Cases and Updates

- Provocation update
- Error of Law update

Criminal Law

GENERAL OVERVIEW AND PRELIMINARY MATTERS

o The Sources of Criminal Law

With the exception of contempt of court, criminal offences are created in Canada by statute.
Most criminal offences are created by the Criminal Code but it is not the only statutory source.
Drug trafficking, for example, is made a criminal offence by the Controlled Drugs and
Substances Act. The common law cannot be used to create offences in Canada because of
concerns related to the principle of legality, and the notion that criminal offences should be
clear, certain, and should pre-exist the act being prosecuted. As will be seen below, many
rules of criminal procedure are created in the Criminal Code, and many other rules of
procedure are common law based.
1. Frey v. Fedoruk, [1950] S.C.R. 517 (also in Roach p. 89) (for Fed Parliament, not courts,
to decide if something is criminal, which is in line with value of predetermined/certainty)
a. Court held that a common law charge of acting in a manner likely to cause a
breach of the peace by being a peeping tom was not sustainable – Interpreted a
previous offence against conspiring to effect an unlawful purpose to require a
purpose contrary to FEDERAL AND PROVINCIAL LEGISLATION AS
OPPOSED TO the CL (aka Canadian courts reluctant to create CL crimes
because introduce uncertainty, even before the Charter (Section 7) or CC
(section 9)), in contrast to England where courts continue to exercise residual
power even where not offense in statute yet- AKA in Canada, a person can only
be convicted for conspiring to commit an offense created by a legislature and
defined in law
i. Held: Appellant's conduct did not amount to any criminal offence known
to the law. Therefore respondents have failed to satisfy the onus placed
upon them to justify the imprisonment under ss. 30, 648 or 650 of
the Criminal Code.
ii. Held also: Section 30 Cr. C. authorizes a peace officer to arrest without
warrant only if he, on reasonable and probable grounds, believes that an
offence for which the offender may be arrested without warrant has been
committed, but not if he erroneously concludes that the facts amount to an
offence, when, as a matter of law, they do not.
iii. Held further: Conduct, not otherwise criminal and not falling within
any category of offences defined by the criminal law, does not become
criminal because a natural and probable result thereof will be to
provoke others to violent retributive action; acts likely to cause a
breach of the peace are not in themselves criminal merely because
they have this tendency. It is for Parliament and not for the Courts to

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 decide if any course of conduct, which has not up to the present been
regarded as criminal, is now to be so regarded.
2. See CC section 9 

a. No person shall be committed of an offense at common law except contempt of
court.
3. Roach pp. 5, 88-90. 

a. Even before the Charter and Section 9 of CC, courts were reluctant to create
common law crimes because they could create uncertainty (this is what Frey v.
Fedoruk is about)

While common law offences are not allowed, common law defences are available under
Canadian criminal law and can still be created by the courts. As will be seen below, the
Supreme Court of Canada recognized a common law defence in Levis (City) v. Tetrault, [2006] 1
S.C.R. 420 (officially induced error) and R. v. Mack, [1988] 2 S.C.R. 903 (entrapment).
Moreover, the common law can deeply influence the way that statutory criminal offences are
interpreted, particularly the mental elements. 

1. See CC section 8 

a. “Criminal law of England as of April 1, 1955 continues in force in the province
except as altered, varied, modified, or affected by this Act or any other Act of the
Parliament of Canada”
b. Common law defenses ”Every rule and principle of the common law that
renders any circumstance a justification or excuse for an act or a defence to a
charge continues in force and applies in respect of proceedings for an offence
under this Act or any other Act of Parliament except in so far as they are altered
by or are inconsistent with this Act or any other Act of Parliament”
2. See R. v. Jobidon, [1991] 2 S.C.R. 714, a case you will be asked to review again when
considering the meaning of consent. (Roach page 110) (Man kills man in parking lot bar
fight, argues defense of V’s consent to fight, SC says no consent to bodily harm)
a. (Roach 110-111) - SC held that a person could not consent to an assault that
intentionally causes “serious hurt or non-trivial bodily harm … in the course of a
fist fight or brawl,” and that a minor could not consent to an adult’s intentional
application of force in a fight. BUT Court indicated that consent would not be
negated if the bodily harm was trivial or an accepted part of a socially valued
activity such as sports. Subsequent cases have made it clear that, for consent to
be vitiated, Jobidon requires serious harm to be both intended and caused
(see R. v. Paice (2005))
b. Justice Gonthier recognized that people may see this as paternalist, but asserted
that all criminal law is paternalistic to some degree.
c. Dissent – Sopinka J. argued this interfered with Parliament’s decision to make
lack of consent a requirement for assault and allows judges to expand the breadth
of the offense of assault, but in this particular case, Sopinka found no consent
because what started as a consensual fist fight turned into severe beating resulting
in death
3. - Roach pp. 110-111 (discussing R. v. Jobidon)

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 a. Parliament has defined what it means to consent for policy reasons in other
section of CC- for example, Section 14 provides can’t consent to death, Section
286 consent is no defense for abduction of child, Section 150.1(1) consent not
defense to some sex offences involving people younger than 16 for purpose of
determining AR, 150.1(4) addressed mental element of fault by providing that a
subjective belief that the person was 16+ is not a defense unless “accused took all
reasonable steps to ascertain the age of complainant” (See Ch. 5: The Fault
Element, or Mens Rea)

2. The Power to Create Criminal Offences and Rules of Criminal Procedure

a) Constitutional Division of Powers Introduced - Both the Federal Government and
Provincial governments have jurisdiction to create non-criminal offences (regulatory
offences) and to use jail to enforce those regulatory offences, but only the Federal
Government can create “criminal” offences, or “true crimes”, pursuant to its powers
under s. 91(27) of the Constitution Act, 1867. The principles that apply to true crimes
differ from those that apply to regulatory offences. These principles will be examined
below when regulatory offences are discussed.

Curiously, while they cannot create criminal offences, Canadian provinces do have
jurisdiction over the administration of justice within the province under s. 92(14) of
the Constitution Act, 1867. For example, the provinces have set up the lowest level of
criminal court where the vast majority of cases are actually prosecuted (the provincial
courts); it is the provincial Attorneys General who prosecute most offences, including
serious offences; and the provinces have passed statutes setting out juror eligibility within
the province. The procedure during criminal hearings, however, is governed by
federal rules and by the common law.
o For a summary of the criminal law power, see R. v. Malmo-Levine, 2003 SCC 74 at
paras. 73 – 79 (Court rejected a constitutional challenge to the criminalization of
marijuana – D argued s 91(27) of Constitution Act of 1867 ad s.7 of Charter only allowed
for the criminalization of conduct that caused harm, and that this “harm principle” should
be one of the principles of fundamental justice under s.7- Ct rejected these arguments and
held that to criminalize conduct, Parliament need not establish harm, but only a
reasonable apprehension of harm)(Since narcotics weren’t an issue considered in 1867,
they fall under the POGG power
o 
 Marijuana case – criminal law power under section 91(27) of the Constitution
Act of 1867 and Section 7 of the Charter principle of fundamental justice do not
require criminal law to be limited to conduct that causes harm. The criminal law
power includes the protection of vulnerable groups, thus the government can
control activities for the protection of drug users and society
o “The federal criminal law power is plenary in nature and has been broadly
construed. For a law to be classified as a criminal law, it must have a valid
criminal law purpose backed by a prohibition and a penalty. The criminal power
extends to those laws that are designed to promote public peace, safety, order,
health or some other legitimate purpose. The purpose of the Narcotic Control Act
fits within the criminal law power, which includes the protection of vulnerable
groups. The conclusion that the present prohibition against the use of marihuana

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 can be supported under the criminal law power makes it unnecessary to deal with
whether it also falls under the POGG (peace, order, and good government) power.
o The availability of imprisonment for the offense of simple possession of
marijuana is sufficient to trigger scrutiny under s. 7 of the Charter. However, M’s
desire to build a lifestyle around the recreational use of marijuana does not attract
Charter protection. For a rule or principle to constitute a principle of fundamental
justice for the purposes of s. 7, it must be a legal principle about which there is
significant societal consensus that it is fundamental to the way in which the legal
system ought fairly to operate, and it must be identified with sufficient precision
to yield a manageable standard against which to measure deprivations of life,
liberty, or security of the person”
o The delineation of the principles of fundamental justice must inevitably take into
account the social nature of our collective existence. To that limited extent,
societal values play a role in the delineation of the boundaries of the rights and
principles in question. However, the balancing of individual and societal interests
within s. 7 is only relevant when elucidating a particular principle of fundamental
justice. That done, it is not within the ambit of s. 7 to bring into account such
‘societal interests’ as health care costs. Those considerations will be looked at, if
at all, under s. 1.
o A criminal law that is shown to be arbitrary or irrational will infringe s. 7.
o The issue of punishment should be approached in light of s. 12 of the Charter
(which protects against “cruel and unusual treatment or punishment”), and,
in that regard, the constitutional standard is one of gross disproportionality.
A finding that a particular form of penalty violates s. 12 of the Charter may call
for a constitutional remedy in relation to the penalty, but leave intact the
criminalization of the conduct, which may still be constitutionally punishable by
an alternative form of penalty.
o Roach pp.6-7, 24-30

b) The Canadian Charter of Rights and Freedoms - The Canadian Charter of Rights
and Freedoms (the “Charter”) imposes limits on the jurisdiction of all governments,
subject to s. 1, the “reasonable limits” clause, and the seldom-used s. 33 “notwithstanding
clause.” Since its passage in 1982, the Charter has had such a profound impact on
criminal law and procedure that all criminal practitioners need to develop expertise in its
operation. 


Section 52 of the Constitution Act, 1982 can be used by courts to invalidate offences that
Parliament has created, and courts have done so on a number of occasions, but this is not
common. It has also been used to strike down rules of criminal procedure, although this
too is uncommon.


o Read Canada (Attorney General) v. Bedford, 2013 SCC 72 as an illustration of criminal
offences being struck down. 

o Prostitutes challenged CC provisions 1985 C-46, s. 210, s. 212(1), s. 213(1) which
made it an offense to be in a bawdy house (as it relates to prostitution), live on the

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 avails of prostitution, or communicate in public for the purpose of prostitution.
Argued that these put their safety at risk by preventing them from implementing
certain safety measures, like screening clients or hiring security guards, and that
213 (communicating) infringed freedom of expression under s. 2 of Charter, and
that none of the provisions were saved under s. 1.
o HELD: All declared inconsistent with the charter by SC. They infringe the s.7
rights of prostitutes by depriving them of security of person in a manner not in
accordance with the principles of fundamental justice
 The common law principle of stare decisis is subordinate to the
Constitution and cannot require a court to uphold a law which is
unconstitutional
 The laws negatively impact security of the person rights or prostitutes and
thus engage s. 7. The proper standard of causation is a flexible
“sufficient causal connection” standard.
 The applicants have also established that the deprivation of their security
of the person is not in accordance with the principles of fundamental
justice: principles that attempt to capture basic values underpinning our
constitutional order: in this case the basic values against arbitrariness
(where there is no connection between the effect and the object of the
law), overbreadth (where the law goes too far and interferes with some
conduct that bears no connection to its objective), and gross
disproportionality (where the effect of the law is grossly disproportionate
to the state’s objective).
 All 3 principles compare the rights infringement caused by the law
with the objective of the law, not with the law’s effectiveness; they
do not look to how well the law achieves its object, or to how
much of the population he law benefits or is negatively impacted.
The analysis is qualitative, not quantitative. The question under s.
7 is whether anyone’s life, liberty, or security of the person has
been denied by a law that is inherently bad; a grossly
disproportionate, overbroad, or arbitrary effect on one person
is sufficient to establish a breach of s. 7.
o Read R. v. Oakes, [1986] 1 S.C.R. 103 as an example of a rule of criminal procedure
being struck down, and note the operation of section 1 as a limiting provision (though
be aware that the approach has evolved since Oakes was decided: see the discussion
in Roach, below). The concepts identified in Oakes will be revisited below in discussing
the burden of proof. 

o Accused charged with unlawful possession of narcotic for purpose of trafficking
contrary to s. 4(2) of Narcotic Control Act (“NCA”), but was convicted only of
unlawful possession. After trial, judge made finding that beyond a reasonable
doubt that respondent was in possession of narcotic, respondent brought motion
challenging constitutional validity of s.8 of NCA, which provides that if the court
finds accused in possession of drug, accused is presumed to be in possession for
the purpose of trafficking and that, absent the accused establishing to the
contrary, he must be convicted of trafficking. Ontario CoA on appeal by
Crown found the provision to be a “reverse onus” clause and held it to be

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 unconstitutional in violation of the presumption of innocence in s.11 of Charter.
Crown appealed to SC and stated constitutional question was whether s. 8 of
NCA violated s.11 of Charter and was therefore of no force and effect.
Inherent in this question, given a finding that s.11 had been violated, was the
issue of whether or not s.8 of the NCA was a reasonable limit prescribed by
law and demonstrably justified in a free and democratic society for the
purpose of s.1 of the Charter.
o HELD: Appeal dismissed – answered question in affirmative – s.8 of NCA NOT
reasonable limit demonstrably justified in a free and democratic society under s.1
of Charter.
 Presumption of innocence lies at heart of crim law, is expressly protected
by s.11 of Charter and inferentially by s.7’s right to life, liberty, and
security of the person. Right to be presumed innocent requires, at a
minimum, that: (1) an individual be proven guilty beyond a reasonable
doubt; (2) State must bear the burden of proof; and (3) criminal
prosecutions must be carried out in accordance with lawful procedures and
fairness.
 Provisions which requires an accused to disprove on a balance of
probabilities the existence of a presumed fact, which is an important
element of the offense in question, violates the presumption of innocence
in s. 11. The fact that the standard required on rebuttal is only a balance of
probabilities does no render a reverse onus clause constitutional.
 The standard of proof under s.1 is a preponderance of probabilities. 2
central criteria must be satisfied to establish, under s.1 that a limit is
reasonable and demonstrably justified in a free and democratic
society: 1) objective to be served by the measures limiting a Charter
right must be sufficiently important to warrant overriding a
constitutionally protected right or freedom (at a minimum, an objective
must relate to societal concerns which are pressing and substantial in a
free and democratic society before it can be characterized as sufficiently
important); 2) the party invoking s. 1 must show the means to be
reasonably and demonstrably justified (this involves a form of
proportionality test involving three important components: a) measures
must be fair and not arbitrary, carefully designed to achieve the
objective in question and rationally connected to that objective; B)
means should impair the right in question as little as possible; C)
there must be a proportionality between the effects of the limiting
measure and the objective – the more severe the deleterious effect of a
measure, the more important the objective must be)
 HERE: Parliament’s concern that drug trafficking be decreased was
substantial and pressing objective of protecting society, but NO rational
connection between the basic fact of possession and the presumed fact of
possession for the purpose of trafficking
o Roach pp. 31-86. 


The Charter can also be used as in important interpretive tool. Even when it is not used to

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 strike down a provision, it is the practice of courts to permit constitutional values to
influence the way statutes are interpreted. 

1. Read R. v. Labaye, [2005] 3 S.C.R 728 as an illustration of how the Charter changed
the criminal concept of indecency through a progression of cases described therein.
You will see that this case provoked a strong dissenting judgment. Bear in mind that what
dissenting judges say in opposition to the majority judges is not the law, but that obiter
dictum explaining the law when no opposition is taken can be a valuable source for legal
argument.
2. Roach pp. 94-95 (discussing R. v. Labaye)

a. SCC overturned conviction of keeping a common bawdy house with respect to a
Montreal private club and locked floor of a club that was used as a place for
members and their guests to engage in group sex
b. Common bawdy house defined as a place sorted to for the purpose of prostitution
or acts of indecency- question came down to what constituted acts of indecency –
SCC abandoned the community standard of tolerance test in favor of an
objectively determined harms approach – so indecency requires conduct that by
its nature “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 by the Constitution or similar fundamental laws by,
for example: (1) confronting members of the public with conduct that
significantly interferes with their autonomy or liberty; or (b) predisposing others
to anti-social behavior; or (c) physically or psychologically harming persons
involved in the conduct, and that the harm or risk of harm is of a degree that is
incompatible with the proper functioning of society
c. Court opted for interpretation of offence that was most consistent with the
liberty of the accused

The Charter’s largest impact on criminal procedure has been in creating constitutional

 procedural protections, as discussed below.

3. The Procedural Classification of Offences

In Canada, criminal offences are divided into two general categories: “indictable offences” and
“summary” (or “summary conviction”) offences. Offences can be “hybrid” in the sense that the
prosecutor has the right to elect whether to treat the offence as “indictable” or “summary.” The
classification of offences has important implications for the penalties that are possible, and for
the procedure that will be used, including the mode of trial. For example, jury trials are not
available for criminal offences prosecuted by summary conviction and are also precluded for
indictable offences listed in s. 553 of the Code as being in the absolute jurisdiction of provincial
court judges.
o See Coughlan, pp. 35 – 43 (3rd) and the CC provisions cited therein.

4. Interpreting Criminal Provisions

Interpreting the Criminal Code and related enactments is not unlike interpreting other statutes.
There are special considerations that operate, however. For example:

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o Definitions - The Criminal Code has definitions for many of the terms used but they are
not always easy to locate. Section 2 contains definitions that apply throughout the Code.
The Code is divided into Parts, and at the beginning of each Part, there will be a
definition section that applies solely to that Part. Sometimes definitions are found in or
around the relevant statutory provision to be interpreted. See, for example, ss. 348(3) and
350, which apply to offences in s. 348(1) (i.e., breaking and entering). Sometime
definitions come from the common law: see R. v. Jobidon, below[above](fist fight death
consent issue, SC interpreted consent to fight to be limited). 


o Strict Construction - Historically, criminal statutes were interpreted strictly in favour of

the liberty of the accused. In other words, the accused would get the benefit of any
ambiguity in matters of interpretation. This principle continues to apply but has
been heavily modified by the purposive interpretation.
o R. v. Pare, [1987] 2 S.C.R. 618 (shows purposive, rather than strict, interpretation (courts
are to use purposive interpretation first, and then if still ambiguity, strict interpretation in
favor of the accused))
o Accused murdered young boy 2 minutes after indecently assaulting him. At trial, the
jury found the accused guilty of first degree murder pursuant to s. 214(5) (b) of
the Criminal Code . At the time of the offence, s. 214(5) (b) provided that "murder is
first degree murder in respect of a person when the death is caused by that
person while committing an offence under section . . . 156 (indecent assault on a
male)". The Court of Appeal dismissed the accused's appeal but substituted a verdict
of second degree murder for the jury's verdict of first degree murder. This appeal is
to determine whether the accused murdered the child "while committing" the
indecent assault.
o Held: The appeal should be allowed. AKA was part of same transaction counts as
“while committing” so first degree murder conviction restored.
o The words "while committing" in s. 214(5) do not require the murder and the
underlying offence to take place simultaneously. Where the act causing death and the
acts constituting the indecent assault all form part of one continuous sequence of
events forming a single transaction, the death is caused "while committing" an offence
for the purposes of s. 214(5) . The offences under s. 214(5) all involve the illegal
domination of people by other people. Accordingly, it is the continuing illegal
domination of the victim which gives continuity to the sequence of events culminating
in the murder and makes it a single transaction. The murder represents an exploitation
of the position of power created by the underlying crime and knits the two together.
The conviction of first degree murder should be restored.
o R v Pare: (above) (Sexually assaulting and then murdering little boy)

o Facts: Pare murdered a young boy two minutes after indecently assaulting him; at trial
jury found him guilty of first degree murder section 214(5)(b) (“when death is caused ...
while committing an offence under section 156); Court of Appeal substituted verdict of
second degree murder; Crown appealed
o Issues: Whether accused murdered the child “while committing” the indecent assault
o Held: Crown’s appeal of second degree verdict should be allowed
o “while” committing, as per section 214(5)(b) doesn't require the murder and

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 offence (under section 156) to take place simultaneously; that they form part of
one continuous sequence of events forming a single transaction qualifies as
“while committing”
o Potential grammatical ambiguity in s. 214(5) re killing ‘while committing’
another offence. SCC looked at purpose of provision to find there was no
ambiguity: “Where the act causing death and the acts constituting the indecent
assault all form part of one continuous sequence of events forming a single
transaction, the death is caused "while committing" an offence.”
o Roach believes the court seems less likely to strictly construe in favour of accused
where very serious crimes are involved and the wording of the statute is not really
ambiguous, e.g. R v Pare...  See CanadianOxy below
o Roach pp. 90-95
o R v Marcotte - Statutes that affect the physical liberty of a person should be applied so as
to favour the person against whom it is sought to be enforced
o This principle of strict construction continues to apply but has been heavily modified by
the purposive interpretation.
o CanadianOxy Chemicals v. Canada (1999)- Doctrine of Strict Construction is only
used if there are reasonable ambiguities in a law after it has been interpreted in a
purposive manner consistent with its intent

o Purposive Interpretation - Canadian law makes liberal use of purposive interpretation, in

which the language that is used in the provision being construed is interpreted
harmoniously with the statute as a whole, with the underlying purpose of the provision in
mind so as to best accomplish its underlying purpose, always bearing in mind that the
limit on purposive interpretation is that damage cannot be done to the language
employed. R. v. Pare is an example. Be on the lookout throughout the decisions included
in this list for examples of purposive interpretations. 

o Purposive Interpretation - Canadian law makes liberal use of purposive
interpretation (see R v Pare above)

 The language of the provision being construed is interpreted harmoniously
with the statute as a whole, with the underlying purpose of the provision in
mind so as to best accomplish that purpose
 Limit: can’t damage the actual language of the provision
o R v. Russell (2001) – takes R v. Pare a step further
 SC went beyond Pare to hold that first degree murder can be committed
even if the underlying offence was comitted against a third party and not
the person murdered
 Court stressed that strict construction was not relevant because the
ordinary words of s.231(5) of CC did not require the underlying offence
to be committed against the victim
 This case underlines that courts will not lightly resort to the doctrine of
strict construction and will often give even the most serious criminal
offences a generous reading if supported by the language of the enactment

o French/English - Federal laws like the Criminal Code are passed in both of Canada’s official

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 languages. Each version is equally authoritative, and ambiguities in one language can be
clarified by the other.
o See, for example, R. v. Mac, [2002] 1 S.C.R. 856, or for a very simple example, R. v.
Collins, [1987] 1 S.C.R. 265 at para. 43.
o The more restricted version is always the one used, e.g. adapted vs. modified
(below)
 R v Mac: ambiguity in the English version of statute containing ‘materials
adapted for forgery’ cleared up by resorting to French version (‘modifié’)
 R v Collins: French version of Charter s. 24(2) preferred: "the evidence
shall be excluded if it is established that, having
 regard to all the
circumstances, the admission of it in the proceedings could [rather than the
English ‘would’] bring the administration of justice into disrepute"

o Roach pp. 92-93 (discussing R. v. Mac)
o R v Daoust: If English and French versions of CC are not consistent, Court should
select the more restrictive provision

o The Charter - As indicated, the Charter can have an important influence on the way statutory
provisions are interpreted because of the presumption that statutes were intended to be
constitutionally valid. You have observed this in R. v. Labaye, [2005] 3 S.C.R 728
(Montreal sex club/bawdy house not indecent). 

o See, for example, Canadian Foundation for Children, Youth & the Law v. Canada (A.G.),
[2004] 1 S.C.R. 76 where a Charter challenge encouraged the Court to read significant
content into the concept of “reasonable corrective force.” Examine this decision not only
for what it shows about legal technique, and the rule of law doctrine of “void for
vagueness,” but also for what it says about the operation of the defence of corrective
force.
o Canadian Foundation for Children, Youth & the Law v. Canada – McLachlin
C.J. – right to discipline
 PRINCIPLE: VAGUENESS and Corrective Force Defense
 FACTS: Appeal by the Canadian Foundation for Children, Youth, and the
Law from the dismissal of its appeal from the dismissal of its application
for a declaration that s.43 of CC violated Charter. S.43 permitted teachers
and parents to use force by way of correction to a child where such force
did not exceed what was reasonable under the circumstances.
 HELD: Appeal dismissed.
 While, as conceded by the Crown, s.43 violated children’s rights to
security of the person, it did not offend a principle of fundamental
justice in violation of s.7 of the charter. The section accorded
procedural safeguards. The best interests of the child principle was
not a principle of fundamental justice.
 Finally, the section was not impermissibly vague or overbroad.
o The phrases “by way of correction” and “reasonable under
the circumstances” provided sufficient precision to
delineate the zone of risk of criminal sanction having
regard to international treaty obligations, the social

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 consensus, expert evidence, and judicial interpretation
o Pursuant to these resources, the force used had to be for the
purposes of education or correction, and could not be more
than trifling
 Corporal punishment against children under 2 or teens, degrading,
inhuman, or harmful conduct and the use of objects or blows to the
head not protected by s.43
 Teachers not permitted to use corporate punishment, but could use
force to remove a child from a class or secure compliance with
instructions
 As s.43 only permitted reasonable corrective force, it did not
breach s.12 of Charter by permitting cruel and unusual punishment
against children. Finally, s.43 did not violate children’s s.15(1)
equality rights. Children need a safe environment, but they also
depend on teachers/parents for guidance and discipline, to protect
them from harm and promote their healthy development.
o The Standard for “Vagueness”
 A law is unconstitutionally vague if it “does not provide an adequate basis
for legal debate” and “analysis”: “does not sufficiently delineate any area
of risk”; or “is not intelligible”. The law must offer a “grasp to the
judiciary”. Certainty is not required. Vagueness dealt on a case-by-case
basis
 A vague law prevents the citizen from realizing when he or she is
entering an area of risk for criminal sanction. 

 It similarly makes it difficult for law enforcement officers and
judges to determine whether a crime has been committed. 

o Does Section 43 Delineate a Risk Zone for Criminal Sanction? 

 s.43 sets real boundaries and delineates a risk zone for criminal sanction. It
does not violate the principle of fundamental justice that laws must not be
vague or arbitrary. It is not overbroad. 

 s.43 delineates who may access its sphere with considerable
precision. The terms “schoolteacher” and “parent” are clear. 

 The person applying the force must have intended it to be for
educative or corrective purposes. Out of anger will not be
tolerated. 

 If conduct raises an apprehension of bodily harm s.43 cannot be
relied on. 


THE ELEMENTS OF A CRIMINAL OR REGULATORY OFFENCE

Each criminal offence has “elements” that must be present before a conviction is possible.
Indeed, all elements of the offence must be present at the same time, or there will be no crime
(see R. v. Williams below). As is the case internationally, it is convenient to think of the

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elements of an offence as:

The physical elements or actus reus of the offence (the act that must be
performed or omission that is proscribed, the circumstances or conditions in which the act
must occur, and any consequence that must be caused by the act); and 


The mental or mens rea elements of the offence. 


The actus reus requirement is not simply the need to show that the accused acted voluntarily: the
elements particular to each individual offence must be identified. For example, the actus reus of
assault includes the application of force and the absence of consent, the actus reus of theft
includes the taking of property belonging to someone else, the actus reus of robbery includes
committing assault in order to steal, and so on. 


As a general rule (but subject to exceptions) each actus reus element will have a corresponding
mens rea element. For example, in assault the application of force must have been intentional,
and the accused must have known of the absence of consent. In Canadian law, these mental
elements normally describe the actual or “subjective” state of mind of the accused (things such
as intent, knowledge, willful blindness or recklessness). It is becoming increasingly common,
however, to produce offences that have an objective mens rea, such as negligence. Objective
mens rea is determined not according to the state of mind of the accused (the subject), but
according to what a reasonable person in the position of the accused would have known or
foreseen.

As a general proposition of interpretation, a true crime will be interpreted as requiring subjective

mens rea unless it is clear that Parliament wished to impose objective liability. Identifying what
the elements of an offence are is a challenging enterprise, turning on interpretation of the offence
and familiarity with relevant precedents and principles. It is not possible or desirable to attempt
here to “teach” the elements of every offence. Instead, some offences will be selected for their
illustrative value in demonstrating the key actus reus and mens rea concepts.

Applicants are expected to be able to demonstrate interpretive and application skills for all
criminal offences, whether included in these reading materials or not. That is, candidates are
expected to develop the ability to review an offence provision and analyze it in such a way as to
be able to discern its essential elements (actus reus, mens rea, etc.). Sometimes this exercise will
involve being cognizant of definitions or presumptions that are included in the offence provision
or elsewhere in the Criminal Code. A candidate is not expected to have conducted such an
analysis with respect to every offence in the Criminal Code prior to the exam. Nevertheless, the
candidate must be able to quickly carry out an analysis of an offence that is put at issue in an
exam question, even if he/she has not previously dealt with that offence in the readings.

