R. v. Abbey, [1982] 2 SCR 24 (at 800) f.: After arrival at Vancouver Intl airport from Peru, shoulder bag was searched and cocaine was found. When asked what was in the bag said Naturally, cocaine. He was charged with trafficking of cocaine and raised insanity defence. Trial judge acquitted by reason of insanity, stating that s. 16 was satisfied because failed to appreciate the penal consequences of his act. Crown appealed. i.: Whether the inability to appreciate the penal consequences of an act is sufficient to justify a defence of insanity under s. 16 of the CC. a.: Dickson J.: A delusion that renders incapable of appreciating legal sanctions attached to commission of a crime does not go to the mens rea of the offence and therefore does not satisfy the first step of the test for insanity under s. 16. A delusion that renders incapable of appreciating legal sanctions does not in this case satisfy second branch of second step of s. 16 test, as knew that what he was doing was legally wrong. c.: Appeal allowed. New trial ordered. R. v. Chaulk, [1990] 3 SCR 1303 (at 802) a.: Lamer CJC: Under s. 16 defence of insanity the disease of the mind must cause to fail to know that the act is legally wrong or morally wrong. A person who knows that it is ordinarily wrong to commit a crime but by reason of a disease of the mind believes that it would be morally right to do so would be entitled to be acquitted by reason of insanity.

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R. v. Oommen, [1994] 2 SCR 507 (at 804) In applying s. 16, a judge should not focus on general capacity to know moral right from wrong but whether the possesses the capacity of an ordinary person to rationally know that a particular act was morally wrong in the circumstances having regard to the everyday standards of the ordinary person. R. v. Swain, [1991] 1 SCR 933 (at 804) Crown can only raise evidence of insanity if has put his/her mental state in issue; allowing Crown to adduce evidence of insanity over and above s wishes violates s. 7. Crown can only independently raise evidence of insanity after a finding of guilt but before conviction is entered. R. v. Jacquard (1997), 113 CCC (3d) 1 (SCC) (at 805) Evidence of a mental disorder short of a full-blown defence under s. 16 of the CC may be admitted as a means of negativing mens rea. 6.4. Automatism Sane automatism is unconscious, involuntary behaviour, that does not result from a disease of the mind. It results in a complete acquittal. Insane automatism is unconscious, involuntary behaviour, that does result from a disease of the mind. It results in acquittal by insanity. R. v. Rabey, [1980] 2 SCR 513 (at 815) f.: was interested in X but she just wanted to be friends. While helping her with some homework, he came across a letter speaking about her sexual interest in a man named G. This made him angry, upset and confused. later by chance met up with X. He asked her what she thought of him, she said just a friend. He then struck her 3 times in the head with the rock and began to choke her but then stopped. was arrested and charged with causing bodily harm. In his statement to police said that he could not remember parts of the incident. One specialist testified that had entered a dissociative state (not disease of the mind) as a result of the psychological blow of the letter and that his unconscious actions were involuntary. At CA, s dissociative state was held to be a disease of the mind and a new trial was ordered so jury could decide on the facts whether this disease of the mind existed at the time of the s act. appealed. i.: Was the s dissociative state a disease of the mind for the purposes of determining the application of CC s. 16 defence of insanity or the defence of automatism? r.: Any malfunctioning of the mind/mental disorder having its primary source in some subjective condition or internal weakness of may be a disease of the mind if it prevents from knowing what he is doing. A transient disturbance of consciousness due to certain specific external factors does not fall within the concept of disease of the mind. Ordinary stresses and disappointments of life do not constitute the requisite external factors sufficient to have a malfunctioning of the mind that falls out of the category of disease of the mind. a.: Ritchie J.:

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In this case the s infatuation with X created an abnormal condition in his mind, and his disappointment with her, caused by the perceived slight in the letter he found, cannot be said to be a sufficient external factor causing his automatism. Rather his automatism was rooted in the s psychological/emotional makeup. Therefore his dissociative state was a disease of the mind. c.: appeal dismissed. New trial ordered. R. v. Parks, [1992] 2 SCR 871 (at 829) f.: had personal problems that contributed to difficulty sleeping. One night he fell asleep in living room, but got up a few hours later, put on jacket and running shoes, drove 23 km to in-laws, broke into house, beat and strangled father-in-law to unconsciousness and stabbed mother-in-law with a knife from the kitchen and beat her with blunt instrument. She later died. drove to police station with the knife. He had badly cut hands and was in great distress. He stated that he just killed his inlaws. was charged with murder and attempted murder. He entered defence of sleepwalking (noninsane automatism) and was acquitted by jury. Crown appealed. i.: Is sleepwalking a form of non-insane automatism and not a disease of the mind? r.: When defence of non-insane automatism is raised by , trial judge must first determine if there is sufficient evidentiary basis to put defence to the jury. If so, judge must consider whether the alleged condition is, in law, non-insane automatism (i.e. is the condition not a result of a disease of the mind?). Here the judge must not only consider the evidence, but the following policy issues: 1. Does alleged condition result from an internal or external cause (former weighing in favour of disease of the mind)? 2. Does the condition pose a threat of recurrent violence (if so, favours disease of the mind)? 3. Would the floodgates open if the condition is considered automatistic? 4. Would finding the condition automatistic harm the credibility of the criminal justice system? Jury must then decide if facts show that suffered from alleged condition at the relevant time. Crown must then prove absence of automatism BARD, because it carries burden of demonstrating voluntariness of action. Sleepwalking can be considered a form of non-insane automatism (i.e. not a disease of the mind). a.: La Forest J.: In this case evidence shows that the was sleepwalking. Policy considerations in determining whether sleepwalking can at law be a defence of non-insane automatism: (1) sleepwalking cannot be adequately characterized as resulting from an internal or external cause; (2) there is very low probability of recurrent violence while sleepwalking; (3) there is no evidence that floodgates would be opened in recognizing sleepwalking as non-insane automatism because it is difficult to fake; (4) while finding sleepwalking to be a full defence may harm credibility of justice system to some, their views must be discounted because it is a fundamental precept of our criminal law that only those who voluntarily act with requisite intent should be punished. c.: Appeal dismissed. Acquittal upheld.

