Criminal Law Summary

Table of Contents
I. Sources of Criminal Law.....................................................3
(a) COMMON LAW............................................................................................. 4
Frey v. Fedoruk (1950) (pg. 2)......................................................................4
(b) STATUTE...................................................................................................... 4
R v. Clark (2005) (pg. 11)............................................................................. 4
R. v. Pare (1987) (pg. 18)............................................................................. 5
(c) DIVISION OF POWERS..................................................................................5
The Constitution Act, 1867...........................................................................5
(d) CHARTER..................................................................................................... 6
Hunter v. Southam (1984) (pg. 35)..............................................................6
Canadian Foundation for Children, Youth and the Law v. Canada (2004) (pg.
47)................................................................................................................ 6
Canada v. PHS Community Services Society (Insite) (2011) (pg. 59)...........7
R v. Oakes (1986) (pg. 63)............................................................................7

II. Intro to the Criminal Process.............................................8

(a) CLASSIFICATION OF OFFENCES...................................................................8
Indictable Offences....................................................................................... 8
Summary Offences....................................................................................... 8
Hybrid Offences............................................................................................ 8
(b) PRESUMPTION OF INNOCENCE....................................................................8
Woolmington v. DPP (1935) (pg. 77)............................................................8
(c) PROOF BEYOND REASONABLE DOUBT........................................................9
R v. Lifchus (1997) (pg. 84)..........................................................................9
R v. Starr (2000) (pg. 87).............................................................................. 9
(d) SECTION 11(d) CHARTER (proceedings in criminal matters).......................9
R v. Oakes (1986) (pg. 95)..........................................................................10
(e) THE HARM PRINCIPLEs. 7 Charter..........................................................10
R v. Malmo-Levine (2003) (pg. 108)...........................................................10
R v. Labaye/ R v. Kouri (2005) (pg. 114).....................................................10

III. The Act Requirement: Actus Reus....................................11

(a) COMMISSION OF AN UNLAWFUL ACT........................................................11
R v. Lohnes (1992)-SCC (pg. 190)...............................................................11
R v. Burt (1985)-Sask Q.B. (pg. 197)...........................................................12
Marshall v. R (1969)- [possession] (pg. 202)..............................................12
R v. Terrence (1983)- [possession] (pg. 206)..............................................13
R v. Morelli (2010)- [possession] (pg. 209).................................................13
R v. Chaulk (2007)- [possession] (pg. 220).................................................13
(b) CONSENT MAKING ACT LAWFUL...............................................................14
R v. Jobidon- assault (1991) (pg. 223)........................................................14
R v. Cuerrier (1998)- [assault/consent (HIV)] (pg. 239)..............................15
R v. Mabior (2012)- [assault/consent (HIV)]................................................15
(c) OMISSIONS: LEGAL DUTIES TO ACT..........................................................16

Moral and Legal Duties (pg. 260)...............................................................16

Fagan v. Commissioner of Metropolitan Police (1968) (pg. 264)................16
R v. Miller (1983) (pg. 268).........................................................................16
R v. Thornton (1991) (pg. 279)...................................................................17
R v. Peterson (2005) (pg. 286)....................................................................17
(d) VOLUNTARINESS....................................................................................... 18
Defining Conduct that is Not Voluntary (pg. 300).......................................18
R v. Lucki (1955) (pg. 306).........................................................................18
R v. Wolfe (1975) (pg. 307)........................................................................19
R v. Swaby (2001) (pg. 307).......................................................................19
R v. Ryan (1967) (pg. 310).........................................................................19
Kilbride v. Lake (1962) (pg. 312)................................................................20
(e) CAUSATION............................................................................................... 20
Rules:......................................................................................................... 20
Smithers v. R (1978) [Causation- Manslaughter] (pg. 320).........................21
R v. Harbottle (1993) [Causation- 1M] (pg. 327).........................................21
R v. Nette (2001) [Causation- 2M] (pg. 330) *Leading Case for Causation for
2M*............................................................................................................. 22
R v. Talbot (2007) (pg. 337)........................................................................22
R v. Maybin (2012) *Leading Case in Causation in Unlawful Act
Manslaughter*............................................................................................ 22

IV. The Fault Element: Mens Rea..........................................24

(a) STRICT LIABILITY AND THE CONSTITUTIONALIZATION OF MENS REA........24
Beaver v. R (1957) [MR- Strict Liability] (pg. 367)......................................24
R v. City of Sault Ste. Marie (1978) [MR- Strict/Absolute Liability] (pg. 373)
................................................................................................................... 24
Reference Re Section 94(2) of Motor Vehicle Act (BC) (1985) (pg. 396).....25
Vaillancourt v. R (1987) (pg. 432)...............................................................26
R v. Martineau (1990) (pg. 442).................................................................26
R v. Shand (2011) (pg. 455).......................................................................27
(b) SUBJECTIVE MENS REA.............................................................................28
R v. Theroux (1993) (pg. 363, 505)............................................................28
R v. Buzzanga and Durocher (1979) (pg. 491)............................................29
Sansregret v. R (1985) [recklessness/willful blindness] (pg. 506)..............29
R v. Currie (1975) (pg. 509)........................................................................30
R v. Briscoe (2010) (pg. 512)......................................................................30
(c) OBJECTIVE FAULT....................................................................................... 30
i. Criminal Negligence.................................................................................... 30
R v. Tutton and Tutton (1989) (pg. 519)......................................................30
R v. Creighton (1993) (pg. 538)..................................................................31
Objective Test checklist for.....................................................................32
R v. Beatty (2008) (pg. 547).......................................................................32
R v. F(J) (2008) (pg. 558)............................................................................ 32
ii. Crimes Based on Predicate Offences..........................................................33
R v. DeSousa (1992) (pg. 560)....................................................................33
R v. Creighton (1993) (pg. 569)..................................................................34

VI. Mistake of Fact and Mistake of Law.................................36

(a) MISTAKE OF FACT (sexual offences)..........................................................36
Pappajohn v. R (1980) (pg. 601).................................................................36

Sansregret v. R (1985) (pg. 614)................................................................37

R v. Ewanchuk (1999) (pg. 669).................................................................37
(b) MISTAKE OF LAW....................................................................................... 39
R v. Campbell and Mlynyarchuk (1972) (pg. 742).......................................39

VI. Mental Disorder and Automatism....................................39

(a) MENTAL DISORDER (s. 16)........................................................................39
Cooper v. R (1979) (pg. 784)......................................................................39
R v. Abbey (1982) (pg. 797).......................................................................40
R v. Chaulk (1990) (pg. 799).......................................................................41
R v. Oommen (1994) (pg. 801)...................................................................41
(b) AUTOMATISM............................................................................................ 42
R v. Rabey (1977) (pg. 802).......................................................................42
R v. Parks (1992) (pg. 818).........................................................................43
R v. Stone (1999) (pg. 836)- leading case in automatism defense.............43
R v. Luedecke (2008) (pg. 846)..................................................................44
AUTOMATISM SUMMARY.................................................................................45

VII. Intoxication..................................................................47
R v. Daviault (1994) (pg. 891)....................................................................47
Section 33.1 Criminal Code (Self-Induced Intoxication)..............................47
R v. Bouchard-Lebrun (2011)......................................................................47

VIII. Defenses.....................................................................48
(a) AIR OF REALITY FOR DEFENCES................................................................48
R v. Cinous (2002) (pg. 913).......................................................................48
(b) NECESSITY................................................................................................ 49
R v. Dudley and Stephens (1884) (pg. 957)................................................49
Perka v. R (1984) (pg. 960).........................................................................49
R v. Latimer (2001) (pg. 972).....................................................................50
(c) SELF-DEFENCE.......................................................................................... 50
R v. Lavallee (1990) (pg. 923)....................................................................51
(d) DURESS.................................................................................................... 51
R v. Ruzic (2001) (pg. 995).........................................................................52
R v. Ryan (2013)......................................................................................... 53
(e) PROVOCATIONPartial Defenses to Murder..............................................54
R v. Hill (1985) (pg. 1008)..........................................................................54
R v. Tran (2010) (pg. 1020)........................................................................54
Provocation in First Degree Murder (ADDITIONS to syllabus).........................55
R v. Parent (2001) (pg. 1033).....................................................................55
R v. Pappas (2013)..................................................................................... 56

IX. Parties to an Offence......................................................56

(a) AIDING AND ABETTING.............................................................................. 57
Dunlop and Sylvester v. R (1979) (pg. 1068)..............................................57
R v. Briscoe (2010) (pg. 1081)....................................................................57
R v. Logan (1990) (pg. 1084)......................................................................58
R v. Portillo (2003)-[common intention]- (pg. 1089)...................................59

I. Sources of Criminal Law

Three main sources (Common Law- judge made; Statute Law- criminal code; and
Charter- division of powers i.e. Constitution)
Statutes prevail over the common law
All criminal offenses must be consistent with the constitution
Section 91 (27): only federal government can enact criminal laws
Section 92 (15): provinces can create offences punishable by fine

(a) COMMON LAW

Frey v. Fedoruk (1950) (pg. 2)

SCC
Facts: Frey (plaintiff) is observed peeking into window of Fedoruks mothers room; Fedoruk
chases him with weapon, detains him
Issue: Should the courts continue to extend the list of common law offenses?
Ratio: No one can be convicted of a crime for engaging in conduct that is not already recognized
under the authority of the CC or previously reported case
Reasons: Court reluctant to create new crimes on sole basis that the act is likely to provoke a
violent or retributive response, this is due to 2 reasons:
1) Fear of unwanted consequences- would criminalize all sorts of conduct not
previously criminal (i.e. insults, adultery)
2) Potential for uncertainty- the offense is loosely defined, people need fair
notice
Decision: Appeal allowed. (Suit against Fedoruk allowed).
Judge: Cartwright J

Doctrine of Fair Notice

Common law offences run contrary to the principle that there can be no crime nor
punishment unless its in accordance with law that is reasonable, certain, clear and not
retroactive
Parliaments Response:
In 1955 abolish common law offences with Section 9 of the CC (also add new offence
called trespassing at night
Not withstanding anything in this Act or any other Act no person shall be convicted or
discharged under section 736
a) Of an offence at common law
Due to s. 8(3) of the CC, criminal law defenses have been maintained.

(b) STATUTE
R v. Clark (2005) (pg. 11)

SCC
Facts: Clark is masturbating in a lit room, in front of a window, blinds open (still hard to see
though). Mr. and Mrs. S observe him.

Charge: s. 173(1)(a) and s. 173(1)(b) of CC. 1(a) makes it an offence to willfully perform an
indecent act in a public place in the presence of one or more persons; 1(b) makes it an offence
to willfully commit an indecent act in any place, with intent to insult or offend any person
Issue: Was the accused in a public place at the time of the alleged act?
Ratio: One is not committing an indecent act when in the privacy of their own home and when
there is no intent to harm, or draw attention to themselves
Reasons: Public place: includes any place to which the public has access as of right or by
invitation. S.174, distinguishes between public place and private place, exposed to public view.
Therefore public place does not include private places otherwise section 174 becomes
superfluous. 173(1)(b): he didnt know he was being watched, therefore cant have the intent.
Decision: Appeal allowed, acquittal granted
Judge: Fish J

R. v. Pare (1987) (pg. 18)

SCC
Facts: Young man sexually assaults a 7-year old boy; when the boy threatens to tell his mother,
the man holds the boy down for 2 minutes, then strangles him to death
Charge: First degree murder, s. 214(5) (now s. 231(5) of CC) murder is first degree murder
when the death is causedwhile committing an indecent assault (now sexual assault)
Issue: Was the killing committed while he sexually assaulted the boy? (Strict interpretation issueis it reasonable to narrow definition of while committing to lessen the charge of 1M?)
Ratio: Yes. Parliament has chosen to treat these murders as 1M. The murder was causally
connected to the underlying offence. It formed part of one continuous sequence of events.
Reasoning: With the exactly simultaneous approach there is difficulty in defining the start and
finish of an indecent act. Court prefers one transaction approach. Simultaneous requirement
leads to irrational and arbitrary distinctions. Accused paused to deliberate, shows his intent which
moves him to 1M anyways.
Decision: Convicted of 1M
Judge: Wilson J
Continuity: If a murder is causally connected to the underlying offense, as defined in s.214(5) [now
231(5)] of the Criminal Code) then it forms part of one continuous sequence of events and is part of the
same transaction. (While after sexually assaulting the victim, the accused put on his pants, sat up, held him
down and then killed him, the crime is no less serious continuing legal domination by the accused
makes the entire course of conduct a single transaction taking time to think also lends greater strength
to classification as first degree).

(c) DIVISION OF POWERS

The Constitution Act, 1867

Section 91: Lawful for the Queen (federal level) to make laws for the Peace, Order and
good Government of Canada in relation to:
o 27. The Criminal Law, except the Constitution Courts of Criminal Jurisdiction,
but including the Procedure in Criminal Matters
o 28. The Establishment, Maintenance and Management of Penitentiaries
Section 92: In each Province the Legislature may exclusively make Laws in relation to
o 6. The Establishment, Maintenance, and Management of Public and
Reformatory Prisons in and for the Province

o
o
o

13. Property and Civil Rights in the Province

14. The Administration of Justice in the Province (including maintenance and
organization of Provincial courts)
15. The imposition of punishment by fine, penalty or imprisonment for enforcing
any law of the Province in relation to any matter coming within the classes and
subjects in this section

(d) CHARTER

With advent of Charter in 1985, CC and its provisions must comply with both the
Charter and the constitution
In establishing this, the Court has taken on a purposive approach i.e. is seeks to look
for the purpose of the legislation before interpreting the words

Hunter v. Southam (1984) (pg. 35)

SCC

Established the differences between the constitution and statute

Statute defines present rights (can easily be enacted and repealed)
Constitution is forward looking and cant be repealed easily. When drafters put it together
they couldnt have contemplated that would have happened in the future, up to courts to
interpret it under new social lens
Case dealt with s. 8 Charter violation (guarantees protection against unreasonable search
and seizure)
Purposive approach

Canadian Foundation for Children, Youth and the Law v.

Canada (2004) (pg. 47)

SCC

Facts:CFCbroughtanaction,statings.43ofCCviolatesrightsofchildrenunders.15of
Charter(equality).S.43permitsparentstousecorrectiveforcethatisreasonableunderthe
circumstances.CFCunsuccessful
Issue:Is.S.43ofCCcontrarytos.15oftheCharter?(Denieschildrentheprotectionitgives
adults?)
Ratio:Somethingcanbesavedfrombeingtermeddiscrimination:onlyifoneofthecontextual
factorsthecorrespondenceofthelawandtheactualneedsoftheclaimantsisnotsatisfied
Reasoning:Majorityseess.43asNOTviolatingCharter,distinctionofagenotdiscrimination.
S.43correspondswiththeneedsofchildren,astheyneedtobedisciplined,correspondswith
needsofteachersandparents(astheyneedtobeabletodiscipline).Becausethelawmeetsthe
actualneedofthechilditdoesnotviolates.15
Binnie(dissentinginpart)saysthatthisshouldhavebeendealtwithbysavingthesectionunder
s.1ofcharter.Otherdissentingjudgesdonotsees.43asbeingsaved(donotseeitcorrelating
withtheneedsofthechild).
Decision:Appealdismissed.
Judge:McLachlinforMajority.

Notes:Standardforvagueness:lawisunconstitutionallyvagueifitdoesnotprovidean
adequatebasisforlegaldebateandanalysis;doesnotsufficientlydelineateanyareaofrisk;
orisnotintelligible
Courtwasworriedaboutgivingtoomuchinterpretivepowertocourtsincasesinvolving
vagueness.
Setoutagelimitations:cannotuseforceonthose6monthstounder2years(theywouldnt
understandthepurposeoftheforce);nooneover2withmentaldisability;noforceonteenagers
(willcausepsychologicaldamageandcaninduceantisocialoraggressivebehavior);cantuse
objects

Canada v. PHS Community Services Society (Insite) (2011) (pg.