5. The Actus Reus

a. Acts and Statutory Conditions - The act must be the act of the accused. The act must

12
 also be the kind of act described in the relevant provision. Further, the act must be
committed under the circumstances or conditions specified in the offence. For
example, an accused cannot be convicted of the offence of break and enter with intent to
commit a criminal offence pursuant to s. 348 (1) (a) unless she “breaks” and “enters”
something that qualifies as a “place” according to the CC, with the relevant mens rea.
See, for an example of the interpretation of acts and actus reus conditions:
o R. v. J.(D.), [2002] O.J. No. 4916 (Ont. C.A.) 

o R v. J.D. – [2002]– being let into his friend’s house, counting as forcible entry
 Facts: JD fled to VB’s house after being approached by cops; he was let
into the house and tried to go out the back door but was unable to; cops
were let in and they arrested JD; trial judge found that forcible entry didn’t
require actual use of force as long as there was a breach of peace

 Issues: was there a forcible entry
 Held: conviction set aside, acquittal entered
 Forcible entry occurred only where the entry interfered with the peaceable
possession of a property; a known person walking in the front door and
straight through to the back does not have such an intention
o R. v. Gunning [2005] 1 S.C.R. 627
o R v Gunning: To make out a murder conviction, Crown needs to prove beyond
reasonable doubt:
 (1) identity of D as the offender;

 (2) time and place of the offence as set out in the Indictment;

 (3) that D caused the death of V;
 (4) that D caused the death by means of an unlawful act [for murder,
unlawful act is shooting itself, for manslaughter, here it would be careless
use of a firearm];

 (5) that D intended to cause the death
 All of these are matters of fact to be decided by the jury (judge
erred in telling the jury that D’s act was unlawful – that his use of
the gun was careless)
 Trial judge also erred in failing to instruct jury on the defence of
house or property under s.41 of CC- merits of defence are for a
jury to decide

Acts Must be “Voluntary” or “Willed” – The act described by the offence must be
“voluntary” in the sense that it must be the willed act of the accused. For example, a
man in the throes of a seizure does not “will” his movements; it would be no assault on
his part even if his arm was to strike another without the other’s consent. It would have
been possible to deal with this kind of issue using the mens rea concept by suggesting
that he did not intend to strike the other, but Canadian law has also accepted that unless a
physical motion is willful, it is not fair to call it an act of the accused person. This is the
foundation for the automatism defence, discussed below. It is easier to understand the
concept of voluntariness together with automatism authorities, so this discussion will be
deferred until the voluntariness-based defences are discussed below.

13
o Roach pp. 123-125
o Voluntariness is now a requirement built into AR
 THEREFORE, AR has its own mental element, that the act must be
voluntary
o R v Theroux (1993): housing developer that said deposits were insured when they were
not. McLachlin states that the MR of an offence does not encompass all the mental
elements of the crime b/c the “AR has its own mental element” – that the “act must be the
voluntary act of the accused for the AR to exist”
o R v Daviault (1994): extreme intoxication producing involuntary/unconscious behaviour
negates AR
o R v Stone (1999): an involuntary act will lead to acquittal (as no AR made out)

o R v Ruzic (2001): voluntariness is one of the principles of fundamental justice (section 7
Charter) (people should only be punished if they acted as “autonomous and freely
choosing agents”

b. The “Act” of Possession – At times part of the actus reus for an offence has an inherent
mental element to it, as it does with the important element, common to many offences, of
“possession.” This concept demonstrates that the divide between the actus reus and
mens rea is not always a solid one. What matters is that lawyers appreciate what the
elements are, regardless of how they are characterized.
a. See CC s. 4(3), Controlled Drugs and Substances Act section 2 (found in most
Criminal Codes) 

i. Some actus reus incorporate the inherent mental element of “possession”,
e.g. possession of firearm, property obtained in a crime (s. 354(1)), etc.
ii. “Possession” is defined in s. 4(3) and includes both actual(/personal) and
attributed(/constructive) possession (notes, CC p. 20):
iii. A person has something in his “possession” where he:
1. (a) Has it in PERSONAL POSSESSION (manual possession);
2. (b) KNOWINGLY has it in the actual possession or custody of
ANOTHER PERSON (constructive possession);
3. (c) KNOWINGLY has it in any place, whether or not that place
belongs to or is occupied by him, for the use or benefit of himself
or another person (also constructive possession)

4. (d)Where ONE OF TWO PERSONS has anything in their custody
or possession, with the KNOWLEDGE AND CONSENT of the
rest, it shall be deemed to be in the custody of ALL OF THEM (i.e.
joint possession)
iv. S.2 of the CDSA adopts this definition of possession
b. This section creates 3 types of possession: personal possession (actual);
constructive possession (attributed); and joint possession (actual to one
possessor, and attributed to the other)
c. See R. v. York, (2005), 193 C.C.C. (3d) 331 (B.C. C.A.) for the law of manual
possession 

i. R v York: [2005] driving away van with property stolen by partner

14
 [manual/actual possession]
1. Significance: Personal (actual) possession is established where an
accused person exercises physical control over a prohibited object
with full knowledge of its character, however brief the physical
contact may be, and where there is some evidence to show the
accused took custody of the object willingly with the intent to deal
with it in some prohibited manner
2. Facts: D found goods in his warehouse and upon inquiry suspected
they were stolen. To get rid of the goods D borrowed a truck and
removed the goods, then was arrested.
3. Issue: Did D possess necessary mens rea to establish possession of
stolen property?
4. Held:

- Intention to deprive owner of goods required to establish
‘possession’; brief handling for the purpose of disposing of stolen
goods, even with full knowledge of theft, ≠intention to deprive
- “Personal possession is established where an accused
person exercised physical control over a prohibited object
with full knowledge of its character, however brief the
physical contact maybe, and where there is some evidence
to show the accused person took custody of the object
willingly with intent to deal with it in some prohibited
manner.” – Not the case here.
- “Intent is an essential ingredient of both the offences of
theft and possession of stolen property”
- Crown must establish a blameworthy state of mind
- Note how the “act” of possession has a mental element; so
sometimes the actus reus and mens rea are not distinct

d. See R. v. Marshall, [1969] 3 C.C.C. 149 (Alta. C.A.) and R. v. Terrence, [1983]
1 S.C.R. 357 for the concept of constructive joint possession 

i. R v Marshall: [Joint Possession & Constructive Possession]
Facts: Marijuana in the car in which M was a passenger. He knew the
narcotics were in the car but did not use them (did pass the pipe for others
to use).
Issue: Was Marshall in joint possession? What is necessary to meet
requirements of possession in s. 4(3)?

Held: To prove s. 4(3) possession, there must be evidence of consent; M
had not consented (appeal allowed)
- To be in possession requires:
1. Knowledge of the criminality associated with the item
(not just of the item);
2. Consent (per R v Marshall (1969)); and

3. Control (per R v Terrence (1983))

15
 ii. R v Terrence: [Joint Possession & Constructive Possession]
Significance: Joint possession requires evidence that the party in
attributed possession had knowledge, consent and control over the subject
matter

Facts: D, passenger in a stolen car, charged with possession under s. 3(4),
313; he didn’t know the car was stolen

Issue: Whether “possession” used in s.3(4)(b) of CC imports control as an
essential element
Held: Control an essential element of possession; must coexist with
knowledge & consent

e. See R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 for possession of electronic
data 

i. R v Morelli: [Possession of electronic data, child pornography]
1. Just having an illegal file cached on D’s computer (child porn)
didn’t establish possession: it would have to be downloaded
and
 saved to the hard drive in order for there to be ‘control’ 

2. Merely viewing in a Web browser an illegal image stored in a
remote location on the Internet does not establish the level of
control necessary to find possession 

3. In order to commit the offence of possession, as opposed to the
offence of accessing child pornography, one must knowingly
acquire the underlying data files and store them in a place under
one’s control 

4. Dissent: “D does not need to have control in a place belonging to
him, such as his hard drive. The provision simply requires the
material to be ‘in any place’ for the use or benefit of D.”
5. Material need not be downloaded, so long as it can be controlled
for access/use 

f. Roach pp. 111-112

c. Consent as an Element of the Actus Reus - Often the question of absence of consent by
the victim is an important actus reus condition that must be present for offences to occur.
Consent is a complex idea, animated by statute and the common law.
a. See CC section 265(3) 

b. s.271 Sexual assault – Everyone who commits a sexual assault is guilty of:
o an indictable offence and is liable to imprisonment for a term not exceeding ten years;
or

o an offence punishable on summary conviction and liable to imprisonment for a term not
exceeding eighteen months.
o Commentary: Sexual assault is not defined, although an essential element, assault, is
elsewhere defined for such purposes. In general, it is an assault under s.265(1) committed

16
 in circumstances of a sexual nature such as to violate the sexual integrity of V. The MR
requires proof of a general intent only.
o s.265 CC:
o (3) Consent – For the purposes of this section, no consent is obtained where the
complainant submits or does not resist by reason of:
(a) the application of force to the complainant or to a person other than the
complainant;

(b) threats or fear of the application of force to the complainant or to a
person other than the complainant;
(c) fraud; or

(d) the exercise of authority.
NOTE on s.265: Assault has been given a very encompassing definition in s.265.
The definition says nothing about the degree of harm which must be sustained.
Nor does it refer to the motives for the touching. If taken at face value, this
formulation would mean that the most trivial intended touching would constitute
assault.
o If alleged victim allegedly consented, must also consider whether the consent is obtained
lawfully: s. 265(3)

o The existence of consent for the purposes of defining the actus reus of sexual assault
depends on the subjective perception of the victim as opposed to any external and/or
objective standards of law R v Ewanchuk

o Statement by the victim that she did not consent or did so because of fear will be
determinative unless not credible. 


o Court took different view in Cuerrier, actions of accused assessed objectively to

determine whether reasonable person would find them do be dishonest. Persons only had
duty to disclose if the failure to disclose presented a significant risk of bodily harm. 


o In Jobidon, Court held person could not consent to an assault that intentionally causes
‘serious hurt or non-trivial bodily harm... in course of fist fight or brawl’. 


c. R. v. Jobidon, [1991] 2 S.C.R. 714 (reviewed above as an illustration of the

common law influence on the reach of statutory provisions) 

d. R v Jobidon: Cannot consent to intentional application of force to cause hurt
or non-trivial bodily harm
i. Accused charged with manslaughter, through the offence of assault,
following a fist fight. Although V agreed to fight, his consent did not
extend to being punched after he was unconscious. 

ii. Issue: Must absence of consent be proved by P in all cases of assault?
iii. The common law still ‘illuminates’ offences listed in CC and defines their

17
 content 

iv. The fact that s. 265(3) sets out factors that vitiate consent does not mean
that we cannot rely on the common law to
 ascertain other ones 

v. Where two people engage in a fight by mutual consent, the blows struck
by each constitute assaults, unless there is justifiable self defence (i.e. you
cannot consent to the infliction of bodily injury, or non-trivial bodily
harm) 

vi. This policy of the common law will not affect the freely given consent to
participate in rough sports, so long as the intentional force is within the
normal rules of the game

o R v Ewanchuk: Only relevant period for ascertaining consent is while the touching is
occurring. Also, subjective perception.
o Sexual assault involves three actus reus circumstances:
(1) Touching, (2) Of a sexual nature,
(3) Absent freely given consent (subjective: V’s state of mind, assessed for
credibility)
- If in doubt re veracity of consent, check s. 265(3): no threat,
fraud etc. 

- No such thing as implied consent
o Two mens rea elements:
(1) Intention to touch;
(2) Knowledge, recklessness, or willful blindness re lack of consent

- c.f. Honest belief defence, s. 265(4): SCC held it insufficient for D to have
believed V was subjectively consenting in her mind: “In order to cloak D’s
actions in moral innocence, evidence must show he believed V communicated
consent to engage in the sexual activity in question” (applied in J.A., below)

e. R. v. J.A., 2011 SCC 28 


f. R v J.A. (upholding Ewanchuk): consent while unconscious
i. Facts: Long term partners engaging in consensual asphyxiation play;
female blacked out and when she came to, a dildo was being inserted into
her anus; she claimed she had not consented to the sexual activity while
she was unconscious; trial judge convicted the accused of sexual assault;
court of appeal set aside the conviction; crown appeals to dismissal.
ii. Issues: Can sexual acts be performed on an unconscious person if that
person consented beforehand
iii. Held: Conviction of the accused was restored
iv. ‘Conscious consent of an operating mind’ is necessary to engage in every
act of a sexual encounter; starting something new while V was
(voluntarily) unconscious = no consent

v. No such thing as broad advance consent; the protection afforded by s.

18
 273.1(2)(e) would be lost (under which V can revoke consent), also
remember Ewanchuk: relevant time for establishing consent is while the
touching is occurring, i.e. while the unconsciousness continues

vi. Differences between consent elements in actus reus and mens rea (from
Ewanchuk):
1. Mens rea defence: whether the accused believed C had
communicated consent (see note in Ewanchuk above); requires
taking reasonable steps to ascertain consent 

2. Actus reus: whether V was subjectively consenting in her mind
vii. Dissent: advance consent while unconscious wasn’t at issue in Ewanchuk
(in which V didn’t consent at any point) and that case shouldn’t be taken
out of context; court should avoid vitiating consent except in limited
circumstances (Jobidon) 

viii. Since Jobidon, consent has only been judicially vitiated in cases of
ABH(assault causing actual bodily harm) and should not be vitiated here


g. R v Cuerrier [1998]: How fraud vitiates consent per s. 265(3) [HIV+]
(significant risk test?)
i. Facts: D charged with two counts of aggravated assault per s. 268 for
failing to inform sexual partners of his HIV+ and using condoms; neither
partner contracted HIV by time of trial
ii. Issue: Was Vs’ consent to unprotected sex vitiated by fraud by virtue of
D’s knowledge? Both failing to disclose and deliberately deceiving
iii. Held: Must find causal connection between fraud and submission/failure
to resist (i.e. consent); fraud need not pertain to ‘nature and quality of act’
1. i.e. Both partners knew they’d be having sex with D so there was
no fraud there; the fraud was in D’s knowledge that neither V
would consent if they knew he was HIV+ 

- Fraud involves (i) dishonesty, determined objectively: was dishonesty
used to obtain consent?; (ii) deprivation, here serious risk of bodily harm


- Greater risk of deprivation  higher duty of disclosure
- Without disclosure, there can be no TRUE CONSENT. 

- Court used the language of “significant risk” to determine if there is
a duty to disclose. 

- The Court was left to decide at what point risk becomes “significant”
enough and harm becomes “serious” enough for 
 conduct to be
considered a criminal offence
- Here, it was fraud

h. R. v. Mabior, 2012 SCC 47

i. R. v. Mabior [2012] (failing to disclose HIV positive status, Test  “realistic

19
 possibility of transmission”)
j. Facts: Mr. Mabior was charged with nine counts of aggravated sexual assault
because he had sex with different women and did not disclose to them that he was
HIV positive.
 None of the complainants contracted HIV.
k. Held: Convicted of three of the four counts that he was acquitted of at the Court
of Appeal
l. Court revisited the test set out in the Cuerrier decision, saying that, “A person
may be found guilty of aggravated sexual
 assault under s. 273 of the Criminal
Code if he fails to disclose HIV-positive status before intercourse and there is a
realistic possibility that HIV will be transmitted." 

m. The Cuerrier decision provided the basic requirements for the offence, including
that the circumstances must create a 
 “significant risk of transmission” but did
not clarify “the precise circumstances when failure to disclose HIV status vitiates
consent and converts sexual activity into a criminal act.” 

n. The Court convicted on three counts because, although he had a low viral load
when he had intercourse with three sexual
 partners, he did not use a condom. 

o. The Court concluded that low viral load with no condom use meets the test for “a
realistic possibility of transmission of HIV”. In the 4th conviction, Mr. Mabior
was not convicted because he did use a condom and his viral load was low. 

p. Roach pp. 107-112 

i. R v. Hutchinson [2014] [fraud extended to poking holes in condoms]
1. Held: Ct majority extended the fraud exception to convict a man of
aggravated sexual assault who deceptively poked holes in a
condom with the knowledge that the complainant would not have
unprotected sex
2. Ct held that pregnancy satisfied the requirement of a significant
risk of harm
3. 3 other judges would have convicted on the different basis that
complainant had agreed to have sex only with a condom
ii. SC has rejected defence of either advance (R v. JA above) or implied (R v.
Ewanchuk, above) consent

d. Causation - Where the relevant offence prescribes a “consequence” that must occur
before the offence is complete, the Crown prosecutor must prove that the accused caused
the consequence to occur, beyond a reasonable doubt. (Equally, where no consequence is
specified and the offence does not otherwise refer to causing a result, causation is not an
element and need not be proven by the Crown). As Williams shows, if causation is not
proved, the accused cannot be convicted of an offence that requires his act to produce a
prohibited consequence. Nette discusses the need for both “factual causation” and legal
causation, as well as discussing the higher causation standard for first degree murder.
Smithers illustrates the legal causation principle of the “thin skull” and Maybin
demonstrates the need in some contexts to consider whether intervening events have

20
broken the relevant chain of causation. These cases illustrate how most imputable
causation principles explain why blame can be assigned in criminal cases, in spite of
arguments that might, in civil cases, reduce or even eliminate civil liability.
a. See CC ss. 224-226 

b. R. v. Smithers, [1978] 1 S.C.R. 506 (Illustrates the legal causation principle of
the “thin skull” (died of asphyxiation on vomit after being kicked in
stomach)
i. Facts: D kicked V in stomach (both young hockey players), V choked to
death on vomit, medical disorder
ii. Held: One who assaults must take V as found; the fact that the act
wouldn’t normally cause death is no defense as long as Crown can prove
that D’s act is at least a contributing cause of death that is more than de
minimis
iii. Charter Scrutiny? R v Cribbin: The common law Smithers test, i.e. an
unlawful act that is at least a contributing cause of death, survives Charter
scrutiny (namely under s. 7, forbidding punishment of the morally
innocent)

c. R. v. Nette, [2001] 3 S.C.R. 488 (Discusses need for both “factual causation”
and legal causation, as well as discussing the higher causation standard for
first degree murder)
d. R v Nette: (the Smithers test is to be used to determine causation); to be framed
positively: ‘was D’s act a significant contributing cause of V’s death?’
(NOTE: Some argue this is a change from the Smithers test of “not insignificant”
or “not trivial” cause- by switching the test to formulate it in the positive to ask
whether D’s act was a “significant contributing cause”, Nette court says this is
just a rephrasing, NOT a different test from Smithers, but some judges disagree)
i. This is to be the standard of causation for all homicide cases 

ii. D robbed V, a 95-year-old woman, then left her tied up; V died of
asphyxiation 2 days later 

iii. Responsibility for causing a consequence must be determined both in fact
and in law: 

iv. Factual causation: but for D’s acts, would V have died? 

v. Legal causation: concerns with the accused’s responsibility in law and is
informed by legal considerations such as the
 wording of the offence and
the principles of interpretations thereof. 

vi. Should D be held criminally responsible for V’s death? Morally innocent
people should not be punished. Look to CC section for clues.
vii. The fact that the accused actions may not have caused death in a different
person does not negate causation 

viii. The fact that other factors might have contributed to the result may or may
not be legally significant depending on whether these
 other

21
 (independent) factors, occurring before or after the act or omission of the
accused, legally severs the link that ties the accused to the result in
question 


e. R. v. Williams, [2003] 2 S.C.R. 134 (If causation not proven beyond a

reasonable doubt, D can’t be convicted of a “consequence” of a crime that
requires his act to produce a prohibited consequence)(Where P can’t prove D
caused the prohibited consequence, D can’t be convicted)
i. PRINCIPLE: Where the relevant offence prescribes a “consequence” that
must occur before the offence is complete (i.e. aggravated assault), the
Crown prosecutor must prove that the accused caused the consequence to
occur, beyond a reasonable doubt.
ii. FACTS: Williams learned that he was HIV-positive six months after
commencing a relationship with the complainant. He did not tell the
complainant and continued to have unprotected sexual relations with her
for a further 12 months even though he received medical counselling and
was informed of his duty to disclose his HIV status to sexual partners. The
complainant contracted HIV. At trial, Williams was convicted of
aggravated assault and common nuisance. The Newfoundland COA
confirmed the common nuisance conviction but allowed Williams's appeal
from conviction of aggravated assault, convicting him instead of attempted
aggravated assault.
iii. ISSUE: whether an accused who fails to disclose that he is HIV+ can be
convicted of an aggravated assault endangering life by engaging in
unprotected sex with a complainant who, at the time of the alleged assault,
could herself have been infected with HIV.
iv. REASONING:
1. Aggravated assault is an offence based on proof of certain
consequences 

2. The Crown must establish all of the elements of an assault, plus the
aggravating circumstance (in this case, “endangers the life of the
complainant”)
3. Section 268(1) is only one of a number of Criminal Code
provisions that “call for a more serious charge if certain
consequences follow.
4. The Crown was unable to prove the endangerment of life, and
therefore unable to prove every element of the actus reus
v. HELD: Appeal dismissed. Williams's continued sexual activity with the
complainant while knowing of his HIV status was evidence beyond a
reasonable doubt of the necessary MR of the offence of aggravated
assault. However, the Crown failed to prove that Williams's conduct after
finding out about his HIV status risked endangering the complainant's life
because it was likely she had already contracted HIV in the six months
before he knew about his status. The lack of proof of this essential element
of the AR was fatal to the aggravated assault conviction but was not fatal

22
 to the attempt charge. Thus, he was guilty of attempted aggravated assault.
1. The focus in the external circumstances is on the nature of the
consequences (i.e. HIV), not the nature of the assault (i.e. sex). W
acquitted on charge of aggravated assault.

f. R. v. Maybin, 2012 SCC 24 (Demonstrates need in some contexts to consider

whether intervening events have broken the chain of causation)
i. Facts: Accused brothers, T and M, in a busy bar, repeatedly punched V in
face and head. T knocked V unconscious. Bar bouncer arrived w/in
seconds and struck victim in head. Unclear which blow caused death. Trial
judge acquitted all 3. CoA unanimous that accused’s assaults were
factually contributing cause of death, and that risk of harm caused by
intervening actor could have been reasonably foreseeable to accused.
Dissenting judge said couldn’t reasonably foresee conduct of intervening
actor, and concluded that bouncer’s intentional act severed legal causation.
Appeal was allowed and new trial was ordered
ii. Issue: Whether bouncer’s intentional act (another punch to the head)
severed the legal causation of the accused brothers beating causing
victim’s death.
iii. Held: Appeal should be dismissed, trial judge could have found that
bouncer’s act was foreseeable/ not an intervening act, so brothers still
caused death, factually and legally.
1. Courts have used a number of approaches to determine when an
intervening act absolves accused of legal responsibility for
manslaughter:
a. For example, both the “reasonable foreseeability” and the
“intentional, independent act” approach may be useful –
but these are just analytical tools – even in cases where it is
alleged that an intervening act has interrupted the chain of
legal causation, the causation test remains whether the
dangerous and unlawful act of the accused are a
significant contributing cause of the victim’s death
g. It was reasonably foreseeable that the bouncer or someone else would forcefully
intervene, so causation remains with D.
 If the accused set off a chain of events
that ended in the person’s death, even though the immediate cause of death was
not at the accused’s hands, the courts have concluded that the accused caused
such a death
i. The accused’s’ actions don't have to be the sole cause of death, but a
significant contributing cause thereof 

ii. The actions of the accused have to be so connected to the death that they
can be said to have had a significant causal effect that
 continued up to
the time of the accused’s death without having been interrupted by an
intervening effect 

iii. But there may be times when intervening factors make it so that the

23
 accused’s actions are no longer the significant cause of death 

h. Roach pp. 114-121 

Where an offence requires a specific consequence, causation becomes an element of the
offence – the offences which prescribe a consequence include:

Overview:
Although the criminal code doesn’t comprehensively codify all causation issues, sometimes
parliament prescribes the level of causation for a crime
o Section 222(1) provides that a person commits homicide when, directly or indirectly, by
any means, he or she causes the death of a human being

Where factual situations occur, which are not covered in statute, common law general principles
of criminal law apply to resolve any causation issues that arise (Maybin). For example, in R v
Smithers, upheld manslaughter on basis that kicking the stomach was at least a contributing
cause of death, outside the de minimus range, even though death was caused by the victims own
malfunctioning epiglottis (causing him to choke on own vomit). Here the thin skulled plaintiff
rule used in criminal law homicide

Causation = Two Stage Analysis:


Causation involves an analysis into both factual causation (i.e. the medial cause of death/
whether the accused is the “but-for” cause) and legal causation (i.e. whether the accused should
be held responsible in law) (Williams):
[1] Factual Causation:
o As there can be more than one cause of death, the causation test is not restricted to a
search for the most proximate, the primary, or the only cause of death (See Maybin)
o Regardless of whether the accused’s conduct is the sole cause, ask was it a material
cause? The test is this: Was the conduct of the accused a significant contributing
cause of the prohibited consequence? (Nette)
o If the act of the accused is too remote to have caused the result alleged, causation is not
established

o If the triggering of a chain of events is interrupted by an intervening cause, it can serve to
distance and exonerate the accused (R v Nette).
o D’s withdrawal or abandonment can terminate the chain of causation, e.g. leaving
V in a building that then burns down 

o D’s abandonment of the dangerous conduct requires a positive communication of
notice, sufficiency of which is determined by the nature of the offence and the
degree of D’s participation 


24
 o Factual causation is typically resolved by the ‘but for’ test

“Thin Skulled man” or “Eggshell Skull Rule”

o “It is a well-recognized principle that one who assaults another must take his victim as he
finds him ... “thin skulled man” may appear in the criminal law as in the civil law”.

[2] Legal causation: Examples of legal causation: reasonable foreseeability test, independent
intervening act test > blameworthiness
(i) This inquiry concerns whether D should be held criminally responsible in law for the
prohibited consequences: blameworthy? (Nette, Williams) 

(ii) Causation expresses an element of fault. That, together with the requisite mental element,
is in law sufficient to base criminal responsibility 

(iii) Note: there is a higher standard of legal causation to secure a first-degree murder
conviction (Nette) 


Criminal negligence: a wanton and reckless disregard for the lives and safety of others: s.
219(1)
- Involves a marked, substantial departure in all circumstances from the standard
of care of a reasonable person 

- In the context of a dangerously negligent act, the mens rea for the offence
charged is objective foreseeability of the risk of bodily harm which is neither trivial nor
transitory
- As is the case with crimes of subjective mens rea, the mens rea for objective foresight of
risking harm is normally inferred from the facts
Dangerous driving: marked departure from the standard of conduct of a reasonably prudent
driver in all circumstances: s. 249
- Based in negligence (standard of care): whether, viewed objectively, D exercised the
appropriate standard of care

R v. Sarrazin (2011) (SCC) – Cocaine may have “severed the chain of causation”
Background: Although an accused may still be held responsible for causing death when there
are concurrent causes of death, it will be necessary in some cases for the jury to be
instructed about whether an intervening event has “severed the chain of causation” in
such a manner that the accused’s actions are no longer a “significant contributing cause”
of the death.
Summary: SC in a 4:3 decision reversed a murder conviction and ordered a new trial in a case
where the victim who was shot in the stomach and barely survived died as a result of a
blood clot a few days after being released from hospital. A new trial would include the
possible verdict of attempted murder because pathologist would not rule out the
possibility that while the blood clot was probably related to the shooting, it could have
been caused by the cocaine ingested by the victim shortly before his death.

R v Reid and Stratton (NS CoA, 2003): Jury trial instructions re intervening act
o Facts: Accused rendered deceased unconscious by headlock, but V died when his friends

25
 attempt to resuscitate him caused him to choke to death on his own vomit
o Issue: NS CoA concluded that jury should be asked whether it was satisfied “beyond a
reasonable doubt that the actions of the accused are so connected to the death … that they
can be said to have had a significant causal effect which continued up to the time of his
death, without having been interrupted” by the intervening botched resuscitation. CoA
added that the jury must not be convinced that the accused’s actions were the “sole
cause” of death but rather, consistent with Nette, were “a significant contributing cause”
o Held: This approach remains valid after Maybin, with questions of whether the risk of
botched resuscitation was reasonably foreseeable or independent from the accused’s
action described as analytical guides to determining the ultimate issue of whether the
accused’s action was a significant contributing cause

e. Omissions - Some offences do not require a positive act by the accused. Rather, they can
be committed by showing that the accused failed to act, or omitted to act. Whether an
offence can occur by “omission” is a question of construction. To be guilty by omission
the offence must contemplate guilt for omissions, or the accused must be placed
under a legal duty to act either by the provision charging him or by some
incorporated provision, and the omission in question must be a failure to fulfill that
legal duty.

a. R. v. Peterson, [2005] O.J. No. 4450 (Ont. C.A.), leave to appeal refused. 

Failing to Provide Necessities of Life (s.215)

R v Peterson (2005): This case centers on sec. 215(1) (c) of the CC, which imposes a duty on
adult children to take care of their parents whom they are in charge of.
1. Facts: D was convicted of failing to provide the necessaries of life to his elderly father
with whom he lived, yet lived on another floor, thereby endangering his life (s. 215)
2. Accused father was dependent; since accused had a familial relationship with his father,
and was aware of the father’s dependency, he was under a duty to provide the necessaries
of life to his father
3. S. 215(1)(c): Everyone is under a legal duty (c) to provide necessaries of life to a person
under his charge if that person (i) is unable, by reason of detention, age, illness, mental
disorder or other cause, to withdraw himself from that charge, and (ii) is unable to
provide himself with necessaries of life
o “Necessaries of life” = food, shelter, care, and medical attention necessary to
sustain life; also appears to include protection of the person from harm
o S. 215(2): Everyone commits an offence who, being under a legal duty within the
meaning of (1), fails without lawful excuse, the proof of which lies on him, to perform
that duty...
- Liability is on an objective basis: conduct showing a marked departure from
the conduct of a reasonably prudent person having the charge of another in
circumstances where it is objectively foreseeable that failure to provide
necessaries of life would risk danger to life or permanent endangerment of the
health of the person under the charge of the other, without lawful excuse

26
 . - D’s personal characteristics are not a relevant consideration (c.f.
capacity to appreciate the risk). The objective basis of liability includes an
assessment of whether D could have acted other than he did. 

