Criminal Defences CED 1

CED Criminal Law Defences Title
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CED Criminal Law Defences Title Canadian Encyclopedic Digest Criminal Law Defences Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. Currency Prepared by Pat Knoll, Q.C., LL.B., of the Alberta Bar, Professor of Law, University of Calgary: October 2005 Updated by the Legal Editorial Staff of Carswell: October 2009 Cases up to and including: [2009] C.C.L. Case Law Digests, No. 7 Legislation up to and including: Canada Gazette No. 143:16, 2009/08/05 Highlights This title has been updated to include the following significant developments which have occurred since the main title was issued. Cases: Supreme Court of Canada R. v. Grant (2009), 2009 CarswellOnt 4104 (S.C.C.): Sets out a test for determining when the admission of evidence obtained by a Charter breach would bring the administration of justice into disrepute. Related Titles Administrative Law; Bailment; Bankruptcy and Insolvency; Conspiracy; Criminal Law Offences; Criminal Law Procedure; Crown; Education; Estoppel; Evidence; Firearms, Weapons and Explosives; Fires; Hospitals; Human Rights; Malicious Prosecution and False Imprisonment; Mental Incapacity; Motor Vehicles; Municipal Corporations; Narcotic Control; Parties; Police; Public Authorities and Public Officers; Religious Institutions; Sentencing; Statutes; Timber; Trespass; Youth Criminal Justice.
Copr. West 2011 No Claim to Orig. Govt. Works
CED Criminal Law Defences Title
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CED Criminal Law Defences Statutes
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CED Criminal Law Defences Statutes Canadian Encyclopedic Digest Criminal Law Defences Tables Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. Table of Statutes Canada Evidence Act, R.S.C. 1985, c. C-5 s. 4......II.1.(a) 44 s. 4(1)......I.2.(h).(ii) 35, II.1.(c).(ii) 47 s. 4(2)......II.1.(c).(iii) 48 s. 4(3)......II.1.(c).(v) 52 s. 4(4)......II.1.(c).(iii) 48 s. 4(5)......II.1.(c).(iv) 49 s. 4(6)......VI.1.(d).(ii) 396 Canadian Charter of Rights and Freedoms, see R.S.C. 1985, App. II (No. 44)......V.2.(a) 312, V.2.(b) 314.1, VI.4.(d) 432 s. 1......V.2.(d) 319 s. 7......I.2.(h).(ii) 33, IV.4.(c) 204, V.2.(c) 315 s. 8......V.2.(c) 316 s. 9......V.2.(c) 317 s. 10......V.2.(c) 318 s. 11(d)......I.2.(f) 21, I.2.(h).(ii) 33 s. 11(h)......V.6.(b).(i) 340 s. 24(1)......I.2.(h).(ii) 33, V.2.(b) 313
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s. 24(2)......V.2.(b) 314, V.2.(c) 315 Competition Act, R.S.C. 1985, c. C-34 s. 67(6)......V.7.(b) 379 Constitution Act, 1867, see R.S.C. 1985, App. II (No. 5)......II.3.(e).(i) 77 s. 9127......VI.13.(a) 500 Constitution Act, 1982, see R.S.C. 1985, App. II (No. 44) s. 52(1)......V.2.(e) 320 Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24 s. 9(3)......V.4.(b) 331 s. 11......III.2 125, III.2 126 s. 14......III.2 125, III.2 126 s. 14(2)......III.2 127 Criminal Code, R.S.C. 1985, c. C-46......I.2.(c) 17 s. 2 "bodily harm"......III.6.(a).(i) 143 s. 2 "mental disorder"......II.4.(a) 83, II.4.(f).(i) 92, IV.2.(e) 179 s. 2 "organization"......VI.4.(b) 426 s. 2 "representative"......VI.4.(c) 428 s. 2 "senior officer"......VI.4.(c) 429, VI.4.(c) 430 s. 5......II.3.(f) 81 s. 6(1)(a)......I.2.(f) 21 s. 6(2)......VI.9.(c).(ii) 477 s. 7......VI.9.(c).(ii) 477 s. 7(4)......II.3.(d).(i) 64 s. 7(4.3)......V.4.(b) 331 s. 7(7)......V.4.(b) 331 s. 8(3)......I.2.(c) 16, I.2.(d) 19
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s. 13......II.3.(a) 57 s. 14......VI.2.(e) 417 s. 15......IV.6.(b).(v) 265 s. 16......I.2.(b) 15, IV.2.(d) 177, IV.2.(e) 178 s. 16(1)......II.4.(a) 83 s. 16(2)......II.4.(b) 84 s. 16(3)......II.4.(d) 86 s. 17......IV.4.(a) 194, IV.4.(b) 203, IV.4.(c) 204 s. 18......IV.4.(e) 206 s. 19......IV.6.(b).(i) 258 s. 21(2)......VI.7.(a) 444 s. 22.1......VI.4.(b) 426 s. 22.2......VI.4.(b) 427, VI.4.(c) 431 s. 23.1......V.6.(e).(iii) 376 s. 24(1)......VI.3.(a).(i) 419 s. 24(2)......VI.3.(c) 423 s. 25(1)......III.3.(a) 128 s. 25(2), (3)......III.3.(a) 129 s. 25(4)......III.3.(a) 130 s. 25(4)(d)......III.3.(a) 130 s. 25(5)......III.3.(a) 130 s. 25.1......III.3.(a) 128 s. 26......III.1.(h) 124, III.3.(g) 136, III.4.(c) 141, III.6.(i) 164 s. 27(a)......III.1.(a) 111, III.3.(b) 131, III.6.(e) 158 s. 27(b)......III.3.(b) 131, III.6.(e) 158 s. 27.1......III.3.(b) 131
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s. 28(1), (2)......III.3.(c) 132 s. 29(1)-(3)......III.3.(d) 133 s. 30, 31......III.3.(e) 134 s. 32(1)......III.3.(f) 135 s. 32(2), (3)......III.2 125, III.3.(f) 135 s. 32(4), (5)......III.3.(f) 135 s. 33......III.3.(f) 135 s. 33.1......IV.2.(f) 184, IV.5.(k).(i) 234 s. 33.1(1)-(3)......IV.5.(c) 213 s. 34(1)......III.6.(a).(i) 143 s. 34(2)......III.6.(a).(ii) 147 s. 35......III.6.(b) 154, IV.9.(a) 279 s. 35(c)......III.6.(f) 160 s. 36......III.6.(c) 155 s. 37......III.6.(d) 157 s. 38(1)......III.1.(b) 112 s. 38(2)......III.1.(b) 113 s. 39(1)......III.1.(c) 114 s. 39(2)......III.1.(c) 115 s. 40......III.1.(d) 116 s. 41(1)......III.1.(e) 117 s. 41(2)......III.1.(e) 119 s. 42(1)......III.1.(f) 120 s. 42(2)......III.1.(f) 121 s. 42(3)......III.1.(f) 122 s. 43......III.4.(a) 137