59)

SCC
Facts: Insite is safe injection facility in Vancouver, provides medical supervision to intravenous
drug users. Operated since 2003 under an exemption from the probation on possession of illicit
drugs in the CDSA (s.56 of CDSA). In 2008 Minister of Health failed to extend the exemption.
Claimants make 2 arguments: 1) division of powers makes the federal CDSA prohibitions
inapplicable to the provincial health activities of Insite staff and patrons 2) Sections of CDSA of
no effect b/c they violate s. 7 of the Charter
Holding: Federal CDSA provisions do apply to provincial health activities; provisions do not
violate s. 7 but the Ministers failure to provide an exemption does.
Reasoning: Recent jurisdiction has limited the use of interjurisdictional immunity. Prohibition of
possession in CDSA violates s. 7 right to liberty b/c its breach can result in imprisonment. Insites
clients s. 7 right to life and security of person b/c denies them access to lifesaving medical care.
Ministers exercise of discretion must conform to the Charter. Ministers decision not to re-issue
exemption not saved under s. 1. Purpose of CDSA is to protect health and public safety, not reissuing exemption runs against this.
Decision: Minister ordered to grant the exemption.
Judge: McLachlin CJ

R v. Oakes (1986) (pg. 63)

SCC
Facts: Oakes found with eight 1-gram vials of hash oil and $619.45. Claims he had vials for his
own use and money was left over from workers comp cheque
Charge: Possession of drugs for purposes of trafficking under s. 4(2) of the Narcotic Control
Act, pursuant to procedural provisions of s. 8 of the Act, trial judge found it was beyond a
reasonable doubt that Oakes was in possession narcotics.
Issue: Does s. 8 impose a presumption of guilt in violation of s. 11 (d) of the Charter?
Decision: S. 8 does violate presumption of innocence guaranteed by Charter.
Reasoning: Act creates reverse onus on the defendant. Charter right of presumption of innocence
means you must be proven guilty beyond a reasonable doubt; Crown must bear burden of proof;
criminal prosecutions must be carried out in accordance with lawful and procedural fairness
Lays out test for establishing if something is saved by s. 1:
1) Section must fulfill an objective related to concerns which are pressing and substantial in
a free and democratic society; and
2) The means chosen must be reasonable and demonstrably justified (proportionality)
a. Rational Connection

b. Minimal Impairment
c. Proportionality b/w effects and objective
Ratio: does not pass rational connection test, as possess of small amount of narcotics does not
support inference of trafficking
Notes: Court affirmed that federally enacted statutes are still subject to the Charter despite being
enacted through Parliament
Judge: Dickson CJC

II. Intro to the Criminal Process

(a) CLASSIFICATION OF OFFENCES
Indictable Offences

More serious offences, section that applies usually sets out applicable sentences
If it doesnt, s. 743 of the Code provides a mx of 5 years imprisonment
When an accused is charged with an indictable offence, generally speaking must be
present at all stages of the proceedings
Most serious offences are given to exclusive jurisdiction of the superior court of criminal
justice in Ontario
AG may override an accuseds decision and compel a jury by trial where the offences
sentence is 5 + years

Summary Offences

Less serious offences

Max penalty (unless otherwise specified) is $5 000 or 6 months imprisonment, or both (s.
787(1)
Always tried in Provincial Court (or equivalent) or by JOP
Normally accused need not appear personally in court but may choose to have lawyer or
agent represent them (unless ordered to appear) (s. 800(2) of CC)

Hybrid Offences

Offences where prosecution may choose whether to proceed by way of summary

conviction or indictment
Crown may consider penalties available, prior criminal record of the accused, or desire to
require accused present throughout proceedings in determining which sentence to
proceed with

(b) PRESUMPTION OF INNOCENCE

Woolmington v. DPP (1935) (pg. 77)

House of Lords

Facts: After wife leaves the accused, he shows up at her house, she is shot dead (neighbor sees
him leaving)
Issue: The trial judges instruction to the jury stated that once they determined he had caused her
death, it is presumed to be murder, and thus onus is shifted to him to prove to the jury that it was
otherwise
Ratio: Instruction violated accuseds presumption of innocence
Reasons: accused is entitled to a benefit of the doubt on evidence, there is never burden on the
accused to prove their innocence, to convict Crown must prove both that he murdered his wife
and that he intended to beyond a reasonable doubt. Presumption of innocence is the golden
thread that holds criminal law together and must be given highest accord
Decision: Appeal allowed, new trial ordered.
Notes: Section 686 (b) (iii) can only be used to keep a decision despite wrongful direction if it
can be said that the jury would have come to the same conclusion with the correct guidance (see
R v. Cinous) (applies to COA).
Judge: Viscount Sankey LC

(c) PROOF BEYOND REASONABLE DOUBT

R v. Lifchus (1997) (pg. 84)

SCC
Facts: stockbroker accused of fraud and theft. Convicted of one and acquitted of the other, he
appealed on basis that the judge did not properly explain the burden of proof to the jury. Trial
judge explained beyond a reasonable doubt as simply everyday idea, understood in a plain
language approach. COA allowed this appeal and ordered a new trial, Crown appealed SCC
dismissed it.
Issue: How should a judge charge a jury on the meaning of beyond a reasonable doubt?
Ratio: In defining important criminal terms, judge must not simply use a plain language
definition; must include descriptions of the important underlying concepts of criminal law; must
show the specific degree that must be proven to be acceptable.
Reasoning: Gives list of things to be considered in charging a jury: the standard of proof beyond
a reasonable doubt is intertwined with the principle of fundamental to criminal trials, the
presumption of innocence; burden of proof never shifts to accused; reasonable doubt is not based
upon sympathy or prejudice, is based on reason and common sense; logically connected to
evidence; does not involve an absolute certainty; more is required than proof of probable guilt
etc. Lays out what not to include and example charge. Crown failed to successfully argue for
application of s. 686 (b) (iii)
Decision: Appeal dismissed (crown).
Judge: Cory J

R v. Starr (2000) (pg. 87)

SCC
Facts: accused convicted of two counts of first-degree murder (based on hearsay). Majority of
court decided that the reasonable doubt instruction given in the case fell prey to many of the
issues found in Lifchus, likely mislead the jury as to the content of the criminal standard of proof.
Issue: How should a trial judge define a reasonable doubt to the jury?
Ratio: The criminal standard is more than a probability, closer to an absolute certainty

Reasoning: Jury must be instructed that the standard of proof in criminal trial is higher than
probability standard used in making everyday decisions in civil trials (meshes with presumption
of innocence). It falls much closer to absolute certainty than to proof on a balance of
probabilities. Something less than absolute certainty but more than probable guilt is required for
conviction
Decision: Appeal allowed (for accused).
Judge: Iacobucci J

(d) SECTION 11(d) CHARTER (proceedings in criminal

matters)

Section 11(d): Any person charged with an offence has the right (d) to be presumed
innocent until proven guilty according to law in a fair and public hearing by an
independent and impartial tribunal

R v. Oakes (1986) (pg. 95)

SCC

Burden of proof on crown is called a persuasive burden, moving the burden to accused is
called reverse onus
There is an evidentiary burden on the accused if they wish to raise a defense
Narcotic Act provision (s. 8) was unconstitutional for the reverse onus it caused,
contradicts presumption of innocence set out in Woolmington

(e) THE HARM PRINCIPLEs. 7 Charter

Section 7: Everyone has the right to life, liberty and security of the person and the right
not to be deprived thereof except in accordance with the principles of fundamental justice

R v. Malmo-Levine (2003) (pg. 108)

SCC
Facts: Malmo charged with possession and trafficking of marijuana. He argued that there is a
principle of fundamental justice under s. 7 that a criminal prohibition will offend the Charter
where it can be established that the conduct involved no risk of harm. Harm principle
Issue: Is the harm principle a principle of fundamental justice under s. 7? If so, are the
prohibitions on marijuana constitutionally valid?
Ratio: The harm principle is not the constitutional standard for what conduct may or may not be
the subject of the criminal law for the purposes of s. 7. It is better characterized as a description of
an important state interest rather than a normative legal principle. Harm principle is not
necessary for crimes to be constitutionally valid.
Reasoning: John Stuart Mill: state can only intervene when ones actions are harming others.
Accused argued possession of marijuana for personal use does not harm others, thus cant be
prohibited. Court rejected this, no principle requiring law to adhere to the harm principle.
Decision: Appeal dismissed
Notes: For a rule or principle to constitute a principle of fundamental justice:
1. It must be a legal principle
2. There must be significant societal consensus that is fundamental to the way in which the
legal system ought to fairly operate

10

3. It must be identified with sufficient precisions to yield a manageable standard to measure

deprivations of life, liberty or security of person
Judge: Gonthier and Binnie JJ

R v. Labaye/ R v. Kouri (2005) (pg. 114)

SCC
Facts: Charged with operating a common bawdy house (s. 210(1) of CC), definitions found is
s. 197(1)). Labaye had membership fees, a doorman, and a password. Kouri has a doorman and a
curtain that hides activity
Common bawdy house defined in s. 197(1) of CC as a place kept by one or more
persons for purpose of prostitution ore the practice of acts of indecency
Issue: Is this activity indecent?
Ratio: No it is not.
Reasons: TEST for Indecent Criminal Conduct (OBJECTIVE): Crown must prove beyond a
reasonable doubt that two requirements have been met.
1. By its nature the conduct at issue causes harm or presents a significant risk of harm to
individuals or society in a way that undermines or threatens to undermine a value
reflected in and thus formally endorsed through the Constitution or similar fundamental
laws by (a) confronting members of the public with conduct that significantly interferes
with their autonomy and liberty, (b) predisposing others to anti-social behavior, or (c)
physically or psychologically harming persons involved in the conduct. The categories of
harm capable of satisfying the first branch of the inquiry are not closed.
2. That the harm or risk of harm is of a degree that is incompatible with the proper
functioning of society. This two-branch test must be applied objectively and on the basis
of evidence.
Decision: Appeal allowed, convictions set aside
Judge: McLachlin
Dissent (LeBel and Bastarache): majoritys definition of harm is neither desirable nor
workable
1. It disregards precedent and a legacy of jurisprudence
2. Offences under the criminal code are based on principles and values other than harm;
3. Standards can be drawn upon "principles of social morality drawn from legislation."
4. The community does not tolerate the performance of acts of this nature in a place of
business to which the public has easy access."

III. The Act Requirement: Actus Reus

(a) COMMISSION OF AN UNLAWFUL ACT
Criminal liability requires:
1. There must be a guilty act actus reus. The accused must have voluntarily done an act or
brought about a result that is prohibited by law
2. The guilty act must be accompanied by a guilty state of mind- mens rea. The accused
must have done the act or brought about the prohibited result while simultaneously
possessing a culpable (blameworthy) state of mind

11

3. The actus reus and mens rea requirements must be satisfied in circumstances where no
legally accepted defense is available. That is, there is no justification or excuse for the
conduct at issue
4. The actus reus of a particular offence will depend upon the specific statutory language
used in the enactment of the crime.

R v. Lohnes (1992)-SCC (pg. 190)

SCC
Facts: Lohnes neighbor had many motors and junk on his yard, it was very loud. Lohnes yelled
obscenities at him and threatened to shoot him if he had a gun.
Charge: public disturbance s. 175 (1) (a)
Issue: Shouting and swearing only become criminal when they cause a disturbance in or near a
public place; what constitutes such a disturbance?
Ratio: For something to be a public disturbance, there must be an externally manifested
disturbance of the public peace, in the sense of interference with the ordinary and customary use
of the premises by the public. It is something more than a mere emotional upset
Reasoning: Court looks to case law, preamble, and interpreted the provision under the intent of
Parliament, found that Parliament couldnt have been intending to protect against mere emotional
upset, as it would not have specified the location to be public. Test for finding something as a
public disturbance is to to see if it is externally manifested and upset the customary use of the
premises by the public. Can be the impugned act or be the consequences that flow from it. Can be
small but must be reasonably foreseen in the circumstances. No evidence to support this in this
case.
Decision: Appeal allowed, acuittals.
Judge: McLachlin

R v. Burt (1985)-Sask Q.B. (pg. 197)

Sask Queens Bench

Facts: Accused charged that he, contrary to s. 141 via s. 253 of the Vehicles Act (Saskatchewan),
as a registered owner allow someone to operate a vehicle and cause excessive noise in its
operation. Under s. 253, the owner becomes vicariously liable for any violation. Trial judge held
that s. 253 contravened s. 7 of the Charter.
Issue: Does s. 253 violate s. 7 of the Charter?
Ratio: Yes. There needs to be some minimum control over the perpetration of the act that is being
attributed to the accused.
Reasoning: Under this provision the owner becomes vicariously liable, potential sentences
ranging from a fine of $1000 to imprisonment (or both). Thus, an owner could be convicted in the
absence of both mens rea and actus reus. Owner is not being convicted of letting someone
improperly use care but of the substantive offence or actual violation, would be punished for
misconduct of another. Is not saved by s. 1 of Charter as it goes beyond the reasonable limits
envisaged.
Decision: Appeal dismissed.
Judge: Gerein J

Marshall v. R (1969)- [possession] (pg. 202)

Alberta COA
12

Facts: Marshall gets ride with 3 friends to Vancouver (from Calgary). They are stopped for a
broken taillight and marijuana is found in the car. Marshall is charged with possession under s. 4
(2) of the Narcotic Control Act. The Crown relied on s. 4(3)(b) of the CC to support the
conviction.
Issue: Marshall had knowledge but did he consent as specified in s. 4(3)(b)?
Ratio: He did not consent, thus cannot be charged with possession. There must be some aspect of
control over the substance, which he did not have.
Reasoning: Consent of marijuana cannot be inferred from consent to riding in the car. Appellate
court looked to dictionary definition of consent and s. 4 (3) (b) of the code to help their
interpretation of consent as it is related to possession. Fact he didnt tell the police that the
substance was in the car is irrelevant, he does not have this obligation. He did have some form of
control in the sense that he passed the pipe off, comes close to consent but Court held this was
more of a result of reflex. He did not have enough in terms of actus reus to constitute possession.
Decision: Appeal allowed. Acquittal.
Judge: MacDermid J.A.

R v. Terrence (1983)- [possession] (pg. 206)

SCC
Facts: Terrence went for a ride with a friend in what he believed was his friends uncles new
car. The car was in fact stolen. Pulled over by the police, Terrence hops out of the car and runs
away. Court looked at true meaning of possession as under s. 4(3)(b).
Issue: What is the true meaning of possession? Is control an essential element?
Ratio: Yes control is an essential element.
Reasoning: Knowledge and consent cannot exist without the co-existence of some measure of
control over the subject matter. There was no direct evidence to contradict the respondents
version of what occurred. Trial judge based his finding of possession on his disbelief od he
respondent based on his assumption that the respondent had knowledge and that this was a proven
fact. Court looked to s. 21 of the CC to define parties to an offence, needs common intention,
none was found in this case.
Decision: Appeal Dismissed (crown).
Judge: Ritchie J

R v. Morelli (2010)- [possession] (pg. 209)

SCC

Possession: defined in s. 4(3) to include personal possession, constructive possession and

joint possession. Knowledge and control are essential elements

On allegation for personal possession the test for knowledge is:

1) Accused must be aware that he/she has physical custody of the thing in question, and;
2) Must be aware what the thing is
3) Both elements must co-exist with an act of control (outside of public duty)
Constructive possession is established where the accused:
1) Has knowledge of the character of the object,
2) Knowingly puts or keeps the object in a particular place for his use or benefit

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3) Intends to have the object in the particular place for his use or benefit or that of another
person
Issue: Is merely viewing child pornography on a web browser enough to

amount to personal or constructive possession from the CC?

S.163. 1(4) defines child pornography
2 potential objects of possession
o The file/code being saved
o The decoded representation on the screen
Held: must have possession of the underlying data file (accessing child porn is
a separate crime). Need some degree of control for possession
Note: doesnt matter how brief possession is, as long as it exists
ALSO can possess a file without downloading it to hard drive (e.g. save to
email)

R v. Chaulk (2007)- [possession] (pg. 220)

SCC
Facts: Chalk has child pornography on his computer, would sometimes watch it with his
girlfriend.
Charge: charged with possessing child pornography contrary to s. 163.1 (4) of CC
Issue: What is necessary to meet the requirements of possession in s. 4(3) of the CC?
Ratio: To be in possession of child pornography it is not necessary for the individual to have
viewed the material. It is the element of control, including deciding what will be done with the
material that is essential to possession.
Reasoning: Accused had possession as it was on his hard drive for several months, he admitted
to having watched it. Asked his girlfriend to destroy the material solely to keep it away from the
police, thus cannot be described as innocent possession (where someone is in possession of
something for the purpose and intent of destroying it). Accused had the necessary element of
control over the material for a finding of possession.
Decision: Appeal dismissed (case in favour of Crown)
Judge: Doherty JA

(b) CONSENT MAKING ACT LAWFUL

R v. Jobidon- assault (1991) (pg. 223)

SCC
Facts: Accused got into a fight with a man at a bar (on his bachelor party). They consented to
take the fight outside. Victim ends up falling unconscious and later dying at the hospital. Accused
was acquitted at trial buy convicted on appeal
Charge: assault s. 265, manslaughter (culpable homicide) s. 222. If death arises from an unlawful
act (such as assault) the charge is raised to culpable homicide, in this case, manslaughter
Issue: Is absence of consent a material element that must be proved by the Crown in all cases of
assault?
Ratio: A person cannot consent to death, or to violent force that is unreasonable conduct in the
circumstances. The limitation demanded by s. 265 (as applied to facts of this case): vitiates
consent between adults intentionally to apply force causing serious hurt or non-trivial harm to
each other in the course of a fist fight
Reasoning: Accused tried to argue couldnt charged with manslaughter as s. 265 specifies the
assault must be without consent, he had consent. Court rejects this, citing s. 14 (no one can

14

consent to death). This type of fighting holds no social good (i.e. not in the same way that hockey
players fighting at a game does). Cant consent to very violent forms of force that clearly extend
beyond the ordinary norms of conduct in the circumstances
Dissent: Sopinka: worries that this is the majoritys attempt to create an offence where one does
not exist (in violation of s. 9 of the CC), the new offence would be intentional application of force
WITH the consent of the victim
Decision: Appeal dismissed (in favour of Crown)
Judge: Gonthier J
Notes: Accused raised 3 arguments Crown had to get around: 1) if there is ambiguity in the
statute, it is to be interpreted in favour of the accused 2) physical assault is defined WITHOUT
consent 3) In other provisions of the Code, Parliament has explicitly said when consent doesnt
apply, have not done that here (court gets around this by interpreting that 265 was purposely left
vague, because if strictly interpertted as is, it would be absurd (even the most trivial touching
would be assault) so Parliament must have intended for the courts to explain the content of the
offence incrementally over the course of time

R v. Cuerrier (1998)- [assault/consent (HIV)] (pg. 239)