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R. v. Stone, [1999] 2 SCR 2990 (at 847) f.: decided to visit sons from previous marriage. His current wife expressed objections to the visit both before and after. She then threatened divorce, claimed she told police he was abusing her, that he was bad in bed and had a small penis. testified he felt a whoosh sensation washing over his body. He then realized that he killed his wife with a 6 inch hunting knife (stabbed 47 times). He put body in truck toolbox, and flew to Mexico. He later returned to Canada and turned himself in. Trial judge stated that unconsciousness was established but said there was only evidence to support insane automatism. found guilty of manslaughter and sentenced to 4 years. appealed. i.: Was there sufficient evidence to put the defence of sane automatism to the jury? How can demonstrate that mere words caused him to enter an automatistic state such that his actions were involuntary? r.: carries legal burden to prove sane automatism on balance of probabilities based on expert psychiatric or psychological evidence. Trial judge must consider this evidence, as well as severity of triggering stimulus, corroborating evidence of bystanders, corroborating medical history of automatistic states, motive for crime, whether trigger is also victim. The trial judge must then conclude that a properly instructed jury could find acted involuntarily on balance of probabilities. Court must take holistic approach to determining if s condition is a disease of the mind by considering all of the following: 1. Internal Cause Theory: Does alleged condition result from an internal or external cause (former weighing in favour of disease of the mind)? 2. Continuing Danger Theory: Does the condition pose a threat of recurrent violence (if so, favours disease of the mind)? 3. Policy Factors: Court can consider other policy factors in order to come to a conclusive answer. Can consider, but not limited to: (a) would the floodgates open if the condition is considered automatistic? (b) would finding the condition automatistic harm the credibility of the criminal justice system? a.: Bastarache J.: Law presumes people act voluntarily to avoid placing onerous burden of proving voluntariness BARD on Crown. Reversal of onus does constitute a limitation on s s. 11(d) Charter rights but these are justifiable under s. 1. In this case trial judge did not engage in holistic approach, however the finding at trial was correct. The trigger in this case was not an extraordinary external event (Rabey) that would amount to an extreme shock or psychological blow that would cause a normal person in the circumstances to suffer a dissociation in the absence of a disease of the mind. c.: 5-4, defence of sane automatism was correctly withheld from jury. Appeal dismissed. 6.5. Intoxication R. v. Bernard, [1988] 2 SCR 833 (at 868) f.: was convicted of sexual assault causing bodily harm contrary to s. 272(c) of the CC. admitted forcing the complainant to have sexual intercourse with him and stated that his drunkenness caused the attack on her. appealed. 61