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s. 45......III.4.(b) 140 s. 46......VI.9.(c).(ii) 477 s. 48(1)......V.7.(a) 378 s. 54......V.4.(b) 331 ss. 57, 58......VI.9.(c).(ii) 477 s. 72(2)......IV.3.(a).(iii) 188 s. 74......VI.9.(c).(ii) 477 s. 119......V.4.(b) 331 s. 136(3)......V.4.(a) 330 s. 150.1......VI.2.(e) 415 s. 150.1(3)......II.3.(a) 58 s. 151......II.1.(c).(iii) 48, VI.2.(e) 415 s. 152......II.1.(c).(iii) 48, VI.2.(e) 415 s. 153......II.1.(c).(iii) 48 s. 153(1)......VI.2.(e) 415 s. 153.1(2)-(6)......VI.2.(e) 416 s. 155......II.1.(c).(iii) 48 s. 159......II.1.(c).(iii) 48 s. 159(2)......VI.2.(e) 415 s. 159(2)(a)......II.1.(a) 44 s. 160(2)......II.1.(c).(iii) 48 s. 160(3)......II.1.(c).(iii) 48, VI.2.(e) 415 s. 163(1)-(5)......III.5 142 s. 164(7)......V.4.(a) 330 s. 170......II.1.(c).(iii) 48 s. 172......II.1.(c).(iii) 48
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s. 172(4)......V.4.(a) 330 s. 173......II.1.(c).(iii) 48 s. 173(2)......VI.2.(e) 415 s. 174(3)......V.4.(a) 330 s. 179......II.1.(c).(iii) 48 s. 189(6)......II.1.(c).(v) 54 s. 212......II.1.(c).(iii) 48 s. 215......II.1.(c).(iii) 48 s. 218......II.1.(c).(iii) 48 ss. 220, 221......II.1.(c).(iii) 48 s. 232......I.2.(b) 15, IV.9.(a) 279 s. 232(1), (2)......IV.9.(b) 280 s. 232(3)(b)......IV.9.(h) 293 ss. 235-237......II.1.(c).(iii) 48 ss. 239, 240......II.1.(c).(iii) 48 s. 251......V.4.(b) 331 s. 265(4)......IV.6.(a).(iii) 246 s. 266-269......II.1.(c).(iii) 48 s. 269.1(3)......III.2 127 s. 271......II.1.(c).(iii) 48, VI.2.(e) 415 s. 272......II.1.(c).(iii) 48, VI.2.(e) 415 s. 273......II.1.(c).(iii) 48, VI.2.(e) 415 ss. 273.1, 273.2......VI.2.(d) 414 s. 280......II.1.(c).(iii) 48, IV.4.(c) 204, VI.2.(e) 415 s. 281......II.1.(c).(iii) 48, IV.4.(c) 204, VI.2.(e) 415 s. 282......II.1.(c).(iii) 48
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s. 282(1)......IV.4.(c) 204, VI.2.(e) 415 s. 283......II.1.(c).(iii) 48, IV.4.(c) 204, VI.2.(e) 415 s. 284......VI.2.(e) 415 s. 286......VI.2.(e) 415 s. 290......VI.9.(c).(ii) 477 ss. 291-294......II.1.(c).(iii) 48 s. 318(3)......V.4.(a) 330 s. 319(6)......V.4.(a) 330 s. 385(2)......V.4.(a) 330 s. 422(3)......V.4.(a) 330 s. 429(2)......IV.3.(a).(iv) 189 s. 465(4)......VI.9.(c).(ii) 477 s. 476......VI.9.(c).(iii) 480 s. 477.2......V.4.(b) 331 s. 478(1)......VI.9.(c).(i) 475, VI.9.(c).(iii) 479 s. 485(2)......V.7.(a) 378 s. 494, 495......III.3.(a) 128 s. 583(b), (g)......VI.9.(e) 484 s. 583(h)......V.4.(f) 335 s. 588......VI.9.(e) 484 s. 601(4.1)(a)......VI.9.(d) 482 s. 601(4.1)(b)......VI.9.(c).(i) 475 s. 606......I.2.(h).(iii).A 37 s. 606(2)......I.2.(h).(iii).D 40 s. 606(4)......I.2.(h).(iii).E 41 s. 607......I.2.(h).(iii).A 37, V.6.(b).(i) 340
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s. 607(3)......V.6.(b).(ii) 341 s. 607(5)......V.6.(b).(ii) 342 s. 608......V.6.(b).(iv) 345 s. 609(1)......V.6.(b).(iv) 346 s. 609(2)......V.6.(b).(iv) 347 s. 610......V.6.(b).(iv) 347 ss. 611, 612......I.2.(h).(iii).A 37 s. 613......I.2.(h).(iii).B 38 s. 650(1), (2)......I.2.(h).(i) 31 s. 650(3)......I.2.(h).(ii) 33 s. 650.01......I.2.(h).(i) 31 ss. 672.31-672.33 ......II.4.(c) 85 ss. 672. 34-672.36......II.4.(a) 83 s. 672.54......II.4.(g) 107 s. 786(2)......V.7.(b) 379, V.7.(b) 384 s. 794(2)......I.2.(g).(iii) 26 s. 803(3)......V.4.(a) 330 Fisheries Act, R.S.C. 1985, c. F-14 s. 82......V.7.(b) 379 Foreign Missions and International Organizations Act, S.C. 1991, c. 41 s. 3......II.3.(d).(i) 64, II.3.(d).(i) 65, II.3.(d).(ii) 66, II.3.(d).(ii) 67, II.3.(d).(ii) 68 s. 5(1)......II.3.(d).(iii) 69, II.3.(d).(iii) 70, II.3.(d).(iii) 71 Sched. I art. 29......II.3.(d).(ii) 66 art. 31......II.3.(d).(ii) 66 Sched. II
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art. 31 2......II.3.(d).(ii) 66 art. 321......II.3.(d).(ii) 66 art. 371......II.3.(d).(ii) 66 art. 372......II.3.(d).(ii) 67 art. 373......II.3.(d).(ii) 67 art. 411......II.3.(d).(i) 64 art. 431......II.3.(d).(i) 64, II.3.(d).(i) 65 art. 44......II.3.(d).(i) 64, II.3.(d).(i) 65 art. 45......II.3.(d).(i) 64 art. 532......II.3.(d).(i) 64 Sched. III, art IV......II.3.(d).(iii) 70 s. 11......II.3.(d).(iii) 69 s. 12......II.3.(d).(iii) 69 s. 22(a), (b)......II.3.(d).(iii) 71 Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) s. 244(4) ......V.7.(b) 379 Interpretation Act, R.S.C. 1985, c. I-21 34......I.1.(c) 11 s. 34(1)(a)......I.1.(c) 12 s. 34(1)(b)......I.1.(c) 13 National Defence Act, R.S.C. 1985, c. N-5 s. 66......II.3.(f) 81 s. 69......V.7.(a) 378 ss. 70, 71......II.3.(f) 81 s. 74......III.2 125 Parliament of Canada Act, R.S.C. 1985, c. P-1
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s. 4......II.3.(e).(i) 77 Privileges and Immunities (North Atlantic Treaty Organization) Act, R.S.C. 1985, c. P-24 Sched., art. 12......II.3.(d).(iv) 72 art. 131(a), (b)......II.3.(d).(iv) 73 art. 17......II.3.(d).(iv) 74 art. 18(a)......II.3.(d).(iv) 74 art. 21 1(a), (b)......II.3.(d).(iv) 75 Statutory Instruments Act, R.S.C. 1985, c. S-22 s. 11(2)......IV.6.(b).(vi) 266 State Immunity Act, R.S.C. 1985, c. S-18 ss. 2, 3......II.3.(d).(v) 76 Visiting Forces Act, R.S.C. 1985, c. V-2 s. 3......II.3.(f) 82 s. 5......II.3.(f) 82 s. 6(1), (2)......II.3.(f) 82 Youth Criminal Justice Act, S.C. 2002, c. 1......II.3.(a) 57 s. 136(1)......II.1.(c).(iii) 48 END OF DOCUMENT