. - “Without lawful excuse”: a defence to prevent the punishment of the
morally innocent. The obligation to provide 
 necessaries is not absolute and may
be excused, e.g. for financial inability 

- “Under his charge”:
. - Consider the relationship between the parties: dependency of
disabled parent on independent adult child. Past course of dealing and element of
trust are accounted for in determining whether D was ‘in charge’ 

. - “Charge” therefore connotes the duty or responsibility of taking care of a
person or thing 

. - Consider relative positions of the parties and their ability to
understand and appreciate their circumstances. 

- An elderly parent who is not in full possession of his or her faculties may
not appreciate that he or she cannot provide himself or herself with the
necessaries of life and may not have the capacity to understand that he or
she is in an unsafe or unhealthy environment that is likely to cause
permanent injury
- Evidence indicates D was in charge of V, who was unable to withdraw from
D’s charge

b. R. v. Browne, (1997), 116 C.C.C. (3d) 183 (Ont. C.A.), leave to appeal refused
Duty of Persons Undertaking Acts:
s217: imposes legal duty upon any one who undertakes to do an act if omitting to do it is or may
be dangerous to life.

R v Browne (1997): meaning of ‘undertaking’ vis-a-vis creating a duty to act

 FACTS: D charged with criminal negligence causing death of V after
undertaking to take her to hospital after she swallowed a bag of crack to avoid
police check.

o Instead of calling the ambulance, D hired a taxi which took too long:
Criminal Negligence: ‘wanton and reckless disregard’ for V’s life (s.
219)

 ISSUE: whether an undertaking existed which would place the appellant under a
legal duty under to s.217.
 RULE: Based on the charge, to find a legal duty, a finding of undertaking must
be first established. Before someone is convicted of recklessly breaching a legal
duty generated by his/her undertaking, that undertaking must have been clearly
made, and with binding intent. Nothing short of binding commitment can give rise
to the legal duty contemplated by sec. 217.
 PRINCIPLE: “I’ll take you to the hospital” is NOT an undertaking under s.217.

27
  HELD: Undertaking (under s. 217) must be clearly made – commitment has to
be clear, binding; mere expression of words indicating a willingness to do an act
cannot trigger the legal duty.
o Only if the appellant can be found to have given an undertaking giving
rise to a legal duty under s. 217, can he be found
 criminally negligent for
"omitting to do anything that it is his duty to do" within the meaning of s.
219 (criminal negligence) 

o Given serious penal consequences of being convicted of causing death by
criminal negligence, the relevant undertaking must have been made
with binding intent. Evidence doesn’t disclose binding intent. 
 

c. Roach pp. 121-123

To be Guilty of Omission (failed to act):

(1) The offence must contemplate guilt for omissions (based on statutory interpretation) OR
(2) The accused must be placed under a legal duty to act either by the provision charging him or
by some incorporated provision 
 (see ss. 215-217) 
 AND
(3) The omission in question must be a failure to fulfil that legal duty 


o Omission insofar as a legal duty is important because although the law prohibits harmful
conduct, it doesn’t require socially desirable conduct 

o Only binding and intentional commitments will suffice to make an accused criminally
liable for failing to act

Duty Arises When: common law duty OR statutory duty

1. Common law duty potential problem - 
 in Canada, common law duties come
precariously close to creating common law crimes contrary to s.9 of CC, so preferred
approach to Miller(1983) (House of Lords held that a person who accidentally set a house
on fire had a duty to take reasonable steps to extinguish the fire or call the fire
department)is in the CoA’s decision which did NOT create a free-standing CL duty, but
instead found that the accused had adopted the ACT of setting the fire when he awoke
and did not take steps to put out the fire
2. Regulatory offenses – more commonly penalize failure to act, such as failure to keep
proper records or mandating safety measures
3. Duties may also be IMPLICIT to particular crimes – In R v. Moore refusal to identify self
to police officer held to be obstruction of a police officer under s.129 of CC - but J.
Dickson wrote strong dissent warning that “Criminal law is no place within which to
introduce implied duties, unknown to statute and common law, breach of which subjects
a person to arrest and punishment”

Summary
o Moore (man on bike pulled over; refusal to identify oneself is obstruction of police
officer)

28
 o Majority: implied duty to identify oneself.
o Strong dissent: no such duty in statute (there is one for motor vehicles but not for
cycles) or common law. To imply one would be to rewrite the statute. Contrary to
right to silence.

o Peterson (statutory duty: failing to provide necessities of life to person “under his
charge”, s.215)
o Under his charge: consider relationship of parties, past course of dealing, trust
between the two.
o Assumption of responsibility: publicly acknowledging such by conduct or words
to public.
o Parents refusal to accept care or inability to appreciate the need for necessaries is
not a defence.
o Browne: Criminal negligence under s.219 requires a duty with regards to an omission.
Duty can come from s.217: duty of persons undertaking acts (if omission to do the act
may be dangerous to life):
o Undertaking must be clearly made and with binding intent. “I’ll take you to the
hospital” was not enough to create a legal duty
o S.217 does not depend on relationship of parties like s.215. The relationship is
relevant to whether negligence is established (wanton disregard) under s.219.
o Other duties: s.216, s.218, etc.

29
18 18

ACTUS REUS SUMMARY CHART:

30
19 19



6. Subjective Mens Rea 


As indicated, subjective mens rea focuses on the actual state of mind of the subject of the
prosecution, namely, the accused. Since what someone thinks or knows is personal to her unless
communicated, subjective mens rea ordinarily must be gleaned circumstantially, including
by using the common-sense inference that persons usually intend the natural consequences
of their acts. Since the state of “knowledge” is not often manifested circumstantially the way
apparent intent is, a court is likely to assume that the accused knew of the elements of the
offence unless the so-called “defence of mistake of fact,” discussed below, is made out. The
close link between knowledge and mistake of fact makes it sensible to discuss the “defence”
together with this mens rea concept.

There are many states of mind described by the various Criminal Code provisions. For example,

31
one form of first degree murder requires proof of planning and deliberation (premeditation),
while second degree murder requires only that the accused intends to cause death, or intends to
cause bodily harm that he knows is likely to cause death.

Most offences require more than one mental state to exist. For example, to be guilty of
murder, the accused must know that the living thing she is killing is a human being and intend to
cause death to that human being. A sexual assailant must intend to touch the complainant, and be
aware or willfully blind that she is not consenting (although as indicated, that knowledge is likely
to be assumed absent a mistake of fact defence being raised successfully). Generally, fault must
be established in relation to all aspects of the prohibited act or actus reus though this is not an
absolute rule.

It is a close exercise of construction to see what mental states are required by a particular
offence. If an offence is explicit and specifies the relevant state of mind, then only that state of
mind will suffice. This is why “assault” contrary to section 265 requires “intentional” touching,
and not simply reckless touching. Many offences do not specify the relevant mental state. If a
true crime is silent as to the mental state, it is presumed under the common law that
intention or “recklessness” will suffice. Recklessness in Canadian criminal law requires
subjective advertence to the prohibited risk and should not be confused with negligence. The
presumption of some form of subjective fault gives way to the actual wording of the offence (see
the offence in what is now s. 319(2) of the Code charged in R. v. Buzzanga and Durocher
below, which was found to require the Crown to prove actual intention to bring about the
consequence because of the specific statutory wording of the offence). A few crimes such as
murder and attempted murder have a higher constitutionally required fault element because of
their stigma and penalty.
It is important to be as specific as possible in describing the fault element for a particular
offence. In particular, care should be taken to articulate the precise fault element and its relation
to the actus reus.
d. For a general discussion of various fault elements see Roach pp. 169-186

20 20

2. SUBJECTIVE MENS REA (“MR”)

Introduction:

Introduction:
o The focus is on the actual state of mind of the accused. It normally must be gathered by
The focus is on the actual state of find of the accused. It normally must be gathered by circumstances, including using the common
circumstances,
sense inference including
that people normally using
intend the naturalthe common-sense
consequence of their acts.inference that people normally intend
the natural consequence of their acts.
Subjective MR operates as a doctrine that prevents the conviction on someone who, for whatever reason, does not have knowledge
o Subjective
and foresight MR operates
that a reasonable person wouldashave.
a doctrine that
It operates to prevents
protect the of
those because conviction on someone
impaired reasoning who, did
or lack of thought, for
whatever
not recognize or intendreason,
what maydoes not tohave
be obvious knowledge
the reasonable observerand foresight that a reasonable person would
have. It operates to protect those because of impaired reasoning or lack of thought, did
Each crime has a specific fault element that must be related to the AR of the specific crime. In Canada there is confusion because
nothasrecognize
Parliament not clearly andorconsistently
intend whatdefinedmay be obvious
fault elements to the reasonable
such a “purposely” “knowingly”,observer
“recklessly”, or “negligently”, or
o Each crime has a specific fault element that must be related to
specified which particular fault element applies for each offence. Thus, MR is often inferred by the
the courts
AR of from thespecific
the legislative
definition of each separate offence.
- For crime. In Canada,
those offences there
not specifying is state,
mental confusion
the courtsbecause Parliament
have to infer haselement
what type of fault not clearly and consistently
is required
defined fault elements such a “purposely” “knowingly”, “recklessly”, or “negligently”, or
Becausespecified
knowledge manifests
whichfrom intent, the fault
particular law assumes that Aapplies
element knew of theforelements
each ofoffence. unless “defence
the offence,Thus, MR isofoftenmistake of
fact” is made out.
inferred by the courts from the legislative definition of each separate offence.
Determining the MR of an offence depends on construction to see what mental states are required by a particular offence.

Most offences require more than one mental state to exist. For example, to be guilty of murder, the accused must know that the
living thing he is killing is a human being and intend to cause death
32to that human being. A
For some serious crimes (i.e.; murder, attempted murder, war crimes), the principles of fundamental justice (section 7) require that
the crown prove that the accused subjectively knew that the prohibited result was likely to occur (the supreme court has ruled that it is
not required for most other crimes) – i.e.; for such offences, subjective knowledge of the actus reus is a constitutional requirement
 o For those offences not specifying mental state, the courts have to infer what type
of fault element is required
o Because knowledge manifests from intent, the law assumes that A knew of the elements
of the offence, unless “defence of mistake of fact” is made out.
o Determining the MR of an offence depends on construction to see what mental
states are required by a particular offence.
o Most offences require more than one mental state to exist. For example, to be guilty
of murder, the accused must know that the living thing he is killing is a human being and
intend to cause death to that human being.
o For some serious crimes (i.e.; murder, attempted murder, war crimes), the principles of
fundamental justice (section 7) require that the crown prove that the accused
subjectively knew that the prohibited result was likely to occur (the supreme court has
ruled that it is not required for most other crimes) – i.e.; for such offences, subjective
knowledge of the actus reus is a constitutional requirement

Purpose of MR:
o R v Theroux 1993 CCC: “to prevent conviction of the morally innocent—those who do
not understand nor intent the consequences of their acts.”

Subjective vs. Objective MR:

o Subjective: Crown must establish that accused subjectively had the required guilty
knowledge in relation to the specified circ or consequences
o Objective: Crown must only establish that a reasonable person in the accused’s position
would have had the required guilty knowledge or would have acted differently

Inferences will be drawn from evidence provided, trier of fact will no doubt always inevitably
consider what a reasonable person would have thought. But: R v Buzzanga 1979: “what a
reasonable would have known may provide the basis for the jury to conclude the accused had a
particular subjective mental element BUT it never requires jury to make such a determination.

Supreme Court has kept clear distinction between Objective (“OB”) and Subjective (“SUB”)
fault elements, but they are increasingly willing to see OB as an appropriate form of fault:
o Wholesale Travel Group 1991 CCC:
o Significance: in the context of regulatory offences outside the CC, negligence
should not be forgotten as a fault element, which measure against an objective
standard, irrespective of A subjective mental state. Accepts negligence can be
sufficient fault level for ‘most criminal offences’ (p.174)
o R v Beatty 2008 SCR:
o Facts: SC uphold an acquittal for dangerous driving on basis that A had only
engaged momentary lapse when his vehicle went over the center line and killed 3
people.
o Significance: suggests that OB fault will not always follow from the commission
of an act that is in itself negligent – in all crim cases Crown must prove a ‘marked
departure’ from reasonable standard considering all evidence in the case.
Therefore, court elevated ‘marked departure’. Moreover, “modified objective
approach’ so to look at mental state of driver to determine whether it might raise

33
 RD about whether accused was criminally neg. It focuses on administering OB
standard in contextual manner that is sensitive to the possibility that ‘a reasonable
person in position of A would not have been aware of the risk, or would not have
been able to avoid creating danger.
o Reasoning: Court elevated the marked departure standard to a constitutional
requirement because if every departure from the civil norm (ob) is
criminalized, regardless of degree, there is a risk of casting net too wide,
branding criminals who are in reality not blameworthy! This would violate
the principles of fundamental justice (morally innocent cannot be deprived of
liberty)

In the cases included below, the most common mental states are identified and illustrated:

a) Intention, and Ulterior Mens Rea – Intention is a complex idea. The accused must
have the very intention required by the relevant provision. For example, Murray intended
to hold the Bernardo tapes, but not for the purpose of obstructing justice. He was
therefore not guilty. In Roks, the Court of Appeal stresses the importance of knowing that
death is probable and warns of the dangers of reasoning backwards from the fact that
death occurred.
- R. v. Murray, [2000] O.J. No. 2182 (Ont. S.C.J.) 

R v Murray 2000 OJ: Bernardo Lawyer withholds evidence tapes (obstruction of justice)
Bernardo’s lawyer, on Bernardo’s written instructions, attended at the Bernardo home
and removed videotapes that had significant evidence on it; the tapes weren’t handed
over for almost a year and a half later; Murray faced charge of attempt to obstruct justice
by concealing the tapes;
RULE AR: The actus reus issue is whether Murray's action in secreting the
videotapes had a tendency to obstruct the course of justice.
RULE MR: “Willfully” constitutes the mens rea - is the act is done for the
purpose of obstructing the course of justice. This is a “specific intent” – Crown
must prove he intended to obstruct the course of justice
He may have believed he had no obligation to disclose the tapes before trial; thus
reasonable doubt
There is no duty to hand over all evidence to the crown; just that it cannot be permanently
suppressed
Murray stated he had planned to use the tapes in his defence case for Bernardo, and thus
to introduce them into evidence at such a time
Murray intended to hold the Bernardo tapes, but not for the purpose of obstructing
justice. Therefore, not guilty

- R. v. Roks, 2011 ONCA 526 


R v Roks 2011 ONCA:
o CoA stressed the importance of knowing that death is probable and warns of the dangers
of reasoning backwards form the fact that death occurred. –arson case where one of co-
conspirators who was supposed to be expert in fire suppression and was in charge of
setting the fire died - for s.229 murder conviction you need “subjective foresight of the

34
 likelihood of death”

- Roach pp. 186-193 


Motive vs. Intent:

Motive does not have to be proved for a crime; lack of motive or some innocent motivation will
not exonerate one who has otherwise committed the crime with the necessary guilty intent.
Motive is difficult to distinguish from intent because cases on the issue have not been
consistent.

o R v Dunbar 1936:
o Significance: SCC held that a person who assisted in a robbery had formed a
common intent to commit the crime. The fact that his motivation may have been
to avoid threats of death from his accomplices was irrelevant to the issue of MR
BUT:

o R v Paquette (1975):
o SCC indicated that a person who assisted in a robbery in response to threats of
death could not have formed a genuine intent to carry out the lawful purpose.
BUT:

o R v Hibbert 1995:
o Significance: motive of avoiding harm to self/other would not negate issue of
intent.

Exception to ‘motive not essential to offence’:

Terrorism offences created by Parliament at end of 2001, require prosecutor to prove various
forms of intent beyond a reasonable doubt and that act was ‘committed in whole or in party for a
political, religious, or ideological purpose, or objective cause. AKA- political or religious motive
is an essential element of crimes involving the commission of terrorist activities.

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

- R. v. Theroux, [1993] 2 S.C.R. 5

R v Theroux 1993 SCR – fraud  subjective awareness (possibility of depriving) (interprets

35
MR of Fraud to require only subjective knowledge of the prohibited act combined with
subjective knowledge that the act could result in a deprivation including the placing of the
victim’s pecuniary interest at risk, does not require him to subjectively know his conduct was
dishonest)
o FACTS: The appellant was involved in building houses and sold several residences
before their completion. The appellant represented to the purchasers that their deposits
were insured, although no such insurance existed. When the corporation went bankrupt,
many purchasers lost their deposits. The appellant claimed that he believed that the
residences would be completed and that the purchasers would not be harmed.
o ISSUE: whether the fact that he honestly believed that the projects would be completed
negates the MR

o HELD: Appeal dismissed. The mens rea of fraud was established by proof of the
subjective knowledge of the prohibited act and the subjective knowledge that the
prohibited act could have as a consequence the deprivation of another.
o The accused must have subjective awareness that his or her conduct would put the
property or economic expectations of others at risk. 

o The accused's belief that the conduct was not wrong or that no one would be hurt
was no defence to a charge of fraud. The appellant deliberately lied to his
customers by representing to them that their deposits were insured. 

o The appellant committed deliberate falsehoods which caused or gave rise to
deprivation. Although the appellant believed that the houses would be completed,
he knew that his misrepresentations deprived the purchasers of the insurance
protection they believed they had. He knew that he was placing the purchasers'
deposits at risk, even though he believed that this risk would not materialize. 

o Significance: McLachlin. Question is whether one subjectively understands that their
actions could result in a prohibited outcome; their view of morality of this outcome is
irrelevant. Therefore, MR for fraud consists of subjective awareness that one was
undertaking a prohibited act that could cause deprivation (ie: depriving another of
property or putting that property at risk). Recklessness will result in this criminal
responsibility, as the courts will not require A to subjectively know his/ her conduct
was dishonest as relation to the AR.

Is the test for MR subjective or objective? 
 Most scholars and jurists agree that, leaving aside
offences where the actus reus is negligence or inadvertence and offences of absolute liability, the
test for mens rea is subjective. 

o Actus reus – Has its own mental element; the act must be the voluntary act of the
accused.

o Mens rea – Refers to the guilty mind, the wrongful intention, of the accused. Its function
in criminal law is to prevent the
 conviction of the morally innocent – those who do not
understand or intend the consequences of their acts. 


Subjective mens rea test – the test is not whether a reasonable person would have foreseen the

36
consequences of the prohibited act, but whether the accused subjectively appreciated those
consequences at least as a possibility. In applying the subjective test, the Court looks to the
accused’s intention and the facts as the accused believed them to be. 

o The question is whether the accused subjectively appreciated that certain consequences
would follow from his or her acts, not whether the accused believed the acts or their
consequences to be moral.

R v Eizenga 2011: the CA applied Thereoux reasoning to conclude that an ‘accused’s assertion
that he believed that no one would be hurt by his conduct was no defence, because a subjective
intent to mislead is not an essential element of the offence of fraud. Rather, all that is required is
subjective knowledge of the prohibited act, and that the act could have as a consequence the
deprivation of another.

Note: R v Zlatic 1993 SC finds differently from Thereoux when holding that accused had
necessary MR because he subjectively knew that when he gambled with money that was required
by creditors, he was placing their financial interests at risk, even though he also believed he
would win at the casino to pay his creditors.

- R. v. Chase, [1987] 2 S.C.R. 293 


R v Chase 1987 SCR: MEANING OF “SEXUAL” IN CC
o Facts: C struggles with 15 year old girl and touches her breasts, says “I know you want
it.” Tried to grab genitals, did not succeed.
o Issue: What is the meaning of sexual in terms of the Code for sexual assault?

o Held: Sexual assault is an assault, committed in circumstances of a sexual nature.
o Test: Is the assault committed in circumstances of a sexual nature, such that the integrity
of the victim is violated. This is an objective test (reasonable person, look at totality of
circs)
o Significance: courts will examine ‘part of body touched, nature of conduct, words and
gestures accompanying the act and all other circumstances surrounding the conduct’, in
determining whether the assault is sexual.

- Roach pp. 442-445 discussing Chase and objective features of sexual assault 

- Roach pp. 460-463 discussing Theroux and objective features of fraud 


Sexual Assault vs. Assault and Sexual Offences

Courts have distinguished Sex assault from assaults on the basis of whether the circumstances
viewed objectively, are sexual. The intent of the accused to obtain sexual gratification may be a
factor, but it is not required.

Sex assault differs from sexual offences with respect to young persons in CC ss.151-ss.153.1
because it does not require that the touching be for a sexual purpose.

37
s.265CC
o Assault – A person commits an assault when:
o without the consent of another person, he applies force intentionally to that other
person, directly or indirectly;

o he attempts or threatens, by an act or a gesture, to apply force to another person, if
he has, or causes that other person to believe on reasonable grounds that he has,
present ability to effect his purpose; or

o while openly wearing or carrying a weapon or an imitation thereof, he accosts or
impedes another person or begs.
o Application – This section applies to all forms of assault, including sexual assault, ...

s.271
o Sexual assault – Every one who commits a sexual assault is guilty of:
o an indictable offence and is liable to imprisonment for a term not exceeding
ten years; or

o an offence punishable on summary conviction and liable to imprisonment for
a term not exceeding eighteen months.

Commentary: Sexual assault is not defined. In general, it is an assault under s.265(1) committed
in circumstances of a sexual nature such as to violate the sexual integrity of V. The mental
element requires proof of a general intent only.

‘Sexual Assault’ ss.265 and 271 is a New Offence


o McIntyre J.: I agree as well with those who say that the new offence is truly new and
does not merely duplicate the offences it replaces. Accordingly, the definition of the term
“sexual assault” and the reach of the offence it describes is not necessarily limited to the
scope of its predecessors.

R v V(KB) 1992 SCR: sex assault intent of gratification is not required


1. Fact: Father grabs 3 year old genitals causing bruising and severe pain in an attempt to
discipline child who had been grabbing genitals of other children.

2. Held: Sexual assault because it violated child’s sexual integrity.

R v Ewanchuk 1999 SCR:

o Significance: Crown need not prove that the accused had any MR with respect to the
sexual nature of his behaviour.
o Also: SC interpreted the AR of sexual assault as requiring proof of 3 elements: 1)
touching, 2) the sexual nature of the conduct, and 3) the absence of
consent(subjective and determined by the complainant’s state of mind)
o Also: Ct rejected defense of implied consent to sexual assault
o Conclusion: The Courts approach accords with a trend towards thinner versions of
intentional MR.

38
c) Knowledge – As indicated, bearing in mind what is said above about standards of criminality,
the accused must generally know that the conditions of the actus reus exist. For example, an
accused cannot be convicted of assaulting a police officer if she does not know the victim is a
police officer. Generally, it is reasonable to assume that the accused knows the things that would
be obvious to a reasonable person, and so we presume the accused knows of the relevant
conditions, unless the accused presents a “mistake of fact defence.” In the sexual offence
context, the mistake of fact defence is heavily limited for policy reasons. A number of provisions
deem knowledge where the accused has failed to take “reasonable steps” to determine actual
facts. This goes beyond the doctrine of willful blindness, discussed below.
- See CC ss. 265(4)(assault – “where an accused alleges that he believed that the
complainant consented to the conduct that is the subject-matter of the charge, a judge, if
satisfied that there is sufficient evidence and that, if believed by the jury, the evidence
would constitute a defence, shall instruct the jury, when reviewing all the evidence
relating to the determination of the honesty of the accused’s belief, to consider the
presence or absence of reasonable grounds for that belief); 273.2 (“It is not a defence to a
charge under section 271, 272, or 273 (all forms of sex assault) that the accused believed
that the complainant consented to the activity that forms the subject-matter of the charge
where, (a) the accused’s belief arose from the accused’s (i) self-induced intoxication, or
(ii) reckless or wilful blindness; or (b) the accused did not take reasonable steps, in the
circumstances known to the accused at the time, to ascertain that the complainant was
consenting.)
- R. v. Ewanchuk, [1999] 1 S.C.R. 330 

R v Ewanchuk 1999 SCR: consent is subjective, determined by reference to victim’s internal
state of mind towards touching
Facts: Woman (14) at interview in vehicle, leaves door open. After interview asked to
view his work in trailer behind van, she purposefully leaves door open, she closed it
thinking it was locked, no evidence door was locked; accused touched victim several
times (getting more intimate each time) even though she kept saying no; victim said if
she complied at all it was out of fear and that the accused knew the same
Trial Judge: Acquitted A of sexual assault relying on defence of implied consent. CA
upheld.

Issue: What is the understanding of consent in sexual assault
Held: The MR is the (1) intention to touch and (2) knowing of, or being reckless or
willfully blind to a lack or consent.
The trial judge erred when he concluded there was implied consent (as there can
be no such conclusion)
Rule: Touching and sexual nature is determined on an objective basis, but consent is
subjective and determine by reference to C’s internal state of time towards the touching at
the time it occurred. The accused’s perception of C’s state of mind is irrelevant to
determining the AR, the A’s belief of consent only relevant to determine MR of offence.
Significance: The absence of consent, is purely subjective and determined by reference
to V’s subjective internal state of mind toward the touching at the time it occurred. SC
rejected defence of implied consent to sexual assault (obvious policy reasons)
Test for Consent: The existence of consent for purpose of defining AR in sexual assault

39
 depends on ‘the subjective perception of the V as opposed to external and objective
standard of law’. Therefore, consent is negated by V’s fear, unless it’s found not to be a
credible statement of her mind at the time the offence occurred.
- R. v. Levigne, [2010] 2 S.C.R. 3 

R v Levigne 2010 SCR: Undercover cop representing 13 yrs old, luring in child, must
take reasonable steps to find age
Facts: Accused chatted for sexual purposes online with (an undercover officer pretending
to be) a 13-year-old; they arranged to meet and the accused was arrested and charged
with luring a child (s172); accused said he didn’t take any steps to ensure the boy was an
adult, but that he thought it was an adult pretending to be a boy because the profile had
said he was 18 – even though he kept saying he was 13; trial judge acquitted saying it
was possible the accused believed he was dealing with an adult pretending to be a 13-
year-old; court of appeal overturned acquittal
By 172.1(3), where no evidence exists to contradict D believing he was
communicating with an underage sexual target, it is not a defence to a
charge that accused believed he was not underage, unless he took
reasonable steps to ascertain.
Issue: Did the accused know that the other person was not underage

Held: Appeal dismissed. Must read together the overreaching purpose of s.172.1- the
combined effect of (3)(4), this CA applied it properly. “Reasonable steps” invoked by
accused were neither ‘reasonable’ nor ‘steps’ to ascertain age; despite V’s repeated
assertion that he was only 13.

Significance: If represent to A that person whom he is communicating with is underage,
A is presumed to believe that he was in fact under age. This rebuttable presumption will
be displaced by evidence that A took all reasonable steps to ascertain the real age. Such
evidence will constitute ‘evidence to contrary’ under 172.1(3) and satisfy ‘reasonable
steps” requirement of 172.1(4).

- R. v. ADH, 2013 SCC 28 


R v. ADH, 2013 - child abandoned toilet, subjective fault is required
Facts: Accused didn’t know was pregnant, gave birth while using the toilet in a retail store.
Thinking the child was dead, she cleaned up as best she could and left, leaving the child
in the toilet. The child was in fact alive. She admitted leaving baby. Charged with
unlawfully abandoning a child under the age of 10 years old and thereby endangering his
life contrary to s. 218 of the Criminal Code.
TJ: The trial judge noted that the accused acknowledged that she had left her child in the
toilet, thereby committing the actus reus of the s. 218 offence. As for the mens rea, the
trial judge decided that subjective fault required, accused not shown to intend to abandon
her child. She had not known she was pregnant and truly believed she had delivered a
dead child.
Held: The text, context and purpose of s. 218 of the Code show that subjective fault is
required. It follows that the trial judge did not err in acquitting the respondent on the
basis that this subjective fault requirement had not been proved.
Reason: s. 218 of the Criminal Code does not expressly set out a fault requirement. When

40
 read in light of its full context, it supports the conclusion that subjective fault is required.
Cromwell J. pointed out “the presumption that Parliament intends crimes to have a
subjective fault element.” He stressed that as a presumptive principle of criminal
law, presumption of subjective fault is an important value of our criminal law
system.
While the conduct and people that fall within s. 218 are broadly defined, the
requirement for subjective fault ensures that 
 only those with a guilty mind are
punished. 

The words “abandon”, “expose” and “wilful” all suggest a subjective fault
requirement. The first two of these
 words involve more than just leaving a
child alone or failing to take care of it: they denote awareness of the risk involved
Conversely, any objective elements are absent from the text. 