i.: Whether evidence of self-induced intoxication is a defence to sexual assault. r.: (1) General intent offence: is one in which the only intent involved relates solely to the performance of the act in question with no further ulterior intent or purpose. (2) Specific intent offence: is one which involves the performance of the actus reus coupled with an intent or purpose going beyond the mere performance of the act. Sexual assault is a general intent offence. Drunkenness does not apply in offences of general intent, however it may apply in a specific intent offence when is so drunk he lacks the capacity to form the specific intent required to commit the crime. The defence Crown must still prove mens rea of offence BARD by: (1) is presumed to have intended the probable consequences of his actions; (2) where was so drunk as to raise doubt about voluntary nature of his conduct, Crown may establish the necessary blameworthy mental state by proving voluntary self-induced intoxication. a.: McIntyre JJ.: Removal of drunkenness defence does not make the sexual assault one of absolute liability, contrary to ss. 7 and 11(d) of Charter. It upholds the principle that the morally innocent should not be convicted as it recognizes that s who have voluntarily consumed drugs or alcohol, depriving themselves of self-control leading to commission of a crime, are not morally innocent. c.: Appeal dismissed. R. v. Daviault, [1994] 3 SCR 63 (at 889) f.: Complainant (C), partially paralysed 65-year-old woman in a wheelchair, knew through his wife. At her request came to her home carrying a 40-ounce bottle of brandy. C drank part of a glass of brandy and then fell asleep. drank rest of bottle. sexually assaulted C but could not remember incident. Expert witness testified that an individual with the blood-alcohol ratio he hypothesized the would have had might suffer a blackout, lose contact with reality, have no awareness of his actions and likely have no memory of them the next day. The trial judge acquitted of sexual assault on basis of defence of self-induced intoxication resulting in a state akin to automatism or insanity. CA overturned. appealed. i.: Is the defence of self-induced intoxication resulting in a state akin to automatism or insanity available as a defence to a general intent offence of sexual assault? r.: Cory J.: To state that mens rea of a general intent offence cannot be negated by drunkenness unjustifiably offends ss. 7 and 11(d) of the Charter. Mens rea can be inferred from proof that the assault was committed by the , but the mens rea of an intention to become drunk cannot substitute for the requisite mens rea of sexual assault. In rare cases, intoxication can be a defence in general intent offences if it demonstrated such extreme intoxication that there was an absence of awareness akin to a state of insanity or automatism. The burden of proof lies on the . This reverse onus violates of ss. 7 and 11(d) of the Charter but is justified under s. 1. c.: 6-3: appeal allowed. New trial ordered.

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NOTE: 33.1. Reverses Daviault by saying voluntary intoxication is a marked departure from general standard of reasonable care therefore not available as a defence to general intent offences involving assault or interference with bodily integrity of a person (general intent offences); R. v. Robinson, [1996] 1 SCR 683 (at 904) f.: struck victim with rock and then fatally stabbed him. was convicted of second degree murder at trial by jury. BCCA allowed appeal on basis of misdirection as to defence of intoxication. Crown appealed. i.: How should juries be instructed on the use of evidence of intoxication in murder cases (specific intent offence)? r.: Lamer CJC.: Before charging jury, judge must be satisfied that effect of intoxication was such that it might have impaired s foresight of consequences sufficiently to raise a reasonable doubt. If so, judge must ask jury to consider whether evidence of intoxication, along with all other evidence, raised a reasonable doubt as to whether possessed requisite specific intent for murder (intent to kill or cause grave bodily harm with foresight that the likely consequence was death). If, based on evidence of intoxication, there is a reasonable doubt that (i) the lacked the capacity to form the requisite intent or (ii) the in fact lacked the requisite intent, is entitled to be acquitted. c.: Appeal dismissed. 6.6. Necessity Criminal law theory distinguishes between justifications and excuses. 1. A justification challenges the wrongfulness of an action that technically constitutes a crime (e.g. stealing a car and breaking speed limits to rush victim to hospital). Society considers the justifiable conduct applaudable and not worthy of punishment in the circumstances. 2. An excuse concedes wrongfulness of action but asserts that circumstances under which it is done are such that it ought not be attributed to the actor (e.g. perpetrator suffering disease of the mind). Society considers the excusable conduct deplorable but not worthy of punishment in the circumstances. Perka v. R., [1984] 2 SCR 233 (at 916) f.: had 34 tons of pot on large transport ship and intended to transfer it off the coast of Alaska. The ship encountered serious problems and it was decided for the safety of the crew and ship that they would seek refuge on the Canadian shoreline to make repairs. The ship ran aground. Captain, fearing ship would capsize, ordered crew to unload cargo. were charged with importing pot. Expert for said that decision by Captain was essential for crews safety. Jury acquitted. CA ordered new trial. appealed. i.: What constitutes the legal defence of necessity?

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r.: Necessity should be considered a legal excuse to a wrongful act. Necessity does not go to voluntariness of actus reus, because actor has conscious control of his conduct. However in emergency circumstances the act may be normatively involuntary in that, guided by human instincts of self-preservation or altruism, the actor has no other viable or reasonable choice; i.e. the act is inevitable and unavoidable. Limits on the Defence of Necessity as Excuse: 1. Urgent situations of clear and imminent peril where patience is unreasonable; 2. Compliance with the law is demonstrably impossible; there is no legal alternative; 3. The decision to act does not inflict more harm than harm the actor seeks to avoid. 4. The morality or legality of the conduct at the time of the emergency is irrelevant. However, if it was reasonably foreseeable that the s actions would likely give rise to a situation of imminent peril requiring the breaking of the law, the situation should not be considered an emergency and the defence of necessity should not be available. The onus of proof is on Crown to prove that an action was voluntary. Crown must disprove that s actions in the circumstances were normatively involuntary when necessity is raised. a.: Dickson CJC.: In this case there was adequate evidence to support putting the defence of necessity to the jury. The trial judge instructed the jury that to acquit, they must find facts which amount to an urgent situation of clear and imminent peril when compliance with the law is demonstrably impossible. The trial judges charge adequately addressed the limits on the defence except the question of reasonable alternative to the actions taken. This was an error of law. Wilson J.: Necessity should also be considered a justification that does not require an emergency in certain circumstances; e.g. where there are conflicting legal duties however necessity is no justification for killing. (NB: see UK conjoined twins case at 946 where if doctors acted to separate twins, one would surely die (murder), but if they waited for an emergency they would likely both die. Judges said that doctors have conflicting legal duties and therefore doing the operation can be justified by necessity even though there is a killing) c.: New trial ordered. R. v. Morgentaler, Smoling and Scott (1985), 48 CR (3d) 1 (Ont. CA) (at 933) cannot rely on the defence of necessity when choosing to procure an abortion contrary to s. 251 of the CC. This is because the s actions were not involuntary, there was no evidence that compliance with the law was demonstrably impossible. R. v. Latimer (2001), 39 CR (5th) 1 (SCC) (at 938) f.: s daughter was spastic quadriplegic. She was completely dependent. She suffered 5-6 seizures per day and it was believed she experienced a great deal of pain. However her condition was not terminal and could be treated with extensive surgeries and medication. decided to mercy kill his daughter by monoxide poisoning. charged with first degree murder. At trial judge did not allow defence of necessity. Jury convicted of second degree murder but recommended parole after 1 year. Trial judge instead allowed constitutional exemption and imposed sentence of one year 64