CED Criminal Law Defences Regulations
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CED Criminal Law Defences Regulations Canadian Encyclopedic Digest Criminal Law Defences Tables Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. Table of Regulations Foreign Missions and International Organizations Act, S.C. 1991, c. 41 Privileges and Immunities Accession Order (United Nations), C.R.C. 1978, c. 1317......II.3.(d).(iii) 69 END OF DOCUMENT
CED Criminal Law Defences I.1.(a)
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CED Criminal Law Defences I.1.(a) Canadian Encyclopedic Digest Criminal Law Defences I Introduction 1 Offences (a) Physical Element and Mental Element Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. I.1.(a) See Canadian Abridgment: CRM.I.1 Criminal law General principles Actus reus 1 All true criminal offences require proof of both a physical element and a mental element.[FN1] 2 The physical element, which may be either an act or an omission, is known as the actus reus, or guilty act. There can be no actus reus unless an act is the result of a willing mind at liberty to make a definite choice or decision; in other words, there must be the willpower to do an act whether or not the accused knew it was prohibited by law.[FN2] 3 A defence of reflex action based on a lack of voluntary conduct may be raised in answer to a criminal charge.[FN3] 4 The Crown must also establish a mental element, namely that the accused committed the prohibited act intentionally or recklessly, with knowledge of the facts constituting the offence, or with wilful blindness toward them. Mere negligence is excluded from the concept of the mental element required for conviction; within the context of a criminal prosecution, a person who fails to make such inquiries as a reasonable and prudent person would make, or who fails to know facts he or she should have known, is innocent in the eyes of the law.[FN4] FN1. R. v. King, [1962] S.C.R. 746 (S.C.C.) (accused unaware of likely effect of drug injection by dentist; acquitted of impaired driving); R. v. Martineau, [1990] 2 S.C.R. 633 (S.C.C.) (no conviction for true crime unless proof of intent or recklessness); see also R. v. Beaver, [1957] S.C.R. 531 (S.C.C.); R. v. Laurie (1978), 42 C.C.C. (2d) 311 (N.B. C.A.). FN2. R. v. King, [1962] S.C.R. 746 (S.C.C.); see also Director of Public Prosecutions v. Majewski, [1973] 2 W.L.R. 623 (U.K. H.L.); R. v. Whitter, [1981] 2 S.C.R. 606 (S.C.C.) (independent acts cannot be lumped together to constitute full act required by law); R. v. Moore, [1979] 1 S.C.R. 195 (S.C.C.) (actus reus may be carried out by omission). FN3. R. v. Mullin (1990), 56 C.C.C. (3d) 476 (P.E.I. C.A.) (must be involuntary re-
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sponse over which accused having no control); R. v. Pirozzi (1987), 34 C.C.C. (3d) 376 (Ont. C.A.) (reflex action raised as defence to assault); see also R. v. H. (B.) (1987), 1987 CarswellOnt 3005 (Ont. Youth Ct.); R. v. Wolfe (1974), 20 C.C.C. (2d) 382 (Ont. C.A.); R. v. Starratt, [1972] 1 O.R. 227 (Ont. C.A.). FN4. R. v. Beaver, [1957] S.C.R. 531 (S.C.C.); R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299 (S.C.C.); R. v. Pappajohn, [1980] 2 S.C.R. 120 (S.C.C.); R. v. J. (S.G.) (1992), 77 C.C.C. (3d) 472 (B.C. C.A.) (innocent acquisition of counterfeit money may be cured by transfer to police); R. v. Krushel (2000), 2000 CarswellOnt 325 (Ont. C.A.); leave to appeal refused (2002), 2002 CarswellOnt 4384 (S.C.C.); R. c. Assante (2002), 170 C.C.C. (3d) 199 (Que. C.A.); leave to appeal refused (2003), 2003 CarswellQue 609 (S.C.C.) (lack of mens rea from A.D.D.); R. v. Thornton (1991), 3 C.R. (4th) 381 (Ont. C.A.); affirmed (1993), 21 C.R. (4th) 215 (S.C.C.). END OF DOCUMENT
CED Criminal Law Defences I.1.(b).(i)
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CED Criminal Law Defences I.1.(b).(i) Canadian Encyclopedic Digest Criminal Law Defences I Introduction 1 Offences (b) Categories of Offences (i) Mens Rea Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. I.1.(b).(i) See Canadian Abridgment: CRM.I.2 Criminal law General principles Fault 5 Mens rea offences, which are criminal offences in the true sense, require proof by the prosecution of some positive state of mind such as intent, knowledge or recklessness, either as an inference from the nature of the act committed or by additional evidence.[FN1] 6 Mens rea is a complex concept having different meanings in different contexts, but it is most frequently used to describe the minimum necessary mental element required for criminal liability where a particular mental element is not expressly made a constituent element of the offence. The minimum necessary mental element for most crimes is knowledge of the circumstances which make up the actus reus of the crime, and foresight or intention with respect to any consequences required to constitute the actus reus of the crime.