SCC
Facts: Accused charged with two counts of aggravated assault pursuant to s. 268 of the CC. Had
tested positive for HIV and didnt disclose it to the 2 complainants.
Issue: Does the failure to disclose HIV+ status constitute fraud, thereby negating
the consent under s. 265(3)(c) (consent cant be obtained through fraud)?
Decision: Appeal allowed. Order for new trial.
Ratio: When the consent of a sexual partner has been obtained by fraud involving
both dishonesty and deprivation where there is a significant risk of serious
bodily harm, that consent is vitiated. (some uncertainty here about using condoms
and psychological harm)
Majority: offence requires dishonesty, or non-disclosure where the reasonable
person would view dishonesty as fraud
Under s. 265(3)(c), failure to disclose that they have HIV is fraud
Fraud is limited to consent that is not based upon knowledge of the
significant relevant factors. Positive duty to disclose the greater the risk
to deprivation, the higher the duty to disclose
Important: Fraud doesnt vitiate consent unless theres a significant risk of
serious harm
Reasons: POLICY CONCERNS (stigma, public health concerns,
criminalization vs. public health body)

Cory: Test for fraud has 2 elements: 1) Proof of dishonesty (objective,

reasonable person) 2) Deprivation or risk of deprivation actual serious
bodily harm or significant risk of serious bodily harm
LHeureux-Dube: Fraud is anything that induced person to consent regardless
if act was particularly risky
McLachlin: More cautionary tone & courts should be careful in defining
elements of crime so as not to broaden them & create new crimes. But says
this is just an incremental change
Need s.265 (assault) first before you reach s.268

R v. Mabior (2012)- [assault/consent (HIV)]

SCC- Leading Case in this area

15

Facts: Accused is a partier, has sex with a lot of people despite having HIV, doesnt tell them
about it. Sometimes he uses a condom, sometimes he doesnt.
Charge: s. 273 of CC (aggravated sexual assault) indictable offence, potential he could go to
prison for life
Issue: what constitutes fraud under the Cuerrier test?
Ratio: If your viral load is undetectably low and you use a condom, you do not fall under the
fraud component of Cuerrier as the presence of a significant risk of bodily harm Is not present.
Reasoning: court endorses Cuerrier test but now know more about HIV, there are ways of
detecting the viral load etc. Worried about over criminalization and stigmatization of those with
HIV, want to encourage people to get tested and to practice safe sex. Court believes updated test
avoids setting the bar for criminal convictions as too high or too low
Test: Court updates Cuerrier test so it reads as:
1) Is there misrepresentation or non-disclosure of HIV?
2) Is there a significant risk of serious bodily harm?
a. If there is a realistic possibility of transmitting HIV, then there is a significant
risk of bodily harm established and consent is vitiated
Decision: Appeal allowed in part.
Judge: McLachlin

(c) OMISSIONS: LEGAL DUTIES TO ACT

Moral and Legal Duties (pg. 260)

Strong tendency of criminal law to require an act on part of the accused before criminal
liability can attach, but there are exceptions in which omissions are made criminal
Example: under s. 21 (1)(b) a party to an offence is someone who does or omits to do
anything for the purpose of aiding any person to commit it
General rule is that positive action is required for liability, but the language of permitting
might imply that an omission is sufficient
Omissions are criminalized on basis that the accused had a duty to act i.e. criminal negligence
s. 219: in doing anything or in omitting to do anything that it is their duty to do
Criminal responsibility for omissions is limited to cases where there is a legal and not merely
a moral duty to act

Fagan v. Commissioner of Metropolitan Police (1968) (pg. 264)

COA of England and Wales

Facts: Fagan was parking his car, cop wanted him to park somewhere else, accidently drove over
the cops foot, took a while to drive off.
Charge: assaulting a police officer
Issue: 1) Did the prosecution prove that the facts amounted to an assault? 2) Do the mens rea and
actus reus have to occur at the same time?
Decision: appeal dismissed, accused convicted
Ratio: Actus reus and mens rea can be superimposed on each other when there is a continuous act
(dont have to start at the same time) i.e. his intention flowed from the continuous act
Reasoning: Unintentionally & unknowingly causing harm to someone is not assault.
Continuing to do so after knowing that your action is harming is assault. The action
and intention did not have to occur at the same time, b/c the action was a continuing

16

act that overlapped with the intention to create a crime, thus both were present in
the crime
Dissent: Bridge: after becoming aware he did nothing, doing nothing does not
constitute actus reus
Judge: James J

Note: Not really an omission case, ended up being about 1 continuous act (continuing act theory)

R v. Miller (1983) (pg. 268)

House of Lords
Facts: accused had a few drinks, lit a cigarette, fell asleep with it, accidently set mattress on fire,
woke up, didnt put it out and moved to next room
Charge: offence of arson contrary to s. 1(1) and (3) of the Criminal Damage Act, 1971
Issue: is the AR present when a D accidentally starts a fire and either intending to destroy or
damage property belonging to another, or being reckless as to whether this happens, fails to take
any steps to extinguish the fire or prevent the damage?
Decision: Appeal dismissed, conviction upheld
Ratio: An unwitting accused is guilty of an offence, IF when they do become aware of the risk,
they intentionally or recklessly dont take the proper steps to prevent the harm or reduce the risk
Reasoning: AR can be deemed to have occurred b/c Miller created a situation that would result in
harm and he recklessly failed to prevent that harm, when he became aware of its existence, he
became under a duty to take some action to put it out
Judge: Lord Diplock

R v. Thornton (1991) (pg. 279)

Ontario COA
Facts: knowing he had HIV, donated blood to Red Cross without disclosing this to them
Charge: common nuisance, did an unlawful act or fails to discharge a legal duty and thereby
endangers the lives, safety or health of the public, s. 180 of CC. Trial judge saw this as an
unlawful act as it was a marked disregard for safety of others, however Crown argued on basis of
failing to discharge a legal duty, thus trial judge proceeded on basis that there ahd been an
omission. Found a duty within s. 216 (unlawful to engage in medical treatment that you know
will injure another person)
Issue: does failing to disclose having HIV a failure to discharge a legal duty?
Ratio: For purpose of defining criminal negligence, a duty imposed by law includes a duty
which arises both from statute and from common law
Reasoning: Had a duty to disclose, new what the blood was being used for and that the Red
Crosss testing wasnt perfect. Common law defense argument doesnt work. Have a duty to
refrain from conduct that could injure another. Donating blood you know to be contaminated with
HIV with purpose to make the blood available for transfusion constitutes a breach of the common
law duty to refrain from conduct which one foresees could cause serious harm to another person.
Thus failure to disclose is a breach of s. 180(2)
Decision: Conviction upheld
Judge: Galligan JA
Notes: SCC upheld this decision

R v. Peterson (2005) (pg. 286)

Ontario COA
17

Facts: son failed to provide his father with necessities.

Issue: Was the father in the charge of the accused such that the accused was under a legal duty to
provide the necessaries of life pursuant to s. 215 (1)(c)
Ratio: A legal duty to provide necessaries of life arises when one person is under the others
charge, is unable to withdraw from charge & unable to provide for themselves
Factors to determine if a person is in the charge of another:
1. The relationship of the parties to each other
a. There needs to be an element of dependency on one side, and an element of
control on the other (history of relationship trust)
2. The relative position of the parties and their ability to understand and appreciate their
circumstances. The inability of the victim to appreciate his or her need for necessaries
and the victims unwillingness to cooperate is NOT a defense for an accused charged
with failure to provide necessaries
a. Element of reliance
3. Whether one person has explicitly assumed responsibility for another (i.e. power of
attorney)
Reasoning: their relationship was one of dependency despite the fathers stubbornness
meaning the father was under the sons charge. Son had been given advice from police officer on
local agencies that could help. There was no financial inability. Sisters evidence didnt have
much weight, she hadnt been to the house in over a year. Evidence of neighbors weighted high.
Power of attorney document stating daughter was to deal with finances, son with necessities.
Test: conduct must show marked departure from conduct of a reasonably prudent person
having charge of another where its objectively foreseeable that a failure to provide would risk
danger to life or health of a person under charge
Dissent: Borins JA: these relationships, appropriate standard of care etc. are better left defined by
the legislature, legislature should enact specific laws in regards to elder abuse
Notes: Contributory negligence is only a defense when the injuries of the victim are solely
attributable to the victim. Hybrid offence
Judge: Weiler JA

(d) VOLUNTARINESS
Defining Conduct that is Not Voluntary (pg. 300)
R v. King (1962) SCC
There can be no actus reus unless there is a willpower to do an act whether the accused
knew or not that it was prohibited by law
Rabey v. R (1980) SCC- Automatism
Automatism is: an unconscious involuntary act, where the mind does not go with what is
being done
Results in a complete and unqualified acquittal
This defense exists as a middle ground b/w criminal responsibility and legal insanity
The Crown always bears the burden of proving a voluntary act
No act can be a criminal offence unless it is done voluntarily. Consciousness is a sine
qua non to criminal liability.
R v. Parks (1992) SCC- Automatism

18

Spoken as a defense yet it is conceptually a subset of a voluntariness requirement, which

in turn is part of the actus reus component of criminal liability

R v. Stone (1999) SCC- Automatism

Automatism as a state of impaired consciousness rather than unconsciousness
Voluntariness rather than consciousness is the key legal element f automatistic behaviour
since a defence of automatism amounts to a denial of the voluntariness component of the
actus reus
Accused has to prove the defense on a balance of probabilities
The physical voluntariness requirement applies to any offence, and is distinct from any
issue of fault

R v. Lucki (1955) (pg. 306)

Saskatchewan
Facts: car skidded on to wrong side of the road due to weather conditions
Charge: s. 125(9) of the Vehicles Act, RSS, 1953
Issue: Many provisions under this act require no proof of mens rea, is this particular provision
one of those?
Ratio: A physical inability to do something is involuntary and cannot satisfy the actus reus or the
mens rea of an offence
Reasoning: Legislature couldnt have intended for such a person to be found guilty under this
provision
Decision: Not guilty
Judge: Goldenberg

R v. Wolfe (1975) (pg. 307)

Ontario COA

Complainant punches accused, accused hits complainant in head with a telephone

Was the result of a reflexive actiona reflex is not voluntary, hence no offence is
committed
Reflex does not equal intent
Some intent is a necessary ingredient in an assault occasioning bodily harm
The involuntary act does not become voluntary immediately upon knowledge of certain
facts
NOTE: Voluntariness goes to ACTUS REUS (R v. Parks)

R v. Swaby (2001) (pg. 307)

Ontario COA
Facts: two men in a car, one has an unregistered gun with him, accused claims he didnt know it
was there. Other man says accused told him to go hide it in a field
Charge: s. 91(3) of the CC is now s. 94 (now explicitly includes a defense)

19

 accused had to have knowledge of weapon; if not aware of weapon, then not a
voluntary act
Post Swaby amendment, s.94(3): sub (1) does not apply to those who, once they
become aware of the firearm, try to leave the vehicle ASAP
Elements of s.91(3)
Actus reus:
Accused was an occupant of the car
Existence of restricted weapon in vehicle
No occupant of the vehicle held the permit lawful to possess that
weapon
Mens rea
Knowledge of the presence of the restricted weapon
Absence of a reason to believe that some occupant of the motor
vehicle held a permit to possess the weapon
Knowledge and occupancy must coincide
Decision: voluntariness not brought up in court, new trial ordered
Ratio: voluntariness requires some time to deal with the situation after learning of
the presence of the gun

R v. Ryan (1967) (pg. 310)

Australian HC
Voluntary acts leading up to involuntary act can lead to guilt
Facts: Accused wanted to emulate his hero (from a book) and decided to rob a service station at
gun-point, didnt intend to kill anyone, did by accident.
Issue: Should the jury have been instructed on the issue of involuntariness?
Ratio: No, based on the facts of the case, the act can be construed as voluntary. The result was a
probable and foreseeable consequence of his prior acts, making the so called reflex voluntary.
Decision: Appeal dismissed
Reasoning: The accused put himself in a situation were the consequence of his actions were
objectively foreseeable (i.e. had a loaded gun, finger on the trigger and leveled at another man), it
may have been a reflex that resulted in the gun going off, but all actions leading up to that point
were voluntary.
Judge: Windeyer J

Kilbride v. Lake (1962) (pg. 312)

New Zealand
Facts: warrant of fitness missing from parked car; was there when he left his car
Issue: Can something done perfectly innocently by a defendant become an offence by reason of
an intervening cause beyond his control, and which produced an effect outside of his knowledge?
Decision: Appeal allowed, acquittal
Ratio: Disregarding any mental elements of an offence, a person cannot be criminally responsible
fro an act or omission, unless it was done or mitted in circumstances where there some other
course open to him. If the actus reus of the offence is committed involuntarily, then the defendant
cant be convicted
Reasoning: Act or omission must be voluntary, the D must be shown to be responsible for the
physical ingredient of the crime to be convicted. Until this is proven, question of mens rea is

20

irrelevant. It is not the line of conduct that produces the prohibited event, it is the event itself.
Here, it is permitting vehicle to be on the road accompanied by omission to display a warrant.
Both must occur simultaneously. In this case only first aspect was present, and D did not bring it
about voluntarily. Thus, actus reus not proven and mens rea issue doesnt matter.
Judge: Woodhouse J

(e) CAUSATION
Rules:
In determining whether a person can be held responsible for causing a particular result, it must be
determined whether the person caused that result both in FACT and in Law
1. Factual Causation: inquiry into how the victim came to his or her death and into the
contribution of the accused to that result
BUT FOR the action(s) of the accused, would the death have occurred? (Nette)
2. Legal Causation: the question of whether the accused person should be held responsible in law
for the result that occurred (i.e. death)
**applies to all forms of homicide**

Smithers v. R (1978) [Causation- Manslaughter] (pg. 320)

SCC
Facts: malfunctioning epiglottis case (Smithers was black, Cobby racially insulted him
throughout the game). Smithers charged with manslaughter
Issue: was the kick a sufficient cause of the death to attract criminal liability?
Provision: s. 236, manslaughter
Decision: Appeal dismissed. Conviction Upheld
Test: Crown needs to prove that the act was at least a contributing cause of death, outside of the
de minimis range. Crown under NO burden of proving intention to cause death or injury
Ratio: An action only has to be an operating cause outside of the de minimis range in order to be
deemed the cause of a prohibited result in criminal law. The thin Skull rule applies in criminal
law as in tort law
Reasoning: Crown had to prove that the kick caused the vomiting, and that the vomiting caused
the death. Court accepts Crowns arguments that this is outside the de minimis range given the
thin skull principle
Notes: De minimis= the law cares not for small things. In intentional crimes, whether death is
an unintended consequence, the actor is always guilty of at least manslaughter (R v. Larkin). This
is a lower threshold of causation to be proven in order to get the conviction than previously held.
Judge: Dickson J

R v. Harbottle (1993) [Causation- 1M] (pg. 327)

SCC
Facts: Accused held victim down while companion strangled her
Issue: Was the accuseds participation such that he could be found guilty of 1M pursuant to s.
231(5) of the CC?
Provision: s. 231(5) (upgrade to 1M)

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Decision: Appeal dismissed. Guilty

Ratio: The gravity of the crime & severity of the sentence of 1M indicates a substantial & higher
degree of blameworthiness (i.e. higher threshold than Smithers). For conviction Crown must
establish that the accused committed an act that was a substantial and integral part of the death
(i.e. need to have physical contactwith exceptions i.e. companion puts victim in cupboard and
accused lights it on fire)
Test: restrictive test of substantial and integral cause Accused must have:
1) Been guilty of underlying crime of domination or of attempting to commit that crime
2) Guilty of murder
3) Accused participated in the murder in such a manner that they were a substantial cause of
death
4) There was no intervening act of another which would result in accused no longer being
substantially connected
5) Death was caused while committing the offence of domination as part of the same series
of events (while committing in s. 231(5) Pare continuous act theory)
Notes: How the court interpreted s. 231(5): s. 231(5) is 1M s. 229 says culpable homicide is
murder s.222(4) and s. 222(5) says what culpable homicide is. Need to establish s. 229
(murder) before you can get to s. 231(5)
Judge: Cory J

R v. Nette (2001) [Causation- 2M] (pg. 330) *Leading Case for

Causation for 2M*

SCC
Facts: 95 year old woman, robbed by accused, died by asphyxiation, some confusion on the facts
and what really happened. Confusion of the facts resulted in him not being convicted of 1M under
s. 231(5), but of 2M. Accused argues that the Smithers test should be reformulated to the specific
standard of significant or substantial, rather than beyond the de minimis so jury focuses on
right standard.
Issue: what is the proper threshold of causation for 2M?
Decision: Appeal Dismissed. Conviction Upheld.
Test: Cause in fact and law must be established. Majority confirms the validity of the causation
standard expressed in Smithers and that it applies to all forms of homicide EXCEPT 1M, which
follows the substantial cause test of Harbottle. Test is rephrased so that de minimis meaning
not a trivial cause/not significant are stated in the positive as significant contributing cause,
believes the jury will better understand this
Dissent: LHeureux-Dube: by following Arbours suggestion, they would be raising the threshold
of the test and that drastically changes the law should maintain the same wording as used in
Smithers.
Notes: to get to 2M need to first establish culpable homicide under s. 222(5)
Judge: Arbour for majority
SUMMARY of tests:
Harbottle FOR 1M under s. 231(5), essential, integral and substantial= HIGHER threshold
Nette FOR 2M, and manslaughter, now is significant contributing cause= lower threshold
than required for 1M but higher than what was set out in Smithers (i.e. if you are accused of 2M
you want to be measured on Nette test, Crown has a higher threshold to meet)

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R v. Talbot (2007) (pg. 337)

Ontario COA
Facts: Altercation outside restaurant, issue around whether the initial blow or subsequent kick
caused the death of the victim. Jury Acquitted on trial, Crown appeals.
Issue: punch or kick cause of death?
Decision: Appeal dismissed
Ratio: Uphold the majority decision in Nette, test is to be one of significant contributing factor.
Reasoning: Causation in criminal law has factual and legal component. Test for factual is but
for test, legal causation requires a normative inquiry. Jury is not asked to do this separately but
together, and establish if the accuseds actions significantly contributed to the victims death.
Crown had to prove the kick as being a contributing cause of death beyond a reasonable doubt
with in the meaning of Nette. The evidence brought went no further than suggesting there was
some intangible possibility that was less than likely that the kick exacerbated the internal head
injuries
Judge: Doherty JA