Dissent: Moldaver J. (Rothstein J. concurring) agreed with the majority’s decision but
disagreed with the requirement of subjective fault. Moldaver J. pointed out that s. 218 of
the Code is a child protection legislation aimed at shielding children under the age of 10
from the risk of death or permanent injury. He concluded “that a review of the
provision’s language, its legislative evolution and history, the gravity of the crime and the
social stigma associated with it confirm that the offence is duty-based and that penal
negligence is the level of fault required to establish guilt.”

- Roach pp. 193-195, 448-458 


2.3: Knowledge:
Knowledge is a slightly lower form of subjective MR than intent/purpose.

The accused must generally know that the conditions of the actus reus exist – e.g.; can’t be
convicted of assaulting an officer if it wasn’t known that the victim was an officer, knowledge is
usually also essential in possession (i.e.; of narcotics) cases

Unrealistic to expect the crown to prove what the accused actually knows, it is presumed that
the accused knew of the relevant conditions, unless the accused presents a mistake of fact
defence.

Knowledge has two components:

o Belief – which is relevant to the determination of subjective mens rea
o Truth – an objective fact that is required to establish the actus reus (not the mens
rea)


Section 229(c): states that a person is guilty of murder if he knows ‘he is likely to cause death
to a human being, notwithstanding that he desires to effect his object without causing death or
bodily harm to any human being. Moreover, 229(a)(ii) emphasized requirement of guilty
knowledge by providing a person who intentionally causes bodily harm is guilty of murder if he
or she knows that harm is likely to result in death.

41
**NB: NEW CASE in updated syllabus: R v. ADH, 2013 SCC 28 ** (see above)

Knowledge and Possession Offences

Knowledge is a common form of MR for possession-based offences:

R v Beaver 1957 CCC: no knowledge therefore no possession

o Facts: B agreed to sell heroine to undercover RCMP. Uses a defence that cop did not
tell him it was heroine.

o Held: SC ‘a person in physical possession of a substance would not be said to possess
that substances unless he knew the nature of the substance.

o Significance: Essence of the crime is a possession of the forbidden substance. In a
criminal case, there is no possession without knowledge of character of forbidden
substance.

o Note: But—a person who makes mistake about whether a drug is illegal would not
have defence because ignorance of law is no excuse.

d) Willful Blindness–Willful blindness is related to but distinct from recklessness. It is a

subjective state of mind, requiring that the accused personally sees the risk of a fact, but
then willfully avoids confirmation so as to be able to deny knowledge. This concept fits
best when used as a substitute for knowledge, although courts (and Parliament in CC. s.
273.2) have an unfortunate habit of using “willful blindness” terminology as
interchangeable with recklessness. This leads to confusion. If the two concepts were
indeed interchangeable willful blindness would disappear because everyone who is
willfully blind is necessarily reckless – if you suspect that a fact exists but willfully avoid
confirmation so as to be able to deny knowledge (and are willfully blind) then you must
necessarily be seeing and taking an unjustifiable risk that the fact may exist (and are
reckless). The two concepts are not the same and should not be equated. 

- R. v. Currie, (1975), 24 C.C.C. (2d) 292 (Ont. C.A.) 

R v Currie 1975 CCC: forged endorsement cheque cashed

Facts: Charged for unlawfully and knowingly uttering a forged doc. Claimed he didn’t
know it was stolen with forged signature on back and was only trying to help guy who
gave it to him, who seemed like an honest guy. Convicted on ground he was willfully
blind by TJ.

TJ: Held he should have made inquiries into the cheque and he deliberately/knowingly
neglected to do so, thereby making himself wilfully blind to the situation; accused
appealed

Held: Appeal allowed, CA acquitted.

Signif: The doctrine of constructive knowledge has no application in criminal law

Reason: Willful blindness only applicable when a suspicion arises and person omits to
make further inquiries. Currie was never suspicious, perhaps he ’ought’ to have known,

42
but this does not constitute knowledge for the purpose of criminal liability

- R. v. Vinokurov, 2001 ABCA 113 


R v Vinokurov (2001):
Facts: D charged with 7 counts of possession of stolen property (s.355(b)); where he
worked at pawn shop and accepted stolen goods from prison inmate. TJ found Crown
failed to prove BRD that D was ‘willfully blind’ but there was no doubt he was reckless
because he had not queried the source of the goods being pawned, even though he knew
he was buying them from an inmate.
Issue: Is recklessness proper?
Held: TJ erred in determining recklessness, as recklessness required consciousness of the
risk. And this conscious risk was not proved BRD. Acquitted.
PROOF: Crown must prove that the accused knew that the property was stolen. When
the term "knowingly" is used, the reasonable person standard will not satisfy the mens rea
requirement.

- R. v. Briscoe, 2010 SCC 13 


R v Briscoe 2010 SCR (below):
Significance: where A subjectively sees the need for further inquiries about the existence
of prohibited consequences or circs but deliberately fails to make such inquiries because
he does not want to know the truth. Willful blindness is used as a substitute for
‘knowledge’
R v. Briscoe – [2010]- helped lure victim who was later raped and killed by
another

Facts: Accused was charged jointly for kidnapping, aggravated sexual assault, and first
degree murder; he and others lured victims into their car; L had said he wanted to find
someone to kill; accused drove them to a secluded area, and stood by and watched as
victim was raped and murdered
Issues: Was the accused wilfully blind to the rape and murder

Held: Accused appeal from appeal court’s setting aside of the acquittal is dismissed
It wasn’t required that the accused desired that the offences be successfully committed 

Though he didn’t do the raping and murdering, in order to have the intention to assist in
the offence, he had to have known
 that the main perpetrator intended to commit the
crimes, though not precisely how 

The aider doesn’t have to have the same mens rea as the actual killer, but that he had the
knowledge of the killer’s intentions
 and acted with the intention to assist the killer, then
if the aider makes himself wilfully blind, knowledge can be substituted if his suspicion
was aroused to the point where there was a need for further inquiries, but deliberate
choice not to make those inquiries 

Accused own statements suggest that he had strong, well-founded suspicion that someone
would be killed that night, and that he might have been wilfully blind to the kidnapping
and sexual assault

43
 Wilful blindness can substitute for actual knowledge when knowledge is a component of
the mens rea of an offence 


The mens rea requirement reflected in the word "purpose" under s. 21(1)(b) of the
Criminal Code has two components: intent and knowledge.
INTENT: Crown must prove that the ∆ intended to assist the principal in the commission
of the offence. It is not required that the accused desired that the offence be successfully
committed.

KNOWLEDGE: In order to have the intention to assist in the commission of an offence,
the aider must know that the principal intends to commit the crime, although he or she
need not know precisely how it will be committed. It is sufficient that he/she, armed with
knowledge of the principal's intention to commit the crime, acts with the intention of
assisting the principal in its mission.

Summary:
Currie (cashing forged cheque for stranger): “if a party has a suspicion aroused but then
deliberately omits to make further enquiries, because he wishes to remain in ignorance,
he is deemed to have knowledge”.

Vinokurov (denying knowledge of stolen goods by pawn shop owner): a lower form of
MR than recklessness. WB is a substitute for knowledge and R is not.
Briscoe (driver to rape/murder didn’t want to know what they were going to do):
WB does not define the MR required for a particular offence. It can substitute for
knowledge (a component of MR).

TEST: Imputes knowledge to accused where suspicion is aroused to the point where he
or she sees the need for further inquiries, but deliberately chooses not to make such
inquiries.
Failure to inquire may lead to R or N but WB is not simply a failure to inquire but
deliberate ignorance (the key difference)

- Roach pp. 195-197 


2.4: Willful Blindness

Wilful blindness is related to but distinct from recklessness. It is a subjective state of mind,
requiring that the accused personally sees the risk of a fact, but then willfully avoids
confirmation so as to be able to deny knowledge. This concept fits best when used as a substitute
for knowledge, although courts (and Parliament in CC s.273.2) have an unfortunate habit of
using “wilful blindness” terminology as interchangeable with recklessness. Leads to confusion as
they are both different

Where the accused is deliberately ignorant as a result of blinding himself to reality, the law
presumes knowledge

44
Distinction b/w Recklessness and WB:
The term “willful blindness” works best as a substitute for knowledge, although courts have the
unfortunate habit of using ‘willful blindness’ terminology as interchangeable with recklessness’:
Example- Criminal Code s. 273.2. This had led to considerable confusion, and if they two
concepts were indeed interchangeable- willful blindness would disappear because everyone who
is willfully blind is necessarily reckless. Thus, the two concepts (WB and Recklessness) are
not the same and should not be equated.

** R v Sansregret 1985: SCR leading definition for recklessness/willful blindness

Significance: Willful blindness is distinct from recklessness because, while recklessness
involves knowledge of a danger or a risk and persistence in a course of conduct which
creates a risk that the prohibited result will occur, willful blindness arises when a person
who has become aware of the need for some inquiry declines to make the inquiry
because he does not want to know the truth. Therefore, he would prefer to remain
ignorant
Recklessness: One who, aware that there is danger that his conduct could bring about the
result prohibited by the criminal law, nevertheless persists, despite the risk
Willful Blind: Person who has become aware of the need for some inquiry, but declines
to make inquiry because he does not wish to know truth and prefers to remain ignorant.

e) Recklessness – Recklessness is a subjective state of mind that requires the accused to act in
spite of actually and personally foreseeing the risk that if she does act, the prohibited
consequence will be brought about. It therefore differs from negligence which can apply even if
the actor does not personally see the risk, provided a reasonable person would have. Still,
recklessness is a subjective mens rea with objective features because it exists only where it is
objectively unjustifiable to take that risk the accused understood he was taking. The fact that the
accused may have felt the risk to be justifiable would be no answer. Recklessness will apply
where the provision creates a consequence, but does not, as a matter of construction, require
some more limited kind of mens rea.
- See R. v. Theroux, above
R v Theroux 1993 SCR – fraud  subjective awareness (possibility of depriving) (interprets
MR of Fraud to require only subjective knowledge of the prohibited act combined with
subjective knowledge that the act could result in a deprivation including the placing of the
victim’s pecuniary interest at risk, does not require him to subjectively know his conduct was
dishonest)
o FACTS: The appellant was involved in building houses and sold several residences
before their completion. The appellant represented to the purchasers that their deposits
were insured, although no such insurance existed. When the corporation went bankrupt,
many purchasers lost their deposits. The appellant claimed that he believed that the
residences would be completed and that the purchasers would not be harmed.
o ISSUE: whether the fact that he honestly believed that the projects would be completed
negates the MR

o HELD: Appeal dismissed. The mens rea of fraud was established by proof of the
subjective knowledge of the prohibited act and the subjective knowledge that the
prohibited act could have as a consequence the deprivation of another.
o The accused must have subjective awareness that his or her conduct would put the

45
 property or economic expectations of others at risk. 

o The accused's belief that the conduct was not wrong or that no one would be hurt
was no defence to a charge of fraud. The appellant deliberately lied to his
customers by representing to them that their deposits were insured. 

o The appellant committed deliberate falsehoods which caused or gave rise to
deprivation. Although the appellant believed that the houses would be completed,
he knew that his misrepresentations deprived the purchasers of the insurance
protection they believed they had. He knew that he was placing the purchasers'
deposits at risk, even though he believed that this risk would not materialize. 

o Significance: McLachlin. Question is whether one subjectively understands that their
actions could result in a prohibited outcome; their view of morality of this outcome is
irrelevant. Therefore, MR for fraud consists of subjective awareness that one was
undertaking a prohibited act that could cause deprivation (ie: depriving another of
property or putting that property at risk). Recklessness will result in this criminal
responsibility, as the courts will not require A to subjectively know his/ her conduct
was dishonest as relation to the AR.
o R v Theroux (1993) 2 S.C.R. 5 (For facts see above)
o Fraud
o Actus Reus of Fraud:
o the prohibited act, be it an act of deceit, a falsehood or some other fraudulent means; and
o deprivation caused by the prohibited act, which may consist in actual loss or the placing
of the victim’s pecuniary interests at risk. 

o Mens rea of fraud:
o subjective knowledge of the prohibited act; and 

o subjective knowledge that the prohibited act could have as a consequence the deprivation
of another (which deprivation may consist in knowledge that the victim’s pecuniary
interests are put at risk). 

o
o Where the conduct and knowledge required by these definitions are established, the
accused is guilty whether he actually intended the prohibited consequence or was
reckless as to whether it would occur.

- R. v. Buzzanga and Durocher, (1979), 25 O.R. (2d) 705 (Ont. C.A.) 


R v Buzzanga & Durocher 1979: Significance: defines intention and knowledge
Facts: D published doc that appeared to promote hate of Francophone. His actual
intention being to sway public opinion in favour of building French-language in
highschool. Charged/ convicted with willfully promoting. TJ treated D’s testimony that
they ‘wished to create a ‘uproar’ as a virtual admission that they had the state of mind
requisite for guilt
Issue: did TJ err in his decision

Held: YES. Appeal allowed, new trial ordered

Significance: Intention to create ‘uproar’ is not the same thing as an intention to promote

46
 hatred and it was an error to equate them. If they were indeed intending to promote
hatred, they would be guilty regardless if their motive was to produce reaction to help
establish French-hatred.

- Roach pp. 197-198 


2:5 Recklessness:

THUS, recklessness requires that the accused have actual awareness of the risk of a consequence
even though the accused may not intend the consequence to occur. Recklessness does not imply
that the accused had actual knowledge that the consequence would occur, only that a risk or a
possibility of a certain prohibited criminal consequence could occur.

“It is the conduct of one who sees the risk and who takes the chance” (Sansregret v R).

Recklessness Accused is aware that there is danger that his conduct could bring about the
result prohibited by the criminal law, nevertheless persists, despite the risk.

It can be distinguished from negligence because it requires a subjective advertence of the risk
and not the risk a reasonable person would have seen.

Still, recklessness is a subjective mens rea with objective features because it exists only
where it is objectively unjustifiable to take that risk the accused understood he was taking.

Knowledge vs. Recklessness:

Recklessness requires A is subjectively aware of the possibility of the prohibited act
Knowledge: requires A be aware of the probability of the prohibited act. 


Recklessness VS Wilful blindness

The culpability in recklessness is justified by consciousness of the risk and by proceeding in the
face of it, while in wilful blindness it is justified by the accused’s fault in deliberately failing to
inquire when he knows there is reason for inquiry.

Sansregret v R (1985) 1 S.C.R. 57-Leading Rape Case

PRINCIPLE: Definition of Negligence / Recklessness / Wilful Blindness / Knowledge
 -
Sansregret is a leading decision on the crime of rape. Mr Justice McIntyre authoritatively defined
and distinguished the concepts of recklessness and wilful blindness as follows:
Negligence – the failure to take reasonable care, is a creature of the civil law and is not
generally a concept having a place in determining criminal liability. Negligence is tested
by the objective standard of the reasonable man. A departure from his accustomed sober
behaviour by an act or omission which reveal less than reasonable care will involve
liability in civil law but forms no basis for the imposition of criminal penalties
Recklessness – to form a part of the criminal mens rea, must have an element of the
subjective. It is found in the attitude of one who, aware that there is danger that his
conduct could bring about the result prohibited by the criminal law, nevertheless persists,

47
 despite the risk. It is, in other words, the conduct of one who sees the risk and who takes
the chance.
 A finding of recklessness could not override the defence of mistake of fact.
It could be used as a defence.
Wilful blindness – is distinct from recklessness because, while recklessness involves
knowledge of a danger or risk and persistence in a course of conduct which creates a risk
that the prohibited result will occur, wilful blindness arises where a person who has
become aware of the need for some inquiry declines to make the inquiry because he does
not wish to know the truth. He remains ignorant.

2.6: Transferred MR
Section 229(b) codifies CL doctrine of transferred intent. MR of intentionally or
knowingly causing death to one person is transferred to the killing of the victim, even
though the accused ‘does not mean to cause death or bodily harm’ to the victim and does
by ‘incident or mistake’.
R v Droste (no.2) 1984: transfer if accidental

Fact: D kills two children accidently via asphyxiation by accident when in a deliberate
attempt to kill his wife, set fire to the car.
Held: Because of attempted murder of A’s wife was planned and deliberate, and the
intent of planning and deliberation, as well as the guilty knowledge that death would
result, could be transferred to children’s death.
R v Deakin 1974: intent to strike A, transfers to intent to strike B,C,D

Fact: A attempts to strike another person and in doing so causes bodily harm for a
bystander
Held: Conviction of assault pursuant to section 229(b).
R v. Fontaine (Manitoba, 2002) - intent to kill self does NOT transfer if accidentally
kill other person

7. Objective Mens Rea and True Crimes

Negligence is judged objectively, according to what a reasonable person would know or

understand or how a reasonable person would act. The criminal law has long been uncomfortable
with objective fault, as historically the criminal law responded to an “evil” mind, and careless
people may be dangerous but they are not evil. Gradually the law has come to accept objective
fault, but to adapt it to the criminal law by requiring a marked departure standard from
reasonable standards and to require it to be contextualized to reflect all the circumstances,
including after R. v. Beatty the accused’s explanation and state of mind. That said, the
ultimate issue is whether the accused can be said to have engaged in a marked departure
from the standard of care expected of the reasonable person. In R. v. Creighton the Court
rejected the idea that mens rea always has to match perfectly all aspects of the actus reus. In
that case, the Court in a 5:4 decision held that the fault for unlawful objective manslaughter was
objective foresight of bodily harm (rather than death) and that the objective test should be based
on a simple reasonable person standard with the personal characteristics of the accused not being
relevant unless they revealed an incapacity to appreciate the prohibited risk. Negligence cannot,
however, be used as the basis for murder, attempted murder or war crimes, where, as a
matter of constitutional law, convictions must be based on subjective mens rea in the form of full

48
scale intention. Recall, as well, the common law presumption that crimes require subjective
fault unless something in the wording of the offence suggests objective fault. For crimes
using objective fault as the mens rea, “penal negligence” - a more restricted form of negligence
requiring a marked departure from reasonable standards of care - is generally required.

One exception is with “predicate offences,” those aggravated forms of offence that apply
when serious consequences result, and that include within their elements another complete
but lesser offence, a “predicate” offence. For predicate offences the consequence need not be
brought about by “penal negligence.” It is enough if the accused commits the underlying or
predicate offence (which might of course require subjective fault), and that the aggravating
consequence was thereby caused. Also, for the specific offence of criminal negligence, the
higher standard of a “marked and substantial” departure must be proven.
. - R. v. Martineau, [1990] 2 S.C.R. 633 

. R v Martineau 1990 SCR:
. Facts: X and A rob trailer, During which X killed occupant contrary to what A had
intended. TJ used objective foresight as the MR.
. Issue: Do felony murder and the objective foresight standard violate the Charter?
. Test: Subjective foresight of death must be proven BRD before there a conviction for
murder would be sustained.
. Signif: It is unconstitutional to convict a person of murder under s.229(c) of the CC on
the basis that while pursuing an unlawful object, he ought to have known that death
was likely to result
Pursuant to s.7 Charter, the Crown must prove that A has subjective
knowledge that death is likely to result before that person can be convicted of
murder (this is because the stigma and mandatory life imprisonment of murder).
. Note: Court has defined manslaughter quite broadly to apply to an accused who causes
death when a ‘reasonable’ person would have foreseen risk (Creighton).
.
. As Martineau demonstrates, Negligence is not accepted for murder, attempted murder
and war crime. For crimes using OBJECTIVE fault as MR ‘penal negligence’, a more
restricted form of negligence requiring a ‘marked departure from reasonable
standards of care’ is generally required.
.
. One exception is with predicate offences (stat prov/ logic), in which consequences need
not be brought by penal negligence, rather it is enough that A commits the underlying
offence and that aggregated consequences that has been there caused was objectively
foreseeable.

. - R. v. Creighton, [1993] 3 S.C.R. 3 


. R v Creighton 1993 SCR: cocaine death

. FACT: Accused, another, and victim shared large quantity of alcohol and cocaine at
victim’s apartment; at one point accused injected victim with cocaine, and as a result,
she went into cardiac arrest; accused and the other tried to resuscitate her; when they
couldn’t, the other wanted to call emergency, but accused intimidated him not to; he

49
 cleaned the apartment of fingerprints and left the victim to die; the other later called
emergency but the victim had already died; accused charged with manslaughter, but since
it was while trafficking drugs (when he injected her), it fell under section 222(5)(a)
(causing death by means of an unlawful act);
Crown argued Manslaughter as death was a direct result of unlawful act. TJ
convicted and upheld by CA. The common law’s definition of ‘unlawful Act
Manslaughter required the objective foreseeability of the risk of bodily harm,
which was neither trivial or transitory. Foreseeability of death is not
required.
. ISSUE: What is the meaning of negligence in criminal law. 5:4 decision
. HELD: appeal dismissed, convicted.
1. Test for mens rea of manslaughter while committing an unlawful act is
objective foreseeability of the risk of bodily harm that is not trivial –
foreseeability of risk of death is not required. Established that reasonable
person in same circumstances would have been aware of likelihood consequences
of unlawful conduct would create risk of harm. 

2. The reasonable person used to determine objective liability is based on the
simple reasonable person standard, with personal characteristic of the accused not
being relevant unless they revealed an incapacity to appreciate the prohibited act.
3. Personal factors such as: inexperience of youth, lack of education, foresight of
risk of an experienced drug user, as Lamer CJ representing the minority wished to
consider, was not accepted by the majority. 

4. McLaughlin for majority, indicated the Lamer approach personalized the
objective test to the point that it becomes a subjective test! 


. Exceptions for Consideration:

. The only personal characteristics of accused are those that are so extreme as to create an
incapacity to appreciate the prohibited risk or the quality of the prohibited conduct
. EXAMPLE: Accused’s illiteracy if he or she was charged with a crime stemming from
the mishandling of a marked container containing a dangerous substance. The accused’s
age and level of education however, would not normally be considered when applying the
reasonable person standard.
.
. - R. v. Beatty, 2008 SCC 5 

. Crimes using Objective Fault as MR:
. The SCC has required a marked departure from the conduct of a reasonable person even
when a criminal offence seems to require simple negligence.
.
. R v Beatty 2008 SCR
. Facts: Charged with dangerous operation of motor vehicle causing death; his truck
suddenly crossed the divider into oncoming traffic; he had been driving properly prior to
the accident with no evidence of speeding or vehicle failure or intoxicants; accused said
he didn’t know what happened, that he must have fallen asleep; trial judge acquitted on
the basis that the few seconds where he suddenly fell asleep did not support a marked

50
 departure from the standard of care of a reasonably prudent driver; court of appeal found
there was marked departure and set aside acquittals and ordered new trials; accused
appealed
. Signif: A ‘marked departure’ from reasonable standards is necessary to distinguish
criminal from civil negligence and to ensure restrain in the use of the criminal law. This
is a requirement of Section 7 of the charter.
. Ratio: Affirmed that a modified objective approach taking person traits into account is
not required when applying standards of criminal negligence. It suggested judges
examine the accused’s state of mind, ONLY to determine if there is a reasonable doubt
about whether a reasonable person in the accused’s position would have been aware of
the risk created by this conduct.
.
. - R. v. J.F. 2008 SCC 60 

For the specific offence of criminal negligence, the higher standard of a marked and
substantial departure must be proven:
This was distinguished in R v J.F. 2008: where the court cited a number of cases in
which the appellate courts had distinguished criminal negligence causing death/ bodily
harm from dangerous driving 

Criminal negligence requires marked and substantial departure from reasonable conduct;
and dangerous driving requiring only a marked departure. 

This is justified because criminal negligence was subject to more serious maximum
sentences than failing to provide the necessities of life. 


Thus, R v J.F., demonstrates the distinctions in the degrees of objective fault between the
general rule and of proof of a marked departure from reasonable conduct and the higher standard
of marked and substantial departures from reasonable conduct required.

. - Roach pp. 199-208 


What is the ‘reasonable person’?

Some judges have been attracted to making the ‘reasonable person resemble the accused’ R v
Beatty/ R v Tutton, however the law is now sound, and R v Creighton is good law identifying
the marked departure test:
Although the accused must live up to the standard of a reasonable person, that standard of
conduct could be determined on the basis of the accused’s own perception of the
circumstances – then the issue becomes whether the reasonable person in the same
circumstances would have been aware of the risk of the prohibited act
The purpose of examining these factors is not to determine that the accused had the
subjective mens rea, but rather to determine whether the accused conduct was a
marked departure from the standards of the reasonable person.
The court has recognized that this marked departure standard is required under
section 7 of the charter (R v. Beatty)

51
Dangerous Driving Causing Death:
R v Roy 2012 SCC: dangerous driving, causing death, marked departure
Facts: Affirms Beatty, Acquit a person of dangerous driving causing death after he drove
into the path of an oncoming tractor when entering highway at a difficult intersection
when foggy.

Held: Trier of fact must find fault going beyond carelessness and amounting to a marked
departure from standard of care expected from a reasonable person. All circs should be
considered in making fault determination, but its consistent with Creigton specific
characteristics are not taken into account

Significance: all evidence must be examined and fault should not be automatically
deduced even from a dangerous act.

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34 34

MENS REA SUMMARY CHART

53
35 35

8. Regulatory Offences

Regulatory offences can be created by any level of government. They are created in order to
regulate conduct and prevent harm rather than punish inherently wrongful conduct. They are
presumed to be “strict liability” offences (offences where the Crown need only prove the actus
reus, with the accused bearing the burden of proving an absence of negligence or a reasonable
mistake of fact to avoid conviction). By requiring the accused to establish a defence of due
diligence or reasonable mistake of fact on a balance of probabilities, strict liability offences
violate the presumption of innocence under s. 11(d) of the Charter, but as in Wholesale
Travel that has been upheld as a reasonable limit on such rights given that the accused has
entered a regulated field.

Not all regulatory offences, however, will be strict liability offences. Some can be full mens
rea offences just as true crimes are, provided there is a clear indication that mens rea is
required. Some regulatory offences operate as absolute liability offences that will be committed

54
whenever the relevant actus reus is proved, provided this is clearly what the legislators intended
when establishing the offence. Absolute liability offences such as the requirement for timely
retraction in Wholesale Travel offend principles of fundamental justice and will violate s. 7
of the Charter if there is a possibility that they will result in imprisonment or otherwise
violate rights to life, liberty or security of the person. Given the different modes of
interpretation used, it is important to be able to distinguish true crimes from regulatory
offences. The Court has also recognized a defence of officially induced error that can apply both
to criminal and regulatory offences, but is most relevant to regulatory offences.
- R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299 

[1] Absolute Liability ≠ imprisonment, therefore AL ≠ MR (no option to refute
reasonableness)

Crown must prove commission of prohibited act BRD, no need to show fault element. For an
ALO, it is not open to the accused to exculpate himself by showing that he was free of fault (R v
City of Sault 1978)

The correct approach in public welfare offences(strict liability offences) is to relieve the crown
of the burden of proving mens rea – though crown must prove that the prohibited act was
committed

R v City of Sault Ste. Marie (1978) SCC- created 3 categories of offences: Absolute, Strict, MR
PRINCIPLE: Created three categories of offences: Absolute liability, Strict liability, and
Mens rea.

FACTS: The City contracted with a garbage disposal company. They were charged with
polluting and, consequently, the City was also charged. The City appealed the charge.

HELD: Since s.32(1) of the Ontario Water Resources Act created a public welfare
offence without a clear
 indication that liability was absolute and without any such
words as "knowingly" or "wilfully" expressly to import mens rea, application of that
criteria placed the offence in the category of strict liability. Proof of the prohibited act
prima facie imported the offence, but the accused might avoid liability by proving that it
took reasonable care. A new trial was ordered.
 Dickson J. for the SCC divided offences
into 3 categories:
(1) Absolute liability– the offence consists simply of doing the prohibited act.
It is no defence that the accused was entirely without fault.

Cannot have absolute liability if imprisonment is a possible consequence.
(2) Strict liability – the offence again consists simply of doing the prohibited act;
however, it is a defence if the defendant proves to the civil standard of the balance of
probabilities that he or she exercised reasonable care. Thus, there is a reverse onus.
An accused may absolve himself on proof that he took all the care which a reasonable
man might have been expected to take in all the circumstances, in other words, that he
was in no way negligent.
If offence is “regulatory” and maintains imprisonment as a consequence, law will be
valid with a due diligence defence. If offence is a “true crime”, then mens rea is required.
(3) Mens Rea – the offence consists not only of doing the prohibited act, but of doing so

55
 with the guilty intent.
(4) Regulatory- maintains imprisonment as a consequence

True Crimes: In the case of true crimes there is a presumption that a person should not be held
liable for the wrongfulness of his act if that act is without mens rea.

In order to convict someone of a true crime, proof of intent or recklessness must be
proven.

For this case, there is no presumption of full mens rea, because (a) this is a public welfare
offence; (b) it comes from a provincial statute.
Also, it was provincial legislation and thus could not be a true crime. The words
“knowingly” or “willfully” were not included. 

The present case concerns the interpretation of two troublesome words frequently found
in public welfare statutes: “cause” and 
 “permit.” These two words are troublesome
because neither denotes clearly either full mens rea nor absolute liability. 