[FN2] 7 In the case of true crimes, there is a presumption that a person should not be held liable for the wrongfulness of an act if it is without mens rea. A provincial legislature may create offences which, although not criminal in the true sense, also require mens rea. This is accomplished by the use of words in the enactment such as willfully, with intent, knowingly or intentionally, or by the structure of the offence.[FN3] 8 Lack of mens rea will provide an accused a complete defence.[FN4] FN1. R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299 (S.C.C.); O'Grady v. Sparling, [1960] S.C.R. 804 (S.C.C.) (intention and recklessness being only states of mind which constitute mens rea); R. v. Sansregret, [1985] 1 S.C.R. 570 (S.C.C.) (recklessness, to form part of criminal mens rea, must have subjective element); R. v. Baril, [1979] 2 S.C.R. 547 (S.C.C.) (Criminal Code offences presumed to import mens rea unless clear indication to contrary); R. v. Pappajohn, [1980] 2 S.C.R. 120 (S.C.C.) (Parliament, by express words, can create criminal offences for which guilty intention not essential ingredient); R. v. Tutton, [1989] 1 S.C.R. 1392 (S.C.C.) (court divided on issue of subjective recklessness versus objective negligence); R. v. Creighton (1993), 23 C.R. (4th) 189
CED Criminal Law Defences I.1.(b).(i)
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(S.C.C.) (test for unlawful act of manslaughter one of objective foresight of bodily harm rather than death); see also R. v. Waite, [1989] 1 S.C.R. 1436 (S.C.C.). FN2. R. v. DeSousa, [1992] 2 S.C.R. 944 (S.C.C.); R. v. Hundal, [1993] 1 S.C.R. 867 (S.C.C.) (modified objective test appropriate for dangerous driving, offence of negligence); R. v. Godin (1994), 31 C.R. (4th) 33 (S.C.C.) (aggravated assault requiring mens rea of objective foresight); R. v. MacGillivray (1995), 37 C.R. (4th) 221 (S.C.C.) (applying objective test of negligence for dangerous driving); see also R. v. Throux, [1993] 2 S.C.R. 5 (S.C.C.); R. v. Zlatic, [1993] 2 S.C.R. 29 (S.C.C.). FN3. Strasser v. Roberge, [1979] 2 S.C.R. 953 (S.C.C.) (intentional element in provincial offence not necessarily excluding it from strict or absolute liability category). FN4. R. v. Kundeus, [1976] 2 S.C.R. 272 (S.C.C.) (where mens rea not proved, accused to be acquitted); R. v. Savinkoff (1962), 39 C.R. 306 (B.C. C.A.) (must be proof of mens rea before conviction); R. v. Elder, [1978] 3 W.W.R. 351 (Sask. Dist. Ct.); R. v. Murray (1985), 36 M.V.R. 12 (Ont. C.A.); R. v. Desveaux (1986), 51 C.R. (3d) 173 (Ont. C.A.) (alcohol, drugs, provocation and excessive force in self-defence relevant to issue of intent); R. c. Parent (2001), 154 C.C.C. (3d) 1 (S.C.C.) (anger cannot negate mens rea). END OF DOCUMENT
CED Criminal Law Defences I.1.(b).(ii)
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CED Criminal Law Defences I.1.(b).(ii) Canadian Encyclopedic Digest Criminal Law Defences I Introduction 1 Offences (b) Categories of Offences (ii) Strict Liability Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. I.1.(b).(ii) See Canadian Abridgment: CRM.I.2.f.ii Criminal law General principles Fault Regulatory offences Defence of due diligence 9 Strict liability offences are offences where there is no necessity for the prosecution to prove the existence of mens rea. The doing of the prohibited act prima facie imports the offence. It is open to the accused, however, to avoid liability by proving that he or she took all reasonable care. This involves consideration of what a reasonable person would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he or she took all reasonable steps to avoid the particular event.[FN1] FN1. R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299 (S.C.C.); R. v. Harris (1997), 121 C.C.C. (3d) 64 (N.S. C.A.) (excessive by-catch of haddock resulting from failure of crewman to follow accused's instructions; accused's method for preventing excessive bycatch not perfect but working for previous three years and reasonable in circumstances; acquittal restored); R. v. Smillie (1998), 20 C.R. (5th) 179 (B.C. C.A.) (offence under s. 86(3) of storing firearms in manner contrary to regulations quasi-regulatory offence of strict liability; defence of due diligence open to accused); R. v. Tavares (1996), 451 A.P.R. 154 (Nfld. C.A.) (off-shore fishing); see also R. v. Chapin, [1979] 2 S.C.R. 121 (S.C.C.) (for offences of strict liability, mistake must be reasonable); R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154 (S.C.C.) (defence of due diligence to be proven on balance of probabilities); CanadianOxy Chemicals Ltd. v. Canada (Attorney General) (1999), 23 C.R. (5th) 259 (S.C.C.) ("evidence with respect to the commission of an offence" in Criminal Code provision authorizing issuance of search warrant pertaining to evidence of due diligence in regulatory offence); but see Strasser v. Roberge, [1979] 2 S.C.R. 953 (S.C.C.) (some strict or absolute liability offences may have intentional element); R. v. Rube, [1992] 3 S.C.R. 159 (S.C.C.) (presumption that offence strict rather than absolute liability due to Canadian Charter of Rights and Freedoms); R. v. Pontes (1995), 100 C.C.C. (3d) 353 (S.C.C.) (if no due diligence defence then cannot be strict liability offence).