R v. Maybin (2012) *Leading Case in Causation in Unlawful Act

Manslaughter*
*Test: unlawful act significant contributing cause?*

SCC
Facts: victim and accused in crowded bar. A punches V many times, As brother also punches V.
Bouncer comes over and proceeds to hit the V in the head. All 3 accused with unlawful act
manslaughter.
PH: Trial judge held that attack was not a single transaction; two separate assaults. He also held
that medical evidence did not establish beyond a reasonable doubt that the 1 st assault (by Maybin)
or 2nd assault (by bouncer) were the cause of the death. So he acquitted all three. Crown appealed;
The COA was unanimous that the accuseds assaults were factually a contributing cause of death
but for their actions, the victim would not have died. And, that the risk of harm caused by
the intervening actor could have been reasonably foreseeable to the accused. Dissenting Judge
employed the Independent Act approach: whether the independent act of bouncer severed the
legal causation. Appeal was allowed & acquittals set aside.
Issue: Did the intervening act of the bouncer break the line of causation to Maybin? (Did trial
judge err in setting aside convictions?)
Test:
Legal Causation (2 tools, can use both):
o Reasonable Foreseeability: have to assess whether the risk of harm caused by the
intervening act could have been reasonably foreseen; this applies to the general
nature of the intervening act (the accompanying harm must be what is reasonably
foreseeable, NOT the precise future consequences) time to assess reasonable
foreseeability is at the time of the initial unlawful act, not the time of the
intervening act

23

Intentional Independent Act: did the accused merely set the scene, allowing other
circumstances to (coincidentally) intervene, or did the act of the accused trigger
or provoke the action of the intervening party?
If the intervening act is a direct response or is directly linked to the
accuseds actions (by its nature doesnt overwhelm the original act) then
the accused cannot be said to be morally innocent of the death
o ***These are analytical tools that help the court in their judgment, they
supplement, they do not replace the Smithers-Nette test: is still whether the
dangerous and unlawful acts of the accused are a significant contributing
cause of the victims death
Factual Causation:
o But-for test: but-for the actions of the brothers, would the accused have died?
Application:
Reasonable Foreseeability: if you start a fight in a bar it is reasonably foreseeable that others will
get involved, particularly security
Intervening Act: was act of the bounce so independent of the appellant that the chain is severed?
There can be independent actors without severing the chain connected acts of the appellants are
still a substantial contributing cause
Held: appeal dismissed.
Notes: Thin-skull principle upheld
Judge: Karakatsanis J
o

IV. The Fault Element: Mens Rea

(a) STRICT LIABILITY AND THE CONSTITUTIONALIZATION
OF MENS REA

Three forms of offences:

o Strict Liability: Requires Crown to prove prohibited act
beyond reasonable doubt, but gives the accused the
opportunity to prove due diligence or the absence of
negligence on a balance of probabilitiesCrown need not
prove fault, just the act
o Absolute Liability: Crown has to beyond reasonable
doubt that the accused committed the prohibited act, but
do not need to prove any additional fault i.e. negligence;
NO defense available to accused
o Mens Rea Offenses: Crown must prove guilt beyond a
reasonable doubt using either, subjective, objective or
modified objective approach (depending on wording of the
statute)True crime (not regulatory offence)

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Beaver v. R (1957) [MR- Strict Liability] (pg. 367)

*Assumption of requirement of MR for every true crime, unless
legislature explicitly states otherwise*

SCC- PRE- CHARTER

Facts: Max Beaver sold drugs to an undercover cop; Appellant claims he didnt know it was
drugs. Trial judge charged the jury that if they were satisfied that the appellant had in his
possession a package and sold it, then if in fact the substance contained drugs, then he could be
guilty for both possession and selling making questions whether he had knowledge of the
substance or if there was an honest mistaken belief irrelevant.
Provision: charged under the Opium and Narcotic Drug Act, RSC 1952 c. 201 s. 4(1)(d)
Issue: Is this view of the law correct? Did the trial judge err in law?
Decision: Quash conviction of possession, affirm conviction of selling
Ratio: true crimes require proof of subjective MR
Reasoning: Presumption with all criminal offences is that you need to prove MR unless
legislatures proves otherwise, Crown tries to argue this is not a MR case and just need to prove
the prohibited act. Looking at the penalty (6 mths imprisonment) make it a true criminal offence
and thus requires proof of MR (unless Parliament expressly stated otherwise, which they didnt)
Dissent: Fauteux J, Abbot J: doesnt require MR b/c we have to look to read the Act as a whole to
understand the intentions of Parliamentregulating the flow of drugs is so important we loose
some of our normal rights
Judge: Cartwright J for majority

R v. City of Sault Ste. Marie (1978) [MR- Strict/Absolute

Liability] (pg. 373)
*Creation of Strict Liability 3 types of offences*

SCC- PRE- CHARTER

Facts: The city entered into an agreement with a company to dispose of refuse. Pollution
resulted, charged under s. 32(1) of the Ontario Water Resources Commission Act, the penalty on
first violation is a fine of no more than $5000, each subsequent violation a fine of no more than
$10 000 OR imprisonment for not more than a year OR both
Issue: What is a public welfare offence and is it a strict liability offence?
Decision: appeal and cross-appeal dismissed, new trial ordered (is a strict liability offence)
Ratio: There are 3 types of offences: true crimes (MR), strict liability offences and absolute
liability. Offences that are created in provincial statutes can only be absolute or strict liability
offences because Provinces dont have jurisdiction to enact criminal law. In general, public
welfare offences are strict liability offences (have higher penalties and require a due-diligence
defence to be available to the accused).
Reasoning: Public welfare offences are to have a lesser fault requirement than true offences,
however, when they are serious and risk hefty fines or imprisonment, the D should not be
absolutely liable, need to have the chance to defend themselves on a balance of probabilities that

25

they engaged in due diligence. Lays out the 3 offences 1. True Crimes (require full proof of MR)
2. Strict Liability (not necessary for crown to prove MR but defence is available to D) 3. Absolute
liability (Crown need only prove act, no defence available)
Application: prevention of pollution is clearly a public welfare offence, no clear indication by
legislature that this is absolute and also doesnt use language like willfully, with intent,
knowingly etc. to imply the requirement of MR. Looked to penalty and decided Ds need
chance to defend themselves under strict liability
Judge: Dickson J
Notes: before this case there were only 2 forms of offences: 1. Criminal (required MR) and 2.
Absolute (no MR needed, not true crimes)

Reference Re Section 94(2) of Motor Vehicle Act (BC) (1985)

(pg. 396)
*Cant have absolute liability with possibility of imprisonment*

SCC CHARTER ERA

Facts: Gov passed a statutory provision and want to know if it complies with the Charter. Is a
provision that includes min and max fines and imprisonment dates AND explicitly states that it is
an absolute liability offence (Crown only need prove the prohibited act beyond reasonable doubt)
[would mean if you drive w/out license could go to jail, act established by proof of driving]
Issue: Can you have a min imprisonment sentence on an absolute liability regulation?
Decision: s. 94(2) is unconstitutional, violates s. 7 and is not saved by s. 1
Ratio: Since entrenchment of Charter, courts not limited to the evaluation of procedural
compliance with the Charter, but can review substantive law as well. Cant have an Absolute
Liability offence which includes a penalty of imprisonment (this also goes for Absolute liability
offences that have the potential of imprisonment)
Reasoning: analysis of s. 7 requires interpreting the scope of the words principles of
fundamental justice and not to be deprived of life, liberty and security of person. Combination
of imprisonment with an absolute liability offence violates this, not saved by 1 (not proportional)
Judge: Lamer J
Notes: When there is a s. 7 violation, it is very rare that it will be saved by s. 1

Vaillancourt v. R (1987) (pg. 432)

*Minimum requirement of objective foresight of death*

SCC CHARTER ERA

Facts: accused convicted of 2nd degree murder that resulted from robbing a pool hall. He had a
knife and thought his partner did too, was not aware of the gun (his partner is the one who shot
and killed the victim). Charged under s. 230(d) which negates the necessity for proof of MR for a
conviction. Accused arguing this violates s. 7 and 11 of the Charter

26

Provision: Charged under s. 230(d) (murder in commission of an offence) and s. 21(2) (common
intention)
Issue: Is s. 230(d) contrary to s.7 of the Charter b/c it imposes absolute criminal liability?
Decision: appeal allowed, new trial ordered
Ratio: It is a principle of fundamental justice (PFJ) that, absent proof beyond a reasonable doubt
of at least objective foreseeability, there cannot be a murder conviction (is the minimum standard
for crimes that carry heavy stigma with them)
Reasoning: under old provision, the accused could be convicted of murder without having any
subjective foresight of death or any objective foreseeability of the likelihood of the death. The
intent to rob is there but this doesnt necessarily overlap with the intent to murder, need to prove
some type of fault element in respect to the death. Because of the special nature and stigma
attached to certain crimes, the PFJs require a MR reflecting the particular nature of the crime.
Application: the infringement isnt saved by s. 1 (parliament had other options, i.e. could have
had a min. sentence imposed on those who use a fire are in the commission of an offence)
Notes: this provision got into the CC under the old unlawful act murder rule, where something
can be murder despite intention if the act that caused the murder was unlawful). All crimes of
murder require a subjective fault element to be proven because of the limits on freedom that their
punishments impose
Judge: Lamer J

R v. Martineau (1990) (pg. 442)

*PFJ require proof beyond a reasonable doubt that there was
subjective foresight of death*
Murder in Commission of Offenses

SCC CHARTER ERA

Facts: Martineau and friend out with weapons, knew they were going to commit a robbery.
Martineau thought it was just going to be a B & E. Once robbing a trailer accomplice shot and
killed people living there. Martineau charged under s. 230(a) of CC (homicide is murder if
committed during a B & E when a person means to cause bodily harm to commit a crime, even if
intent to kill or likelihood of death is not there)
Issue: Does a charge of murder require intent and is it subjective or objective?
Decision: Appeal dismissed (against the Crown)
Ratio: s. 230(a) of CC is contrary to the Charter. It is a PFJ that a conviction for murder cannot
rest on anything less than proof beyond a reasonable doubt of subjective foresight of murder.
Reasoning: citing Lamers decision in Vaillancourt, stating that objective foreseeability of death
is the minimum threshold test before a conviction for murder can be sustained. BUT, FPJ require
more, they demand a conviction for murder requires proof beyond a reasonable doubt of
subjective foresight of death. The introductory para of this provision removes this responsibility
from the Crown and thus violates ss. 7 and 11(d) of the Charter
Dissent: LHeureux-Dube: believes there was objective foresight in this case (especially with the
2nd killing) and therefore the conviction should be reinstated. Believes the crimes listed in s. 230
should be considered murder as a deterrent. Doesnt see requiring the lower threshold of objective
foresight as violating PFJ. Thinks the stigma concerns are over-emphasized, is misplaced
compassion.

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Sopinka: dissenting in part: agrees s. 230(a) should be struck down, but doesnt agree that all
instances of murder must require subjective foresight of death to be proven, doesnt think the
scope of this case can justify such a far-reaching policy decision (need some judicial restraint)
Judge: Lamer J for majority
Notes: Court used impairment test when examining whether this was saved by s. 1 (i.e. did they
have other options that wouldnt have impaired the rights of the accused as much)
* Later cases of Creighton and Desousa make it clear that, general, except for Theft and Murder,
the PFJs do not require subjective MR, so Parliament can still legislate offences that have the
lower threshold of objective MR requirements*
BOTH VAILLANCOURT AND MARTINEAU APPLY TO THOSE CONVICTED OF
MURDER AS A PRINCIPLE OR AS A PARTY
POLICY**The subjective requirement of foresight of death added by the majority frustrates the
purpose of s. 230 and s. 231 (Parliament intended for these crimes to be classified as murder (and
in case of 231(5) intended them to be upgraded to 1M), with the requirement of subjective
foresight of death, can have the adverse result with the accused being charged with manslaughter
(objective)

R v. Shand (2011) (pg. 455)

Ontario COA
Facts: 2 people go to rob drug dealers weed, follow g/f into basement, gun accidently goes off,
didnt intend to kill anyone
Provision: charged with 2M, judge directed jury on s. 229(a)(i) and (ii) and s. 229(c) accused
challenges the constitutionality of s. 229(c) on basis that s. 7 of the Charter demands a minimum
MR of intent to cause serious bodily harm to the victim to found a conviction for murder, in
alternative that it violates s. 7 on basis of vagueness and overbreadth
Issue: 1) is s. 229(c) unconstitutional because a) it permit conviction for murder without proof of
an intent to cause serious bodily harm to the victim? b) because its vague and overbroad? 2) in
alternative, did trial judge err in instruction to jury on the application of s. 229(c) to this case?
Decision: appeal dismissed
Ratio: s. 229(c) is not unconstitutional as a whole; ought to know section should be read out
Reasoning: Martineau ruling doesnt make the whole section unconstitutional.
Test for s. 229(c):
a) Accused must pursue an unlawful object other than to cause the death of the victim or
bodily harm to the victim knowing death is likely (i.e. having a gun to subdue people in
robbery)
b) The unlawful object must itself be an indictable offence requiting MR (i.e. robbery)
c) In furtherance of the unlawful object, the accused must intentionally commit a dangerous
act;
d) The dangerous act must be distinct from the unlawful object (something other than the
likelihood of death) this is the harm that is foreseen as a consequence of the dangerous
act
e) Dangerous act must be a specific act or a series of closely related acts, that in fact results
in death, though the dangerous act need not itself constitute an offence
f) When the dangerous act is committed, the accused must have subjective knowledge that
death is likely to happen
Application: the unlawful object is the robbery, the dangerous act the drawing of the gun in a
closed room. S. 229(c) requires the dangerous act be committed for or in pursuance of the

28

unlawful object; the dangerous act must be associated with the unlawful object to fall within the
provision. As the dangerous act was drawing the gun to subdue the people being robbed in closed
room (in pursuit of the robbery) fact that it went off accidently doesnt take it out of the ambit of
s. 229(c)
Judge: Rouleau JA
Notes: Parliament has not made the fault elements clear, nor the requirements, still hasnt been
dealt with today

(b) SUBJECTIVE MENS REA

R v. Theroux (1993) (pg. 363, 505)

SCC
Facts: accused is a business man involved in developing new houses, took deposits from people;
told them they were insured. Werent, project fell through and company went bankrupt.
Provision: convicted of fraud under s. 380(1) of the CC
Issue: Does the fact that the accused believed what he was doing was honest and would bring
about no harm negate the necessary MR of a charge of fraud under s. 380(1)?
Decision: Appeal dismissed.
Ratio: to prove MR for fraud, the Crown must prove the D subjectively was aware that their
actions could lead to a prohibited outcome; their view of the morality of this outcome is
irrelevant. The MR for fraud requires the subjective awareness that you are putting others
property at risk. The AR for fraud has two elements: a dishonest act, and this act must cause
deprivation
Reasoning:
AR of Fraud:
1) Prohibited act is deceit, falsehood, dishonest act
2) Deprivation caused by prohibited act (prohibited consequence); includes placing persons
property at risk
MR of Fraud:
1) Subjective knowledge of the prohibited act
2) Subjective knowledge that the prohibited act could have as a consequence the deprivation
of another
- Where the knowledge required of these definitions are established, accused is guilty
regardless if he intended the prohibited consequence or was reckless as to whether it
would occur or not
Notes: term MR does not encompass all of the mental elements of a crime. The AR has its own
mental element; the act must be voluntary for AR to exist, MR on other hand refers to the guilty
mind and wrongful intention of the accused. Leaving aside offences where the AR is negligence
and of absolute liability, the test for MR is subjective. The Q is whether the accused subjectively
appreciated that certain consequences would follow from his or her acts, not whether the accused
believed the acts or consequences were moral. In some cases, subjective awareness of the
consequences can be inferred from the act itself, barring some explanation casting doubt on such
inference (this does not detract from the subjectivity of the test)
Judge: McLachlin

R v. Buzzanga and Durocher (1979) (pg. 491)

Ontario COA
29

Facts: French CDNs disseminating hateful pamphlets in an attempt to rouse awareness for
prejudice, and act as a satire.
Provision: charged with willfully promoting hate under s. 319(2)
Issue: what is the meaning of willfully in the provision? What is its threshold to prove?
Ratio: in general, MR is satisfied as long as the outcome was intended or achieved through
recklessness, however, by including willfully implies that mere recklessness cannot suffice to
prove the necessary MR (unless expressly stated otherwise). i.e. not enough to prove they wanted
to create an uproar, had to have intended the hate as well to be convicted.
Decision: Set convictions aside and order new trial (trial judge had misinterpreted willfully)
Reasoning: to define willfully, court looks to provision above, s. 319(1). In this provision there is
no specifying language, have to presume subjective MR, which can be proved by intention or
recklessness. As s. 319(2) includes willfully, requires more, interpret willful to mean
intentional.
To prove intention:
1) Their conscious purpose in distributing the doc was to promote hatred against that group
OR
2) They foresaw that the promotion of hatred against that group was certain or morally
certain to result from the distribution of the pamphlet, but distributed it as a means of
achieving their purpose of obtaining a French-language school
Judge: Martin JA

Sansregret v. R (1985) [recklessness/willful blindness] (pg.