The words “cause” and “permit”, fit much better into an offence of strict liability than
either full mens rea or absolute liability. 
 Therefore, proof of the act prima facie imports
the offence, but the accused may avoid liability by proving that he took reasonable care.
Significance: Create CL presumption that regulatory offences would be interpreted as
requiring SL unless the legislature clearly indicated that the offence was an absolute
liability offence that would punish the accused who had acted reasonably and with due
diligence.

- Reference re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486 

≠Imprisonment ( if imprisonment is in regulation / legislation ≠AL)


Reference re Motor Vehicle Act (BC) S 94(2) – [1985] – imprisonment for driving without a
valid license
Facts: BC Motor Vehicle Act provided for minimum periods of imprisonment for driving
without a valid driver’s license or a suspended license, and the offence was one of
absolute liability as per section 94(2) the act; court of appeal found the section to be of no
force and effect as it was inconsistent with section 7 of the charter; that decision was
appealed

Issue: Does section 94(2) violate of section 7

Held: The appeal should be dismissed
Absolute liability (in and of itself) does not offend section 7 of the charter unless it
has the potential to deprive life, liberty, or security of the person – the combination of
imprisonment and absolute liability violated section 7 (unless qualified by s 1)
Generally, no imprisonment may be imposed for an absolute liability offence, and an
offence punishable by imprisonment cannot be an absolute liability offence

56
 - R. v. Wholesale Travel Inc., [1991] 3 S.C.R. 154 (holding timely retraction

 requirements to be an unconstitutional form of absolute liability but upholding strict
liability offences that require the accused to establish a due diligence defence on a
balance of probabilities). 

2] Strict Liability: where Crown proves prohibited act of a SLO BRD, negligence is
presumed and burden shifts to A
Public welfare crimesSL Crimes

R v Wholesale Travel 1991 SCR:

Fact: Travel agency accused of misleading advert in violation of s.60(2) competition act.
They stated that they were offering vacation packages "at wholesale prices" when in fact
they were charging more to customers than they had to pay for the vacations. Offence
carried penalty, imprisonment, and included exculpating by showing they acted
reasonably in the circumstances.
Issue: Do regulatory schemes which impose strict liability breach ss.7 and 11(d) of the
Charter?

Held: The Court unanimously held that offences for which the mens rea component is
negligence do not violate s. 7 of the Charter when a due diligence defence (s. 37.3(2)(a)
and (b)) is available, but that the "timely retraction" provisions of s. 37.3(2)(c) and
(d) did infringe s. 7 and could not be saved under s.1.
This is obviously a strict liability offence for all of the reasons in the regulation.
Therefore, the Crown does not need to prove mens rea in order to get a conviction;
however, the defendant can be acquitted if they can show that they acted reasonably in
the circumstances (among the other things required for the statutory defence).
If the offence has a statutory defence that is similar to this requirement then it falls
under the heading of strict liability offences, and the Crown does not need to prove mens
rea for a conviction.
Reverse Onus: The Court however was divided on whether a reversal of onus onto the
accused in s. 37.3(2) was constitutional. However, only four of the seven held that it
could not be saved under s. 1. Since the remaining 2 judges (L'Heureux-Dube and Cory)
found the reversal of onus did not violate s. 11(d), a majority was had by those that
argued a reversal of onus was constitutionally justifiable by a 5 to 4 margin

- R. v. Raham, 2010 ONCA 206 (C.A.) 


R v. Raham – [2010]– stunt driving at 51 km over limit
Facts: Accused was 51 km over speed limit; instead of charging with speeding, officer
charged with stunt driving which was punishable by fine, imprisonment, or both; accused
argued that it was absolute liability offence violating section 7 of the charter; justice of
peace said it was strict liability and convicted accused; in appeal, judge said it was
absolute liability and acquitted; appeal by crown
Issue: Was it a charge of strict liability or absolute liability?
Held: Appeal allowed, acquittal set aside, new trial ordered
Appeal judge erred in holding that stunt driving was absolute liability offence and that
due diligence was not available thereto 


57
 The offence was public welfare offence, and as such a strict liability offence - an
absolute liability offence cannot have imprisonment as a potential punishment
 (and
would thus be of no force and effect), but a strict liability offence can 


- Levis (City) v. Tetreault, 2006 SCC 12 (recognizing defence of officially induced error,
and summarizing the Court’s approach to classification of regulatory offences and the
due diligence defence) 

Levis (City) v Tetreault 2006 : operating vehicle w/o registration, fees (recognizing defence of
officially induced error, and summarizing the Court’s approach to classification of regulatory
offences and the due diligence defence) *** I CHANGED THIS FROM ORIGINAL
OUTLINE
Facts:
#1. C had car on street that was not registered. C had paid fee and was told renewal would be in
mail. C didn't put apt # on it so it was returned.

#2. T driving without a license. T was young and said didn’t know what date on license meant

Issue(s):
Is it a defence to be mislead as the law by a state official?

Ratio:
The defence of officially induced error is available in law

Analysis:
Defence of Official Induced Error – To meet must prove:
*That an error of law or of mixed law and fact was made
*That the person who committed the act considered the legal consequences of his or her actions
*That the advice obtained came from an appropriate official
*That the advice was reasonable (objective test)
*That the advice was erroneous, and
*That the person relied on the advice in committing the wrongful act (objective test)

Factors to look at for the reasonableness and the reliance on the advice:
→ Efforts made by accused to obtain info, the clarity or obscurity of the law, position and role of the
official who gave the info or opinion, and clarity, definitiveness and reasonableness of the info or
opinion

Holding:
The offences in question are strict liability offences and the respondents have not shown that hey
exercised due diligence.

Facts: Respondent company and respondent Tetreault are charged with operating a motor
vehicle without having paid either required registration fees, or fees to renew the driver’s
license; respondent raised defence of due diligence
Issue: Was there a defence of due diligence available and made out

58
 Held: It would be ‘better to return to the clear and analytical framework and
classification approach adopted in SSM’ requiring a ‘clear proof of legislative intent’
for absolute liability offences and does not ask the addition question of whether
legislature intended a due diligence defence to be available.
Although defences can be raised in strict liability cases, the court dismissed those
defences in this case 

The concept of due diligence is based on a citizen’s duty to take action to find out what
his obligations are; passive ignorance
 is not a valid defence – due diligence requires an
active and reasonable attempt to prevent the commission of the prohibited act 

- Roach pp. 219-235 

- Roach pp. 105-106 (discussing officially induced error) 


There are presumed to be ‘strict liability’ offences; some are ‘absolute liability offence’. (only
difference is that in strict liability, reasoable care can be a defense)

Purpose: Primary purpose of regulatory offences is to deter risky behaviour and prevent harm
before it happens rather than to punish intrinsically wrongful and harmful behaviour – they
emphasize the protection of the public from the risk of harm and the regulatory interests of the
modern state, as opposed to the punishment of inherently wrongful and harmful conduct

3 Types of Regulatory Offences:

Courts were faced with interpreting regulatory offences to required either:
Absolute Liability: conviction followed from the commission of the prohibited act,
solely needing AR, no MR; liability without fault; they are only vulnerable under s.7
Charter when they actually deprive liberty/ life/ security by imposing terms of
imprisonment
Subjective MR Offence: frustrates the objectives of regulatory scheme by requiring the
Crown to prove someone in a large organization had guilty knowledge
Strict Liability: fault based negligence and thus satisfy the requirement under s.7—that
morally innocent who act without fault not be punished, but violate presumption of
innocence under s.11(d). Where Crown proves prohibited act of a SLO BRD, negligence
is presumed and burden shifts to A to rebut.

See Frameworks document for step by step framework on how to answer these types of
questions

EXTENSIONS OF CRIMINAL LIABILITY

9. Aiding and Abetting

59
It is not only the person who actually performs the actus reus (the “principal” offender) who can
be convicted of the offence. So too can those who aid (physically support) or abet (encourage)
the accused to commit the offence. Indeed, persons who aid and abet one offence can, in some
circumstances, be convicted of offences they did not intend to aid or abet, provided that offence
is under s. 21(2) an objectively foreseeable outcome of the offence they did intend to aid or abet.
In some cases, such as murder or attempted murder, however, the accused must
subjectively foresee the commission of a subsequent offence being committed as a result of
carrying out an unlawful purpose under s. 21(2). This change to the application of s. 21(2)
follows from the constitutionally required subjective mens rea of the crimes of attempted
murder and murder. This underlines that those found guilty under s. 21(b) and (c) or s. 21(2)
are guilty of the same crime as the principal offender. See R. v. Logan, [1990] 2 S.C.R. 731.
- SeeCCs.21 

- R. v. Dunlop and Sylvester, [1979] 2 S.C.R. 881 

Dunlop and Sylvester v R 1979: gang rape at motorcycle club, ! mere presence is not
sufficient !
Facts: Bike gang, accused were acquitted of rape on basis that there was no evidence that
they ‘rendered aid, assistance, or encouragement’. Accused claimed they were delivering
beer. V claimed it was them.
Held: The trial judge erred in charging with section 21(2) common intention when there
was no evidence that there was any common intention with those involved with the gang
rape of the victim
A person is
 not guilty of aiding or abetting a rape merely because he is present at
the scene and does nothing to prevent it; one cannot be properly convicted of aiding
and abetting in the commission of acts which he does not know may be or are intended;
also, if there is no evidence of encouragement, then presence alone will not suffice to
render him liable as an aider and abettor – he is not, as a matter of law, an accomplice
However, prior knowledge that the crime was going to be committed, or preventing
the victim from escaping or receiving assistance, can be submitted as evidence that
presence at the scene can be equated with aiding and abetting
This is in line with criminal law’s reluctance to penalize omissions
Accused did not render aid, assistance, or encouragement to the rape
Significance: mere presence at scene of crime is not sufficient, more is needed:
encouragement (abet) of P1, act which facilitate (keeping watch, enticing victim), act
which hinders interference/ escape) (aid)


- R. v. Logan, [1990] 2 S.C.R. 731 


Doctrine of Common Intent: s.21(2)

“Ought to have known” is an OBJECTIVE TEST, however test must be subjective where its
murder, attempted, war crime to fall within Charter.

R v Logan: - A w/ others robs bank, someone pulls gun (w/o knowing) kills, objective
test ≠sufficient re Charter

60
 Facts: Robberies by A and others, shooting and severe injury. Accused did not shoot, but
admitted to being one of the robbers. ‘No intent to shoot and no discussion of guns had
taken place’. Judge instructed that Crown was required to establish BRD that someone
would probably shoot with intent of killing. Convicted for attempted murder, CoA
overturn and substitute armed robbery.
Issue: Does s21(2) infringe right of life, lib, security (ss7) and to fair trial (ss11d)?
Held: Appeal dismissed- MR for attempted murder could not, without restricting s.7,
require less than subjective foresight of accused, this is constitutionally required.
Ratio: On charges where subjective foresight is a constitutional requirement
(murder, attempted murder), the objective component of s21(2) is not justified;
however, because of legislative purpose, the objective component could be justified with
respect to most offences.
.
Significance: if a certain minimum degree of mens rea is required in order to convict for
an offence, then that minimum degree of mens rea is also required to convict a party to
that offence

- R. v. Briscoe, 2010 SCC 13 (reviewed above) 


R v Briscoe 2010 SCR: aiding A to lure & rape V, Willful blindnessknowledge of A’s intent
to commit
Fact: 13 girl & friend lured into car with 5 men to be ‘taken to a party’. A drives group,
knowing X had said earlier he wanted to find someone to kill and 13 was chosen V. A
hands X pliers on request, leaves to ‘find party’ and later rejoins group to find 1 in the
group strike V. He held on to V and quieted her and stood back and watched her rape and
murder. All 5 persons were charged with aggravated assault and first degree. A and X to
be jointly tried alone.
TJ: trial judge said accused didn’t know of L’s intention to commit each of those crimes
and acquitted; court of appeal said trial judge erred in failing to consider accused’s wilful
blindness and overturned acquittal
Issue: What is required to find wilful blindness; was accused party to sex assault/
murder?
Held: Convicted.
MR for section 21(1)(b) requires intent and knowledge – crown must prove that the
accused intended to assist the principal in the commission of the offence (it isn’t required
that the accused desired that the offences be successfully committed); in order to have
the intent to assist in the commission of the offence, the aider must know that he
principal intends to commit the crime (though not precisely how)

MR established  he knew that the main perpetrator intended to commit the crimes

The aider doesn’t have to have the same mens rea as the actual killer, but that he had the
knowledge of the killer’s intentions and acted with the intention to assist the killer, he
can said to have aided and abetted
Ratio: ‘wilful blindness is an active process of suppressing a suspicion; it substitutes
for actual knowledge when knowledge is required component of MR of the offence.
Significance: ‘wilful blindness is deliberate blindness’. From his statement to the police

61
 ‘fuck I don’t want to know”, it is clear that there was a deliberate suppression of
questioning/ suspicion

Recklessness sufficient?

R v Roach 2004 CCC:

Significance: with respect to 21(1)(b), purpose and intent are the same, and does not
include recklessness. Thus a high level of subjective MR is necessary. Recklessness is
not a sufficient form of fault to convict a person as a party to an offence under 21(1)(b).
Note: R v Briscoe found wilful blindness sufficient to demonstrate intent, however, this
is a much higher subjective MR, than recklessness.

R v Black 1970: present at crime AND PREVENTS V from receiving assistance is sufficient
AR.

R v Berryman 1990 CCC: unwittingly delivers a bomb

A person will not be guilty as a party to an offence regardless that he committed the AR
of assisting the commission of the offence, where he unwittingly delivers a bomb/
administers a poison; because he lacks MR.

- R. v. Thatcher, [1987] 1 S.C.R. 652 


R v Thatcher 1987 SCR:
Fact: Crown argued that accused was guilty of murder on the alternative theory that he
either killed his ex-wife or assisted others in killing her.

- R. v. JF, 2013 SCC 12 


R v. JF, 2013 SCC 12; Mother beats / kills child, father charged under criminal
negligence / failure of necessities

Facts: 4 Yr old died in foster home (hit to head). Mother confessed to beating, pleaded g
to MS. Father (didn’t beat child) charged with MS by criminal negligence and MS by
failing to provide necessities of life. He was convicted on first, acquitted on 2nd.
Issue: Are a conviction for manslaughter by criminal negligence and an acquittal for
manslaughter by failing to provide for the needs of a child inconsistent?
Held: Acquitted
Reason: Though the two counts alleged different "underlying" offences, the J.F.'s guilt
(MR) depended on exactly the same failure to perform exactly the same duty: the duty to
protect his foster child from foreseeable harm from his spouse.
[1] Failure to provide the necessaries of life required proof of a marked departure
from the conduct of a reasonably prudent parent in circumstances where it was
objectively foreseeable that the omission would lead to a risk of danger to M's life, or a
risk of permanent endangerment to his health.
[2] Criminal negligence required proof that the same omission represented a marked
and substantial departure from the conduct of a reasonably prudent parent in

62
 circumstances where the accused either recognized and ran an obvious and serious risk to
M's life or gave no thought to that risk.
The verdicts signify that a lesser degree of fault was not established whereas a greater
degree of fault was proven beyond a reasonable doubt.
Ratio: Generally, crimes which have an external element of negligence require a
standard of a marked departure from the standard of care; manslaughter by criminal
negligence requires a standard of marked and substantial departure from the
standard of care.

- R. v. Gauthier, 2013 SCC 32 


R v. Gauthier, 2013 SCC 32 - Mens rea or intention - Abandonment of intention
Facts: The accused and her husband had a murder/suicide pact to kill their three children.
The husband prepared and served the drinks. The accused called 911 after ingesting the
drug and having her wrist slit by her husband. She survived. Others died. The accused
was charged with three counts of first degree murder as a party under s. 21(1) of the
Criminal Code (aider and abettor by supplying the fatal drug). She relied on the defence
of abandonment of intent. The trial judge refused to put the abandonment defence to the
jury, questioning the availability of the defence to a party under s. 21(1).
Held: However, since the defence lacked an air of reality, the trial judge correctly did not
leave the defence with the jury
The defence of abandonment of intention can be raised:
 That there was an intention to abandon or withdraw from the unlawful
purpose;

 That there was timely communication of this abandonment or withdrawal
from the person in question to those who wished to continue;

 That the communication served notice upon those who wished to continue;
and

 That the accused took, in a manner proportional to his or her participation,
reasonable steps to neutralize or otherwise cancel out the effects of his or
her participation or to prevent the commission of the offence.
o G’s evidence that she communicated her withdrawal from the deadly plan and that
her communication was timely and unequivocal is insufficient. She therefore had
to do more either to neutralize the effects of her participation or to prevent the
commission of the offence.
o Per Fish J. (dissenting): The defence of abandonment does not require that the
accused take steps to neutralize prior participation in the criminal enterprise or to
prevent the commission of the offence.

- Roach pp. 153-164. 


Criminal liability extends to include those who attempt but fail to complete a crime; those who

63
encourage or plan the commission of a crime and those who assist others to commit a crime
(1) Parties to an offence: Assist and Abet

(2) Inchoate Offences: Attempts, Counseling and Conspiracy.

Example: A person who goes beyond mere preparation to rob a bank, with intent to commit
robbery will be convicted of attempted robbery even though no robbery took place, or even
where it was impossible for it to take place

Example: A bank teller who helped the robber plan his heist, may be guilty as party to the
robbery, as the person who abets the crime

A relatively high level of MR is required for both attempts and parties, limited to those who act
with guilty intent or knowledge.

This is counterbalanced by a low level required AR for both attempts and parties.
___________________________________________________________________

1: AIDING (supporting) & ABETTING (encouraging) (Principals and Parties to Offences)

Section 21 dictates that when it is demonstrated that an individual ‘aid’s or abets’ an offence,
they are guilty of the same offence as the principle offender. It is not necessary for the Crown
to specify whether a person is guilty as the principle or the aider/ abettor in the offence.

R v Pickton 2010 SCR: Aid/Abet = Same punishment of Principal


Significance: SC indicated that it was not necessary for A to be the actual shooter to be
guilty of murder. Relied on Thatcher stressing that 21(1) was designed to put A/A on the
same footing as the person who actually committed the crime.

ACTUS REUS of Aiding and Abetting:

The two concepts are distinct and liability will flow from either one:

“To aid” under s.21(1)(b) means to assist or help the actor

“To abet” under s.21(1)(c) includes encouraging, instigating, promoting or procuring the
crime to be committed.

64
MENS REA of Aiding and Abetting:
To be convicted for the purpose of A/A, the accused must not only knowingly assist the
principal, but also intend to assist the principle. Thus there are 2 MR requirements:
intent to assist principle; and
knowledge of the type, but not the nature of the crime committed.

Section 21(1)(b) requires that the accused act or omit to do anything for the purpose of aiding
any person to commit an offence. The requirement that the accused act with the purpose of
aiding does not mean the accused must desire the offence be committed or even share the
exact same MR as the principle.
For example: A person who assists in a robbery by driving the getaway will have acted
with purpose of aiding. Even though he participated only because of death threats.

10. Counseling 


An accused can be convicted of counselling offences, whether or not the offences counselled are
actually committed. If the offences counselled are committed, CC. s. 22 operates and the person
is found guilty and punished as if he had committed the completed offence. If the offence is not
committed, CC. s. 464 operates and the person is found guilty of a separate offence that is
punished as if she had been guilty of attempting the completed crime. Note that counselling is
defined in s. 22(3) of the Criminal Code. 

- R. v. Hamilton, [2005] 2 S.C.R. 432 

R v Hamilton 2005 SCR: sold software to generate credit card numbers
Significance: AR will be established where the material or statement made or transmitted
by A actively induce or advocate—and do not merely describe—the commission of an
offence.
R v Hamilton 2005 SCRE: software to steal, MR – knew or aware of risk likely to
commit crime
Facts: Accused sent teaser email for software that would enable the purchaser to generate
“valid” credit card numbers; he made several sales; he was charged with counselling
offences that were not committed (including fraud); trial judge accepted evidence that
accused was not actually aware of the software’s workings and acquitted because the
mens rea wasn’t proven; court of appeal upheld
Issues: Did the accused have the mens rea for counselling fraud
Held: MR of counseling an offence included: (1) intent to commit (2) knowingly
counseling crime while aware of an unjustified risk that offence is likely to be committed
as a result of accused’s conduct.
The actus reus of counselling is the deliberate encouragement or inducement of
commission of an offence – regardless of whether the person being counselled is
actually persuaded to commit the offence
The mens rea consists of nothing less than an accompanying intent (or disregard)
of the risk of the offence counselled being committed – that he either knew it
would be committed, or was aware of the unjustified risk that it was likely to be

65
 committed
The mens rea of counselling is generally made out from the actus reus of
counselling
It is not just that the accused know that there is a risk of the offence being
committed, but that there is a risk of the offence is likely to be committed (which
is a higher standard than reckless awareness of the possibility that an offence
might be committed)
Note: this should not be interpreted as encompassing recklessness as sufficient
fault for the offence of counseling a crime not committed.
Significance: stressed the requirement of intent as oppose to lesser forms of subjective
MR, such a recklessness. This is related to the fact that the offence of counseling is a
crime that is not actually committed; thus should require intent to commit complete
offence.

- Roach pp. 147-153. 


2: INCHOATE OFFENCES
2.1 Counseling
A person can be convicted of counseling offences, whether or not the offences
counseled are actually committed. If the offences counseled are committed, s. 22
operates; If they are not committed s.464 operates

Actus Reus of Counseling a Crime not committed:
 It does not matter whether the person
counseled acts on the solicitation or has any intention of doing so. Example: A is guilty of
counseling an undercover officer to commit a crime, even if officer so solicited would never
commit the offence.
o
R v Gonzague 1983 CCC:
o Significance: A will be guilty of counseling, even if person solicited immediately rejects
going through with the offence.
Mens Rea of Counselling a Crime not committed:
 MR is not spelled out in s.464, but it will
be important to require:
(1) Subjective knowledge of the crime counseled; and


66
 (2) an actual intent that crime be performed.


11. Attempts 


As the counseling offence in CC. s. 464 illustrates, not all crimes need to be complete before an
offence arises. There is (1) the discrete offence under s. 464 of counselling a crime that is not
committed, (2) the offence of conspiracy under s. 465 in which the agreement to commit a crime
is a crime, and (3) there is liability for attempting to commit an offence under s. 24 of the 

Criminal Code. Ancio shows the relevant mens rea for attempts, and Deutsch is instructive on
when the attempt proceeds far enough to constitute a crime. You should be aware that the fact
that an offence is legally impossible in the factual circumstances is no defence to an attempt
charge, but it is not an offence to try to commit an act you believe is an offence, when it is not
actually an offence. Dery exposes the limits of piggy-backing incomplete forms of liability.
- See CC ss. 463, 465, 660 

- R. v. Ancio, [1984] 1 S.C.R. 225 


67
- R. v. Deutsch, [1986] 2 S.C.R. 2 


- R. v. Déry, 2006 SCC 53 


68
 - Roach pp. 130-147 


12. Corporate and Association Liability 


Corporations are liable for the acts of their agents for strict and absolute liability offences. Since
these kinds of offences turn on the actus reus alone, there is no need to use any legal devices to
ascribe mens rea to the corporation and so the Criminal Code corporate liability provisions do
not apply to regulatory offences. For crimes in the Criminal Code, however, the Criminal Code
sets out standards for corporate and association liability. Section 22.1 applies to objective fault or
negligence offences where an association is charged, and s. 22.2 applies to subjective mens rea
offences charged against an association. See these provisions. 

- Roach pp. 239-249

SELECT CRIMINAL DEFENCES

69
Not all criminal defences are listed below. For example, s. 25 of the Criminal Code permits law
enforcement personnel to use some force to carry out their duties, and s. 40 permits the defence
of property. There are also procedural defences such as double jeopardy. Charges can be
“stayed” pursuant to s. 11 (b) and 24 of the Charter because of unreasonable delay. You are
responsible only for the select defences described below and those described in assigned cases.

13. Mental Disorder

50 50
Section 16 of the Criminal Code codifies and modifies the common law defence of insanity. To
have access
Origins to Defence:
of the this defence theDefence
Insanity accused must establish that he has a “mental disorder” (defined in
s. 2 as a “disease of the mind” thus incorporating prior common law case law) and that it affected
M’Naughten’s Rule- availability of insanity defence if it was ‘clearly proved that, at time of committing, A was under:
him in one(1)oraboth
defectof of the ways described in s.16 (1). R. v. Cooper provides a definition of mental
reason…
disorder, although
(2) from a it has been
disease of the modified
mind… by R. v. Parks (discussed below). Cooper also stresses
the significance of the concept of “appreciates”
(3) as not to know nature and quality while
of act, or if he didR. v. Kjeldson
know, describes
that he did not howwrong
know it was the
defence works for sociopathic or psychopathic offenders. R. v. Oommen edifies us about the
In 1892 this principle was embodied in the CC, so that an accused would have an insanity defence if he or she did not
meaning of “wrong.”
‘appreciate’ as opposed to “know” the nature and quality of the act and of knowing that it was wrong.
- R. v. Cooper, [1980] 1 S.C.R. 1149
In 1992, insanity defence became ‘mental disorder defence’ and verdict of ‘not guilty by reason of insanity” is renamed “not
criminally responsible by reason of mental disorder.

Defined: ‘disease of the mind’

R v Cooper 1979 CCC:**Dickson J. defined ‘disease of the mind’ as:

“Any illness, disorder or abnormal condition which impair the human mind and its functioning, excluding however, self induced
status cause by alcohol or drug, as well as transitory mental states such as hysteria or concussion”

Note: original definition, altered by Parks

Facts: Accused was out-patient at psychiatric hospital, victim in-patient; accused tried to have sex with her after a party at
the hospital; but then choked her to death; defence of insanity wasn’t raised, but evidence was called in to establish
that he did not have the capacity to form the intention to kill; expert witness said he didn’t think accused was
suffering from disease of the mind; trial judge charged jury with issue of insanity; jury found him guilty; court of
appeal dismissed appeal; appealed again to supreme court

Issues: Did the accused appreciate his actions, and thus have the capacity to form the intention to kill
Held: The appeal should be allowed
- In order for the accused to be able to appreciate the nature of his conduct, it is more than that he know (i.e.;
have a cognition) thereof


Examples of ‘DoM’:
- R v Simpson 1970: psychopathic personalities; R v. Rabey 1977: personality disorders
- R v Revelle 1979: brain damage including fetal alc spectrum disorder
- R v Malcolm 1989: chronic alcoholism (permanent brain/ not temporary)
- R v Bouchard-Lebrun: A’s brutal assault after taking ecstasy was no suffering because he was in a temporary psychosis.
- R v O’Brien 1966: Epilepsy

R v Parks 1992CCC: Sleepwalking Murder

Facts: Sleepwalker
Issues: Should sleepwalking be classified as non-insane automatism (and thus lead to acquittal), or a disease of the mind
(insane automatism), and thus lead to the verdict of not guilty by reason of insanity

Held: Sleepwalking is not a disease of the mind, regardless that it was seen as organic/ hereditary internal to the accused.

Disease of the mind is a legal concept, so medical opinion cannot be relied on blindly – a condition likely to present
recurring danger should be treated as insanity and/or a condition stemming from the internal make-up of the accused,
rather than external factors, should lead to a70
finding of insanity.

Significance: Even though a condition might fall within the broad contours of an illness or abnormal condition that impairs the
human mind, it will not necessarily by classified as a disease of the mind.
 Examples of ‘DoM’:
- R v Simpson 1970: psychopathic personalities; R v. Rabey 1977: personality disorders
- R v Revelle 1979: brain damage including fetal alc spectrum disorder
- R v Malcolm 1989: chronic alcoholism (permanent brain/ not temporary)
- R v Bouchard-Lebrun: A’s brutal assault after taking ecstasy was no suffering because he was in a temporary psychosis.
- R v O’Brien 1966: Epilepsy

R v Parks 1992CCC: Sleepwalking Murder

Facts: Sleepwalker
Issues: Should sleepwalking be classified as non-insane automatism (and thus lead to acquittal), or a disease of the mind
(insane automatism), and thus lead to the verdict of not guilty by reason of insanity

Held: Sleepwalking is not a disease of the mind, regardless that it was seen as organic/ hereditary internal to the accused.

Disease of the mind is a legal concept, so medical opinion cannot be relied on blindly – a condition likely to present
recurring danger should be treated as insanity and/or a condition stemming from the internal make-up of the accused,
rather than external factors, should lead to a finding of insanity.

Significance: Even though a condition might fall within the broad contours of an illness or abnormal condition that impairs the
human mind, it will not necessarily by classified as a disease of the mind.

Note: SC holistic approach suggests the focus is on whether the cause was internal and the defence should be dispensed with in
those cases in which it will produce an absurd result not necessary for public safety.
52 52
Ultimate issue: whether the public requires protection through potentially indeterminate conditions or detention imposed on those
Significance: A,criminally
found not even though he wason
responsible generally capable
account of mentalofdisorder.
knowing thatCan
Thus, act Courts
was wrong,
shouldcould have the
not classify defence
organic if his such as
conditions
epilepsy
paranoid delusion ‘at time’
or diabetes of act deprived
as disease of the mind simply
him becausefor
of capacity theyrational
are internal causes that
perception andexplain A’s behaviour.
hence rational choice about rightness
and wrongness of act.
- R. v. Kjeldson, [1981] 2 S.C.R. 617 

R v Kjeldson 1981 SCC: how the defence applies to sociopathic or psychopathic offenders

Facts: Evidence revealed he was a psychopath, who was indifferent to, but understood the physical nature and
consequences of his acts.