CED Criminal Law Defences I.1.(b).(ii)
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CED Criminal Law Defences I.1.(b).(iii)
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CED Criminal Law Defences I.1.(b).(iii) Canadian Encyclopedic Digest Criminal Law Defences I Introduction 1 Offences (b) Categories of Offences (iii) Absolute Liability Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. I.1.(b).(iii) See Canadian Abridgment: CRM.I.2.f.i Criminal law General principles Fault Regulatory offences Absolute 10 Offences where it is not open to the accused to exculpate himself by showing he was free of fault are considered absolute liability offences.[FN1] FN1. R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299 (S.C.C.); R. v. DeSousa, [1992] 2 S.C.R. 944 (S.C.C.) (s. 7 of Charter may provide protection against absolute liability in some instances); R. v. Kurtzman (1991), 4 O.R. (3d) 417 (Ont. C.A.) (failure to stop at red light offence of absolute liability); R. v. Martin (1991), 2 O.R. (3d) 16 (Ont. C.A.); affirmed (1992), 7 O.R. (3d) 319 (S.C.C.) (must be clearly indicated that offence one of absolute liability); R. v. Geraghty (1990), 22 M.V.R. (2d) 57 (B.C. C.A.) (absolute liability unconstitutional if coupled with imprisonment); R. v. Pontes (1995), 100 C.C.C. (3d) 353 (S.C.C.) (minimum period of imprisonment constitutionally inapplicable to section creating absolute liability offence); see also 454-458. END OF DOCUMENT
CED Criminal Law Defences I.1.(c)
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CED Criminal Law Defences I.1.(c) Canadian Encyclopedic Digest Criminal Law Defences I Introduction 1 Offences (c) Summary and Indictable Offences Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. I.1.(c) See Canadian Abridgment: CRM.I.4.a.i Criminal law General principles Jurisdiction Classification of offences Indictable offences; CRM.I.4.a.ii Criminal law General principles Jurisdiction Classification of offences Summary conviction offences 11 A criminal offence may be prosecuted summarily or by indictment.[FN1] 12 An offence is deemed to be an indictable offence if it may be prosecuted by indictment.[FN2] 13 An offence is deemed to be a summary conviction offence if the context of the legislation creating the offence does not indicate that the offence is indictable.[FN3] FN1. Interpretation Act, R.S.C. 1985, c. I-21, s. 34; R. v. Sacobie (1979), 2 F.P.R. 259 (N.B. C.A.); affirmed (1983), 3 F.P.R. 1 (S.C.C.) (principles regarding prosecution of non-criminal offences). FN2. Interpretation Act, R.S.C. 1985, c. I-21, s. 34(1)(a); see also Criminal Law Procedure. FN3. Interpretation Act, R.S.C. 1985, c. I-21, s. 34(1)(b); see also Criminal Law Procedure. END OF DOCUMENT
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CED Criminal Law Defences I.2.(a) Canadian Encyclopedic Digest Criminal Law Defences I Introduction 2 Defences (a) Defence Defined Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. I.2.(a) See Canadian Abridgment: CRM.V Criminal law Defences 14 A defence is any answer which defeats the charge on the facts, or any means or argument on the law which has the same result.[FN1] FN1. R. v. Romer (1914), 23 C.C.C. 235 (Que. Pol. Ct.); R. v. Chaulk, [1990] 3 S.C.R. 1303 (S.C.C.) (in general sense defence being answer which defeats criminal charge). END OF DOCUMENT
CED Criminal Law Defences I.2.(b)
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CED Criminal Law Defences I.2.(b) Canadian Encyclopedic Digest Criminal Law Defences I Introduction 2 Defences (b) General Defences and Particular Defences Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. I.2.(b) See Canadian Abridgment: CRM.V Criminal law Defences 15 Some defences, such as alibi, necessity, duress and mental disorder defences of general application, if raised, may provide a complete defence.[FN1] Other defences, such as colour of right, provocation and intoxication, are available only for certain offences or provide only a partial defence to the offence charged.[FN2] FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 16 [re-en. 1991, c. 43, s. 2] (no person criminally responsible when suffering from mental disorder). FN2. Criminal Code, R.S.C. 1985, c. C-46, s. 232 (murder may be reduced to manslaughter if act caused by provocation); see also R. v. Mulligan, [1977] 1 S.C.R. 612 (S.C.C.) (intoxication can reduce murder to manslaughter). END OF DOCUMENT
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CED Criminal Law Defences I.2.(c) Canadian Encyclopedic Digest Criminal Law Defences I Introduction 2 Defences (c) Common Law Defences Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. I.2.(c) See Canadian Abridgment: CRM.V Criminal law Defences 16 Every rule and principle of the common law that renders any circumstances a justification or excuse for an act, or a defence to a charge, continues to be a justification, excuse or a defence under the Criminal Code or other law of Canada, except in so far as such a rule or principle is altered by or is inconsistent with the Criminal Code or other Act of Parliament.[FN1] This provision has been interpreted in reference to such common law defences as duress,[FN2] necessity[FN3] and res judicata.[FN4] 17 The Criminal Code[FN5] does not restrict the courts to a static view of common law defences. New defences may be recognized as the common law evolves and develops. This common law development may occur independently in Canadian criminal law or by recognition of common law development in foreign jurisdictions.[FN6] 18 The courts may consider pre-existing common law rules to give meaning to and explain the parameters of any existing defence.[FN7] FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 8(3). FN2. R. v. Paquette (1976), [1977] 2 S.C.R. 189 (S.C.C.). FN3. Perka v. R., [1984] 2 S.C.R. 232 (S.C.C.). FN4. R. v. Kienapple, [1975] 1 S.C.R. 729 (S.C.C.). FN5. Criminal Code, R.S.C. 1985, c. C-46. FN6. R. v. Seaboyer (1987), 58 C.R. (3d) 289 (Ont. C.A.); affirmed [1991] 2 S.C.R. 577 (S.C.C.) (guidelines for exercise of power to develop and change common law); R. v. Salituro, [1991] 3 S.C.R. 654 (S.C.C.) (common law rule of spousal incompetency modified); R. v. Swain, [1991] 1 S.C.R. 933 (S.C.C.) (new common law rules for insanity defence; Charter applying to common law rules as well as to statutes and regulations); R. c.