506)

Recklessness: to form part of MR must have an element of the subjective (it is where one,
aware of the danger, continues to act despite the risk). Finding of recklessness allows for
defense of mistake of fact doesnt matter if the honest belief is unreasonable, defense is
still there. Culpability justified by knowing of the risk and persisting
Willful blindness: results from different mental attitudes and leads to a different legal
result than above. No defense available. Law presumes knowledge on part of the accused.
While recklessness involves knowledge of the risk and persistence in a course of conduct,
willful blindness arises where a person who has become aware of the need for some
inquiry declines to make the inquiry b/c they do not wish to know the truth. Culpability
justified by consciousness of the risk and failing to inquire when knowing there is reason
for inquiry. Is essentially the equivalent of actual knowledge.

R v. Currie (1975) (pg. 509)

Willful blindness is judged on a subjective standard

Ontario COA
Facts: accused agrees to cash a check for a stranger, didnt make any inquiries, just did it
Provision: charged with s. 368(1) (uttering forged document). Judge found him willfully blind
not reckless, instructed on an objective standard to jury
Issue: was the accused willfully blind? If he was, did the trial judge err in his charge to the
jury?
Decision: New trial trial judge misunderstood meaning of willful blindness
Ratio: willful blindness is a subjective standard. It is not what one should or ought to know. Must
ask if person had an actual suspicion and then fail to get knowledge
Reasoning: Ought to have known is not the same as knowledge and thus does not equal willful
blindness

30

Judge: Martin JA for majority

R v. Briscoe (2010) (pg. 512)

Willful blindness is defined as deliberate ignorance
substitutes for actual knowledge when knowledge is required
in a MR offence

SCC
Facts: 2 young girls brought to a remote area by the accused, were later raped and murdered.
Issue: Is the requirement of knowledge of the likelihood of death satisfied by willful
blindness?
Decision: Appeal dismissed
Ratio: Where a failure to inquire is a marked departure from the conduct expected by a
reasonable person, willful blindness is not simply a failure to inquire but deliberate ignorance.
Willful blindness is an active process of suppressing a suspicion. It substitutes for actual
knowledge when knowledge is a required component of the MR offence.

(c) OBJECTIVE FAULT

i. Criminal Negligence
R v. Tutton and Tutton (1989) (pg. 519)

SCC
Facts: Tuttons believed their diabetic son had been cured by divine intervention, didnt give him
insulin, got really sick. Started him on it again, believed again he was fine, took him off and he
died. (They had been instructed on insulin).
Provision: Charged with manslaughter by criminal negligence under ss. 219 and 215 of CC (duty
to provide necessities and criminal negligence)
Issue: What is the MR requirement for manslaughter by criminal negligence? Subjective or
objective?
Decision: Appeal dismissed. Confirmed the direction for new trial
Ratio: 3-3 split on whether it should be objective or subjective
Reasoning:

McIntyre: Objective standard: a marked and significant departure from the

standard that can be expected from a reasonably prudent person. Not to be
assessed in a vacuum surrounding circumstances must be considered. A
mistakenly held belief would have to be objectively reasonable.
Lamer: Mixed objective & subjective standard. Allowances should be made
for particularities of accused. A reasonable person test imbued w/ personal
characteristics.
Marked departure from the reasonable person, but the reasonable person
should be viewed in terms of the characteristics of the accused (youth, mental
development, education, etc)
Wilson: McIntyres approach turns criminal negligence into an offence of
absolute liability. wanton or reckless disregard indicated subjectivity
If wording is ambiguous, then you should give a strict interpretation of the
penal statute (interpretation that is most favorable to the accused)

31

Also, need to look at the whole legislative scheme. If criminal negligence

requires subjective foresight, then what separates murder from
manslaughter?

Notes: this case didnt really help us, still dont know which approach to endorse

R v. Creighton (1993) (pg. 538)

SCC
Facts: experienced drug user administered cocaine to a willing woman who subsequently died
Provision: charged with unlawful act manslaughter s. 222(5)(a)(b). Common law had decided
that where the accused had committed an unlawful act, objective foreseeability of the risk of
bodily harm which is neither trivial nor transitory was sufficient and foreseeability of the risk of
death was not required.
Issue: does this common law definition of unlawful act manslaughter contravene s. 7 of the
Charter? What is the proper MR standard for manslaughter?
Decision: Appeal dismissed.
Ratio: Objective standard fine. Test is: what a reasonable person wouldve done
and what the person did was a marked departure from this. Assessment made from
the totality of the circumstances
Note: no personal factors should be considered, its a single uniform standard of
the reasonable person.
o Exception: incapacity wont be held to the reasonable person standard
if they dont have the capacity to appreciate the nature and quality of the
consequences of his act
Dissent: Lamer favour a modified objective standard (to consider personal
characteristics of the individual), but that doesnt work
Note: dissents comments on relevant characteristics for personal traits must be
considered only when they are not in control or otherwise unmanageable in the
circumstances. Because majority did not discuss this point, a encroachment in
regards to incapacity can be made with the human frailty aspect.

3 part test set out by McLachlin that must be satisfied for a conviction in manslaughter:
1) Establish ARactivity must constitute a marked departure of the care of a reasonable
person in the circumstances
2) Establish MRthe activity must have been done while there was objective foresight of
harm (not death) that can be inferred from the facts. Reasonable person in circumstances
standard
3) Establish capacityis there capacity to appreciate the nature of the risk which the
activity in question entails? (doesnt require consideration of personal factors short of
incapacity

Objective Test checklist for

1. Would a reasonable person in the same circumstances (including any expertise) have been aware
that the likely consequence of the unlawful act would create risk of death?
i. If no, accused must be acquitted. If yes, trier of fact must then ask:
2. Was the accused unaware because he/she:
i. Did not think of the consequences and thus to the risk of death?
ii. Lacked the capacity to think of consequences?
iii. If answer is (a), then conviction. If answer is (b):

32

3. In the context of the particular offense, would the reasonable person w/ the capacities of the
accused have made himself aware of the likely consequences of the unlawful conduct & the
resulting risk of death? If yes, then guilty.

R v. Beatty (2008) (pg. 547)

SCC
Facts: accused driving, momentary laps of attention, drove over center -line and killed 3 people.
Doesnt know what happened
Provision: Charged with dangerous driving causing death, s.249
Issue: does s. 249 require a marked departure or civil negligence standard?
Decision: Appeal allowed, acquittals restored
Ratio: Modified objective test (is a marked departure standard in the circumstances of the
accused, do not factor in personal characteristics, just incapacity to appreciate risk)
ARperson driving is objectively dangerous
MR marked departure from the standard of care that a reasonable person in the circumstances
would observe
Reasoning: have to look at the way the man drove the truck, not looking at consequences, but
circumstances. MR is marked departure, not a subjective test. Policy: social value in driving
Judge: Charron J
**Added for allowance of exculpatory defenses

R v. F(J) (2008) (pg. 558)

SCC
3 degrees of objective fault requirements:
1) Due diligence with the onus reversed for regulatory offences (as a matter of common law
presumption under Sault Ste. Marie or as a Charter standard where there is a risk of
imprisonment). This is a standard of civil negligence like that long applied for the tort of
negligence (objectively foreseeable)
2) A marked departure from the objective norm as a Charter standard for crimes with
objective fault requirements (Beatty) (gross negligence)
3) A marked and substantial departure from the objective norm for offences based on
criminal negligence under s. 219 F(J) (worse than gross negligence)
**Negligence is a form of fault not AR

ii. Crimes Based on Predicate Offences

These offences create a large exception to the general rules of

MR (do not require a correspondence b/w AR and MR. They are:

Manslaughter s.222(5); Criminal negligence causing bodily harm (s.221); Criminal

negligence causing death (s.220); Dangerous operation causing bodily harm (s.249(3));
Dangerous operation causing death (s.249(4)); Impaired driving causing bodily harm
(s.255(2)); Impaired driving causing death (s.255(3)); Assault causing bodily harm
(s.267(1)(B)); Aggravated assault (s.268); Sexual assault causing bodily harm
(s.2762(C)); Aggravated sexual assault (S.273)); Mischief causing danger to life
(s.430(2)); Arson causing bodily harm (s.433(b))
Predicate offences are created by an underlying offence + harm/consequence that follows

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Fault (MR and AR) must be proven for the underlying offence (cannot be an absolute
liability offence) this is for the predicate offence
For the aggravating consequences: AR is the consequence, MR is objective (reasonable
foresight standard)

R v. DeSousa (1992) (pg. 560)

SCC
Facts: bystander injured from accused throwing a glass bottle. Accused brought motion to have s.
269 declared of no force and effect on ground that it violated s. 7 and 11(d) of Charter. Argued
that the offense requires subjective foresight of the consequences of the act and that if bodily
harm IS caused, if the unlawful act is of absolute liability it may violate PFJ and be
unconstitutional
Charge: s. 269 Unlawfully causing bodily harm (based on predicate offence s.265 for assault)
Issue: What is the constitutionally required level of MR for the charge of unlawfully causing
bodily harm? Does s.269 violate s.7 or s.11(d) of Charter?
Decision: Does not violate either
Ratio: The MR for the charge of unlawfully causing bodily harm is objective. An objective
foresight of bodily harm that is not merely trivial or transitory in nature. However, the predicate
offence cannot be an absolute liability offence b/c of constitutional req. (Motor Vehicles)
Reasons:
The charge itself is broken down into two separate requirements.
(a) First, there must be an underlying offence (the "unlawful act") with a valid mens
rea requirement (constitutionally sufficient mental element on it own).
- This includes provincial and federal offences, criminal or otherwise, but NOT any
absolute offences.
-Some type of fault must be established for that
(b) Secondly, the "unlawful act" must be at least "objectively dangerous" so that a
reasonable person would realize that the act created a risk of bodily harm.
-Act must be both unlawful and one that is likely to subject another person to danger
of harm or injury
-This bodily harm
**They were reluctant to look to meaning of the word unlawful in Smithers, because it was
pre-charter
-Due to the lack of stigma or any sort of significant prison sentence attached to the offence it did
not warrant a higher "subjective fault" requirement (R. v. Martineau).
-looked at penalty as well because it is for a shorter duration
-Subjective mens rea not needed also because:
-There are many provisions in the Criminal Code, you don't need intention as to the
consequences.
-To require fault in regards to each CONSEQUENCE of an action in order to establish
liability for causing that consequence would substantially restructure current notions of
criminal responsibility and it would bring a large number of offences into question i.e.
Manslaughter, criminal negligence causing bodily harm, criminal negligence causing death,
dangerous operation causing bodily harm, aggravated assault, e.t.c.

34

Analysis: Remember underlying act must be both unlawful and one that is likely to subject
another person to danger of harm or injury
Objective foresight of bodily harm for all underlying offences.

R v. Creighton (1993) (pg. 569)

Unlawful act manslaughter/crim. neg. requires obj. foresight of
bodily harm, NOT death

SCC
Charge: Unlawful act manslaughter s. 222(5)(a)
Trafficking (Narcotics Control Act)
Issue: Does the objective test for unlawful act manslaughter require reasonable foresight of
death or merely foresight of bodily harm? Did the trial judge err in requiring only a foreseeability
of bodily harm?
Decision: Objective fault is limited to foreseeability of harm. On these facts the harm was
foreseeable. No charter violation, appeal dismissed.
Ratio: The test for the MR of unlawful act manslaughter is objective foreseeability of the
risk of bodily harm which is neither trivial nor transitory, in the context of a dangerous act.
Foreseeability of the risk of death is not required.
Reasons:
Differentiation argument between minority & majority:
Majority- reasonable forseeability of bodily harm
Minority- reasonable foreseeability of the death
McLachlin: For Majority
-Manslaughter to begin with has less of a stigma attached to it and is arguably exactly what
it should be for an unintentional killing; the conduct itself is nonetheless blameworthy
-the sentence can be and is tailored to suit the degree of moral fault of the offender-->
follows then tat the sentence attached to manslaughter does not require elevation of the
degree of mens rea for the offense
-When talking about reasonable foreseeability, it should be of risk of bodily harm not death
-To arrive at this conclusion they looked at the
-Stigma
-Particular facts of case to look at the time which would be served as penalty
-Wanted to maintain civil law principle of Thin Skull Principle --> take your victim
as you find him
-Usefulness in maintain it and do not want to nullify it
-Looked at other case law
Lamer argues that the more severe the consequences are the more prominent the subjective mens
rea needs to be
-M argues back that there are many provisions that do not in fact satisfy that
Lamer: Dissenting

35

-because of special nature of stigma attached, one of the most heinous crimes in society is killing
someone
-Murder and manslaughter are both causing death, regardless of the scope of each.
TESTS
TEST: to secure a conviction (on the predicate offence) the Crown must prove that the accused:
Actus reus:
1) applied direct or indirect force to another person
2) without that persons consent; and
3) (s.267(b)) that this caused bodily harm to that person.
Mens rea:
1) intended to apply direct or indirect force to that person
2) knew, or was reckless or willfully blind towards, the fact that the person was not
consenting; AND
3) (s.267(b)) that a reasonable person would have foreseen that bodily harm of more than a
trivial or transitory nature was a likely consequence of the force applied.
TEST: to secure a conviction of unlawful act manslaughter, Crown must prove:
AR:
1. Accused committed an underlying offence (could be breach of a legal duty)
2. Committed manslaughter as a result of the underlying offence (Causal connection:
Smithers)
Was there a marked departure form the standards of the reasonable person in all the
circumstances of the case?
MR:
1. MR of underlying offence
2. Objective foreseeability of bodily harm that is neither trivial nor transitory in the context
of the dangerous act (can be inferred from facts)
3. Did accused possess the requisite capacity to appreciate the risk flowing from his
conduct?
Notes: Unlawful act manslaughter falls into class offenses where a mental element in relation to
the consequence must be established.
Lamer C.J. says he finds stigma attached to a conviction for culpable homicide, not of
murder, to be significant enough to require at minimum an objective foresight of the risk of
DEATH in order for offense to comply with s. 7 of Charter
-Three general types of culpable homicide:
A) murder (intentional killing of another human being)
B) Infanticide (intentional killing of a child)
C) All other culpable homicide falls into residual category of manslaughter
-Two requirement of manslaughter are CONSTANT:
1) Conduct causing the death of another person
2) Fault short of the intention to kill May consist of either committing another unlawful
act which cause the death OR criminal negligence
Crimes Based on Predicate Offences Summary
For certain offences that link a predicate unlawful act to a particular consequence or result, a conviction will
follow where:
The AR is established (for all elements of both the predicate offence and the aggravating consequences) AND

36

 The MR for the underlying offence is made out AND

The act in question must have given rise to an objective foreseeable risk of bodily harm that is more than
trivial or transitory in
Nature. That is, the reasonable person wouldve foreseen this level of harm more than trivial or transitory
as a likely
Consequence of the act at issue.

Subjective mens rea

Aware of risk, all individual
factors

e.g., murder, assault,

break and
enter, theft, possession
offences

FAULT FOR CRIMES

Objective
negligence
Marked departure from
objective
norm, no individual factors
short
of incapacity
Criminal negligence
marked and substantial
departure from objective
norm
e.g., dangerous driving,
careless
firearms, failure to provide
necessaries

Offences based on
predicate
offences
Objective foresight of
harm, no
individual factors, no
marked
limit, except for predicate
offences of negligence
e.g., unlawful act
manslaughter,
unlawfully causing bodily
harm,
aggravated assault

VI. Mistake of Fact and Mistake of Law

(a) MISTAKE OF FACT (sexual offences)
Pappajohn v. R (1980) (pg. 601)
The mere honesty of the belief will support the mistake of
fact defence, even where its unreasonable

SCC- old rape provisions- Pre- charter

Facts: real estate agent case (rapes her in his home). Conflicting evidence (he said she said)
Issue: what is the required MR for rape? Is a mistaken belief in consent available in defence to
the charge of rape?
Decision: Appeal dismissed
Ratio: it is the trial judges responsibility to put before the jury any defenses which may b open to
the accused upon the evidence whether raised by the accused or not. There must be some
evidentiary basis upon which the defence can rest, it is only when this happens that the defence
can be put to the jury, to do otherwise would confuse. YET, the mere honesty of the belief will
support the mistake of fact defence, even where its unreasonable
Reasoning:
McIntyre (majority): test to decide whether there is sufficient evidence for the defence of
mistake of fact: evidence must appear from or be supported by sources other than the appellant in

37

order to give it an air of reality. Not present in this case. Trial judge not err in not allowing the
defense through to the jury
Dickson (dissent): defence is derived from the MR requirement which is subjective standard, and
consequently the mistaken belief did not need to be reasonable, it only needed to exist

Sansregret v. R (1985) (pg. 614)

Willful blindness overrides defence of mistake of fact

SCC
Facts: abusive relationship, broke into her house threatened her with knife, she had sex with him
to calm her down. After he left went to the police, his parole officer advised her not to do
anything about it. He did it again.
Provision: charged under old rape provisions s. 143(b)(i) of the CC (now repealed but in force
when charge was laid)
Issue: Is willful blindness relevant to a mistake of fact defence in a sexual assault charge?
Decision: Appeal dismissed. Yes it matters, vitiates the use of the defence.
Ratio: The defense of mistake of fact does not apply in a sexual assault case where the accused
was willfully blind to the lack of consent.
Reasoning: even if the accused was not subjectively aware that there was no consent, he was
willfully blind to the lack of consent. The culpability is his refusal to inquire whether the
complainant was consenting when he was aware of the need for further inquiry (i.e. knew she had
gone to the police of the first instance)
Notes: recklessness, to form a part of the MR, must have an element of the subjective (aware of
risk and persists) this is distinct from criminal negligence which is an act or omission which
reveals less than reasonable care. If recklessness is found, defense of mistake of fact IS available
Judge: McIntyre J