Significance: A personality disorder will not receive defence, regardless that psychopathy/ anti-social personality disorder is
considered a disease of the mind. Because- it does not affect appreciating nature and quality of act or if act was wrong

- R. v. Oommen, [1994] 2 S.C.R. 507 


52 52

Significance: A, even though he was generally capable of knowing that act was wrong, could have the defence if his
paranoid delusion ‘at time’ of act deprived him of capacity for rational perception and hence rational choice about rightness
and wrongness of act.
- Roach pp. 294-309 

R v Kjeldson 1981 SCC: how the defence applies to sociopathic or psychopathic offenders

Facts:
14. Evidence revealed
Automatism he was a psychopath,
and Involuntary who was indifferent
Acts “Negativing” to, but Reus
the Actus understood

 the physical nature and
consequences of his acts.

AsSignificance:
indicated above, the accused
A personality does
disorder willnot satisfydefence,
not receive the actus reus requirement
regardless unlessanti-social
that psychopathy/ her act ispersonality disorder is
willed. Somea courts
considered disease have
of the acquitted individuals
mind. Because- who
it does not reflexively
affect strike
appreciating out,
nature andusing
qualitythe specious
of act or if act was wrong

71
reasoning that their physical act was not willed, but the legitimacy of this reasoning is
questionable. A more sophisticated application of the voluntariness concept was employed in R.
v. Swaby. 


It is the “voluntariness” concept that explains the defence of automatism, which operates on the
theory that the accused’s physical motions were not culpable where they are not voluntary or
thought-directed or conscious, as in the sleep-walking case of R. v. Parks. Please note that
automatism will not realistically operate in any case where the accused appears conscious of his
conduct – it is reserved to those unusual cases where there appears to be some disconnect
between the actions of the accused and his conscious will. The result of the Parks decision was
controversial enough that the Supreme Court of Canada took procedural steps to cut the defence
back in R. v. Stone. 


Note that “automatism” is divided into two categories, “mental disorder automatism” and “non-
mental disorder) automatism.” Where a court finds “mental disorder automatism” the real
defence it is applying is “mental disorder” under s. 16, since those who act in a state of
automatism because of a disease of the mind will also qualify under the other parts of the s. 16
defence: namely being unable to appreciate the nature and quality of their acts or not having the
capacity to understand that the act is wrong. If the defence that applies is “non-mental disorder
automatism,” (for example, a person who is unconscious due to a blow to the head, but whose
body performs some action nonetheless) a complete acquittal is appropriate, on the basis that the
elements of the offence have not been proven. Stone and now Luedecke have stacked the deck
against this kind of defence succeeding even though it succeeded in the older case of Parks. 


- R. v. Swaby, [2001] O.J. No. 2390 (Ont. C.A.) 


72
- R. v. Parks, [1992] 2 S.C.R. 871 


73
Sane Automatism:
54 54
R v Parks 1999 SCC:
Sleepwalking not disease of mind so no insanity defence but automatism - Although automatism is spoken of as a “defence”, it
Sane
is Automatism:
conceptually a subset of the voluntariness requirement, which in turn is part of the actus reus component of criminal liability.
Sleepwalking case.
New test for “disease
R v Parks 1999 SCC: of the mind.” Look at both medical/expert evidence and legal/policy considerations, namely
Sleepwalking
continuous dangernotanddisease of mind
internal so no theories,
cause insanity defence but automatism
to determine - Although
whether the automatism defence
automatism is can
spoken of “defence”,While
as asucceed. it
is conceptually
sleepwalking, P killeda subset
motherof&the voluntariness
father in law. Isrequirement,
this case ofwhich in turn is disease
sleepwalking part of the
of actus
mindreus component of
or non-insane criminal liability.
automatism (acquit)?
Sleepwalking case.
New testsleepwalking
PRINCIPLE: for “diseaseisof
notthe mind.” of
a ‘disease Look at bothAND
the mind’ medical/expert
the defenceevidence andshould
of insanity legal/policy
only beconsiderations,
put to the jurynamely
if disease
continuous danger and internal cause theories, to determine whether the automatism defence can succeed. While
of the mind is present AND recurrence is a factor to aid in determining disease of the mind.
sleepwalking, P killed mother & father in law. Is this case of sleepwalking disease of mind or non-insane automatism (acquit)?
FACTS: The respondent
PRINCIPLE: drove toisthe
sleepwalking notresident ofofhis
a ‘disease theparents-in-law,
mind’ AND thekilled one
defence of and seriously
insanity shouldinjured
only bethe
putother.
to the He
jurythen notified
if disease
the police. The respondent argued that he was sleepwalking throughout the incident
of the mind is present AND recurrence is a factor to aid in determining disease of the mind. and pleaded automatism. The jury
acquitted him of first degree and then of second degree murder. The Crown argued that sleepwalking should be classified as a
diseaseFACTS:
of the mind giving, risedrove
The respondent to thetoverdict of not
the resident of guilty by reason ofkilled
his parents-in-law, insanity.
one and seriously injured the other. He then notified
the police. The respondent argued that he was sleepwalking throughout the incident and pleaded automatism. The jury
ISSUE:acquitted
At issuehim of is
here first degree and
a question of then
law:ofis second degree murder.
sleepwalking properlyThe Crown argued
classified that sleepwalking
as non-insane should
automatism, be classified
or does it stem as a a
from
diseasedisease
of the of the mind
mind, therebygiving, rise to
leaving the the
only verdict of notofguilty
defence by reason of insanity.
insanity

HELD:ISSUE:
AppealAtdismissed.
issue here isMedical
a question of law:testified
experts is sleepwalking properly classified
that sleepwalking was not as an
non-insane automatism,
illness but or does it stem
a sleep disorder. In thefrom a
present
disease of the mind, thereby leaving only the defence of insanity
case, it was not sleepwalking that was the cause of the respondent's state of mind, but sleep, which was a natural condition.
There was
HELD: thusAppeal
no basis on which
dismissed. the trial
Medical judge
experts could that
testified havesleepwalking
put the defence
was not of insanity
an illnessbefore the jury.
but a sleep The In
disorder. Crown failed to
the present
prove that
case,somnambulism stemmedthat
it was not sleepwalking from a disease
was the cause ofof
thethemind. There was
respondent's statenooflikelihood
mind, but of recurrent
sleep, whichviolent
was a natural condition.
There was thus no basis on which the trial judge could have put the defence of insanity before the jury. The Crown failed to
Decided by Judge
prove if it is a disease
that somnambulism of mind.
stemmed from a disease of the mind. There was no likelihood of recurrent violent
“Disease of the mind” contains a substantial medical component as well as a legal or policy component.
o Medical
Decided component
by Judge if it is a disease of mind. opinion as to how the mental condition in question is viewed or characterized
= the medical
“Disease of the mind” contains a substantial medical component as well as a legal or policy component.
medically
o Legalo Medical
or policy component
component = the medical
relates to: opinion as to how
(a) the scope the exemption
of the mental condition
from in questionresponsibility
criminal is viewed or characterized
to be afforded by
medically
mental disorder; & (b) the protection of the public.
o Legal
Any orcondition
policy component relates to:
likely to present (a) the scope
recurring of the
danger exemption
should fromas
be treated criminal responsibility to be afforded by
insanity.
mental disorder; & (b) the protection of the public.
Condition stemming from the internal make-up of the accused, rather than external factors, should lead to a
Any condition likely to present recurring danger should be treated as insanity.
finding of insanity.
Condition stemming from the internal make-up of the accused, rather than external factors, should lead to a
ANALYSIS: Sleepwalking is not
finding of ainsanity.
disease of mind, but instead non-insane automatism b/c it won’t likely reoccur. Relevant
policy issue: recurring
ANALYSIS: danger is
Sleepwalking – none in this case.
not a disease of mind, but instead non-insane automatism b/c it won’t likely reoccur. Relevant
policy issue: recurring danger – none in this case.
Sleepwalking:
This Sleepwalking:
Court has only ruled on sleepwalking in an obiter dictum in R v Rabey. The Court found that sleep walking was not a
“disease
This Court
of the has onlyinruled
mind” on sleepwalking
the legal sense of theinterm
an obiter dictum
and gave riseintoR av defence
Rabey. The Court found that sleep walking was not a
of automatism..
“disease
“... the expert of the mind”
witnesses in the legal
unanimously sensethat
stated of the termtime
at the and of
gavetherise to a defence
incidents of automatism..
the respondent was not suffering from any mental
“... and
illness the expert witnesses unanimously
that, medically stated that at the
speaking, sleepwalking timeregarded
is not of the incidents the respondent
as an illness, whetherwas not suffering
physical, from
mental or any mental
neurological.
illness and that, medically speaking, sleepwalking is not regarded as an illness, whether physical, mental or neurological.
They also unanimously stated that a person who is sleepwalking cannot think, reflect or perform voluntary acts”.
They also unanimously stated that a person who is sleepwalking cannot think, reflect or perform voluntary acts”.
THUS,THUS,the trial
thejudge did not
trial judge did err
notin
errleaving the the
in leaving defence
defenceof of
automatism
automatismrather
rather than
than that of insanity
that of insanitywith
withthethejury,
jury,
andand
thatthat
the the
instant instant
appealappeal
shouldshould
be dismissed. BUT,
be dismissed. “This
BUT, is not
“This to to
is not saysaythat
thatsleepwalking
sleepwalking could
could never beaadisease
never be diseaseofofthethemind,
mind, in another
in another
case oncase
different evidence”.
on different evidence”.
- R. v. Stone, [1999] 2 S.C.R. 290 

R v Stone 1999 SCC:
R v Stone stabbing
1999 SCC: wifewife
stabbing 47 times after
47 times a ‘whooshing’
after a ‘whooshing’feeling
feeling(Air
(Airof
of Reality Burden)
Reality Burden)

Fact: Fact: A driving

A driving to seetosons
see sons
withwith his new
his new wife.wife.
SheShe
diddid
notnot allowthem
allow themtotostay
stayfor
for long,
long, she
she taunts
tauntshim,
him,calls
callshim loser,
him terrible
loser, terrible
in bed,insmall
bed, small
penispenis and threatens
and threatens to make
to make up up assault
assault charged.Pulls
charged. Pullsover
overstabs
stabs her
her 47
47 times
timeswith
withhunting
hunting knife, he he
knife, saidsaid
he he
felt a ‘whoosh’ sensation wash over didn’t know what happened until he saw his wife lying dead. Hid her body, he later
felt a ‘whoosh’ sensation wash over didn’t know what happened until he saw his wife lying dead. Hid her body, he later
turns himself in. Pleas insane automatism/ non-insane automatism. Jur convicts of mans, CA upheld.
turns himself in. Pleas insane automatism/ non-insane automatism. Jur convicts of mans, CA upheld.
Issue: Should defence of non-insane automatism have been left to jury?
Issue: Held:
ShouldAppeal
defence of non-insane
dismissed. Judge isautomatism have
justified in not been leftjury
instructing to jury?
on the defence because there was no evidence upon which a
Held: Appealproperly
dismissed.
instructed jury could find that the accused actingon
Judge is justified in not instructing jury the defenceonbecause
involuntarily a balancethere was no evidence upon which a
of probabilities
properly instructed jury could find that the accused acting involuntarily on a balance of probabilities

74
 55
55 55
Significance: Test of Establishing Automatism:
55 1. A has burden to establish basis for defence of automatism on balance of probabilities. To establish 55burden A
55 Significance: Test of Establishing expert evidence Automatism:
to go along with claim of automatism 55
1. A has burden
Significance: Test of2. toEstablishing
establish
If burdenbasis for Jdefence
isAutomatism:
met, must decide of automatism on balance of
whether MD(disease of mind).
probabilities.
If yes, then To establish burdenisAentered
special verdict must give and s.16 p
1. Aexpert
has evidence
burden to to go
establish along
Significance: Test of Establishing Automatism:
applies. basis
If withfor
there claim
defence
is no of
MD, automatism
of automatism
then question on balance
left to jury of probabilities.
whether A actedTo establish
involuntarily. burdenIf heA must
did thengivehe is acquitt
2.1. expert
IfAburden is met,
hasevidence
burden toJestablish
to must
go along decide
with
basis
reason sane automatism. whether
claim
for of
defence MD(disease
automatism
of automatism of mind).
on If
balance yes, ofthen special
probabilities. verdict
To is entered
establish and
burden s.16
A must procedure
give
2. Ifapplies.
burden Ifisthere
expert evidencemet, Jisto nogoMD,
must decide
along then question
whether
with ofleft
claimMD(disease to juryofwhether
automatism mind). IfAyes, acted theninvoluntarily.
special verdict If he is did
enteredthenand he is acquitted
s.16 procedure by
reason
applies. sane
If
2. If burden isNOTE: automatism.
there is no
met, J An MD,
mustaccused then question
decide claiming left
whether MD(disease to
NMD defencejury whether
of mind). A acted involuntarily.
If yes, then
of automatism mustspecial
establish If he
verdict did
on is then he
entered and
a balance is acquitted by
s.16 procedure
of probabilities that he or sh
reason
applies.saneIfautomatism.
there is no MD,
an involuntary manner. then question left to jury whether A acted involuntarily. If he did then he is acquitted by
NOTE: An accused
reason claiming NMD defence of automatism must establish on a balance of probabilities that he or she acted in
sane automatism.
NOTE: An accused
an involuntary manner.claiming NMD defence of automatism must establish on a balance of probabilities that he or she acted in
NOTE: Stone does not overrule Parks but it does encourage judges to use policy concerns about the need to protect
anNOTE:
involuntary manner.claiming NMD defence of automatism must establish on a balance of probabilities that he or she acted in
An accused as a factor in concluding that the accused suffers from a disease of mind.
NOTE: Stone does
an involuntary not overrule Parks but it does encourage judges to use policy concerns about the need to protect the public
manner.
NOTE: Stone
as a factor does not overrule
in concluding that the Parksaccused but itsuffers
does encourage
from a disease judgesoftomind. use policy concerns about the need to protect the public
as NOTE:
a factorStone
in concludingNOTE:
does not that
automatism
overrulethe accused
Parks but
will be presumed
suffers
it does from a disease
encourage
tojudges
beofcaused
mind. by mental disorder unless the accused can establish otherwis
to use policy concerns about the need to protect the public
automatism
as a factor
NOTE: in concluding will be thatpresumed
the accusedtosuffers be caused from by mentalofdisorder
a disease mind. unless the accused can establish otherwise
NOTE: automatism R will
v Fountaine
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NOTE: unless accused otherwise
R v
Facts:Fountaine 2004 SCC: paranoid
victim had mechanic
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kill him;
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put defence to the jury; should
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Should the defence appealed of mental disorder automatism been put the jury
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be
Case dismissed.
lowers disorder
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defence jury. intact the assignment of a persuasive burden
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of reality ofburden
non-mental in Stone disorder automatism
but leaves intact on thebalance
assignment of a persuasive burden on accused
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to establish
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Case lowersof non-mental
the air of disorder
reality burden automatism
in Stone on
but balance
leaves of
intact probabilities.
the assignment of a persuasive
to establish the defence of non-mental
SC qualified Stone disorderas it relates automatism
to the thresholdon balance air of ofreality
probabilities.
burden but not the persuasiveburden burdenononaccused the accused to
to establish the defence of non-mental disorder automatism on balance of probabilities.
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as it relates Stone
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not the whether defence
persuasive burden hason been
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accused balance of pr
establish
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automatism.
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Stone
Stone better
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accused
balance of probabilities.
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automatism. Stone TJbetter
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in deciding whether
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defence hasof beenreality that justified
establish on balance leaving the defence to the ju
of probabilities.
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which aleaving reasonable trier of fact, property instructed
TJ should not weigh evidence in deciding whether is an air of reality
TJ should not weigh evidence in deciding whether there is an air of reality that justified leaving the defence to the jury.jury. that the defence to the
Question is whether acting therejudicially,
is ‘in thecouldrecord conclude
any that is
evidence the defence
upon which succeeds.
a reasonable trier of fact, property instructed in law
TJ should not weigh evidence in deciding whether there an air of
Question is whether there is ‘in the record any evidence upon which a reasonable trier of fact, property instructed in lawreality that justified leaving the defence to the jury. and and
Question
acting is
judicially, could
whether conclude
there is ‘in that
acting judicially, could conclude that the defence succeeds.the the
record defence
any succeeds.
evidence upon which a reasonable trier of fact, property instructed in law and
acting judicially, R could
v Luedueckeconclude 2008
thatONCA: the defence succeeds.
R vv Lueduecke
R Lueduecke2008 Fact:
2008 ONCA:
ONCA: A- sexually
R. v. Luedecke, assaults woman 2008atONCA a party while 

716 asleep. There was confirming medical evidence led by A that a p
R v Lueduecke
Fact:
Fact: AAsexually
sexually 2008 ONCA:
assaults
assaults perform
womanat
woman actions
ata aparty while
party while
while sleepwalking
asleep.
asleep. and
There
There was that
was sleepwalking
confirming
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a mental led leddisorder.
by bythat
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while
while woman
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and althoughasleep.
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with
sleepwalking was
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not did
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not lead
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hissleep,
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with
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notnot lead not
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dangerunder
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Stone although with a former gf, thus did not lead to charges. TJ determined there was no continuing
danger under CA held Stone that TJ had erred when following Parks when he classified sleepwalking as a basis for non-mental disorde
CA held
CA heldthatthatTJ TJhad automatism.
had erred
erredwhen when CA reversed
following
following Parksandwhen
Parks held
when that
he sleepwalking
classified
he classified sleepwalking shouldasfor
sleepwalking policy
aasbasis
a basis forreasons
non-mental
for be characterized
non-mental disorder as a mental d
disorder
CA held that TJ had erred when following Parkstowhen he classified sleepwalking as acharacterized
automatism.
automatism. CACA reversed
reversed
Also CAand and held
ensured held that sleepwalking
thatreforms
that sleepwalking should
dispositionshould for forpolicy
process policy reasons
ensured reasons be bebasis
sleepwalking for
characterizednon-mental
accused asfound adisorder
aasmentalmental
NCRMD disorder.
disorder.
would not be de
CA reversed
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ensuredthat reforms
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held that sleepwalking
totodisposition
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he was
process ensured should
a significance
ensured
for policyaccused
sleepwalking threat reasons
sleepwalking toaccused be characterized
found
the public. found NCRMDNCRMD
as a not
would mental
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be detained
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Also CAconditions
ensured that reforms to disposition process ensured sleepwalking accused found NCRMD would not be detained or
subject
subjectto to conditionsunless unlesshehewas wasa asignificance
significancethreat threat to to
thethepublic.
public.
subject to conditions unless he was a significance threat to the public.
Significance: CA rejected medicalized approach in Parks and followed public safety approach (holistic approach)
Significance:
Significance: ininParks Parks
Significance: CAStone. Stone Parks, has yet into make.
CA
CA rejected
rejected medicalized
This case canapproach
medicalized approach
only be justified onand and
the followed
followed
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safetyapproach
overrules approach (holistic
a(holistic approach)
decision approach)
that SC taken in
taken
rejected medicalized approach in Parks and followed public safety approach (holistic approach) taken in
Stone.
Stone. This
This case
case can
can only
only bebe justified
justified on on thethe basis
basis that
that Stone
Stone overrules
overrules Parks,
Parks, a decision
a decision that SC
that has
SC yet
has to
yet make.
to make.
Stone. This case can only be justified on the basis that Stone overrules Parks, a decision that SC has yet to make.
- Roach pp. 309-320 

** See Framework document for framework on how to answer these types of questions
** See
****
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15. Simple Intoxication

75
Intoxication does not operate as a justification or excuse for criminal conduct. This so-called
defence of intoxication (simple intoxication) operates only if proof of the intoxication helps
leave the judge or jury in reasonable doubt over whether the accused formed the mens rea of an
offence classified by the courts as a “specific intent” offence that requires the accused to do an
act for an ulterior purpose. Traditionally intoxication has not been a defence for “general intent”
offences, defined as offences that simply require the doing of an act without an ulterior purpose.
In R. v. George, the Supreme Court classified robbery as a specific intent offence that allows a
defence of simple intoxication but found that the included offence of assault was a general intent
offence that did not allow the defence. More recently, the Court in R. v. Tatton elaborated on the
distinction between specific and general intent offences. Please note that in Canada, the inquiry
for the ordinary intoxication defence is no longer into “capacity to form the intent” as it was in
common law England – the defence applies if intoxication in fact prevents the formation of
the specific intent required by the relevant section.

- The Queen v. George, [1960] S.C.R. 871 (In R. v. George, the Supreme Court
classified robbery as a specific intent offence that allows a defence of simple intoxication
but found that the included offence of assault was a general intent offence that did not
allow the defence.)

- R. v. Tatton, 2015 SCC 33 (More recently, the Court in R. v. Tatton elaborated

on the distinction between specific and general intent offences.)
Facts: T caused a fire that destroyed the contents of his ex-girlfriend’s home. In a highly
intoxicated state, he placed a pan with oil on a stove, set the burner to high, and left the
house to get a coffee. When he returned approximately 20 min later, the house was on
fire. T was charged with arson contrary to s. 434 of CC. At trial, T claimed that the fire
was an accident. The trial judge determined that s.434 was a specific intent offence,
meaning that T could rely on self-induced intoxication as a defence. T was acquitted. A
majority of the Court of Appeal upheld the acquittal
Held: The appeal should be allowed, the acquittal set aside, and a new trial ordered- aka arson
is a general intent offence and so self-induced intoxication is not a defence. Mens rea for
arson is the intentional or reckless performance of the illegal act- the damaging of
property by fire- since this requires no sophisticated reasoning proess, the Court found it
“difficult to see how intoxication short of automatism could deprive the accused of the
low level of intent required”
Issue: Whether s.434 arson is a specific intent offence and therefore subject to a defence of

76
 self-iduced intoxication
Analysis: The analysis of whether an offence is GI or SI must start with a determination of the
mental element of the offence. This is an exercise in statutory interpretation. The next
question is whether the crime is one of GI or SI. Where the jurisprudence has already
determined the appropriate classification of the offence in a satisfactory manner, the task
is straightforward. Otherwise, there are two main considerations – the importance of the
mental element and the social policy underlying the offence.
a) The importance of the mental element refers to the complexity of the thought and
reasoning processes that are required for any given offence. For general intent offences,
the mental element simply relates to the performance of the illegal act. Such crimes do
not require an intent to bring about certain consequences that are external to the AR. Nor
do they require actual knowledge of certain circumstances or consequences, to the extent
that such knowledge is the product of complex thought and reasoning processes. General
intent crimes involve such minimal mental acuity that it is difficult to see how
intoxication short of automatism could deprive the accused of the low level of intent
required
a. In contrast, specific intent offences involve a heightened mental element. That
elemenat may take the form of an ulterior purpose or it may entail actual
knowledge of certain circumstances or conseuqneces, where the knowledge is the
product of more complex thought and reasoning processes.
b) When the above analysis fails to yield a clear answer, one should turn to policy
considerations. Policy assessment will focus on whether alcohol consumption is
habitually assoiated with the crime in question. If it is, then allowing an accused to rely
on intoxication as a defence would seem counterintuitive. But, were self-induced
intoxication rarely, if ever, plays a role in the commission of a particular crime,
preventing an accused from relying on it makes less sense from a policy perspective.
Without setting out a general rule, alcohol habitually plays a role in crimes involving
violent or unruly conduct and in crimes involving damaging property.
Here: The offense of arson in s. 434 of CC is a general intent offence for which intoxication
falling short of automatism is not available as a defence. The AR is the damaging of property
by fire. The MR is the intentional or reckless performance of the illegal act. No additional
knowledge or purpose is needed. No complex thought or reasoning processes are required.

- R. v. Robinson, [1996] 1 S.C.R. 683 


77
 57 57

R v Robinson 1996 SCR: killed victim who said something to offend him while they were drinking

Held: SC held Beard rules violated s 7, 11(d) of Charter because they require the jury to convict even if it had a reasonable doubt
about the accused actual intent. Could not be justified under s.1 because social protection could be achieved without casting
net of liability

ANALYSIS: I fadr unk e nness r

a isedar e asonabledoubta s tow hether∆ in f a ctpossesse
dth er equisitespecificintent,the∆ w a
s
entitle
dtobea cquittede ve nifther ew as nodoubtth atth e∆ posse ssedth eca pa citytoform are quisiteinte nt.
o J must be satisfied that the effect of the intoxication was such that its effect might have impa ir
edth eaccused’sf or
esightof
consequences sufficiently to raise a reasonable doubt.
o J then instructs jury that the issue before them is whether the Crown has satisfied, Beyond a Reasonable Doubt that ∆ had the
requisite intent (e.g. f
ormur derthei ssueiswh e ther∆ intendedtok illorc ausebodilyharmw i ththef ore
sightthattheli
k e
ly
consequence was death)

Significance: for offences of specific intent, evidence of intoxication should no longer be subject to a rule requiring that it be
considered only if intoxication attains such a degree that it deprives the accused of the capacity to form the specific intent –evidence
of intoxication can be considered with all other evidence in determining whether the accused actually had the specific intent
required to constitute the offence

Note: 2007 SCC R v Daley, judges should only instruct with respect to actual intent, no reference to capacity should be
made. Therefore, getting around Charter violations

Distinction:

Specific Intent: murder, robbery/theft, B&E with intent, attempts (sexual assault, murder)

General Intent: manslaughter, sexual assaults, assaults, willful damage (vandalism), B&E and committing an offence.

The distinction often served the practical purpose of ensuring that even if the accused voluntarily intoxication prevents conviction for
SIO, the accused will normally still be convicted of a less serious general intent offence.
* Example: George (acquitted of ROB but not ASS)

___________________________________________________________________________________________________________
The court has stated that if an accused, of his own volition, takes a substance which causes him to cast off the restraints of reason and
consciousness, then no wrong is done by holding him answerable for an injury he may do or cause while in that condition (R v.
Majewski)
– the recklessness of becoming drunk is deemed to be sufficient to supply the fault for the commission of the general
intent offense

General Intention Offences Specific Intention Offences

1. assault (s. 266) 1. assault w/ intent to resist arrest (s. 270(b))
2. arson causing bodily harm 2. arson w/ intent to defraud (s 435) (s. 433) (Bernard)
3. break enter and commit (s 348(1)(a)) 3. break enter w/ intent to commit (s 348(1)(b))
4. sexual assault (rape) 4. touching for a sexual purpose (s 271) (s 151)
5. manslaughter 5. murder
6. theft
7. attempted assault, break and enter, sexual assault, etc

- Roach pp. 252-261

16. Extreme Intoxication 


In R. v. Daviault the Supreme Court held that extreme intoxication akin to automatism could
provide a defence to even general intent offences because it would undermine the voluntariness
of the act and it would be unconstitutional to substitute the actus reus and mens rea of becoming
intoxicated for the actus reus and mens rea of the offence. The Court indicated that the defence
would be rare and would have to be established by the accused with expert evidence and
established on a balance of probabilities but that it could be applied with respect to general

78
intent offences such as assault and sexual assault. The theory behind the defence is that a person
can become intoxicated enough that his mind may cease to operate sufficiently to make
conscious choices relating to his actions. Scientifically, the premise that this can happen is
controversial; nonetheless Daviault recognized that if this were to occur the Charter would
require an acquittal since voluntariness is a principle of fundamental justice. Daviault was so
controversial that Parliament immediately enacted s. 33.1 of the Criminal Code to
eradicate the defence in sexual offence and violence cases. This means that, subject to Charter
challenge extreme intoxication can only be used for offences that do not involve an assault or
other interference or threat of interference with the bodily integrity of another person. Be aware
that nothing in s. 33.1 abolishes the defence of simple intoxication – it limits only the
defence of extreme intoxication. Also be aware that Canadian courts are split on the
58
constitutionality of s. 33.1. The deeming of self-induced intoxication in s. 33.1(2) as a sufficient58
level of fault for offences such as assault would seem to violate both ss.7 and 11(d) of the
______________________________________________________________________________________________________
Charter as interpreted in R. v. Daviault but the restrictions on the s. 33.1 defence is s. 33.1(3)
3.2.
mightEXTREME
help theINTOXICATION
state justify any violation as reasonable and proportionate. The Supreme Court
_________________________________________________________________________________________________
seemed to assume that s. 33.1 could be validly applied in R. v. Bouchard-Lebrun at least in
cases where an accused acted involuntarily because of a combination of self-induced induced
Extreme intoxication is distinct from simple intoxication because unlike simple intoxication, where extreme intoxication applies, it can
intoxication
operate andtomental
as a defence disorder.
any offence (general or specific). The theory is that a person can become intoxicated enough that his mind may
cease to operate sufficiently to make conscious choices relating to his actions
- R. v. Daviault, [1994] 3 S.C.R. 63 

The defence of extreme intoxication was created in Daviault by way of the charter

R v Daviault 1999 SCC: – got extremely drunk that he blacked out and sexually assaulted victim [modified decision from Bernard]
Facts:
- Elderly victim confined to wheelchair, asked accused to bring some alcohol; she drank a glass and fell asleep; when she awoke,
accused sexually assaulted her; victim later discovered the bottle of alcohol was empty;
- He claimed he woke up naked in the victim’s bed, he had no idea what happened; expert witness said a person of the
hypothesized blood alcohol level might suffer a blackout, lose contact with reality, and the brain would disassociate from normal
functioning;
- Trial judge found the act had been committed as described, but acquitted on basis of reasonable doubt as to accused possessing
minimal intent necessary to commit offence of sexual assault;
- Court of appeal allowed crown’s appeal and ordered verdict of guilty be entered holding that self-induced intoxication resulting in
automatism is not available as a defence to a general intent offence; accused appealed.
Held:
- Appeal should be allowed and a new trial ordered
- Necessary for A to prove extreme intoxication as a defence to a general intent crime on a balance of probabilities. Thus in
this case, expert evidence that A was likely in a state akin to automatism or insanity as a result of drinking was necessary.