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Daviault (1994), 93 C.C.C. (3d) 21 (S.C.C.) (common law rule for intoxication defence altered). FN7. R. v. Jobidon, [1991] 2 S.C.R. 714 (S.C.C.) (defence of consent); see also R. v. Kirzner, [1978] 2 S.C.R. 487 (S.C.C.). END OF DOCUMENT
CED Criminal Law Defences I.2.(d)
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CED Criminal Law Defences I.2.(d) Canadian Encyclopedic Digest Criminal Law Defences I Introduction 2 Defences (d) Nature of Justification and Excuse Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. I.2.(d) See Canadian Abridgment: CRM.V.13.a.ii Criminal law Defences Lawful authority To administer or enforce law Justification for use of force; CRM.V.21.e Criminal law Defences Self defence Effect of provocation; CRM.V Criminal law Defences 19 Under the common law, many defences were considered to be defences of either justification or excuse.[FN1] A justification defence challenges the wrongfulness of an action that technically constitutes a crime, by showing that the circumstances made the action rightful and therefore justified; the actors are to be praised as having been motivated by some great or noble object.[FN2] An excuse defence concedes the wrongfulness of the action, but asserts that the circumstances under which it was done were such that it ought not to be attributed to the actor.[FN3] FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 8(3). FN2. Perka v. R., [1984] 2 S.C.R. 232 (S.C.C.), per Dickson J. FN3. Perka v. R., [1984] 2 S.C.R. 232 (S.C.C.), per Dickson J. END OF DOCUMENT
CED Criminal Law Defences I.2.(e)
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CED Criminal Law Defences I.2.(e) Canadian Encyclopedic Digest Criminal Law Defences I Introduction 2 Defences (e) Duty of Trial Judge Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. I.2.(e) See Canadian Abridgment: CRM.I.4.b.ii Criminal law General principles Jurisdiction Jurisdiction of court Superior court; CRM.I.4.b.iv Criminal law General principles Jurisdiction Jurisdiction of court Provincial court judge 20 It is the duty of a trial judge to submit to the jury any defence available to the accused that is revealed by the evidence, whether or not counsel for the accused chose to advance that defence in his or her address to the jury.[FN1] The fact that a defending counsel does not stress an alternative defence before the jury which may be difficult to do without prejudicing the main defence does not relieve the judge from the duty of directing the jury to consider the alternative defence, if there is evidence to justify its consideration.[FN2] FN1. R. v. Pappajohn, [1980] 2 S.C.R. 120 (S.C.C.); R. v. Young, [1981] 2 S.C.R. 39 (S.C.C.); R. v. Wiggins (1988), 42 C.C.C. (3d) 303 (B.C. C.A.); affirmed [1990] 1 S.C.R. 62 (S.C.C.) (theory of defence to be provided, not just serial review of evidence); R. v. Delong (1989), 69 C.R. (3d) 147 (Ont. C.A.) (reading of Criminal Code sections concerning defences unacceptable); R. v. Morin, [1988] 2 S.C.R. 345 (S.C.C.) (inconsistent defences may be advanced by accused); R. v. Sims (1994), 87 C.C.C. (3d) 402 (B.C. C.A.) (no requirement of putting self-defence to jury after accused denying it); see also R. v. Cosgrove (1975), 29 C.C.C. (2d) 169 (Ont. C.A.) (counsel for accused with inconsistent defences arguing only one before jury, but requesting other be put by trial judge); R. v. Funell (1973), 12 C.C.C. (2d) 215 (Ont. C.A.). FN2. Mancini v. Director of Public Prosecutions, [1942] A.C. 1 (U.K. H.L.); R. v. Murray (1994), 93 C.C.C. (3d) 70 (Ont. C.A.) (trial judge having obligation to instruct jury with respect to defences reasonably arising from evidence notwithstanding objections by accused's counsel); see also R. v. Ct, [1964] S.C.R. 358 (S.C.C.) (improper for defence counsel to intentionally fail to raise defence at trial with view to pursuit in appeal court of defence not raised); R. v. Wu, [1934] S.C.R. 609 (S.C.C.); R. c. Lessard, [1992] R.J.Q. 1205 (Que. C.A.); leave to appeal refused (1992), 145 N.R. 390 (note) (S.C.C.) (theory of defence to be given to jury; however, if defence having no air of reality, judge may instruct to disregard); R. c. Aflalo, [1991] R.J.Q. 2131 (Que. C.A.); leave to appeal re-
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fused (1992), 71 C.C.C. (3d) vii (note) (S.C.C.) (judge must present fair and sufficient outline of defence theory); R. v. Charest (1990), 76 C.R. (3d) 63 (Que. C.A.) (trial judge to inform counsel prior to jury address if defence not available). END OF DOCUMENT
CED Criminal Law Defences I.2.(f)
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CED Criminal Law Defences I.2.(f) Canadian Encyclopedic Digest Criminal Law Defences I Introduction 2 Defences (f) Presumption of Innocence Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. I.2.(f) See Canadian Abridgment: CRM.III.12 Criminal law Canadian Bill of Rights Presumption of innocence; EVD.II.7.b Evidence Proof Presumptions Of innocence 21 Under the Criminal Code an accused is deemed not guilty until convicted of the offence.[FN1] At common law, one is presumed innocent until guilt is proven beyond a reasonable doubt.[FN2] FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 6(1)(a) [re-en. c. 27 (1st Supp.), s. 4; am. 1995, c. 22, Sched. I, item 1]; R. v. Osolin (1993), 86 C.C.C. (3d) 481 (S.C.C.) (evidential burden on accused not affronting presumption of innocence). FN2. R. v. Dick (1947), 2 C.R. 417 (Ont. C.A.); R. v. Oakes, [1986] 1 S.C.R. 103 (S.C.C.) (presumption of innocence having long-standing recognition at common law); see also Canadian Charter of Rights and Freedoms, see R.S.C. 1985, App. II (No. 44), s. 11(d) (any person charged with offence presumed innocent until proven guilty); R. v. Schwartz, [1988] 2 S.C.R. 443 (S.C.C.) (proof for gun registration certificate not violation of presumption or Charter); Trumbley v. Metropolitan Toronto Police Force, [1987] 2 S.C.R. 577 (S.C.C.) (presumption applying to all criminal and quasi-criminal proceedings); R. v. Downey, [1992] 2 S.C.R. 10 (S.C.C.) (mandatory presumption shifting evidential burden to accused may be constitutional). END OF DOCUMENT
CED Criminal Law Defences I.2.(g).(i)