R v. Ewanchuk (1999) (pg. 669)

No defence of implied consent available in sexual assault

SCC
Facts: sexually touched a 17 year old in his van (job interview)
Issue: Is there a defense of implied consent available in sexual assault?
Decision: Appeal allowed (for crown) substituted a conviction
Ratio: No defence of implied consent in sexual assault. Mistake of Fact as a defence to sexual
assault is only available to those who honestly but mistakenly believe they had consent to touch
the complainant
Reasoning:
Components of Sexual Assault:
1.
Actus Reus- unwanted sexual touching
Needs proof of THREE ELEMENTS:
(i) Touching
(ii) Sexual nature of contact
o (this determined objectively; Crown doesn't need to prove accused had any mens
rea with respect to sexual nature of his/her behavior)
(iii) Absence of consent
o (Subjective and determined based on complainant's subjective internal state of
mind at time when touching occurred)

38

If trier of fact accepts the complainant's testimony that she did not consent, no
matter how strongly her conduct may contradict the claim, the absence of
consent is established and third component of AR is proved.
**NO DEFENCE OF IMPLIED CONSENT TO SEXUAL ASSAULT IN
CANADIAN LAW (there's either consent or no consent)
*Application to Case:
o Trial judge erred in considering the actions of the complainant rather than her subjective
mental state in determining question of consent.
o Concluded it raised reasonable doubt about consent and described it as "implied consent"
o Trial judge should have just accepted the complainant's testimony regarding her own state
of mind as the end of the matter on this point and also accepted her as a credible witness
o s. 265(3(b)): There is not consent as a matter of law where the complainant
believed she was choosing between permitting herself to be touched sexually
or risking being subject to the application of force
o Complainant's fear need NOT be reasonable or be communicated to accused in
order to be vitiated (subjective approach)
1.
Mens Reaa.
Intention to touch,
b.
Knowing of, or being reckless of wilfully blind to, a lack of consent,
either by words or actions, from the person being touched
**Now we see that not just wilful blindness BUT RECKLESSNESS as well plays a role in
the provision
*Application to Case:
o Accused doesn't deny she said No but relies on the fact that he stopped each time she did
--> Meaning: he knew complainant was NOT consenting on four separate occasions
o There is nothing on record to support accused's claim that he continued to believe her to
be consenting or he re-established consent before resuming contact. And this is at
minimum a charge of recklessness, and we already know that if there's recklessness or
wilful blindness then the defence of mistake of fact can't apply
o Therefore, NO AIR OF REALITY HERE and not enough evidence to put this defense to
the trier of facts
*Limits on Mistaken Belief in Consent:
o i.e. Belief in silence, passivity, or ambiguous conduct constitutes consent is a mistake of
law (not a mistake of fact) and provides no defence (the complainant must say yes
affirmatively through word or actions)
o One "No" will do to put other person on notice that there is a problem with consent.
Person intent on continuing after that must get an unequivocal YES before he can touch
her again
o If he doesn't do that, then it is at minimum reckless conduct that's not excusable
Notes: In MR analysis, consent is considered from perspective of accused (vs. In AR it is
considered from perspective of complainant) --> Here, he must be able to show that he
BELIEVED complainant consented to engage in sexual activity in question by virtue of the
complainant having affirmatively communicated by words or conduct that her agreement to
engage in that conduct. LHeureux-Dube very upset with trial and Appeal court levels. Dispels
myths and stereotypes around sexual assault and women.
Judge: Major for majority.
o

39

(b) MISTAKE OF LAW

R v. Campbell and Mlynyarchuk (1972) (pg. 742)

Alberta District Court

Facts: go-go dancer, boss told her new law passed that made bottomless dancing no longer
illegal. Her boss was right but the decision had been reversed on appeal (mistake of law)
Provision: s. 163(2) now s. 167(2) Everyone commits an offence who takes part or appears as an
actor, performer, or assistant in any capacity, in an immoral, indecent, or obscene performance,
entertainment, or representation in theatre
Issue: Was the act immoral? Was there necessary MR for offense?
Decision: Appeal dismissed; conviction upheld (but discharged)
Ratio: as per s. 19, there is no defense of mistake (or ignorance) of law. Accuseds mistake was in
concluding that a statement of law as expressed by a Judge at the trial level was the law.
Reasons:
*Whether the act was immoral:
o S. 170 makes it an offence to be nude in a place itself, therefore performing nude is an
immoral act within the meaning of the section
*Whether there was necessary MR
o Accused argued she didnt have this as she believed the law to have changed (based on
what she was told by her boss). Doesnt matter, ignorance of law is not a defense
*Policy reasons for not having this defense:
o Would place a premium on the ignorance of the law less you know the better defense
you would have
Judge: Kerans DCJ

VI. Mental Disorder and Automatism

(a) MENTAL DISORDER (s. 16)
s. 16. (1) No person is criminally responsible for an act committed or an omission made while
suffering from a mental disorder that rendered the person incapable of appreciating the nature and
quality of the act or omission or of knowing that it was wrong.

Marginal note: Presumption

(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from
criminal responsibility by virtue of subsection (1), until the contrary is proved on the
balance of probabilities.

Marginal note: Burden of proof

(3) The burden of proof that an accused was suffering from a mental disorder so as to be
exempt from criminal responsibility is on the party that raises the issue.
s. 672.54 new remedy for mental disorder as opposed to indeterminate detention: disposition a)
absolute discharge b) absolute discharge with conditions c) detained in custody at hospital

Cooper v. R (1979) (pg. 784)

SCC

40

Facts: outpatient at psychiatric hospital; goes to a dance organized for patients; strangled woman.
At trial defense of insanity was not raised, relied on the negation of MR in the offence. Expert
testimony showed he was incapable of appreciating the consequences of his actions to form MR
Issue: whether there was evidence from which a properly charged jury could conclude, on a
balance of probabilities, that the appellant had disease of the mind to an extent that rendered him
incapable of appreciating the nature & quality of the act of which he was charged or of knowing
that it was WRONG? (Legally wrong)
a. What is the meaning to be ascribed to phrase disease of the mind?
b. Interpretation to be given to words incapable of appreciating the nature & quality of the
act
Decision: Appeal allowed. New trial ordered.
Reasoning: as per R v. Simpson, and notwithstanding expert testimony, the question raised must
be resolved as a question of LAW (disease of mind is a legal concept although it includes a
medical component, is ultimately for judge to decide if sufficient evidence that accused may
suffer form a DOM in legal terms then the question of fact must be left with the jury
*DOM: embraces any illness, disorder, or abnormal condition which impairs the human mind &
its functioning, excluding self-induced states caused by alcohol or drugs as well as transitory
mental states such as hysteria or concussion
TEST: Was the accused (at the very time of the offence), by reason of DOM, unable to
appreciate the nature of the act and the natural consequences that would flow from it? (i.e.
were they deprived of the mental capacity to foresee and measure the consequences of the
act?
*Appreciates imports an additional requirement to mere knowledge of the physical quality of
the act. The requirement, unique to CAN, is that of perception, an ability to perceive the
consequences, impacts and results of a physical act
**Is a subjective test
Judge: Dickson J

R v. Abbey (1982) (pg. 797)

SCC
Facts: accused imported cocaine from Peru. Raised defense of insanity (claiming he had a DOM
which did not render him incapable of appreciating the consequences but involved a delusional
belief that he would come to no harm)
Provision: Trial judge acquitted him on basis of insanity under s. 16(2) of CC said he failed to
appreciate the penal consequences of his act
Issue: Did the trial judge err?
Decision: Yes. New trial ordered.
Reasoning: While punishment may be a result of the commission of a criminal act it is not an
element of the crime itself.
MR: a delusion that renders an accused incapable of appreciating the consequences of his offence
goes to the MR of the offence and brings into operation the first arm of the insanity test in s.
16(2). A delusion that renders someone incapable of appreciating the penal sanctions attached to
the commission of the crime do not go to the MR and do not render him incapable of appreciating
the nature and quality of the act and thus does not bring into operation the first arm of the insanity
test.
Based on evidence no doubt that the accused knew what he was doing was wrong
Ratio: yes the trial judge erred.
Insanity Test:

41

1. Suffering mental disorder that renders accused incapable of appreciating the nature and
quality of the act or omission
2. Was incapable of knowing it was wrong
Judge: Dickson J

R v. Chaulk (1990) (pg. 799)

SCC
Majority: Lamer CJC
o The term "wrong" as used in s. 16(2) must mean more than simply legally wrong.
o In assessing the capacity of a person to know whether an act is one that he ought or ought
not to do, the inquiry should not terminate with the discovery that the accused knew that
the act was contrary to formal law.
o It is possible that a person may be aware that it is ordinarily wrong to commit a crime
but, by reasons of a disease of the mind, believes that is would be "right' according to the
ordinary morals of his society to commit the crime in the a particular context
o There, it is possible for a defense of insanity to be successful if you don't know it is
MORALLY wrong
Dissent: McLachlin J
o It does not matter whether the capacity relates to legal wrongness or moral wrongness; all
that is required is that the accused be capable of knowing that the act was in some sense
"wrong"
o If the accused has this capacity then it is neither unfair nor unjust to submit the
accused to criminal responsibility and penal sanction
--> Absence of moral appreciation is no excuse for criminal conduct.
--> Why are we treating insane people and sane people differently in these circumstances?
--> The problem with making capacity to appreciate moral wrong the TEST for criminal
responsibility where the incapacity is caused by mental illness, is that of determining what
society's moral judgment will be in every situation. Not in the court's place to make these
moral judgments
Certainly a court is in no position to make determinations on questions of morality,
nor is it fair to expect a jury to be able to agree on what is morally right or wrong
-Approach of Lamer & majority is that jury instead of concentrating their inquiry on the capacity
of the accused will focus on the idiosyncrasies of the accused and thus their incapacity -->
Commentary on the case

R v. Oommen (1994) (pg. 801)

SCC
Facts: accused had compulsive fear that he was going to be killed by his roommate; killed her
while she was sleeping. For a # of years had been described as suffering from psychosis and
paranoia. On night he killed the V, was convinced a union was conspiring to destroy him and had
surrounded his apt
Charge: charged with 2M, raised defence of insanity. Experts testified that the accused
possessed the general capacity to distinguish right from wrong and would know that to kill a
person is wrong, but, on the night of the murder, his delusion deprived him of this capacity
Issue:
1. What is meant by knowing that the act was wrong in the second arm of s. 16(1)?

42

a. Does it only refer to abstract knowledge that the act of killing would be viewed
as wrong by society?
b. Does it extend to the inability to rationally apply knowledge of right and wrong?
c. Does the accused fall under this defence?
Decision: Appeal dismissed (in favour of Oommen), confirmed ordering of new trial
Reasons: a person may have a general capacity to know right from wrong, but we have to focus
on whether they have this ability at the moment they commit the offence
o First, there was evidence that the accused honestly felt that he was under imminent
danger of being killed by Ms. Beaton if he did not kill her first, and that for this reason,
believed that the act of killing her was justified. This delusion would have deprived
the accused of the ability to know that his act was wrong; in his eyes, it was right.
Second (and this may be to say the same thing), there was evidence capable of supporting
the conclusion that the accused's mental state was so disordered that he was unable to
rationally consider whether his act was right or wrong in the way a normal person
would.
o These findings are consistent with the conclusion that Mr. Oommen's mental disorder
deprived him of the capacity to know his act was wrong by the standards of the ordinary
person. As the cases make clear s. 16(1) of the Criminal Code not only the intellectual
ability to know right from wrong, but the capacity to apply that knowledge to the
situation at hand.
Ratio: Inquiry is not to focus on a general capacity to know right from wrong, but whether the
accused had the ability to do so in the circumstances (at the very moment the act happened).

(b) AUTOMATISM
Overview
o
o
o
o
o
o

Defense of automatism applies to accused who committed a criminal offense while in a

state of impaired consciousness that results in involuntary behavior
If that state has been caused by mental disorder we know under s. 16 they will be held not
criminally responsible (may be detained in an institution)
If the cause is some other example, like a blow to a head (automatism), then the accused
will be acquitted
The mind does not go with what is being done
If the accused pleads evidence of automatism, the crown can counter with the fact that
this was as a result of a mental disorder
Is a COMMON LAW defence, thus is not in CC

R v. Rabey (1977) (pg. 802)

SCC
Facts: U of T student who becomes obsessed with his friend. Hits her over the head with a rock,
tries attacking another student. Argues he was in a dissociated state (emotional blow) similar to a
physical blow). Expert testimony that he did not have a DOM i.e. defence of automatism not
insanity. Trial judge found defence of automatism availed to him
Issue: can an emotional blow constitute and external cause, bringing about a dissociative state
warranting the defence of automatism?
Decision: trial judge erred in allowing the defence. New trial ordered
Reasons: there is insane and non-insane automatism (dissociative state is resulting from a DOM,
or from an external blow)

43

Court distinguishes b/w internal and external blows:

Disease of mind must have an internal psychological makeup that the involuntary action is rooted in
An event occurs externally that incites an internal emotion that is not brought about by a disease of the
mind i.e. watching a loved one get murdered in front of you
o Goes to ARany act that is involuntary and unconscious cannot be charged (acquittal)
o Court looks to re-occurrence factor

Court considers the nature of the trigger and determines whether a normal person in the same
circumstances might have reacted the same way- external stresses of life DO NOT constitute an
external cause constituting an explanation for a malfunctioning of the mind which takes it out of
the category of disease of the mind - Evidence of a shocking psychological blow is required to
establish a normal person would have responded with non-insane automatism
Judge: Ritchie J (majority); Dickson J (dissenting)
Notes: In obiter, comment on sleepwalking and hold that it is not a DOM in the legal sense and
gives rise to the defense of automatism

R v. Parks (1992) (pg. 818)

SCC
Facts: sleepwalking case (kills his mother-in law and seriously injures father-in-law). Charged
with murder and attempting murder
Issue: Does sleepwalking constitute non-insane automatism or is it a DOM under s. 16 of the
CC?
Decision: Acquittal upheld
Ratio:
o Automatism works as a defence and results in an absolute acquittal
o Once D has raised automatism as a defense, the burden is on the Crown to prove
voluntariness or to prove insane automatism which results in a not criminally
responsible verdict (chance of institutionalization) but may also result in an alternative
disposition under s. 672.54
Reasons:
Two Theories:
1. Continuing Danger Theory:
a. Any condition likely to reoccur and presents a danger to the public should be
treated as insanity
2. Internal Cause Approach
a. Not universal approach to the DOM inquiry
b. Whether the function of the mind was disturbed by a disease or by some external
factor
Lamer:
o Expert evidence suggests Parks was sleepwalking at the time of the attack
o Sleepwalking not a DOM, no medical treatment aside from good health practices and
sleep hygiene
LaForrest:
o In determining whether something is a DOM, look to see if it is caused by internal (the
mind) or external factors (internal cause theory)
o Must consider if the condition is continuing (continuing danger theory)
o Is a legal question, medical evidence helps
Notes: Court worried about this reoccurring, Lamer wants to enforce a peace bond, Sopinka,
LaForrest and McLachlin worried this would violate s. 7

44

R v. Stone (1999) (pg. 836)- leading case in automatism

defense

SCC
Facts: wife yelled abusive things at him, experienced a woosh stabbed her 47 times, moved to
Mexico, came back and confessed. In defence, argued insane automatism, non-insane
automatism, lack of intent, and in the alternative, provocation. Trial judge allowed defence of
insane automatism to be presented to jury, convicted him of manslaughter, sentenced to 7 years.
Verdict upheld by COA. SCC held judge right in not putting sane automatism defence to jury
AND decided to reverse the onus of proof
Issue: Should the defence of non-insane automatism have been left to the jury?
Decision: Appeal dismissed.
Ratio: A claim of defense of automatism has two steps:
1. Accused must establish on a balance of probabilities, that there is sufficient evidence to
make the defence operate. In order to do this, accused must have expert evidence to go
along with their own testimony. If this is not met, defence fails.
2. Judge must decide if there is a DOM. If there is, then a special verdict is entered and
normal s. 16 procedures are followed. If not, then the Q must be left to the jury if the
accused acted involuntarily (measured on a balance of probabilities). If he did, then he is
acquitted
Notes: requiring the accused to establish proper basis for defence of automatism shifts burden
from the Crown and violates s. 11(d) of Charter but is saved by s. 1 (i.e. law presumes
voluntariness). When charging the jury about automatism, the judge must be careful to emphasize
the importance of voluntariness in criminal convictions
Judge: 5/4 split. Bastarache (majority) and Binnie (dissent)

R v. Luedecke (2008) (pg. 846)

Ontario COA
Facts: sexsomnia case sexually assaults a woman. Trial judge, relying on uncontested evidence
of expert testimony found accuseds action as involuntary and NOT product of mental disorder;
acquits and crown appeals
Issue: did trial judge err in findings?
Decision: New trial ordered; limited to the determination of whether the automatism was sane or
insane (requiring an acquittal or NCR-MD verdict)
Reasons:
o Defense of automatism is not a defence in the true sense, it is a denial of the commission
of the AR of the crime; absent the commission of the prohibited act, can be no crime and
no criminal liability
Policy Concerns:
1. That those whose lack of conscious choice was caused by an external & probably nonrecurrent event will have the benefit of a defence that leads to an absolute acquittal and a
return to society
2. That anyone accused of a crime who lacked conscious choice b/c of dangerous &
potentially recurrent disorder or event will not go free but will be subject to continued
detention & rehabilitation after acquittal
o When using automatism as defense:
o Presumption is that it is due to a disease of the mind
o Up to defense to prove otherwise