followed by one year probation. CA affirmed conviction but imposed mandatory minimum sentence. appealed. i.: Availability of defence of necessity. Can it be relied upon in mercy killing cases? r.: To rely on the defence of necessity: (1) the must be in imminent peril or danger it is not enough that peril is foreseeable or likely it must be on the verge of transpiring and virtually certain to occur; (2) the must have no reasonable legal alternative to the course of action he/she undertook; (3) there must be proportionality between the harm inflicted and the harm avoided that is, the harm avoided must be either comparable to, or clearly greater than, the harm inflicted. Obiter: it is unlikely that killing (harm inflicted) would be proportionate to the harm avoided. Requirements (1) and (2) employ a modified objective test which involves an objective evaluation that takes into account the situation and characteristics of the particular . The 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. It is proper to take into account circumstances that legitimately affect s ability to evaluate the situation. Requirement (3) employs a purely objective test since evaluating the gravity of the act is a matter of community standards infused with constitutional considerations. a.: The Court (Per Curiam): 1. It is not reasonable for the to argue that his daughter was in imminent peril; acute suffering can constitute imminent peril, but in this case the ongoing pain of his daughter brought on by her condition does not constitute an emergency as she has experienced pain all her life. Also the proposed surgery, and indeed her condition, did not pose an imminent threat to her life. 2. had reasonable legal alternative to struggle on by helping daughter live in minimal pain by allowing a feeding tube, surgery and change in medication (all rejected by ). 3. It is open question as to whether proportionality requirement could be met in homicide situation. Assuming it could, the harm avoided would have to be comparable in gravity to death (the harm inflicted). In this case the harm inflicted (death) greatly outweighs the harm avoided (more serious pain from operation). c.: Appeal dismissed. There is no air of reality to the defence of necessity justifying that it be charged to the jury in this case. 6.7. Duress
P a r t y P r i n c i p a l

/ L

r e s s

D E N

e f C e nC c se . x o N o c l u d

1 e d Y D

7 O e s u r e s s D e f e n c e f f e n c e ?

z i c

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R. v. Carker (No. 2), [1967] SCR 114 (at 948) f.: admitted to damaging plumbing fixtures in his cell but that he committed the offence under duress. The organizers of a disturbance in the jail threatened with death and grievous bodily harm if he did not commit the act. was convicted of mischief. CA overturned. Crown appealed. i.: What is required for successfully raise the s. 17 defence of duress? r.: To rely on the defence of duress, the must provide evidence that he would face immediate death or grievous bodily harm if he did not commit the offence. a.: Ritchie J.: While the threats to were immediate in that they were continuous until committed the act, they were not threats of immediate death or grievous bodily harm, since both the and those uttering the threats were locked in their cells. c.: Appeal allowed and conviction restored. R. v. Paquette, [1977] 2 SCR 189 (at 950) f.: was threatened with death if he did not drive C and S to s old place of work so they could rob it. During robbery S killed a bystander. After the robbery both C and S tried to get into s car but were not successful. was arrested and charged with being a party to murder. was acquitted at trial on grounds of duress. CA overturned. appealed. i.: Is the defence of duress under s. 17 of CC available to a person charged not with committing an offence but of being a party to an offence under s. 21(2) of the CC? r.: Martland J.: S. 17 does not provide protection of duress defence for excluded offences (e.g. murder and robbery offences involving violence to others). It only applies to a person who commits a crime (principal) and therefore does not apply to a person who is party to an offence under s. 21(2) of the CC. However C/L defences are available [s. 8(3) of CC allows the continuance of C/L defences so long as they are not inconsistent with CC] therefore C/L defence of duress is available to a person who is charged with being a party to an offence under s. 21(2). Duress vitiates intent (mens rea) because a person whose actions are dictated by fear of death or grievous bodily injury cannot be said to have formed a genuine common intention to carry out an unlawful purpose with the person who has threatened him (overturned in Hibbert) c.: Appeal allowed. R. v. Hibbert, [1995] 2 SCR 973 (at 955) f.: said B threatened to shoot him if he didnt come with him to Cs place of residence and arrange for C to come to the lobby. did so and C was shot 4 times by B. believed he had no opportunity to run away or warn C without being shot. charged with attempted murder as a party under s. 21(1)(b) (aiding and abetting). Jury acquitted on attempted murder by convicted on aggravated assault. appealed.