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CED Criminal Law Defences I.2.(g).(i) Canadian Encyclopedic Digest Criminal Law Defences I Introduction 2 Defences (g) Persuasive and Evidential Burdens (i) General Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. I.2.(g).(i) See Canadian Abridgment: CRM.IV.19.c Criminal law Charter of Rights and Freedoms Presumption of innocence [s. 11(d)] Evidentiary burdens; CRM.IV.19.d Criminal law Charter of Rights and Freedoms Presumption of innocence [s. 11(d)] Persuasive burdens; EVD.II.5 Evidence Proof Persuasive burden; EVD.II.6 Evidence Proof Evidentiary burden 22 In judicial proceedings one or more burdens concerning evidence arise. A major burden or legal persuasive burden that never shifts requires the party with that burden to prove or disprove what the law and circumstances require. There can also be a minor burden, or evidential burden, which is not a burden of proof but a burden to introduce evidence of some matter sufficient to raise a triable issue.[FN1] FN1. R. v. Oakes, [1986] 1 S.C.R. 103 (S.C.C.) (Narcotic Control Act, R.S.C. 1970, c. N-1, s. 8, unconstitutional as offending presumption of innocence set out in s. 11(d) of Charter of Rights); see also R. v. Latour, [1951] S.C.R. 19 (S.C.C.); Woolmington v. Director of Public Prosecutions, [1935] A.C. 462 (U.K. H.L.) (evidential burden calling for evidence which raises reasonable doubt); R. v. Downey, [1992] 2 S.C.R. 10 (S.C.C.). END OF DOCUMENT
CED Criminal Law Defences I.2.(g).(ii)
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CED Criminal Law Defences I.2.(g).(ii) Canadian Encyclopedic Digest Criminal Law Defences I Introduction 2 Defences (g) Persuasive and Evidential Burdens (ii) Burden on Crown Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. I.2.(g).(ii) See Canadian Abridgment: CRM.IV.19.c Criminal law Charter of Rights and Freedoms Presumption of innocence [s. 11(d)] Evidentiary burdens; CRM.IV.19.d Criminal law Charter of Rights and Freedoms Presumption of innocence [s. 11(d)] Persuasive burdens; EVD.II.5 Evidence Proof Persuasive burden; EVD.II.6 Evidence Proof Evidentiary burden 23 There is a burden of proof on the Crown that is a persuasive and permanent burden requiring the Crown to prove or establish ultimately its case beyond all reasonable doubt.[FN1] 24 If at the end of, and on the whole of, the case there is reasonable doubt created by the evidence given by the prosecution or defence, or given in cross-examination, the prosecution has not made out its case and the accused is entitled to an acquittal.[FN2] 25 Because the accused has the presumption of innocence, the prosecution normally bears both evidential and legal burden with respect to the essential elements of the offence. The evidential burden is to adduce sufficient evidence that the accused committed the act with the necessary intent, while the legal burden is to prove these matters beyond a reasonable doubt.[FN3] FN1. R. v. Starr (2000), 36 C.R. (5th) 1 (S.C.C.) (reasonable doubt closer to absolute certainty); R. v. Roberts (2004), 185 C.C.C. (3d) 382 (Alta. C.A.); affirmed (2005), 191 C.C.C. (3d) 466 (S.C.C.); R. v. Oakes, [1986] 1 S.C.R. 103 (S.C.C.); R. v. Gordon (1983), 4 C.C.C. (3d) 492 (Ont. C.A.) (proof beyond reasonable doubt and to moral certainty synonymous); R. v. Morin, [1988] 2 S.C.R. 345 (S.C.C.) (jury to be instructed that facts not to be examined separately and in isolation to criminal standard, but as whole); R. v. Fischer (1987), 31 C.C.C. (3d) 303 (Sask. C.A.) (proof to "satisfaction" not to be equated with proof beyond reasonable doubt); R. v. R. (R.L.) (1988), 65 C.R. (3d) 235 (Ont. C.A.); affirmed [1991] 1 S.C.R. 115 (S.C.C.) (standard of proof not varying with seriousness of offence); R. v. Brydon (1995), 101 C.C.C. (3d) 481 (S.C.C.).
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FN2. Woolmington v. Director of Public Prosecutions, [1935] A.C. 462 (U.K. H.L.); R. v. Evans (1993), 21 C.R. (4th) 321 (S.C.C.) (charge to jury on reasonable doubt not to be process of isolation); R. v. Lifchus (1997), 9 C.R. (5th) 1 (S.C.C.) (jury to be properly instructed on Crown burden). FN3. R. v. Boyle (1983), 35 C.R. (3d) 34 (Ont. C.A.); see also R. v. Cullum (1973), 14 C.C.C. (2d) 294 (Ont. Co. Ct.) (Crown having onus throughout to prove each element of offence beyond reasonable doubt); R. v. Morin, [1988] 2 S.C.R. 345 (S.C.C.). END OF DOCUMENT
CED Criminal Law Defences I.2.(g).(iii)
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CED Criminal Law Defences I.2.(g).(iii) Canadian Encyclopedic Digest Criminal Law Defences I Introduction 2 Defences (g) Persuasive and Evidential Burdens (iii) Burden on Defence Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. I.2.(g).(iii) See Canadian Abridgment: CRM.IV.19.c Criminal law Charter of Rights and Freedoms Presumption of innocence [s. 11(d)] Evidentiary burdens; CRM.IV.19.d Criminal law Charter of Rights and Freedoms Presumption of innocence [s. 11(d)] Persuasive burdens; EVD.II.5 Evidence Proof Persuasive burden; EVD.II.6 Evidence Proof Evidentiary burden 26 Generally speaking, no onus lies upon an accused in criminal proceedings to prove or disprove any fact. It is sufficient for acquittal if any of the facts which, if they existed, would constitute the offence with which he or she is charged are not proved.[FN1] This general rule is, however, subject to exceptions created by the common law and statutory enactments that may place evidentiary or persuasive burdens on the defence.[FN2] 27 The law creates various rebuttable presumptions against an accused to be met under a variety of burdens. An accused may be required merely to raise a reasonable doubt as to the existence of the presumed fact. Secondly, he or she may have an evidentiary burden to adduce sufficient evidence to bring into question the truth of the presumed fact. Finally, he or she may have a legal or persuasive burden to prove on a balance of probabilities the non-existence of the presumed fact.[FN3] 28 Where the law provides for a legal or persuasive burden on the accused,[FN4] the burden of proof on the accused will be on a balance of probabilities.[FN5] 29 Where an accused wishes to raise a defence that does not arise on the evidence in the case for the Crown, he or she has an evidential burden to introduce evidence to make the defence a triable issue. The test respecting the evidential burden is whether there is some evidence on the record upon which a properly instructed jury, acting reasonably, could acquit on the basis of that defence.[FN6] 30 Where the offence charged is a public welfare offence of strict liability there is a burden on the defence to prove due diligence, or all reasonable care, on a balance of probabilit-