Significance: SCC prefer Wilsons (minority) approach in Bernard 1988 held extreme intoxication could in rare cases be a defence to
general intent offences such as assault or sexual assault.
o Thus, extreme intoxication verging on automatism could provide a defence because it would undermine the voluntariness of the
act and it would be unconstitutional to substitute the act of becoming intoxicated for the basic acts and mind of the offence.

Implications of Daviault:
- Raises possibility that extreme intoxication would be a defence not only to general intent offence but also absolute/ strict liability
offences, because it may negate the voluntariness that is seen as part of the AR.
- Did not abolish the distinction between general and specific intent offence, rather, it introduced 2 distinct intoxication defence
with different burdens to prove:
o If charged with specific intent offences (ie murder), ordinary defence will apply if it raises reasonable doubt about
whether the accused required intent.
o If charged with general intent offence (mans/ ass), evidence of intoxication will be relevant only in rare cases, and A
faces a reverse onus- prove on balance of probs that he was so extremely intox as to be incapable of having the minimal
intent required for a general intent offence.
- There is no lesser conviction available for general intent crimes, where there is no conviction, like there is for specific intent.

Legislative Response to Daviault: Bill C-72, Section 33.1

Parliament amended the CC to eradicate the defence in sexual assault and violence cases, so that those with the Daviault defence
will be convicted of the same violent general intent offences that they would have been convicted of before the Court’s decision:
79
Section 33.1(1)(2): it will not be a defence that the accused ‘by reasonable of self-induced intoxication, lacked the
general intent or voluntariness required to commit the offence’.
 o If charged with specific intent offences (ie murder), ordinary defence will apply if it raises reasonable doubt about
whether the accused required intent.
o If charged with general intent offence (mans/ ass), evidence of intoxication will be relevant only in rare cases, and A
faces a reverse onus- prove on balance of probs that he was so extremely intox as to be incapable of having the minimal
intent required for a general intent offence.
- There is no lesser conviction available for general intent crimes, where there is no conviction, like there is for specific intent.

Legislative Response to Daviault: Bill C-72, Section 33.1

Parliament amended the CC to eradicate the defence in sexual assault and violence cases, so that those with the Daviault defence
will be convicted of the same violent general intent offences that they would have been convicted of before the Court’s decision:

Section 33.1(1)(2): it will not be a defence that the accused ‘by reasonable of self-induced intoxication, lacked the
general intent or voluntariness required to commit the offence’.

Thus, a person who has become so drunk as to engage in involuntary violence has departed markedly from an at-large standard of
reasonable care. This marked departure from the standard of reasonable is substituted for the intent required to commit the
general intent offence charged, whether it be sexual assault or assault.

Note: Be aware that nothing in s. 33.1 abolishes the defence of simple intox – it limits only the defence of extreme intoxication.

- R. v. Bouchard-Lebrun, 2011 SCC 58 


 B brutally assaulted two individuals while he was in a psychotic condition caused by drugs
he had taken a few hours earlier. As a result of these incidents, B was charged with
aggravated assault. The trial judge convicted B on the basis that all the elements
of s. 33.1 of the Criminal Code (“Cr. C.”), which provides that self-induced intoxication
cannot be a defence to an offence against the bodily integrity of another person, had been
proven beyond a reasonable doubt. B then tried unsuccessfully on appeal to obtain a
verdict of not criminally responsible on account of mental disorder under s. 16 Cr. C. The
Court of Appeal held that s. 33.1 Cr. C. applied in this case.
 Held: The appeal should be dismissed.
 A court must consider the specific principles that govern the insanity defence in order to
determine whether s. 16 Cr. C. is applicable. If that defence does not apply, the court can
then consider whether the defence of self-induced intoxication under s. 33.1 Cr. C. is
applicable if it is appropriate to do so on the facts of the case. Intoxication and insanity are
two distinct legal concepts.
 An accused who wishes to successfully raise the insanity defence must meet the
requirements of a two-stage statutory test. The first stage involves characterizing the
mental state of the accused. The key issue to be decided at trial at this stage is whether the
accused was suffering from a mental disorder in the legal sense at the time of the alleged
events. The second stage of the defence provided for in s. 16 Cr. C. concerns the effects
of the mental disorder. At this stage, it must be determined whether, owing to his or her
mental condition, the accused was incapable of knowing that the act or omission was
wrong. In the instant case, it is not in dispute that B was incapable of distinguishing right
from wrong at the material time. Therefore, the only issue in this appeal is whether the
psychosis resulted from a “mental disorder” within the meaning of s. 16 Cr. C
 Toxic psychosis does not always result from a “mental disorder”. In Stone, Bastarache J.
proposed an approach for distinguishing toxic psychoses that result from mental disorders
from those that do not. This approach is structured around two analytical tools, namely the
internal cause factor and the continuing danger factor, and certain policy considerations
 The internal cause factor, the first of the analytical tools, involves comparing the accused
with a normal person. The comparison between the accused and a normal person will be
objective and may be based on the psychiatric evidence. The more the psychiatric evidence
suggests that a normal person, that is, a person suffering from no disease of the mind, is
susceptible to such a state, the more justified the courts will be in finding that the trigger is

80
 external. Such a finding would exclude the condition of the accused from the scope
of s. 16 Cr. C. The reverse also holds true.
 In this case, the application of the first factor suggests that the drug-taking is an external
cause. It seems likely that the reaction of a normal person to taking drugs would indeed be
to develop toxic psychosis. This strongly suggests that B was not suffering from a mental
disorder at the time he committed the impugned acts. And the rapid appearance of
psychotic symptoms generally indicates that B’s delusions can be attributed to an external
factor. In addition, the psychotic symptoms B experienced began to diminish shortly after
he took the drugs and continued to do so until disappearing completely. The Court of
Appeal held that the disappearance of the symptoms showed that the symptoms of toxic
psychosis coincided with the duration of B’s intoxication. It could thus say that B suffered
from no disease of the mind before committing the crimes and once the effects of his drug-
taking had passed. There is no valid reason to depart from this conclusion.
 The second analytical tool, the continuing danger factor, is directly related to the need to
ensure public safety. In this case, there is no evidence indicating that B’s mental condition
is inherently dangerous in any way. Provided that B abstains from such drugs in the future,
which he is capable of doing voluntarily, it would seem that his mental condition poses no
threat to public safety.
 In this context, B was not suffering from a “mental disorder” for the purposes
of s. 16 Cr. C.at the time he committed the assault. A malfunctioning of the mind that
results exclusively from self-induced intoxication cannot be considered a disease of the
mind in the legal sense, since it is not a product of the individual’s inherent psychological
makeup. This is true even though medical science may tend to consider such conditions to
be diseases of the mind.
 The foregoing conclusion leads to the question whether s. 33.1 Cr. C. is applicable. This
provision applies where three conditions are met: (1) the accused was intoxicated at the
material time; (2) the intoxication was self-induced; and (3) the accused departed from the
standard of reasonable care generally recognized in Canadian society by interfering or
threatening to interfere with the bodily integrity of another person. Where these three
things are proved, it is not a defence that the accused lacked the general intent or the
voluntariness required to commit the offence. Section 33.1 Cr. C. therefore applies to any
mental condition that is a direct extension of a state of intoxication. There is no threshold
of intoxication beyond which s. 33.1 Cr. C. does not apply to an accused, which means
that toxic psychosis can be one of the states of intoxication covered by this provision. It is
so covered in the case at bar. The Court of Appeal therefore did not err in law in holding
that s. 33.1 Cr. C. was applicable rather than s. 16 Cr. C.

81
 - CC s. 33.1 

- Roach pp. 261-283 


17. Defence of the Person 


The self-defence provisions in the Criminal Code were amended in March of 2013, to replace
defences which were widely seen as excessively technical and badly drafted. The new provisions
61 discussed in Roach, pp. 332-349. The primary difference in approach between the old and
are 61
new provisions is that some factors which were essential requirements under the old law are now
Note: Jury should not be instructed about SD if there is no air of reality to the accused’s claim that he had a reasonable belief that
merely he factors to take
was subject intoor account
to force and Air
threat of force. weighed
of realityintest
theapplies
balance
to allunder the action
affirmative new law: see(SD).
defences the
discussion in R v Cormier. In addition, R. v. Lavallee, [1990] 1 SCR 852 discusses the concept
It differs
of from old law
"reasonable in not in
belief" making the A’s intent
the context to cause GBH specifically
of self-defence, and shouldrelevant to the
still be self-defence
applicableclaim. Intent
to the new is not found in
the non-exclusive list of factors in section 34(2), at most it would be among a range of factors that is relevant in determining the
provision. 
 of the act of SD.
reasonableness

Moreover,- where
R. v.self-
Lavallee, [1990]
defence has 1 S.C.R.
traditionally seen(In
been852 as aaddition,
justificationR.
andv.not
Lavallee, [1990]
an excuse on 1 that
the basis SCR 852 have rights to
accused
defend themselves and their property, 34/35 replaces the reference that an accused who acts in SD or defence of property is
discusses the concept of "reasonable belief" in the context of self-defence, and should still be
justified with a more generic reference to such a person not being guilty of the offence.
applicable to the new provision.)
34(1)(a): ‘Belief on Reasonable Grounds that Force/ Threat is being used’

The old law referred to unlawful assault as triggering factors, where 34(1)(a) refers to force of threat of force. This simplified
matters by avoiding having to resort to definitions of assault and the classification of unlawful assault. Threat of force thus
expands the self-defence, no longer requiring A to wait until assault was underway in order to respond with SD.

R v Lavallee 1990 SCC: embraced the modified objective standard approach – battered woman killed her husband

Fact: W shot abusive partner in back of head after he threatened that she would be harmed after guests left. expert witness
explained her ongoing terror and inability to escape the relationship put her life in danger and that he felt the
shooting was the act of a woman who sincerely believed she’d be killed that night;

Held: SCC upheld acquittal

RATIO: No legal requirement that A wait until she faced an imminent attack from the deceased.
Note: Lavallee has been misunderstood as making A’s status as a ‘battered woman’ determinative of the SD claim.

Objective/Subjective: Wilson J: the issue is not what an outsider would have reasonable perceived but what the accused
reasonably perceived given her situation and her experience, thus this case is the landmark decision
embracing a contextual objective approach that considered the accused’s situation and experience

R v Petel:
Significance: An accused can qualify for the self defence claim even though he was in fact not being unlawfully assaulted.
SCC affirmed that evidence of prior threats and beatings would be relevant to the determination of whether the
accused could perceive danger from abuser.
82
“34(1)(b): Subjective Purpose of Defence Oneself/Others”
 - R. v. Cormier, 2017 NBCA 10 (The primary difference in approach between the
old and new provisions is that some factors which were essential requirements under the
old law are now merely factors to take into account and weighed in the balance under the
new law: see the discussion in R v Cormier.)
 Facts: On May 13, 2014, Spencer Eldridge repeatedly threatened to cause harm to
Frederick Malcolm Cormier, culminating in a fatal confrontation during which Mr.
Cormier stabbed Mr. Eldridge. The stabbing occurred as Mr. Eldridge and another man
were allegedly about to unlawfully enter the apartment of Mr. Cormier’s father. In a
preemptive move, some of the occupants of the apartment armed themselves to go
outside. Upon exiting through the street-level apartment doorway, Mr. Cormier
immediately encountered Mr. Eldridge who was armed with a pipe. Feeling threatened,
Mr. Cormier stabbed him. Mr. Cormier was charged with second-degree murder. The
principal issue at trial was whether the prosecution had proven beyond a reasonable doubt
that Mr. Cormier did not act in self-defence when he stabbed Mr. Eldridge. Mr. Cormier
was convicted. Implicit in the jury’s verdict is the rejection of Mr. Cormier’s submission
he stabbed Mr. Eldridge in self-defence. The trial judge sentenced Mr. Cormier to
imprisonment for life without eligibility for parole for ten years. [3] Mr. Cormier appeals
his conviction, alleging errors in the trial judge’s jury charge with respect to self-defence.
He also submits the jury should have been instructed on s. 35 of the Criminal Code,
which relates to defence of property.
 Issue: Whether prosecution had proven beyond a reasonable doubt that D did not act in
self-defence with he stabbed Mr. Eldridge.
 Held: Appeal allowed, conviction set aside, new trial ordered.
 Analysis: On March 11, 2013, the Citizen’s Arrest and Self-Defence Act, S.C. 2012, c. 9,
came into force. The former ss. 34 to 42 of the Criminal Code were replaced with new
self-defence provisions found in ss. 34-35.
 Section 34(1) enumerates three criteria, all of which must be present for the defence to be
available. In other words, self-defence is not applicable if the prosecution proves beyond
a reasonable doubt that one of these criteria has not been met. They are: 1) Reasonable
belief: the accused must reasonably believe that force or threat of force is being used
against him or someone else (the subjective perception is objectively verified); 2)
Defensive purpose: the subjective purpose for responding to the threat must be to protect
oneself or others (this is a subjective state of mind); and 3) Reasonable response: the act
committed must be reasonable in the circumstances (this is objectively assessed). See R.
v. Bengy, 2015 ONCA 397, [2015] O.J. No. 2958 (QL), at para. 28. [41] The amendment
codifies two elements of self-defence flowing from the Supreme Court’s decision in R. v.
Lavallee, [1990] 1 S.C.R. 852, [1990] S.C.J. No. 36 (QL); one being that imminence of
the attack is not a rigid requirement in order for the defence to succeed, but is a factor to
be considered when assessing the reasonableness of an accused’s response; the other
being the nature of the abusive relationship between the accused and the victim is also a
factor when assessing the reasonableness of the accused’s actions. [42] The notion of
“unlawful” assault as a requirement of the defence under the now repealed provisions is
eliminated. Substituted is the concept of a reasonable perception of force or threat of
force. In addition, the assessment of the reasonableness of the accused’s response to a
threat has changed. The Supreme Court in R. v. Gunning, 2005 SCC 27, [2005] 1 S.C.R.
627, had suggested that reasonableness could be substituted for the concept of “no more

83
 force than necessary” (para. 22). Whether an action is reasonable is now assessed through
the lens of the nine non-exhaustive factors set out in s. 34(2).
 As for the defence of property provisions, these appear to be very broad. Section 35
applies to a wide range of offences and to any type of property. The provision establishes
the types of interference with “peaceable possession” of property that can trigger a
defensive response. The defence is triggered upon a reasonably based belief of peaceable
possession of property and of another person’s specific actions regarding that property,
i.e. either: (1) about to enter, entering or having entered to the property without lawful
entitlement; (2) about to take, taking or having just taken the property; or (3) about to
damage or destroy or in the process of damaging or destroying the property or making it
inoperative. Upon the defence being triggered, an act committed to prevent the triggering
event is justified provided it is “reasonable in the circumstances”. The 2017 NBCA 10
(CanLII) - 21 - defensive purpose requirement is to be assessed subjectively. On the other
hand, the reasonableness of the response is objectively assessed. However, unlike the
enumeration of factors to aid assessing this in self-defence cases (s. 34(2)), s. 35 offers no
legislative guidance.
 Frankly, it is difficult to conceive how the killing of an individual solely to defend one’s
property could ever be found to be a reasonable response in the circumstances. What
usually occurs is that the force used to prevent interference with one’s property is resisted
and the aggression of the trespasser turns the situation into one of self-defence. For the
reasons laid out below, we believe the present case is one in which there was in fact an
overlap between defence of property and self-defence. In our view, it would have been
open for the jury to conclude that what began as a defence of property situation quickly
escalated into a defence of the person case.
 Here: In our view, and with great respect, the judge’s instructions to the jury on the issue
of self-defence contain two significant shortcomings. First, the judge erred in not giving
the jury a correcting instruction in response to prosecution counsel’s argument that Mr.
Cormier opening the door to the apartment was a “barrier to self-defence” and in not
explaining to the jury the possible interaction between the defence of property and self-
defence provisions in the circumstances of this case. Second, the judge failed to assist the
jury by linking the evidence to the various factors to be considered as they applied the
law to the facts.

- Roach pp. 332-349 


18. Necessity 


The defence of necessity permits the conduct of the accused to be excused where its elements are
met. The defence is heavily circumscribed. 

- R. v. Latimer, [2001] 1 S.C.R. 3 


84
 - Roach pp. 361-370 


19. Duress 


The defence of duress is available under section 17 of the Criminal Code and at common law.
Section 17 identifies a limited defence, but the common law and Charter have been used to
extend its application so that now the main difference between the s. 17 and common law
defence is that the former applies to those who have actually committed the offence (as opposed
to having being parties under ss. 21(1)(b) or (c) or 21(2) or 22) and s. 17 contains a long list of
crimes that are (subject to Charter challenge) categorically excluded from the defence. There is
currently disagreement among courts of appeal as to whether duress can be pleaded as a defence
to murder. 
 [Note: CL version is continued by S.8(3) of the code according to R v. Willis]

85
- R. v. Ryan, 2013 SCC 3 

Held: Per McLachlin C.J. and LeBel, Deschamps, Abella, Rothstein, Cromwell,
Moldaver and Karakatsanis JJ.: The defence of duress is only available when a person
commits an offence while under compulsion of a threat made for the purpose of
compelling him or her to commit the offence. This was not R’s situation and the defence
of duress was not available to her. If an accused is threatened without compulsion, his or
her only defence is self-defence.
 The Court of Appeal erred in law in finding that there was no principled basis
upon which to exclude R from relying on the defence of duress. Although the
defences of duress and self-defence are both based on the idea of normative
involuntariness and both apply where the accused acted in response to an external
threat, significant differences between these defences justify maintaining a
meaningful juridical difference between them. The rationale underlying each
defence is profoundly distinct. Duress, like the defence of necessity, is an
excuse. The act, usually committed against an innocent third party, remains
wrong but the law excuses those who commit the act in a morally involuntary
manner, where there was realistically no choice but to commit the act.
Self-defence, in contrast, is a justification based on the principle that it is lawful in
defined circumstances to resist force or a threat of force with force. The victim,
also the attacker, is the author of his or her own misfortune. Generally, the
justification of self-defence ought to be more readily available than the excuse of
duress.
 This appeal underlines the need for further clarification of the law of duress. The
statutory version of the defence applies to principals and the common law to
parties. The statutory version of the offence also excludes a long list of offences
from its operation. Nonetheless, the defence of duress, in its statutory and common
law forms, is largely the same and both forms share the following common
elements: there must be an explicit or implicit threat of present or future death or
bodily harm — this threat can be directed at the accused or a third party; the accused
must reasonably believe that the threat will be carried out; there must be no safe
avenue of escape, evaluated on a modified objective standard; there must be a close
temporal connection between the threat and the harm threatened; there must be
proportionality between the harm threatened and the harm inflicted by the accused,
also evaluated on a modified objective standard; and the accused cannot be a party
to a conspiracy or association whereby he or she is subject to compulsion and
actually knew that threats and coercion to commit an offence were a possible result
of this criminal activity, conspiracy or association.
 The circumstances of this case are exceptional and warrant a stay of
proceedings. Although the appeal should be allowed, it would not be fair to subject
R to another trial. The abuse she suffered and the protracted nature of these
proceedings have taken an enormous toll on her. The law of duress was unclear
which made resort to the defence at trial unusually difficult. Furthermore, the
Crown changed its position about the applicable law between the trial and appeal
process, raising a serious risk that the consequences of decisions made during the
conduct of R’s defence cannot be undone in the context of a new trial.

86
 - R. v. Aravena, 2015 ONCA 250
 Significance: Ontario Court of Appeal held that duress can be used as a defence to
murder, holding that the trial judge erred in law by holding that the common law defence
of duress was not available to persons charged as parties to a murder
 Facts:
 Ever since R. v. Paquette, 1976 CanLII 24 (SCC), [1977] 2 S.C.R. 189, there have been
two different duress defences in Canada. The statutory duress defence set out in s. 17 of
the Criminal Code applies to persons who have “actually committed” an offence and
whose liability rests on s. 21(1)(a) of the Criminal Code. We will refer to these
individuals as perpetrators. The common law defence of duress, preserved by s.
8(3) of the Criminal Code, applies to persons whose liability flows from s. 21(1)(b) or
(c) (aider or abettor) or s. 21(2) (common design). We will refer to these individuals
as parties.[2]
 [25] The anomaly, if not confusion, created by Paquette has been significantly
mitigated by the recent duress jurisprudence. The statutory language of the duress defence
in s. 17 has undergone significant constitutional surgery: see R. v. Ruzic, 2001 SCC
24 (CanLII), [2001] 1 S.C.R. 687. The common law defence and what remains of the
statutory defence have also been reworked to more effectively reflect their mutual
underlying rationale: see R. v. Hibbert, 1995 CanLII 110 (SCC), [1995] 2 S.C.R. 973; R.
v. Ryan, 2013 SCC 3 (CanLII), [2013] 1 S.C.R. 14, at para. 44. As the law presently stands,
the essential elements of the two duress defences are “largely the same”: Ryan, at para. 81.
 [26] The elements of both the statutory and the common law defences of duress are
helpfully summarized in Ryan, at para. 81.
o There must be an explicit or implicit threat of present or future death
or bodily harm. The threat can be directed at the accused or a third
party.
o The accused must reasonably believe that the threat will be carried
out.
o There is no safe avenue of escape. This element is evaluated on a
modified objective standard.
o A close temporal connection between the threat and the harm
threatened
o Proportionality between the harm threatened and the harm inflicted
by the accused. The harm caused by the accused must be equal to or
no greater than the harm threatened. This is also evaluated on a
modified objective standard.

87
 o The accused is not a party to a conspiracy or association whereby
the accused is subject to compulsion and actually knew that threats
and coercion to commit an offence were a possible result of this
criminal activity conspiracy or association.
 THE DEFENCE OF DURESS AND MURDER
 Is the Law Settled?
 [28] Section 17 expressly provides that the statutory defence of duress “does not apply”
to the offences listed in the section. Murder is one of those offences.[3] Subject to a
successful constitutional challenge[4], the perpetrator of a murder cannot avoid culpability
even if he or she committed murder in the face of a true “kill or be killed” option.
 [29] The trial judge, after an analysis of Paquette and an extensive review of common
law authorities from other jurisdictions, determined that the common law defence of duress
was not available to persons charged with murder regardless of whether they were charged
as perpetrators or parties. It was, therefore, unnecessary for him to consider the
constitutionality of the murder exception in s. 17: Sandham, at para. 124. As the Crown
alleged that all of the appellants who raise duress on appeal were parties to the murders,
the constitutionality of the murder exemption in s. 17 is not directly in issue on this appeal.
 [30] An examination of the common law defence of duress in Canada begins
with Paquette. Paquette was concerned with liability for murder under s. 21(2) of
the Criminal Code. A man was shot and killed during a robbery. The Crown contended
that the accused had joined in a common design to commit robbery and that he knew or
ought to have known that the others might intentionally cause bodily harm while carrying
out the robbery. The accused alleged that he only assisted the others in the robbery because
his life was threatened.
 [35] In Hibbert, the accused was charged as an aider to an attempted murder and
ultimately convicted of aggravated assault. He relied on the common law defence of duress
and the trial judge left the defence with the jury. While the primary importance
of Hibbert lies in its explanation of the difference between themens rea required of a party
to an offence and the defence of duress, Lamer C.J., for the court, appeared to confirm the
holding in Paquette that the common law defence of duress is available to a person charged
as an aider and abettor in a murder. He said, at para. 38:
 Finally, I am satisfied that the interpretation of the mens rea for liability
under s. 21(1)(b) that I am proposing will not result in unjust convictions in
cases involving coercion by threats of death or bodily harm, since in these
cases the common law defence of duress will remain available to the
accused.
 [36] After overruling Paquette as it relates to the mens rea required for party liability,
Lamer C.J. said, at para. 44:
 I hasten to point out, however, that overturning this holding
in Paquette does not affect the validity of that case’s first aspect,
namely, that the common law defence of duress continues to apply in cases
involving party liability under s. 21 of the Code. Furthermore, it can be
noted in passing that, on the facts of Paquette, the accused’s acquittal could
well have been supported on the basis of the excuse provided by the common
law defence of duress rather than on the notion that his intention to assist in
the commission of the robbery was “negated” by duress. [Emphasis added.]

88
  [37] The trial judge, at para. 67, read the above passage in this way:
 It is important to note that Lamer C.J. was referring to robbery, not murder,
in suggesting that the common law defence of duress would be available.
 [38] We do not agree with that interpretation. The reference by the Chief Justice to “the
accused’s acquittal” in the passage from Hibbert must refer to Paquette’s acquittal on the
murder charge. Paquettewas only charged with murder. He was not charged with robbery.
 [39] Hibbert’s apparent acceptance of duress as a defence to a charge of attempted
murder fortifies our view that Hibbert confirms Paquette’s holding that the common law
defence of duress is available to those charged with aiding or abetting a murder. The
difference between the murderer and the attempted murderer lies only in achievement of
the intended goal. No meaningful distinction can be drawn between the person who, under
threat, aids in a murder and the person who, under the same threat with the same intent,
engages in the same conduct yet, for reasons that may have nothing to do with his effort or
his intent, does not end up assisting in a killing: see R. v. Gotts, [1992] 2 A.C. 412 (H.L.
Eng.), at pp. 425-26; David Ormerod, Smith and Hogan’s Criminal Law, 13th ed. (Oxford:
Oxford University Press, 2011), at pp. 361-62.
 [40] On the authorities as they stood at the time of the trial judge’s reasons, we think he
erred in holding that he was not bound by those authorities to recognize that the common
law defence of duress was available to persons charged as parties to a murder: see R. v.
P.C., 2012 ONSC 5362 (CanLII), 99 C.R. (6th) 116. However, subsequent to the trial
judge’s decision, the Supreme Court delivered its reasons in Ryan. After outlining the
elements of the statutory and common law defences of duress, and to a large degree
reconciling the two defences, the court turned briefly to the remaining differences between
the statutory defence and the common law defence. The court, at para. 83, identified two
differences, the second of which speaks directly to the issue at hand:
 The second [difference] is that the statutory version of the defence has a
lengthy list of exclusions whereas it is unclear in the Canadian common
law of duress whether any offences are excluded. This results in the rather
incoherent situation that principals who commit one of the enumerated
offences cannot rely on the defence of duress while parties to those same
offences, however, can.
 We accordingly leave to another day the questions of the status of the
statutory exclusions and what, if any, exclusions apply at common law.
[Emphasis added.]
 [41] Ryan continues the modification and reconciliation of the common law and
statutory duress defences. In doing so, Ryan leaves open the question of whether any
offences should be excluded entirely from the reach of those defences. In the face of that
direction, it falls to this court to answer the question left open in Ryan, through reference
to basic criminal law principles, the juridical rationale underlying the duress defence, the
elements of the duress defence as outlined in the controlling jurisprudence, the fundamental
principles enshrined in the Charter, and the common law authorities from other
jurisdictions.
Conclusion
[85] The common law defence of duress has been available to persons charged
as parties to murder in Ontario for at least 35 years. We would hold that the

89
defence as strictly defined in the recent Supreme Court jurisprudence remains
available to persons charged as parties to murder. In our view, that holding is
consistent with the nature of the duress defence, basic criminal law policies, and
the operative principles of fundamental justice.
[86] The constitutionality of the murder exception to the duress defence in s. 17 of
the Criminal Code is not before the court. However, it follows from this analysis
that, subject to any argument the Crown might advance justifying the exception as
it applies to perpetrators under s. 1 of the Charter, the exception must be found
unconstitutional.