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i.: Does the C/L defence of duress negate the mens rea of a charged as a party to an offence under ss. 21(1)(b) (aiding and abetting)? r.: The mens rea for aiding and abetting under s. 21(1)(b) of the CC is not negated by duress. The C/L defence of duress is available to those charged with being a party to an offence under s. 21(2) of the CC, however this defence provides an excuse and does not negate mens rea. In order to rely on C/L defence of duress it is required that there (1) be a threat that raises immediate peril and (2) be no reasonable legal way out of the situation, or no safe avenue of escape for the (principle of normative involuntariness). To determine this the court must apply a modified objective test: was there any reasonable action to provide a legal way out for the , taking into consideration the particular circumstances of the , including his ability to perceive the existence of alternative courses of action. a.: Lamer CJC.: Creighton was concerned with applying criminal negligence to the inherently hazardous activities that a person voluntarily engages is; excuse of duress is predicated on view that conduct of is normatively involuntary therefore s perceptions of surrounding facts are relevant to determination of whether his conduct was reasonable, and therefore excusable, under the circumstances. c.: Appeal allowed. New trial ordered. R. v. Ruzic, 2001 SCC 24 (at 961) f.: was charged with importing 2 kilos of heroin. claimed that she was acting under duress. She conceded that her claim of duress did not meet the immediacy and presence requirement of s. 17. challenged s. 17 under s. 7 of the Charter and raised C/L defence of duress. acquitted at trial. Crown appeal dismissed. Crown appealed. i.: Do the immediacy and presence requirements of s. 17 defence of duress violate s. 7 of the Charter? Can one who commits an offence (principal) rely on the C/L defence of duress? r.: LeBel J.: Physical voluntariness (behaviour that is the product of a free will and controlled body, unhindered by external constraints) is an essential component of criminal liability and is a principle of fundamental justice under s. 7. Moral involuntariness should also be a principle of fundamental justice; it would be unjust to penalize a person who acted in a morally involuntary fashion because his acts cannot realistically be attributed to him, as his will was constrained by some external force (e.g. threats, survival). Moral involuntariness does not, however, negate the actus reus or the mens rea of an offence. S. 17 includes threats to third parties so long as the threat is made to the . S. 17 requires the threatener to be present and capable of immediately following through on the threat (immediacy and presence requirement). Therefore s. 17 unjustifiably breaches s. 7 of Charter because it allows individuals who acted morally involuntarily to be declared criminally liable. The requirements of immediacy and presence in s. 17 are unconstitutional. c.: Crown appeal dismissed.

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6.8. Self Defence R. v. Pintar (1996), 2 CR (5th) 151 (Ont. CA) (at 972) f.: R blamed for breakup of his marriage and threatened to kill . R and G were overheard planning an attack on . They went to s place. told R to leave but he refused, saying he was there to finish this off and he took a swing at . knocked R onto front porch. R screamed that he killed s dog and that he was next. came out with his rifle held across his chest. G and R came toward , and R said he would kill and members of his family. R grabbed gun, struggle ensued and shot and killed both R and G. convicted of manslaughter. appealed. i.: What are legal principles surrounding jury charge on self-defence? r.: Moldaver JA.: A narrow self-defence provision should not be put to a jury where there is an air of reality in the evidence for a wider self-defence provision (unless evidence lends air of reality to factual underpinnings of provision and fills a gap in wider provision). Both ss. 34(1) and (2) offer selfdefence as defence to charge of homicide. Justification under s. 34(2) is wider in scope that s. 34(1). Judge should call on council to justify instruction on narrower provision. c.: New trial ordered. R. v. Cadwallader, [1966] 1 CCC 380 (Sask QB) (at 975) f.: Father of (then 14) had threatened to kill him on numerous occasions. One day heard his father come into the house muttering Im going to kill that God Damned little bastard. He heard father load a shotgun and come up the stairs. He he grabbed his gun and turned to see his father aiming at him. He fired three shots at his father who fell down the stairs. said that he father was still moving and he feared that he would shoot him, so he shot his father two more times the last shot was from 3 inches away. convicted of delinquency. appealed. i.: What amount of force is allowed to raise self-defence? r.: To establish self-defence there should be evidence (a) that the facts amount to self-defence, and (b) that the mode of defence used was justifiable under the circumstances. The test as to the extend of justification is whether the used more force than he on reasonable grounds believed necessary (subjective test). a.: Sirois J.: Here it was shown that did not want to kill his father but under the circumstances he believed that if he did not act as he did his father would have killed him. One must only use as much force as reasonably necessary, however if one believes he is in mortal danger he is entitled to use such force as to put his assailant out of action . c.: appeal allowed. Conviction quashed. R. v. Bogue (1976), 30 CCC (2d) 403 (Ont. CA) (at 979)