45

Errors of the trial judge:

1 Did not take into account the hereditary nature of insomnia which would be clearly deemed
an internal component therefore it would likely reoccur
2 Wrong to categorically rule that sleep walking is not a disease of the mind (just because it
was ruled as such in Parks Case) when the Parks case specifically ruled that it may or may
not be depending on the evidence
in Parks it was clearly stated
1 Wrong in dismissing the potential importance of the triggers of the condition by focusing
instead on jurisprudence that dismissed the internal/external cause distinction as being of
no assistance to parasomnia cases (the triggers of alcohol, fatigue & stress are most likely
going to be prevalent in life of young man)
2 Wrong in his treatment of the continuing danger component --> just because it happened
before with gf during consensual relationship & was not criminal conduct does not mean it
is irrelevant because it shows the capacity for it to happen
-Chances are that respondent will be in a sleeping arrangement in the vicinity of
people he is not in a relationship with
1 Relied too much on opinion of medical expert that his diagnosis was not indicative of a
mental disorder; this is a legal question
-Defense council's argument (Mr. Addario):
-He stated that there is a very strong negative stereotype of people found to be NCR-MD.
He submits that the reality of the respondent's medical condition and his life in general
could not be further from that stereotype. He contends that the respondent's parasomnia
would not be regarded by an reasonable member of the community as the kind of mental
disorder associated with a finding of NCR-MD.
-Just as the criminal justice system must be concerned with illegitimate automatism claims,
it must be concerned that verdicts in automatism cases bear some resemblance to the
community's concept of those who should of should not be found NCR-MD.
-Court's Response:
-If you were to accept defense council's argument then would in of itself promote the
stereotype by further validating the fact that there is a strong stereotype associated with
mental disorders --> the court could be taken as accepting that those who are found NCRMD do fit that stereotype
-They also recognize that the Criminal Code does not have an appropriate title and distinction to
give people who are "not criminally responsible on account of parasomnia" or whatever condition
that caused the involuntary actions
Notes:
Stone case alters approach to characterization of automatism as non-insane or insane in at least 2
ways:
1 The trial judge must now begin from premise that automatism is caused by a disease
of the mind and look to evidence to determine whether it convinces hin/her that the
condition is not a disease of the mind
2 Stone does accept multi-factored approach to policy component, but it refocuses the
continuing danger aspect of the approach
-Evaluating the risk of repetition & danger posed to public is no longer limited to risk
of further violence while in that state of automatism, but rather the risk of
reoccurrence of the triggers or factors that induced that state in the first place
(This judgment effectively reverses the one reached in Parks)
Judge: Doherty JA

46

AUTOMATISM SUMMARY
Automatism is a state of impaired consciousness, rather than unconsciousness, in which an individual, though
capable of action, has no voluntary control over that action. Involuntary action that results from a disease of
the mind gives rise to a claim of mental disorder automatism (MDA) and triggers s. 16 of the CCC. Nonmental disorder automatism (NMDA) results in an acquittal [best possible defence].
TEST: [note: test makes it almost impossible to get a verdict of acquittal based on automatism]
(1) Involuntariness: Burden of Proof - D must make an assertion of involuntariness and call expert evidence
to confirm; burden will be met where a trial judge concludes that there is evidence upon which a properly
instructed jury could find the accused acted involuntarily on a balance of probabilities (Stone reversed the
onus on a balance of probabilities represents a change in the law from Rabey and Parks)
(2) MDA v NMDA Insane or non-insane automatism - where the D has discharged the burden, the judge
must decide whether insane or non-insane automatism should be left to the trier of fact
It will be rare where automatism is not cause by mental disorder
Judges start from the proposition that the condition is a disease of the mind and consider
whether the evidence takes it out of that category as per Stone (in contrast w/ Parks)
In determining which type of automatism applies judges can consider:
(a) Internal Cause Theory
Trial judge is to compare the Ds reaction to the psychological blow to what one would
expect from a normal (NOT reasonable) person in the same circumstances. Internal cause
theory is developed within the context of psychological blow automatism the judge
must compare accused automatistic reaction to the psychological blow to the way one
would expect a normal person in the same circumstances to react in order to determine
whether the condition to accused claims to have suffered from is a disease of the mind. In
Rabey the court considers the nature of the trigger and determines whether a normal
person in the same circumstances might have reacted the same way- external stresses of
life DO NOT constitute an external cause constituting an explanation for a
malfunctioning of the mind which takes it out of the category of disease of the mind Evidence of a shocking psychological blow is required to establish a normal person would
have responded with non-insane automatism (established in Rabey)
CONTEXTUAL OBJECTIVE TEST is applied: Ds automatistic reaction to the trigger
must be assessed from the perspective of a similarly situated normal individual
Internal condition stemming from the psychological/emotional make up of the accused
rather than some external factor should lead to a finding of insanity.
(b) Continuing Danger Theory [policy]
Any condition that is likely to present a recurring danger should be treated as a disease of
the mind
Finding of no continuing danger does not preclude finding of a disease of the mind
May consider psychiatric history of D and the likelihood that the trigger will reoccur
History of automatism/ recurring trigger will increase probability of recurrence
(c) Other policy considerations--any policy concern can be considered by a judge to determine
whether the D can get the defence (or is MDA or NMDA) [e.g. public safety strong policy concerns in
Luedecke regarding reoccurrence]
(3) Available defenses
If the judge concludes that the D is not suffering from a disease of the mind, only NMDA will
be put to the jury who will then decide whether the defence has proven that the accused acted
involuntarily on a balance of probabilities.

47

If the judge concludes a disease of the mind, only MDA will be left to the trier of fact and
case will proceed like a s 16 charge.

VII. Intoxication
R v. Daviault (1994) (pg. 891)

SCC
Facts: accused drank enough to kill the average person. Went to friends house, ended up
sexually assaulting her. Raised defence of sane automatism. Acquitted at trial, judge held he was
so intoxicated he couldnt possibly have formed the MR of the offence, COA substituted a
conviction
Issue: Does voluntary intoxication to point that closely resembles automatism act as a defence for
crimes of general intent?
Decision: Appeal allowed. New trial ordered
Ratio:
o The defence of intoxication can be applied to crimes of general intent ONLY if the
accused at the time of the offence was in a state of EXTREME intoxication akin to
automatism (Under Leary, the accuseds intention to drink was substituted for the
intention to commit the assault) Accused holds burden of proof on a balance of
probabilities using expert evidence
o This was essentially overruled by Parliament, which enacted s. 33.1 states that an
accused can still validly raise Daviault as a defence to general intent crimes such as
mischief that do NOT have a VIOLENT component. HOWEVER, the constitutionality of
this offence remains undecided some courts have found it is in violation under ss 7 and
11 of the Charter but saved by 1; others have found it is not saved and many judges will
still apply the Daviault defence.
Judge: Cory (majority); Sopinka (dissenting)

Section 33.1 Criminal Code (Self-Induced Intoxication)

o

33.1 (1) It is not a defence to an offence referred to in subsection (3) that the accused,
by reason of self-induced intoxication, lacked the general intent or the voluntariness
required to commit the offence, where the accused departed markedly from the standard
of care as described in subsection (2).

(2) For the purposes of this section, a person departs markedly from the standard of
reasonable care generally recognized in Canadian society and is thereby criminally at
fault where the person, while in a state of self-induced intoxication that renders the
person unaware of, or incapable of consciously controlling, their behaviour, voluntarily
or involuntarily interferes or threatens to interfere with the bodily integrity of another
person.

R v. Bouchard-Lebrun (2011)

48

SCC
Facts: two friends do drugs, have religious visions, decide to beat a man because he wore a cross
upside down; tenant comes out to help, they beat him so badly he is left disabled. Charted with
aggravated assault and assault. Raised defense of intoxication and mental-disorder (argues court
made a mistake by not allowing him the s.16 defence)
Issue: does a single-episode (self-induced state) constitute a mental disorder? Does the psychosis
from the drugs absolve them of criminal responsibility?
Decision: COA did not err in not allowing s. 16 defence. Appeal dismissed.
Reasoning: self-induced intoxication as a defence only avails for specific intent crimes
Specific intent Code requires that the prohibited conduct be committed with the intent to
achieve the particular result (i.e. s. 88 crime of possession of weapon for a dangerous purpose)
Court has to decide if there is a DOM; self-induced intoxication not a defence (Cooper)
Go through normal s. 16 analysis to see if defense avails (i.e. were they incapable of appreciating
the nature and quality of the act; could they know it was wrong?) Burden of proof is on accused
(saved by s.1) start from premise that Cooper exempts temporary psychosis
When doing this analysis, must look at internal cause factor, continuing danger factors
and take a holistic approach to decide if they fall under s. 16
Ratio: a mental condition that is solely attributable to a temporary state is not a mental disorder.
Looking at internal cause factors, drug taking is an external cause, not internal. For future danger,
not likely that this would occur again unless they took drugs.
Notes: Court states that s. 33(1) has limited the scope of the ruling of majority in Daviault
Judge: LeBel J

VIII. Defenses
(a) AIR OF REALITY FOR DEFENCES
R v. Cinous (2002) (pg. 913)

SCC
Issue: whether there was an air of reality to the defence of self-defense? What is the trial judges
discretion in keeping far-fetched defenses from the jury? Should there be different tests for the
different defenses available to the accused?
Decision: No air of reality in this case; trial judge did not err
Reasons:
Defense is only put to a jury if there is a sufficient evidential foundation
To do other wise would invite jury to reach verdicts not supported by evidence, confuse
them, and get in way of fair trial and true verdict
Two Basic Principles:
1. Trial judge must put to jury all defenses that arise on the facts, whether or not accused
raises them
2. Trial judge has positive duty to keep from the jury any defenses lacking any evidential
foundation and an air of reality (even if its only chance of an acquittal for accused
Burden of this Test on Accused:
It places a burden that is merely evidential or considered the burden of putting the issue
into play; the minor burden; the secondary burden (in contrast with the primary
burden of establishing the case; the legal burden)
This test is consistent with the presumption of innocence guaranteed by s.11(d) of Charter

49

Threshold
Trial judge is not aimed at deciding the substantive merits of the defence; it is not
intended to assess whether the defense is likely, unlikely somewhat likely, or very likely
to succeed at the end of the day and question is whether the evidence discloses a real
issue to be decided by the jury & not how the jury should ultimately decide the issue
A of R test is a Questions of Law SO it would be an error of law to put to the jury a
defense lacking an air of reality
Test: is there evidence on record upon which a properly acting jury could reasonably acquit?
Notes: same test applies uniformly to all defenses
Judge: McLachlin J

(b) NECESSITY
R v. Dudley and Stephens (1884) (pg. 957)

Queens Bench Division (UK)

Facts: Ds stranded after shipwreck. Ran out of food, eventually killed and ate Parker
Issue: is necessity a defence to a charge of murder?
Decision: Judgment for Crown
Reasoning: No common law defense of necessity to a charge of murder on basis of legal
precedent, and ethics and morality. Who is qualified to decide who gets to live and who dies?
Court was sympathetic to their plight and lowered sentence to 6 months
Ratio: No common law defense of necessity to a charge of murder on basis of legal precedent,
and ethics and morality

Perka v. R (1984) (pg. 960)

SCC
Facts: drug smugglers from Colombia to Alaska, very bad weather, had to dock in Canada, took
drugs off ship to save them. Crown not arguing against existence of the common law defence of
necessity but that the accused are lying
Charge: Charged with importing marijuana into CAN and with possess for the purpose of
trafficking. Accused argued this was done out of necessity. Crown argued not the case. Jury
believed the accused and acquitted them.
Issue: What are the components of the defense of necessity? Did the trial judge err in letting it to
the jury? Should burden of proof be on accused or Crown?
Reasoning:
Excuses vs. Justification
Justification challenges the wrongfulness of the act
Excuse acknowledges the wrongfulness of the act but assert that under the
circumstances which it was done, actor should not be held liable
Court worried about necessity being a justification (this would allege that values of society and
criminal law are better promoted by disobeying a given statute than observing it)
Endorse necessity as an EXCUSE rests on realistic assessment of human weakness, that a
liberal & humane criminal law system could not hold people to strict obedience in situations of
emergency (normal human instincts impel disobedience)
necessity does not go to the voluntariness of the act (i.e. physically was not involuntary but
really didnt have any other choice) so it is termed MORAL or NORMATIVE
INVOLUNTARINESS

50

Burden of Proof
Even as a defense, Crown must bear the burden of proving it was a voluntary act as they
must prove every element of the crime charged
Test
1. Requirement of imminent peril or danger
2. No reasonable legal alternative
3. Proportionality b/w the harm inflicted and harm avoided (the 2 harms must be at min. of
comparable gravity)
Summary of Necessity
1. Was the act a choice?
2. Was the situation urgent and the peril imminent?
3. Was compliance with the law demonstrably impossible?
4. Was there a reasonable legal alternative?
5. Was there proportionality b/w the harm done and the benefit accrued?
6. Would a person of reasonable firmness be unable to resist?
7. Necessity goes to EXCUSE conduct, not justify it
8. The question is not if the act was wrongful but if it was voluntary
9. Burden of proof is on the Crown
10. If the accused foresaw of helped create the emergency, not truly an involuntary act and
defense does not avail

R v. Latimer (2001) (pg. 972)

SCC
Facts: daughter with severe cerebral palsy, parents so an upcoming surgery as imminent peril
(sick of their daughter being cut apart, causing her more pain etc.) Father killed her thinking it
was out of necessity. Convicted of 2nd degree murder.
Issue: when must the defence of necessity be charged to a jury?
Decision: Appeal dismissed.
Ratio: to charge a jury with defence of necessity must be an air of reality to ALL 3 aspects
of the necessity test
Test
Is a modified objective test, it involves an objective evaluation, but one that takes into
account the situation and characteristics of the particular accused person (this is done on
the first 2 components of necessity test imminent peril and danger and legal
alternative)
Proportionality is measured objectively
For a defense of necessity to be put to jury, trial judge must be satisfied that there is
evidence sufficient to give an air of reality to all 3 parts of the test, if even one is not
satisfied the defense cannot be put forward
Proportionality is based on a question of law not fact
Reasoning: court held there was no air of reality to any 3 of the requirements with case at hand
so defense could not be charged to jury i.e. no immediate peril, legal alternative would have been
going to a group home, feeding tube, the surgery etc. proportionality fails b/c murder outweighs
living with pain
Notes: Latimer argued conviction of 2M with mandatory life sentence amounted to cruel and
unusual punishment argument rejected on basis that it wasnt grossly disproportionate to
punish the most serious crime of murder
Judge: judgment delivered by the court

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(c) SELF-DEFENCE
34.
1. A person is not guilty of an offence if
a. They believe on reasonable grounds that force is being used against them or
another person or that a threat of force is being made against them or another
person;
b. The act that constitutes the offence is committed for the purpose of defending
or protecting themselves or the other person from that use or threat of force;
and
c. The act committed is reasonable in the circumstances.
2. Factors (not a closed list):
a. The nature of the force or threat;
b. The extent to which the use of force was imminent and whether there were
other means available to respond to the potential use of force;
c. The persons role in the incident;
d. Whether any party to the incident used or threatened to use a weapon;
e. The size, age, gender and physical capabilities of the parties to the incident;
f.

The nature, duration and history of any relationship between the parties to the
incident, including any prior use or threat of force and the nature of that force
or threat;
i. Any history of interaction or communication between the parties to the
incident;

g. The nature and proportionality of the persons response to the use or threat of
force; and
h. Whether the act committed was in response to a use or threat of force that the
person knew was lawful

R v. Lavallee (1990) (pg. 923)

SCC
Facts: (battered women case). Had a common law partner, very abusive, he told her she has to
kill him or hed kill her, shot him in the head as he walked out of the room, arguing self-defense
Issue: can expert evidence be used in a claim of self-defense, and is so, to what extent?

52

Decision: Appeal allowed, acquittal restored

Ratio: Self-defense applies even when you are not directly or immediately in harm. Expert
testimony can be very helpful in claims of self-defense as it helps the jury/judge understand the
condition that the accused was in when they acted and allows for an objective determination if
their actions were reasonable in the circumstances.
Reasons: COA held that the expert testimony was not admissible b/c it swayed the jury and did
not elaborate on the facts but provided an opinion. SCC disagreed, held that the evidence was
necessary in establishing the elements of the defense under s. 34(2).
Judge: Wilson J

TEST breakdown of 34(1)

a) Mixed objective/subjective defender must have the belief that the force/threat is real
(subjective) must be grounded in reasonable facts and assumptions (objective)
b) Subjective measure of whether they are protecting themselves (defend self or other)
c) Objective assessment of what is reasonable in the circumstances (based on factors in
statute)

(d) DURESS
17. A person who commits an offence under compulsion by threats of immediate death or bodily
harm from a person who is present when the offence is committed is excused for committing the
offence if the person believes that the threats will be carried out and if the person is not a party to
a conspiracy or association whereby the person is subject to compulsion, but this section does not
apply where the offence that is committed is high treason or treason, murder, piracy, attempted
murder, sexual assault, sexual assault with a weapon, threats to a third party or causing bodily
harm, aggravated sexual assault, forcible abduction, hostage taking, robbery, assault with a
weapon or causing bodily harm, aggravated assault, unlawfully causing bodily harm, arson or an
offence under sections 280 to 283 (abduction and detention of young persons).