- R. v. Willis, 2016 MBCA 113 
 (Court of Appeal of Manitoba – doesn’t follow

Aravena)
Facts: The Applicant faced death threats over a drug debt. The dealers threatening him also
wanted Ms. Tran killed for an unrelated reason. In order to avoid the threat, the Applicant chose
to commit the murder of Ms. Tran. The Applicant explained to the police it was “necessary at the
time”, because “[i]t was like my life or her life.” The Applicant confessed to his crime. At his
trial by judge and jury for first degree murder, the Applicant sought to put forward the defence of
duress based on his claim this was a situation of kill or be killed. The Applicant brought a pre-
trial application asserting that s. 17 of the Criminal Code (the statutory duress defence, as
opposed to the common law defence, and claimed s.17 unconstitutional because it excluded
certain offenses, like murder – D could only use the statutory defence because it applied to
“principals”, as highlighted above, aka those who committed the crime, while the CL defense of
duress was only available to “parties” aka those who aided/abetted etc) violated s. 7 of the
Charter. Both the trial court and the C.A. upheld the validity of s. 17 of the Code. The trial
proceeded on the basis the Applicant could not rely on the defence of duress. The Applicant was
convicted of first degree murder and was sentenced to life without eligibility for parole for 25
years. The appeal was dismissed. "The application for leave to appeal...is dismissed."
Issue: Whether the statutory prohibition against duress being a defence to murder by a
principal or co-principal in s.17 violates s.7 of Charter (d claims infringes his s.7 right by
allowing liability for morally involuntary conduct)
Held: Appeal dismissed (aka does not violate the Charter)
Analysis: Despite the detailed and thoughtful reasons of the Court of Appeal in Aravena, I
decline to follow its approach, both to the question of proportionality in terms of moral
involuntariness, as well as its obitercomment that the statutory exclusion of the defence of duress
to the offence of murder in section 17 of theCode infringes section 7 of the Charter, absent
justification under section 1 of the Charter. It is my respectful view that Aravena does not
provide assistance to this Court in deciding the correctness of the trial judge’s conclusion that
murdering an innocent person can never satisfy the proportionality requirement of moral
involuntariness…. It is difficult to see how a certain death is a proportionate response to an
uncertain threat from another. I would add another feature of uncertainty to the discussion
different than Cardozo and Hall, that arises on the facts of this case. Here, the murder of Ms
Tran did not extricate the accused and his family from danger. The drug debt was not
forgiven. Even by committing murder, the accused was still in the same position he was in
before the murder. As previously mentioned, it is unrealistic to evaluate the law of duress on the

90
assumption that the amoral tyrant, prepared to compel murder, is also an individual who will
piously keep their word once the innocent person is murdered.

- Roach pp. 370- 382 


20. Provocation 
  SEE UPDATE BELOW

The defence of provocation, set out in s. 232, applies solely to the offence of murder. It is a
partial defence, reducing a conviction to manslaughter where its elements are met. Note that the
provocation defence was amended in 2015 to limit the notion of provocation to “conduct of the
victim that would constitute an indictable offence under this Act that is punishable by five or
more years of imprisonment”.

This amendment restricts the provocation defence beyond the traditional requirements of being
an act sufficient “to deprive an ordinary person of self-control” and have caused the accused
subjectively to have been provoked. This would include acts such as assault under s. 265
(provided the other requirements of provocation are made out) but raises the question of why an
accused would rely on the partial defence of provocation if the full defence of self defence was

91
available.
- R. v. Tran, [2010] 3 S.C.R. 350 


92
- Roach pp. 411-433 (the new restriction on provocation is not discussed in this text

93
 
 but an addendum discussing them with specific examples of offences included and not
included in the new restriction is available at https://www.irwinlaw.com/titles/criminal-
law-6e) 

Provocation is a partial defence that reduces murder to manslaughter. As defined in s. 232
of the CC, provocation requires (1) a wrongful act or insult that is not provoked by the
accused or the result of a victim exercising a legal right; (2) sudden provocation; (3)
subjective provocation; and (4) a wrongful act or insult “of such a nature as to be
sufficient to deprive an ordinary person of the power of self-control.” There is a tendency
to categorize the first three factors as relating to the subjective arm of provocation and the
last factor as relating to its objective component.
Just before Parliament was dissolved for the 2015 election, an additional fifth
requirement was added to the provocation defence: now the provoking act must
satisfy all of the above criteria and also constitute an indictable offence punishable
by five years or more. This new categorical restriction was introduced to ensure that the
provocation defence was not available to reduce “honor killings” to manslaughter (even
though no court had recognized such a defence in such circumstances). Unfortunately, the
new amendment goes much further ad places arbitrary and overbroad restrictions on
the provocation defence. The new section 232(2) [enacted by SC 2015, c 29, s 7]
provides:
“Conduct of the victim that would constitute an indictable offence under this Act
that is punishable by five or more years of imprisonment and that is of such a
nature as to be sufficient to deprive an ordinary person of the power of self-
control is provocation for the purposes of this section, if the accused acted on it on
the sudden and before there was time for their passions to cool.”
If this new restriction survives a Charter challenge, the only realistic scenario for a
successful provocation defence is when the act or insult that deprives an ordinary
person of self-control and causes the accused to be subjectively provoked also
amounts to an assault or sexual assault. Assaults under sections 265(1)(b) or (c) can
include threats and impeding a person with a weapon. In cases of assault, however,
the accused may prefer to plead self-defence which, if accepted, and unlike
provocation, would lead to a full acquittal. Many other crimes that might, in some
circumstances, also satisfy the other requirements of the provocation defence would not
qualify because they are punishable by a maximum penalty of less than five years
imprisonment. They include forcible entry into a dwelling (section 73), carrying a gun at
a public meeting (section 89), obstructing a police officer (s 129), breaching a court order
(127), an indecent act (173), disrupting a religious meeting (176), using hate speech
(319), and delivering false or indecent information (372). The categorical exclusion fo
such offences from the provocation defence illustrates the blunt nature of requiring the
provocation also constitute an indictable offence punishable by five years’ imprisonment.
This, combined with the fact that honor killings would not qualify under the other
requirements of the provocation defence, underlines that the new restriction on
provocation is arbitrary and overbroad. As such, it is vulnerable to challenge under s.7 of
the Charter on those grounds.

21. Entrapment 


94
 70 70 70 70
Entrapment is a common law defence that applies even where the accused has committed a crime
with the required fault. It results in a stay of proceedings in cases where a state agent has
________________________________________________________________________________________________________
________________________________________________________________________________________________________
provided the accused with an opportunity to commit a crime without either a reasonable
8. ENTRAPMENT
8. ENTRAPMENT
suspicion that the accused was involved in crime or a bona fide inquiry into a particular type of
crime. Alternatively,
Entrapment even if therethatisapplies
a reasonable wheresuspicion or acommitted
bona fide inquiry, theentrapment
Entrapment is a iscommon
a commonlawlaw defence
defence even where
that applies even the
theaccused
accusedhas
has committeda crime
a crimewithwith required fault.fault.
the required It results in a in a
It results
will apply
stay and result
of proceedings in in a
cases stay
whereof proceedings
a state if the
agent has provided state
the agent
accused withinduces the
an opportunity commission
to commit a crimeof the
without
stay of proceedings in cases where a state agent has provided the accused with an opportunity to commit a crime without either a
either a
reasonable suspicion that the accused was involved in crime or a bona fide inquiry into a particular type of crime in a high crime area.
crime. 
 suspicion
reasonable
Alternatively eventhat the is
if there accused was involved
a reasonable suspicioninorcrime
a bonaorfide
a bona fideentrapment
inquiry, inquiry into
willa apply
particular type of
and result in acrime inproceedings
stay of a high crime
if area.
Alternatively eveninduces
the state agent if therethe
is acommission
reasonableofsuspicion
the crime.or a bona fide inquiry, entrapment will apply and result in a stay of proceedings if
the state agent induces the commission of the crime.
There are two different forms of entrapment in Canadian law.
There are two different forms of entrapment in Canadian law.
It results in a stay of proceedings in cases where:
It results in a stay of proceedings in cases where:
Random-virtue 1- A state agent has provided the accused with an opportunity to commit a crime without either
Testing:
Random-virtue a. A has
1- A state agent reasonable
provided suspicion that Awith
the accused was, an
or already is, involved
opportunity a crime without
in a particular
to commit crime, oreither
Testing:
a. b.A reasonable
A bone fidesuspicion
inquiry into a particular
that A was, ortype of high
already is,crime area (the
involved in a physical location
particular crime,with
or which the person is
associated is a place where the particular criminal activity is likely occurring.)
b. A bone fide inquiry into a particular type of high crime area (the physical location with which the person is
associated is a place where the particular criminal activity is likely occurring.)
2- Alternatively even if there is a reasonable suspicion or a bona fide inquiry, entrapment will apply and result in a stay of
proceedings if the state agent induces the commission of the crime.
2- Alternatively even if there is a reasonable suspicion or a bona fide inquiry, entrapment will apply and result in a stay of
proceedings
The question of entrapment only agent
if theisstate induces
considered afterthe commission
there has been aoffinding
the crime.
of guilt. If, after finding the accused guilty, the court
determines that the accused was entrapped, the court will enter a judicial stay of proceedings. In effect, this is similar to an acquittal.
The question of entrapment is only considered after there has been a finding of guilt. If, after finding the accused guilty, the court
determines that
R vthe accused
Mack 1988 was
SCC:entrapped,
cite for CLthe court will
definition enterexpanded
above, a judicial stay of proceedings.
definition from Barnes In effect, this is similar to an acquittal.
- R. v. Mack, [1988] 2 S.C.R. 903 

R v Fact:
Mack 1988 SCC:
Police actedcite
withfor CL definition
reasonable above,
suspicion expandeda 6definition
in conducting month drugfrom Barnes
sting, A was former user with several
conviction, even though A told police informer he was only interested in real estate.
Fact: Police acted with reasonable suspicion in conducting a 6 month drug sting, A was former user with several
Ratio:conviction,
A defenceeven
of entrapment
though Aistold
available
policewhen:
informer he was only interested in real estate.
i. the authorities provide a person with an opportunity to commit an offence without acting on a reasonable
Ratio: suspicion
A defence that this person
of entrapment is already
is available engaged in criminal activity or pursuant to bona fide inquiries;
when:
ii. although having such a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond
i. the authorities provide a person with an opportunity to commit an offence without acting on a reasonable
providing an opportunity and induce the commission of an offence.
suspicion that this person is already engaged in criminal activity or pursuant to bona fide inquiries;
ii. although
Significance: having
Courts such a above
recognize reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond
defence
providing an opportunity and induce the commission of an offence.
Notes:
Significance:
- Police Courts
will go over the recognize
line if above
their conduct defence
is so objectionable that it brings admin of justice into disrepute.
- Courts will examine proportionality between conduct of the state and the A and whether state had instigated the crime and
Notes: exploited the A.
- Police
- Therewillwill
go be
over
notthe line if their
entrapment conduct
defence whenisAsoisobjectionable
entrapped into that it brings
committed admin
crime of justice
by private into disrepute.
individuals not acting for state.
- Courts will examine proportionality between conduct of the state and the A and whether state had instigated the crime and
R v Barnesthe
exploited 1991
A. SCC: being present in high crime area
- There will be not entrapment defence when A is entrapped into committed crime by private individuals not acting for state.
Fact: Police had a correct hunch that man was selling weed, but did not have reasonable suspicion because the impressions of
suspect
R v Barnes 1991 - general
were too
SCC: R. present
being v. and
Barnes, [1991]
subjective.
in high 1and‑
S.C.R.
"Buy‑area
crime 449 
 in area of city with trafficking problem. Accused in this
bust" program
area. Undercover police officer approached accused on hunch that he would have drugs.
Fact: Police had a correct hunch that man was selling weed, but did not have reasonable suspicion because the impressions of
Held: No entrapment because police were acting pursuant to a bona fide inquiry into criminal activity offering a person an
suspect were too
opportunity to general and subjective.
commit crime because he"Buy‑ and‑ bust"
was present program
in a place in area
associated of city
with with trafficking
particular problem. Accused in this
criminal activity
area. Undercover police officer approached accused on hunch that he would have drugs.
Reasons: An undercover officer who attempts to buy drugs from someone suspected of selling drugs does not constitute entrapment.
Held: No entrapment because police were acting pursuant to a bona fide inquiry into criminal activity offering a person an
Significance:
opportunity Majorities
to commitapproach allows random
crime because virtue testing
he was present in a place associated
of those found inwith particular
areas associatedcriminal activity
with drugs and prostitution,
regardless they have no reasonable suspicion that person is engaged in the particular crime. The notion of being
Reasons: An undercover
"associated" with aattempts
officer who particular
toarea
buyfor thesefrom
drugs purposes does suspected
someone not requireof
more thandrugs
selling being does
present
notinconstitute
the area. Such
entrapment.
randomness is permissible within the scope of a bona fide inquiry.
Significance: Majorities approach allows random virtue testing of those found in areas associated with drugs and prostitution,
regardless they have no reasonable suspicion that person is engaged in the particular crime. The notion of being
95 purposes does not require more than being present in the area. Such
"associated" with a particular area for these
randomness is permissible within the scope of a bona fide inquiry.
 Notes:
- Police will go over the line if their conduct is so objectionable that it brings admin of justice into disrepute.
- Courts will examine proportionality between conduct of the state and the A and whether state had instigated the crime and
exploited the A.
- There will be not entrapment defence when A is entrapped into committed crime by private individuals not acting for state.

R v Barnes 1991 SCC: being present in high crime area

Fact: Police had a correct hunch that man was selling weed, but did not have reasonable suspicion because the impressions of
suspect were too general and subjective. "Buy‑ and‑ bust" program in area of city with trafficking problem. Accused in this
area. Undercover police officer approached accused on hunch that he would have drugs.

Held: No entrapment because police were acting pursuant to a bona fide inquiry into criminal activity offering a person an
opportunity to commit crime because he was present in a place associated with particular criminal activity

Reasons: An undercover officer who attempts to buy drugs from someone suspected of selling drugs does not constitute entrapment.

Significance: Majorities approach allows random virtue testing of those found in areas associated with drugs and prostitution,
regardless they have no reasonable suspicion that person is engaged in the particular crime. The notion of being
"associated" with a particular area for these purposes does not require more than being present in the area. Such
randomness is permissible within the scope of a bona fide inquiry.

- Roach pp. 42-45 


22. Error of Law

An error of law generally is not a defence: this rule is reflected in s. 19 of the Criminal Code.
However, this general principle is subject to exceptions in limited circumstances. In particular,
when “colour of right” is specified to be relevant, a mistake about the law can be relevant.
72 72
Further, the Supreme Court of Canada has created the common law defence of “officially
induced
- If aerror”.
person is acting under a genuine mistaken view relating to a set of facts which would give him a defence to a criminal
charge if those 
 correct, then he is said to be acting with “Claim of right”.
facts were
- CCs19
- Lilly v. The Queen, [1983] 1 SCR 794
Lilly v. The Queen, 1983 trust funds mistaken for commissions
RATIO: An honest belief concerning property rights, whether based on a mistake in fact or in law, may constitute a colour of
right.

FACTS: Appellant, a licensed real estate broker, was convicted of theft of $26,759.58, being sums deposited “in trust” with
respect to real property transactions. The appellant relied, for 18 of the 21 transactions involved in the count on which he was
found guilty, on the defence of colour of right alleging he thought he could lawfully transfer the amounts from the “in trust”
account to the agency’s general account once the offer to purchase the property had been accepted. As to the other transactions
involving a total of $13,500 he relied on an alleged lack of knowledge of the transfers. The Court of Appeal dismissed
appellant’s appeal.

ISSUE: This appeal is to determine whether the trial judge misdirected the jury as to the meaning of the phrase “colour of right”.

DECISION: Appeal allowed, new trial ordered.

REASONS: In his charge, the trial judge misdirected the jury. The fate of the appellant’s defence of colour of right was not
dependent upon the jury determining when the commissions were payable. Rather, the defence was dependent upon whether the
jurors were satisfied beyond a reasonable doubt that the appellant had not, at the time of the transfers, an honest belief that he had
the right to that money, and not, as they were told, dependent upon what they thought his rights were. Further, the conviction
cannot stand for it was impossible to know whether the conviction stood solely on those transactions that did not raise the
defence of colour of right.


R. v. Jones, [1991] mistake must be as to fact, not as to law (applicability of law)
- R. v. Jones, [1991] 3 SCR 110 

RATIO: A mistake about the law is no defence to a charge of breaching it.

FACTS: Accused convicted of unlawfully conducting a bingo. Accused mistakingly believed that lottery provisions in Criminal
Code inapplicable to lotteries conducted on Indian reserve

ISSUE: Whether the defence of colour of right is available.

DECISION: Appeal dismissed.

96

REASONS: The defence of colour of right does not apply to a charge under s. 206(1)(d) of the Code. First, no authority was
cited for the proposition that colour of right is relevant to any crime which does not embrace the concept within its definition.
 dependent upon the jury determining when the commissions were payable. Rather, the defence was dependent upon whether the
jurorsISSUE:
were satisfied beyond
This appeal a reasonable
is to determine whetherdoubt thatjudge
the trial the appellant had
misdirected thenot,
juryatasthe time
to the of theoftransfers,
meaning the phrasean“colour
honestofbelief
right”.that he had
the right to that money, and not, as they were told, dependent upon what they thought his rights were. Further, the conviction
cannotDECISION:
stand for itAppeal
was impossible
allowed, newtotrial
know whether the conviction stood solely on those transactions that did not raise the
ordered.
defence of colour of right.
REASONS: In his charge, the trial judge misdirected the jury. The fate of the appellant’s defence of colour of right was not
dependent upon the jury determining when the commissions were payable. Rather, the defence was dependent upon whether the
jurors were satisfied beyond a reasonable doubt that the appellant had not, at the time of the transfers, an honest belief that he had
R. v.the
Jones, [1991]
right to mistake
that money, andmust bethey
not, as as to fact,
were not
told, as to law
dependent (applicability
upon of law)
what they thought his rights were. Further, the conviction
RATIO:
cannotAstand
mistake
for itabout the law istono
was impossible defence
know to the
whether a charge of breaching
conviction it.on those transactions that did not raise the
stood solely
defence of colour of right.
FACTS: Accused convicted of unlawfully conducting a bingo. Accused mistakingly believed that lottery provisions in Criminal
Code inapplicable to lotteries conducted on Indian reserve
R. v. Jones, [1991] mistake must be as to fact, not as to law (applicability of law)
RATIO:
ISSUE: A mistake
Whether about the
the defence oflaw is noof
colour defence
right to
is aavailable.
charge of breaching it.

FACTS: Accused convicted of unlawfully conducting a bingo. Accused mistakingly believed that lottery provisions in Criminal
DECISION: Appeal to
Code inapplicable dismissed.
lotteries conducted on Indian reserve

REASONS:
ISSUE: Whether
The defence of colour
the defence of right
of colour does
of right not apply to a charge under s. 206(1)(d) of the Code. First, no authority was
is available.
cited for the proposition that colour of right is relevant to any crime which does not embrace the concept within its definition.
DECISION:
Second, Appeal
appellants' dismissed.
mistake was one of law, rather than of fact. They mistakingly believed that the law did not apply because it
was inoperative on Indian reserves. A mistake about the law is no defence to a charge of breaching it.
REASONS: The defence of colour of right does not apply to a charge under s. 206(1)(d) of the Code. First, no authority was
cited for the proposition that colour of right is relevant to any crime which does not embrace the concept within its definition.
Officially Second,
Induced Error Defence Exception:
appellants'
- Levis mistake
(City)wasv.oneTetrault,
of law, rather than of1fact.
[2006] SCR They 

mistakingly
420 believed that the law did not apply because it
was inoperative on Indian reserves. A mistake about the law is no defence to a charge of breaching it.
A valid excuse for violating the law is on the basis of an officially induced error of law. The defence arises where the accused is given
adviceOfficially
in error Induced
that the Error Defence
accused relies Exception:
upon in doing the criminal act.

A valid
Officially excuse error
induced for violating the lawasisaon
is available the basistoofprevent
defence an officially induced
morally error ofindividuals,
blameless law. The defence
whoarises where
believe theare
they accused is in
acting given
a lawful
advice in error that the accused relies upon in doing the criminal act.
manner, from being convicted. The defence arises in part out of the overly complex nature of regulation.
Each Officially
element must be proven on a balance of probabilities by the accused, A successful application will result in a stay of proceedings
induced error is available as a defence to prevent morally blameless individuals, who believe they are acting in a lawful
manner, from being convicted. The defence arises in part out of the overly complex nature of regulation.
73
R v Jorgensen 73
Each element must be proven on a balance of probabilities by the accused, A successful application will result in a stay of proceedings
The elements that must be proven are:
1.R v The
Jorgensen
error was one of law or mixed law and fact
Levis
2.The (City)
elements
The v. Tetreault
that
accused must (SCC
be proven
considered affirmed
theare:
legal the defenceof
consequences ofher
officially
actionsinduced error)
1. The error was one of law or mixed law
3. The advice obtained came from an appropriate official and fact
RATIO:
2. TheTheaccused
court affirmed
consideredthethe
analytical frameworkofput actions by Lamer C.J. in Jorgensen39. To avail the defence of ‘officially
herforward
4.induced
The advice
error’,
wasaccused
reasonable
the obtained must
inlegal consequences
the circumstances
3. The advice came prove
from an sixappropriate
elements: official
5. The advice
4. The1. that obtained
an error
advice ofmust
law or
was reasonablebeofinerroneous
mixed
the law and fact was made;
circumstances
6. The accused
5. The advice
2. that must
the demonstrate
obtained
person mustcommitted
who reliance
be erroneous theon
actthe official advice
considered the legal consequences of his or her actions;
This will 6.
be assessed
The
3. that objectively
accused
the from the
must demonstrate
advice obtained perspective
reliance
came fromonanthe of a reasonable
official
appropriate official;person in a situation similar to that of the accused.
advice
This will be
4. assessed objectively
that the advice was from the perspective of a reasonable person in a situation similar to that of the accused.
reasonable;
5. that the advice was erroneous; and
6. that the person relied on the advice in committing the act.

FACTS: Accused put their motor vehicle back into operation without having paid the required registration fees. Accused claimed to
have been misled by erroneous information obtained from an official regarding the procedure for paying fees relating to registration.

ISSUE: Whether defence of officially induced error available in Canadian criminal law. If so, whether accused establishing that
conditions under which this defence available have been met.

DECISION: Appeal allowed.

REASONS: As for the defence of officially induced error, although it is available in Canadian criminal law, the company has not
established that the conditions under which it is available have been met.

- R. v. MacDonald, 2014 SCC 3 


97
 - Roach pp. 99-105 


THE ADVERSARIAL PROCEEDING 


23. The Adversarial Process 


As indicated, a trial is the opportunity for the Crown prosecutor to prove the specific allegation
made in the charge (information or indictment) beyond a reasonable doubt. The key
characteristic of the Canadian criminal trial is therefore the specific allegation. This is done
during a trial. It is helpful to understand the trial process to situate what follows: 

- Coughlan, pp. 391 – 424

a) The Presumption of Innocence and the Ultimate Standard of Proof – At a Canadian

trial, the accused is presumed to be innocent, a right guaranteed by s. 11(d) of the
Charter. This means that ultimately, at the end of the whole case, the Crown must prove

98
 the guilt of the accused beyond a reasonable doubt. This is the Crown’s ultimate burden
in both a criminal or regulatory prosecution. The meaning of proof beyond a reasonable
doubt is described in R. v. Lifchus.
- R. v. Lifchus, [1997] 3 S.C.R. 320
- R. v. Starr, [2000] 2 S.C.R. 144
- R. v. J.H.S., 2008 SCC 30
- Roach pp. 51-53 


b) Other Burdens – While the Crown prosecutor must prove guilt beyond a reasonable
doubt at the end of the case, there are other burdens of proof that operate during the
criminal process. There are “evidential” burdens that some rules of law impose in order
for a party who wishes a matter to be placed in issue to succeed in having that matter
placed in issue. For example, if at the end of the Crown’s case in chief the defence argues
that there is no “case to meet” and requests a “directed verdict of acquittal” the judge will
evaluate whether the Crown has shown a prima facie case. This is the same standard that
applies where the accused is entitled to and requests a preliminary inquiry to determine
whether there is a case to answer; the preliminary inquiry judge will discharge the
accused unless the Crown can show a prima facie case. The meaning of the prima facie
case is discussed in R. v. Arcuri below.

Even the accused must at times satisfy an evidential burden in order to have a matter
placed in issue. Indeed, if the accused wants to have a defence considered, the accused
must show that the defence has an “air of reality” to it. If the accused succeeds, the judge
must consider the defence, and in a jury trial must direct the jury on the law that applies
to that defence: R. v. Cinous and R. v. Fontaine illustrate this.

There are numerous rules of evidence called “presumptions” that operate to assign
burdens of proof to the accused. A presumption is a rule of law that directs judges and
jury to assume that a fact is true (known as the “presumed fact”) in any case where the
Crown proves that another fact is true (known as the “basic fact”), unless the accused can
rebut the presumed fact according to the assigned standard of proof. Those presumptions
known as “mandatory presumptions” can be rebutted by the accused simply raising a
reasonable doubt about whether the presumed fact follows from the basic fact. Typically
these can be recognized because the statutory provision will contain language like “in the
absence of evidence to the contrary”. Where a mandatory presumption is rebutted, the
“presumed fact” falls back into issue notwithstanding the presumption, and must be
proved by the Crown in the ordinary way, without the assistance of the presumption.

Other presumptions operate as “reverse onus provisions,” deeming the presumed fact to
exist where the Crown proves the basic fact unless the accused disproves the presumed
fact on the balance of probabilities. A presumption can be recognized as a “mandatory
presumption” because the statutory provision raising the presumption will use language
such as “the proof of which lies on him” or “unless he establishes” to describe the burden
of rebuttal. A presumption will be interpreted as a “mandatory presumption” where it
fails to set out the required standard of rebuttal because of s. 25 (1) of the Interpretation

99
 Act. Many presumptions operate in alcohol driving prosecutions and are used to
determine whether the accused has more than a legal amount of alcohol in her blood
while driving or having care or control of a motor vehicle: See, for example, s. 258 (1)
(a), [a reverse onus provision] and ss. 258 (1) (c), (d.1) and (g), all mandatory
presumptions. Presumptions are prima facie contrary to the Charter and must be saved
under s. 1.
- R. v. Oakes, [1986] 1 S.C.R. 103 

- R. v. Cinous, [2002] 2 S.C.R 3 

- R. v. Fontaine, [2004] 1 S.C.R. 702 

- Roach pp. 53-60 


c) The Neutral Impartial Trier - Another critical component of the adversarial system is the
presence of a neutral, impartial trier of law (to make legal decisions) and a neutral impartial trier
of fact (to make factual findings at the end of the trial). In Canada, more than 95% of all criminal
trials are conducted by a judge alone, so the judge performs the role both of the trier of law and
the trier of fact. Where there is a jury trial, the judge acts as the trier of law, and the jury as the
trier of fact. This means that the judge makes all legal and procedural decisions during the trial,
and directs the jury by instructing them on the law that applies. The jury then makes the factual
decision and renders the holding. In Canada the appropriate sentence is a question of law, and
therefore sentencing is done by the judge and not by the jury. Indeed, the jury should not be told
of the possible sentences for fear that this will inspire a sympathetic rather than a legal verdict.
Requiring the judge to remain neutral and impartial does not require the judge to remain passive.
This is especially so in the case of a self-represented accused, where a trial judge has a duty to
see to it that the accused’s fair trial right is respected. Still, the essence of the adversarial system
is that the parties initiate the proof that is brought forward, not the judge.
- Coughlan, pp. 424 – 435 

- R. v. Gunning, [2005] 1 S.C.R 627 

- R. v. Hamilton, [2004] O.J. No. 3252 (Ont. C.A.) 


d) The Role of the Prosecutor - The prosecutor is an advocate, but also a quasi-judicial
officer. This means that the prosecutor cannot act solely as an advocate, but must make
decisions in the interests of justice and the larger public interest, including the interests of
the accused. The prosecutor has many discretionary decisions that can be made and
should act as a “minister of justice.”
- See, for example, Section 5.1, The Lawyer as Advocate in Chapter 5 -
Relationship to the Administration of Justice, Federation of Law Societies of
Canada, Model Code of Professional Conduct (http://flsc.ca/national-
initiatives/model-code-of- professional-conduct/) (Candidates should consult the
Rules of Professional Conduct in force in the jurisdiction where they are writing
by reviewing the Role of the Prosecutor.) 

- Krieger v. Law Society of Alberta, [2002] 2 S.C.R. 372 


100
 - R. v. Nixon, 2011 SCC 34 

- R. v. Babos, 2014 SCC 16 

- R. v. Anderson, 2014 SCC 41 


e) The Role of the Defence - The defence counsel is an officer of the court, and therefore
must be respectful and honest with the court and must not attempt to mislead the court as
to the state of the law. Subject to this and the rules of law and ethics, the defence counsel
is obliged to act solely in the interests of the accused, advising the accused on the
implications, and propriety, of pleading guilty, securing advantage of all procedural and
constitutional protections available to the accused that are not properly waived; and if the
accused pleads not guilty, preparing the case fully, challenging the sufficiency of
prosecutorial evidence, and advancing all defences that properly arise. 


- See, for example, Section 5.1, The Lawyer as Advocate in Chapter 5 - Relationship to the
Administration of Justice, and Section 3.3, Confidentiality in Chapter 3, Relationship To Clients,
in Federation of Law Societies of Canada, Model Code of Professional Conduct.
(http://flsc.ca/national-initiatives/model-code-of-professional- conduct/) (Candidates should
consult the Rules of Professional Conduct in force in the jurisdiction where they are writing by
reviewing the Role of the defence counsel, including relating to pleas of guilty.)

on syllabus page 24

101