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f.: was drinking with M. They got into an argument and M hit her with an iron. She grabbed it from him and hit him, cutting his head. She said that he then grabbed a knife and threatened to kill her, but he fell back onto the bed and she grabbed the knife. She then said that he wouldnt kill her but that she would kill him and stabbed him. was convicted of manslaughter. i.: What are the legal tests for self-defence under s. 34(1) and (2)? r.: Howland JA.: S. 34(1) deals with situation where repels an unprovoked assault, but does not intend to cause death or grievous bodily harm. The force used must be no more than necessary for selfpreservation. S. 34(2) deals with situation where repels an unprovoked assault, but does intend to cause death or grievous bodily harm. There is no requirement that repelling force be proportionate to the unlawful assault. must act under reasonable apprehension of death or grievous bodily harm (objective test); must also believe on reasonable and probable grounds that he could not otherwise preserve himself (modified objective test i.e. was s belief comparable to that of a reasonable person in s situation). c.: Appeal allowed. New trial ordered. R. v. Deegan (1979), 49 CCC (2d) 417 (Alta. CA) (at 985) r.: Harradence JA.: A person need not first try to retreat before employing force to protect himself. The failure to retreat is only to be considered with other factors to determine whether went farther than he was justified. R. v. Lavallee, [1990] 1 SCR 852 (at 986) f.: was battered woman in C/L relationship. One night he beat her, gave her a loaded gun and said something to the effect of either you shoot me or Ill get you. She shot him in the back of the head as he left her room. submitted a psychological report on battered womens syndrome as evidence going toward self-defence. i.: Is it inherently unreasonable to apprehend death or grievous bodily harm unless and until the physical assault is actually in progress [under s. 34(2)]? Can there be an exception for the cases of battered wives? r.: It is possible for a battered woman to reasonably believe that she faces death or grievous bodily harm prior to the actual assault taking place. It is possible for a battered woman to believe on reasonable and probable grounds that she could not otherwise preserve herself except by using lethal force even if an assault has not yet occurred. a.: Wilson J.: There is evidence that a battered woman has a heightened sensitivity to the violence of their partner that they can anticipate the nature and extent (but not the onset) of the violence, and that they can determine whether the next bout of violence would be life

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threatening. In such a context a threat from a batterer may signal lethal force in the near future, raising a reasonable apprehension of death or grievous bodily harm. Generally speaking, women will always be overpowered by men in hand-to-hand combat; therefore the requirement that a battered woman wait until the physical assault is underway before her apprehensions of death or grievous bodily harm can be validated at law would be tantamount to sentencing her to murder by installment all that is gained is the risk that the woman herself would be killed. Requirement that believe on reasonable grounds that it is not otherwise possible to preserve herself from death or grievous bodily harm is prejudicial to battered women one cannot simply say that the women ought to have just left rather than kill there are strong psychological reasons that battered women remain (feeling trapped and helpless; feeling needed when batterer apologizes and seeks forgiveness). Also there is no requirement of retreat, therefore the fact that a woman stays is not relevant to the defence.

c.: Appeal allowed. Conviction quashed. R. v. Petel, [1994] 1 SCR 3 (at 995) f.: R and E were drug traffickers. was mother of Es girlfriend. E moved into house and conducted drug trafficking. tried to get E to leave (E beat s daughter and threatened ) but failed. E came to home with cocaine and a gun. He told her to hide weapon and weigh drugs, suggesting that he would kill and her daughter. Shortly after daughter arrived with R. consumed small amount of drugs, got gun and shot E. R lunged at and she shot him. E survived but R died. admitted that she shot both E and R and wanted them dead. convicted of second degree murder. CA ordered new trial. Crown appealed. i.: Whether trial judge erred in differentiating the threats made on the evening of incident from previous threats and relating latter only to whether there had been an assault. r.: Lamer CJC.: In cases where s. 34(2) self-defence is raised, jury must ask did the reasonably believe, in the circumstances, that she was being unlawfully assaulted. Apprehended danger need not be imminent; imminence is only one of the factors which jury should weigh in determining whether had reasonable apprehension of danger of death and reasonable belief that she could not extricate herself otherwise than by killing the attacker. Threats made prior to the day of the alleged attack can help the jury decide (1) whether threats were made immediately before killed attacker; (2) whether had a reasonable apprehension of risk of death or grievous bodily harm and reasonable belief in the need to use deadly force. c.: Appeal dismissed. New trial ordered. R. v. Malott, [1998] 1 SCR 123 (at 999) f.: and deceased lived as C/L spouses for 20 years. Deceased abused physically, sexually, psychologically and emotionally. They went to medical center to get prescription drugs for deceaseds illegal drug trade - shot and killed him. She then went to deceaseds girlfriends house and shot and stabbed her. At trial brought expert evidence to show she suffered from