R v. Ruzic (2001) (pg. 995)

SCC
Facts: accused in Belgrade. Being stalked by a man, he beats her, threatens to kill her mom if she
doesnt comply, tells her she has to import drugs into Canada. She does, gets caught and charged
with importing 2Kgs of heroin. She argued that she was acting under duress despite her claim not
satisfying the immediacy and presence requirements of s. 17 of the CC
Issue: Do the immediacy and presence requirements of s. 17 of the CC infringe s. 7 of the
Charter? Does the common law defence of furess require immediacy and/or presence?
Decision: Appeal dismissed.
Ratio: The immediacy and presence requirements of s. 17 ar unconstitutional, however its
unclear what parts, if any, of s. 17 remain constitutional. The common law rules for duress do not
have an immediacy requirement but they require a close temporal connection b/w the threat and
the harm
Reasons: Court decided accused is the primary actor and thus s. 17 does apply to her. BUT issue
is with fact that the person threatening her is across the world. Rzic argues she was still acting
involuntary despite the distance. Court accepts this and says that moral voluntariness is a PFJ and
is protected under s. 7 (required for criminal liability)
In order for an act to be criminal it must be voluntary; AR element of an offenseasks
whether the actor had control over movement of her body or whether the wrongful act
was product of conscious will

53

S. 17 is very strict; very rarely will a threat meet the requirements if the threatner is not
physically present or near the scene; thus the strictness of s.17 breaches s. 7 of charter as
it allows for those who acted involuntary to be convicted
What we know from Cases leading up to this one:
1. Rabey absence of volition of an act is always a defense to a crime
2. Parks the acceptance of the defense that an act is involuntary entitles accused to
complete acquittal
3. Daviault voluntariness given constitutional status (violates s. 7 to convict someone
who acted involuntary)
4. Perka moral voluntariness is linked to physical voluntariness though they are NOT
identical (i.e. in MV will is overthrown by threats of another, conduct is not freely chosen
though accused retains conscious control over body)
Policy:
Punishing someone whose actions were physically involuntary is unjust b/c it conflicts
with assumption in crim law that people are autonomous and freely choosing agents
Similarly with MV, actions cannot really be attributed to their will
Judge: LeBel J

R v. Ryan (2013)

SCC
Facts: wife is very abused by husband (also threatens daughter) she tries to go to police who tell
her to deal with it through civil avenues. She tries to higher hit man, pays under cover RCMP
officer, charged with counseling the commission of an offence not committed s. 464(a) of CC
Provision: s. 464(a) *counseling the commission of an offence; defence of duress s. 17 +
common law defense of duress
Issue: Whether duress is available in law as a defense where the threats made against the accused
were not made for the purpose of compelling the commission of an offence? What are the
statutory and common law parameters of defence of duress?
Decision: Appeal allowed, proceedings stayed; no new trial ordered.
Reasons:
Defense of duress only available when a person commits an offense under the
COMPULSION of a threat made for the purpose of compelling him/her to commit the
offense
o Application to case: not the situation, if accused is threatened without
compulsion, there defense is one of self-defense
o COA erred in law in finding no principled basis for excluding R from the defense
Break Down of Defenses
Self-Defence: is a justification and fully codified under s. 34; victim is the person perpetrating
against you
Necessity: is an excuse; common law defence; victim is innocent 3 rd party; is a 3 step test (Perka)
on a modified objective scale (Latimer)
Duress: covered in part by s.17 and in part by common law; is an excuse; victim is third party;
immediacy and presence read out of code (unconstitutional); threat can be directed against
accused personally or a third party
Duress: codified version goes to the principle (a person who commits an offence); common law
applies to parties of an offence

54

Requirements for BOTH Statutory Duress AND Common Law Defence:

4 components:
1. there must be a threat of death or bodily harm directed against the accused or a third party;
2. the accused must believe that the threat will be carried out;
3. the offence must not be on the list of excluded offences; and
4. the accused cannot be a party to a conspiracy or criminal association such that the person is
subject to compulsion. (Subjective)
Common law duress can provide an aid for interpreting the statute 3 key common law
elements become part of the statute 1) No legal alternative (modified objective); 2) close
temporal connection bw threat and harm (no longer immediate or present, but measured by a
modified objective test of what a reasonable person of reasonable firmness in similar
circumstances would be compelled to do; 3) proportionality harm caused must not be greater
than harm avoided
**Only Difference: Statutory has a listed of exempted offence to which this defense CANNOT
apply (thus principles have a stricter threshold than parties to an offense do)
Judge: McLachlin for majority; Fish (dissenting in part didnt think the proceedings should be
stayed)

(e) PROVOCATIONPartial Defenses to Murder

s. 232 of CC: provocation is partial defence that will reduce a

murder to a conviction of manslaughter (which gives the judge
more discretion in sentencing)

R v. Hill (1985) (pg. 1008)

SCC
Facts: 16 year old charged with 2M, accused said this was provoked from unwanted homosexual
advances. Crown says it was result of lovers spat.
Provision: murder s. 235; defence of provocation under s. 232
Issue: did the trial judge err in law in failing to instruct the 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 appellant of his power of self control?
Decision: Trial judge did not err. Appeal allowed, conviction restored
Ratio: Particular characteristics that are not peculiar or idiosyncratic can be ascribed to an
ordinary person without subverting the logic of the objective test of provocation. The jury, in
applying their common sense to the factual determination of the objective test, will naturally and
properly ascribe certain characteristics to the ordinary person. Thus instructing the jury on the
particulars of the accused is not a mandatory component of all jury charges on provocation.
Test:
1. Would an ordinary person be deprived of self-control by the act or insult? (Measured
objectively)
2. Did the accused in fact act in response to those provocative acts; in short, was he or she
provoked by them whether or not an ordinary person would have been? (Determined by
surrounding facts)

55

3. Was the accuseds response sudden and before there was time for his or her passion to
cool? (Question of fact)
Judge: Dickson CJCnot an issue where we need to have mandatory instructions (only for
complex issues such as 1M)

R v. Tran (2010) (pg. 1020)

SCC
Facts: kills estranged wifes boyfriend and injures her. Tries to argue that seeing them together
was akin to an insult in law.
Provision: s. 232 provocation
Issue: Did the trial judge err in finding an air of reality of the defence of provocation?
Decision: Appeal dismissed. COA right in holding no air of reality to the defense, conviction for
2M upheld.
Reasons:
Provocation not really an excuse or a justification, is a PARTIAL excuse (neither justifies nor
excuses the act of homicide)
Provocation best understood as having 2 elements (an objective and subjective one)
Objective Element
1. There must be a wrongful act or insult
2. The wrongful act or insult must be sufficient to deprive an ordinary person the power of
self control
These are questions of fact BUT provocation does not work when the victim (or
perpetrator of the wrongful insult) is doing something within their legal rights to do
Subjective Element
1. The accused must have acted in response to the provocation
2. On the sudden before there was time for their passion to cool
This focuses on the accuseds subjective perceptions of the circumstances (what they
believed, intended or knew)
The requirement of suddenness was introduced to distinguish b/w responses taken in
vengeance and those that are provoked
THUS suddenness applies to BOTH the act of provocation AND the accuseds reaction to
it
Both of these are questions of FACT
Air of Reality
Is a question of law: the evidence must be reasonably capable of supporting the
inferences necessary to make out the defense before there is an AOR to support the
defence
Ratio: On facts of case there is not enough evidence to support an AOR for the defense of
provocation.
Notes: provocation has always changed as society does, was developed around notions of a mans
honor, some argue this is out dated in todays times and the defense should be abandoned, and
have provocation a factor to be considered in sentencing
Judge: Charron J

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Provocation in First Degree Murder (ADDITIONS to

syllabus)
R v. Parent (2001) (pg. 1033)

SCC
Facts: shoots estranged wife (claims she said she was trying to wipe him out completely.
Argues defense of provocation. 1M reduced to manslaughter. Crown appeals arguing trial judge
erred in his charge to the jury.
Provision: s. 232 provocation
Issue: can anger alone establish the defense of provocation? Did the trial judge err in his charge
to the jury?
Decision: Trial judge erred in his charge to the jury on the effect of anger on criminal intent or
MR and its relationship to manslaughter. Appeal allowed, new trial on 2M
Ratio: Intense anger alone is insufficient to reduce murder to manslaughter
Reasons: Crown put forward that the trial judge erred in charge as it suggested that anger is
capable of negating the intention to kill; this direction wrongly left open the suggestion that anger
alone can establish provocation, when in fact, other requirements must be met pursuant to s. 232.
SCC agrees with this, anger can play a role in the reduction of convictions but still have to
consider the rest of the provocation test (i.e. would the insult deprive ordinary person of self
control; was it sudden and unexpected; did it in fact provoke and was the murder committed
before passions had cooled)
Notes: Court recognizes that anger can result in states akin to automatism (R v. Stone) but that
defense was not argued in this case
Judge: McLachlin for the Court

R v. Pappas (2013)

SCC
Facts: P argues he was being extorted by K, believed P was threatening his moms life, shot and
killed him. Argues defense of provocation
Issue: should the defense of provocation been left with the jury? (it had been and jury rejected it,
accused appealed arguing the trial judge erred in the charge)
Decision: Appeal dismissed. No air of reality for defense. Affirmed 2M conviction
Ratio: there must be an air of reality to leave a defense with a jury
Reasons:
McLachlin (Majority)
When evidence requires drawing inferences to establish the objective and subjective
elements of the defense, trial judge may engage in a limited weighing to determine
whether the elements can reasonably be inferred
For applying AOR test, must assume the version of events described by accused is true
BUT AOR itself cant spring solely from the bare assertions of the accused (if this is all
you have, should be kept from jury)
Threats to mother were a minimal evidentiary foundation for objective element of the
defense
Subjective element requires suddenness that on the facts did not exist in this case (P had
heard these same threats many times before)
Seems that the trial judge made assessment on bare fact of accuseds testimony that he
snapped

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Fish J (dissent)
Doesnt matter he had heard same threats before, doesnt mean he would always be
prepared and anticipating them
A repeated threat or insult can cause a previously unprovoked person to snap
Ps detailed evidence wasnt bare

IX. Parties to an Offence

21. (1) Every one is a party to an offence who
(a) Actually commits it;
(b) Does or omits to do anything for the purpose of aiding any person to commit it; or
(c) Abets any person in committing it.
Common intention
(2) Where two or more persons form an intention in common to carry out an unlawful
purpose and to assist each other therein and any one of them, in carrying out the common
purpose, commits an offence, each of them who knew or ought to have known that the
commission of the offence would be a probable consequence of carrying out the common
purpose is a party to that offence.

(a) AIDING AND ABETTING

Dunlop and Sylvester v. R (1979) (pg. 1068)

SCC
Facts: the respondents had been identified as 2 of 18 men who gang raped the complainant. They
argue they only stopped by for 3 min saw a girl having sex. Were tried twice and convicted of
rape both times under s. 21(1) and 21(2) of the Criminal code (aiding and abetting). MAN COA
found trial error but upheld conviction using s. 613(1)(b)(iii)
Issue: Should the convictions be upheld or did the trial judge err?
Decision: trial judge erred 2 fold: 1) in charging the jury on the alternative bases of (i) principal
offender and (ii) aider and abettor (not enough evidence to support aiding and abetting) and 2) the
recharge on the matter as to whether someone who witnesses a rape and does nothing about it can
be seen as aiding and abetting. Acquittal. Didnt want to order a 3rd trial
Ratio: mere presence does not constitute aiding and abetting, requires there to be some act
or encouragement (something more than presence) also requires knowledge of the
principals intent to commit the crime
1. For First trial judge error:
Ratio: Presence at the commission of an offence can be evidence of aiding and abetting
if accompanied by other factors such as prior knowledge of the principal offenders
intention to commit the offence or attendance for the purpose of encouragement. If there

58

is no evidence of encouragement by him, a mans presence at the scene of a crime will

not suffice to render him liable as aider and abettor
Application: no evidence that while the crime was being committed either of the accused
rendered aid, assistance or encouragement to the rape
2. For Re-charge Error:
Ratio: this recharge was not responsive to the question asked; on facts of the case it could
have left the jury with the impression that the accused could be parties to the offence if
they knew the offence was happening and failed to do anything about it; and the jury
received no help in applying the instruction given
Application: 2h25m jury still hadnt found the respondents guilty of rape; after the
improper recharge only took them 15 minutes to find a verdict of guilty. For this reason s.
613(1)(b)(iii) cannot apply; cannot confidently say that the error did not render a different
outcome than if it hadnt been made
Judge: Dickson J for majority
Dissent (Martland J): found that there was sufficient evidence for the jury to conclude that the
appellants had aided and abetted
Notes: Abets means to encourage, support or uphold only necessary to show that the accused
understood what was being done and by some act on his part assisted or encouraged the
attainment of the act

R v. Briscoe (2010) (pg. 1081)

SCC
Facts: charged with kidnapping, aggravated assault and first degree murder. Was one of 5 people
who lured a 13 year old to a secluded area, raped and killed her (though he didnt touch or rape
her himself). Crown argued that Briscoes actions constituted aiding and abetting (and thus should
be charged with the principal offense). Trial judge held that the Crown had not proven the MR for
a party liability beyond a reasonable doubt.
Provision: s. 21(1) and (2)- aiding and abetting
Issue: did the trial judge err in not applying the willful blindness doctrine to the analysis?
Decision: Trial erred in failing to consider willful blindness. New trial ordered
Reasons:
s. 21 does not distinguish b/w the principal offender and the party BUT the AR and MR
for aiding and abetting is distinct from those of the principal offense
Aiding means to assist or help the actor; Abetting means encouraging, instigating,
promoting or procuring the crimes to be committed
AR for Aiding and Abetting
Doing or omitting to do something that resulted in assisting another in committing a
crime (not sufficient for a conviction on its own MUST have the MR component satisfied
as well)
MR for Aiding and Abetting
MR requirement of purpose under s. 21(1)(b) has 2 components:
1. Intent
a. Purpose should be understood as synonymous with intention; Crown must
prove that the accused intended to assist the principal in the commission of the
offence (desire is not enough)
2. Knowledge

59

o
o
o

Aider must know the perpetrator intends to commit the crime, although they need
not know precisely how it will be done
Whether the aider acquired this knowledge through actual involvement or some
other way is irrelevant to their culpability under s. 21(1)
The aider and abettor need NOT have the same MR as the actual killer

Willful Blindness
Evidence screamed to be analyzed with willful blindness doctrine
Accuseds on testimony shows that he had a strong suspicion that someone was going to
die but did not inquire further b/c he did not wish to know
Notes: had willful blindness been considered, (as willful blindness equates knowledge) it is likely
that the MR component for aiding and abetting would have been fulfilled and the accused
convicted of the charges (why the SCC sent it back to trial)
Judge: Charron J

R v. Logan (1990) (pg. 1084)

SCC
Facts: convicted of attempted murder. Had been at a robbery, didnt know that anyone had a gun
or that there would be a murder.
Provision: s. 21(2)- common intention
Issue: is there a minimum MR requirement for attempted murder (when being considered under
s. 21(2)? If so, do the words ought to have known in s. 21(2) violate s. 7 of the Charter?
Decision: Appeal dismissed (against crown) (COA had substituted robbery convictions for the
murder convictions)
Ratio: The MR for attempted murder cannot (without restricting s. 7 rights) require of the
accused less of a mental element than that required of a murder (subjective foresight of the
consequences- Vaillancourt). The words ought to have known are inoperative when
considering under s. 21(2) whether a person os a party to any offence where it is a
constitutional requirement for a conviction that foresight of the consequences be subjective,
which is the case for attempted murder
Reasons:
To decide if there is a min. degree of MR constitutionally required, 2 Step Process:
1. Is there a min. degree of MR which is required as a principle of fundamental justice
before one can be convicted as a principal for this particular offence?
2. If the PFJs do require a certain min. degree of MR in order to convict for this offence,
then that min. degree of MR is constitutionally required to convict a party to the offence
as well
Application:
Court looks to what the MR is for murder and attempted murder and on case law
conclude that the MR is the same, it is the consequences component of the AR that is
different
The criteria to determine whether something has a constitutional requirement (of a min.
degree of MR) look to 2 things:
1. The stigma associated with the conviction (primary focus)
2. The penalties available
They compare murder with attempted murder and conclude that the two hold the exact
same stigma (killer and attempted killer have same intent); while attempted murder does

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not have an automatic life sentence, the penalty is still harsh (but the high level of stigma
is main focus)
Because of this stigma, the PFJ require a min. degree of MR
Infringement of s. 7 is not saved by s. 1, fails on proportionality component of the Oakes
test (i.e. public policy concern around parties being held to be criminally negligent with
respect to the behaviour of someone else vis a vis the use of ought to know )
Judge: Lamer CJC

R v. Portillo (2003)-[common intention]- (pg. 1089)

Ontario COA
Facts: (casebook doesnt provide us with any)
Potential liability under s. 21(1) might be explained to a jury as follows:
To convict an accused of murder or manslaughter, the jury must be satisfied that the
accused participated in the killing
Participation means doing something that caused the death, or for the purpose of helping
another person cause the death
If jury is satisfied that accused participated in the killing it is unnecessary for them to
determine the exact nature of the participation
If satisfied in the participation of the killing is either guilty of murder or manslaughter
Is guilty of murder if he did so with the necessary blameworthy state of might
Guilty of manslaughter if Crown has not proved this blameworthiness
The blameworthy state of mind consists of intending the deceased to be killed or harmed
and likely to die as a result and yet proceeding despite knowledge of the risk
Liability for murder under s. 21(2) requires the Crown prove beyond reasonable doubt that:
1. Accused was party to a common design to steal from the deceased;
2. Another person who was a party to that same common design committed murder as
defined in s. 229(a) in course of carrying out the theft
3. And the accused knew that murder was a probable consequence
* * If the Crown proves first 2 but not the last accused is not guilty of murder but is of
manslaughter if a reasonable person would have foreseen the risk of harm (not the death)

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