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battered woman syndrome to support self-defence. convicted of second degree murder and attempted murder. CA affirmed. appealed. r.: LHeureux-Dube J.: To be consistent with Lavallee, in a jury trial of a woman accused of murdering her abuser, and where the reasonableness of her belief is at issue, judge and jury should be made to appreciate that a battered womans experiences are (1) both individualized and shared with other women in context of a society and legal system that have historically undervalued womens experiences; (2) generally outside common understanding of average judge/juror and that they should seek to understand evidence being presented to overcome myths and stereotypes. Lavallee requires that the perspectives of women must now equally inform the objective standard of the reasonable person it does not require that the subjective perceptions of battered women be integrated into the objective test of self-defence under s. 34(2). The reasonable woman under s. 34(2) should not be the reasonable battered woman. R. v. Pawliuk (2001), 40 CR (5th) 28 (BCCA) f.: and P (deceased) got into an argument over a prostitute. P showed that he had a gun and fled. got a gun and returned. P made a movement behind his back. took out his gun because he thought P was going for his gun. said the gun went off and P was killed. said he did not intend to shoot P. was convicted of second degree murder. appealed. i.: Did the trial judge err in failing to leave s. 34(1) self defence with jury? r.: Both ss. 34(1) and (2) may apply where , in repelling an attack, did not intend to cause death or grievous bodily harm. What differentiates the sections is whether the reasonably apprehended that the attack was likely to cause his own death or grievous bodily harm. If the reasonably apprehended his own death or grievous bodily harm then he is entitled to the more favourable provisions of s. 34(2). If the does not reasonably believe that he is under threat of death or grievous bodily harm he may rely on s. 34(1), but only if he did not intend to cause death or grievous bodily harm. a.: Ryan JA.: In the case at bar the testified that he feared the deceased was going to kill him and that he responded by pulling out the gun. His defence fell within s. 34(2) and not s. 34(1). c.: Appeal dismissed. 6.9. Provocation 232. provocation is partial defence to murder charge that reduces conviction to manslaughter. R. v. Cameron (1992), 12 CR (4th) 396 (Ont. CA) (at 1027) f.: convicted of second degree murder. argued that there can be no distinction between a statutory provision that imposes objective liability for murder and a statutory provision which limits the availability of a defence to murder (provocation) to an objective criterion. i.: Does defence of provocation under s. 232 of CC contravene ss. 7 and 11(d) of the Charter in that it is premised in part on an objective standard? 71

a.: Doherty JA.: Defence of provocation does not detract from mens rea required to establish murder, but rather offers an excuse that establishes murder as manslaughter. The jury must first find guilty of intentional murder then consider provocation to reduce liability even when fault exists. Crown carries onus of negating provocation BARD. S. 232 is consistent with Charter. c.: Appeal dismissed. R. v. Hill, [1986] 1 SCR 313 (at 1010) f.: Crown argued that (age 16) was gay lover of P (deceased) and that stabbed P to death. conceded that he stabbed P, but argued that it was in to unexpected and unwanted homosexual advance, an assault and threats of death. charged with first degree murder but convicted of second degree murder. CA set aside conviction and ordered new trial. Crown appealed. i.: Whether trial judge erred in law in failing to instruct jury that if they found a wrongful act or insult they should consider whether it was sufficient to deprive an ordinary person of the age and sex of the of his power of self-control (going to defence of provocation). r.: Dickson CJC.: With regards to s. 232 provocation, three questions must be answered: (1) Would and ordinary person be deprived of self-control by the act or insult? (objective test). Ordinary person has a normal temperament and level of self-control (does not include excitable, aggressive or drunk person). It also take account of s age, sex or race (immutable characteristics) where this is relevant to the nature of the alleged provocation. (2) Did in fact act without self-control in response to the provocative acts? (subjective determined by trier of fact). May consider mental state and psychological temperament. (3) Was s response sudden and before there was time for his passion to cool? (subjective determined by trier of fact) c.: appeal allowed. Conviction restored. R. v. Thibert, [1996] 1 SCR 37 (at 1022) f.: was trying to persuade his wife to go somewhere to talk when victim (wifes lover) came out of building and began to lead her away. got rifle from car and victim approached . told victim to stay back but he ignored him. testified that he closed his eyes and tried to retreat inwards and gun discharged. convicted of second degree murder. CA upheld conviction. i.: Did CA err in concluding that there was insufficient evidence upon which a reasonable jury acting judicially and properly instructed could find that there had been provocation? r.: A trial judge must, when leaving defence of provocation with the jury, instruct the jury that the has no onus to establish provocation but rather the onus rests upon the Crown to disprove it BARD.

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The wrongful act or insult must be one which could, in light of the past history of the relationship between the and deceased, deprive an ordinary person, of the same age and gender, and sharing with the such other factors as would give the act or insult in question a special significance, of the power of self-control. (Significantly broadens objective test). a.: Cory J. (3-2 split): In this case, under the circumstance, an ordinary person who was a married man, faced with breakup of his marriage, would have been provoked by the actions of the deceased. Therefore there was evidence to satisfy objective element of defence of provocation. There was sufficient evidence that was actually provoked by deceased actions and words. Therefore provocation was properly put to the jury. Didnt do something (bring out rifle) to incite deceased to approach , contrary to s. 232(3)? [or by doing anything that the accused incited him to do in order to provide the accused with an excuse for causing death or bodily harm to any human being.] c.: Appeal allowed. New trial ordered. R. v. Nealy (1986), 54 CR (3d) 158 (Ont. CA) (at 1028) f.: and girlfriend met deceased and his friends at a bar. They were drinking. Deceased danced with s girlfriend and told that his girlfriend had nice tits and that he was going to fuck her. and deceased began fighting. testified that he pulled out knife to scare deceased, but ended up stabbing and killing him. fled. He testified that he did not intend to kill deceased and was sorry for what he did. charged with first degree murder. i.: Can a jury consider failed defences of provocation, self-defence and intoxication, along with other circumstances, when determining whether had requisite intent for murder (even though provocation does not go toward intent under s. 232)? r.: Cory JA.: Defences that dont otherwise succeed with the jury (e.g. provocation, self-defence, intoxication) can be used by the jury, in combination, to determine whether intent for murder has been met. A court has a duty to instruct jury to consider all of these factors when deliberating on whether the requisite intent for murder is present. c.: Appeal allowed. New trial ordered.

7. Parties to a Crime
21(1). Makes equally culpable the person who actually commits the offence and any person who aids or abets (encourages) in committing the offence. 21(2). Makes equally culpable the person who actually commits the offence and any person who forms an intention in common to carry out an unlawful purpose and knows or ought to have known than carrying out the unlawful purpose would lead to the commission of the offence. Dunlop and Sylvester v. R., [1979] 2 SCR 881 (at 1047)

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f.: Complainant BR was 16 years old. She and AM went to bar to drink. They were joined by two biker gang members H, Do and D. They left to go to a secluded site with H and Do. 4 men from gang arrived, grabbed BR, threw her to the ground, tore off her clothes and held her down (she was also threatened with a knife). BR testified that 18 men had sex with her, including the s. D and S testified that they brought beer to the site, saw a woman having sex with a gang member and then left. In addition to charging jury to determine whether D and S had sex with BR BARD, judge also charged jury on s. 21(1) and (2) (aiding and abetting, and forming common intention to carry out unlawful purpose). appealed conviction of rape on ground that there was insufficient evidence for the judge to charge the jury on s. 21(1) and (2). i.: Was there sufficient evidence to charge the jury on s. 21(1) and (2) (aiding and abetting, and forming common intention to carry out unlawful purpose)? r.: Under s. 21(1) (aiding and abetting), mere presence at scene of crime is not sufficient to ground culpability. Presence can be evidence of aiding and abetting if accompanied by other factors (a) prior knowledge of the principal offenders intention to commit the offence or (b) attendance for the purpose of wilfully facilitating or encouraging the offence. If other factors are not present, a person is not guilty for being present at the scene of a crime and doing nothing to prevent it [no omission liability under s. 21(1)]. a.: Dickson J.: There was no evidence that s formed common intention with rapists, or aided or abetted in rape. Due to the judges error in charging the jury, we do not know whether the jury convicted s because they had sex with BR, or by reason of ss. 21(1) and (2). c.: Appeal allowed. Acquittals entered. R. v. Logan, [1990] 2 SCR 731 (at 1068) f.: boasted of being involved in planning robberies but did not participate. During one robbery a person was shot and severely injured. Trial judge instructed jury that there could be a conviction under s. 21(2) if Crown established BARD that knew or ought to have known that someone would probably shoot with intention of killing. convicted of attempted murder. CA allowed appeal and substituted conviction for robbery. Crown appealed. i.: Can who helps plan a robbery (but does not participate) where someone is shot be convicted with attempted murder under s. 21(2) (forming common intention to carry out unlawful purpose) if Crown proves BARD that knew or ought to have known that someone would probably shoot to kill during the robbery? r.: Lamer CJC.: To determine whether a party to an offence had the requisite mens rea to be convicted under s. 21(2) one must follow two-step test: (1) is there a minimum mens rea required as a principle of fundamental justice before one can be convicted as a principal for the offence? (2) If there is a required minimum mens rea, then that minimum mens rea is constitutionally required to convict a party to that offence.

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Offence of attempted murder requires a constitutional minimum mens rea (subjective intent to kill). Therefore to be convicted as a party to attempted murder under s. 21(2) the party requires a constitutional minimum of mens rea (subjective intent to kill). Relying on objective intent to kill under s. 21(2) (or ought to have known) unjustifiably violates s. 7. c.: Appeal dismissed. S. 21(2) should not include or ought to have known when one is charged as a party to attempted murder.

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