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ies.[FN7] FN1. Public Prosecutor v. Yuvaraj, [1970] A.C. 913 (Eng. P.C.); R. v. Johnson (1993), 79 C.C.C. (3d) 42 (Ont. C.A.); leave to appeal refused (1993), 84 C.C.C. (3d) vi (S.C.C.) (silence of accused not filling in missing elements of offence); R. v. Anderson (2003), 19 C.R. (6th) 152 (Ont. C.A.) (no burden on defence that defence true). FN2. R. v. Oakes, [1986] 1 S.C.R. 103 (S.C.C.); R. v. Osolin (1993), 86 C.C.C. (3d) 481 (S.C.C.) (defence of mistaken belief in consent requiring air of reality); see also Criminal Code, R.S.C. 1985, c. C-46, s. 794(2) (burden of proving exception, exemption, proviso, excuse or qualification on defendant); R. v. Appleby, [1972] S.C.R. 303 (S.C.C.); Woolmington v. Director of Public Prosecutions, [1935] A.C. 462 (U.K. H.L.) (insanity being exception to general rule that Crown carrying onus of proof); Smythe v. R., [1941] S.C.R. 17 (S.C.C.) (insanity when raised by defence to be proved on balance of probabilities); R. v. Hundt, [1971] 3 W.W.R. 741 (Alta. C.A.) (burden of defence to prove exceptions or excuses); R. v. Daniels (1990), 60 C.C.C. (3d) 392 (B.C. C.A.) (Crown need not prove accused not having fisheries permit). FN3. R. v. Romeo, [1991] 1 S.C.R. 86 (S.C.C.) (burden of proof for insanity defence constitutional); R. v. Keegstra, [1990] 3 S.C.R. 697 (S.C.C.) (reverse onus provision valid); Bergeron v. Qubec (Procureur gnral) (1995), 101 C.C.C. (3d) 69 (Que. C.A.) (provincial offence reversing onus of proof on element of intent; legislation read down to impose evidential burden on accused); see also R. v. Andrews, [1990] 3 S.C.R. 870 (S.C.C.); R. v. Holmes, [1988] 1 S.C.R. 914 (S.C.C.); R. v. Schwartz, [1988] 2 S.C.R. 443 (S.C.C.) (some reverse onus provisions not violating Charter); but see R. v. Whyte, [1988] 2 S.C.R. 3 (S.C.C.) (reverse onus provision concerning matter affecting culpability unconstitutional). FN4. R. v. Proudlock, [1979] 1 S.C.R. 525 (S.C.C.); Perka v. R., [1984] 2 S.C.R. 232 (S.C.C.) (accused bearing only evidential burden for justification or excuse); R. v. Downey, [1992] 2 S.C.R. 10 (S.C.C.) (presumption shifting evidential burden to accused may be constitutional); R. v. Schwartz, [1988] 2 S.C.R. 443 (S.C.C.) (those with evidential burden not required to prove anything; only required to point out evidence which is suggestive); R. v. R. (J.D.), [1987] 1 S.C.R. 918 (S.C.C.) (accused carrying evidential burden for mistake of fact). FN5. R. v. Oakes, [1986] 1 S.C.R. 103 (S.C.C.); R. v. Appleby, [1972] S.C.R. 303 (S.C.C.). FN6. R. c. Fontaine (2004), 18 C.R. (6th) 203 (S.C.C.) ("air of reality test" adds nothing to this standard). FN7. R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299 (S.C.C.); R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154 (S.C.C.) (onus on accused to prove defence on balance of probabilities constitutional); see also R. v. Ellis-Don Ltd., [1992] 1 S.C.R. 840 (S.C.C.); R. v. Martin, [1992] 1 S.C.R. 838 (S.C.C.); R. v. MacMillan Bloedel Ltd. (2002), 5 C.R. (6th) 129 (B.C. C.A.); R. v. Tavares (1996), 451 A.P.R. 154 (Nfld. C.A.).
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END OF DOCUMENT
CED Criminal Law Defences I.2.(h).(i)
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CED Criminal Law Defences I.2.(h).(i) Canadian Encyclopedic Digest Criminal Law Defences I Introduction 2 Defences (h) Procedure (i) Right to be Present at Trial Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. I.2.(h).(i) See Canadian Abridgment: CRM.VIII.3.f Criminal law Trial procedure Rights of accused Presence at trial 31 An accused has the right to be present during the whole of his or her trial.[FN1] This right provides for the accused to be present and have direct knowledge of anything that transpires in the course of the trial which could involve his or her vital interests.[FN2] 32 Proceedings that involve the accused's vital interests are the arraignment, plea, empanelling the jury, reception of evidence, voir dire proceedings, rulings on evidence, arguments of counsel, addresses and charges to the jury, reception of the verdict, and sentence proceedings where guilt is found. Also included are proceedings conducted by the judge during the trial for the purpose of investigating matters that have occurred outside the trial but which may affect its fairness. Events which, although in one sense part of the trial, have no bearing on the substantive conduct of the trial, or on the issue of guilt or innocence, are excluded.[FN3] FN1. Criminal Code, R.S.C. 1985, c. C-46, ss. 650(1) [re-en. 2003, c. 21, s. 12], (2) [am. 1991, c. 43, Sched., s. 4] (exceptions), s. 650.01 [en. 2002, c. 13, s. 61]; R. v. Gates (2002), 2 C.R. (6th) 333 (B.C. C.A.); leave to appeal refused (2002), 305 N.R. 399 (note) (S.C.C.) (judgment over phone improper); see also Criminal Law Procedure. FN2. R. v. Ct , [1986] 1 S.C.R. 2 (S.C.C.); R. v. Chambers, [1990] 2 S.C.R. 1293 (S.C.C.) (inquiry by trial judge not part of trial; however, better approach to include accused); R. v. Butler (1993), 21 C.R. (4th) 27 (Man. Q.B.) (accused may be absent from trial for medical reasons); R. v. Fecteau (1989), 71 C.R. (3d) 67 (Ont. H.C.) (accused not present where guilty plea by use of closed-circuit television); R. v. Bitternose (2009), 2009 CarswellSask 274 (Sask. C.A.) (accused refusing to remain present in trial; observing trial proceedings from separate room by audio-visual link; measures taken to compensate for accused's absence; accused having means and opportunity to acquire direct knowledge of all matters affecting his vital interests).
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FN3. R. v. Pilotte (2002), 163 C.C.C. (3d) 225 (Ont. C.A.); leave to appeal refused (2003), 2003 CarswellOnt 430 (S.C.C.) (no right to be present at closed meeting to discuss claim of privilege); R. v. Ct, [1986] 1 S.C.R. 2 (S.C.C.) (new trial ordered where judge examining two jurors on partiality in absence of accused); R. v. Legere (1994), 95 C.C.C. (3d) 139 (N.B. C.A.) (in absence of accused, judge refusing adjournment and reviewing questions to be asked of jurors; no breach); R. v. Quick (1993), 82 C.C.C. (3d) 51 (B.C. C.A.); leave to appeal refused (1994), 88 C.C.C. (3d) vi (S.C.C.) (chambers discussions concerning procedural issues and evidence not affecting vital interests); see also R. v. Hertrich (1982), 67 C.C.C. (2d) 510 (Ont. C.A.); leave to appeal refused (1982), 45 N.R. 629n (S.C.C.) (improper to examine jurors on matter of vital interest in presence of counsel but in absence of accused); R. v. Tzimopoulos (1986), 54 C.R. (3d) 1 (Ont. C.A.); leave to appeal refused (1987), 54 C.R. (3d) xxvii (S.C.C.) (where trial continuing in absence of absconding accused, no breach of Charter); R. v. Garofoli, [1990] 2 S.C.R. 1421 (S.C.C.) (trial may continue in absence of absconded accused); R. v. Halliday (1992), 77 C.C.C. (3d) 481 (Man. C.A.) (note from jury matter of vital interest; however, error procedural and not prejudicial). END OF DOCUMENT
CED Criminal Law Defences I.2.(h).(ii)
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CED Criminal Law Defences I.2.(h).(ii) Canadian Encyclopedic Digest Criminal Law Defences I Introduction 2 Defences (h) Procedure (ii) Right to Full Answer and Defence Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. I.2.(h).(ii) See Canadian Abridgment: CRM.IV.12.c Criminal law Charter of Rights and Freedoms Life, liberty and security of person [s. 7] Right to make full answer and defence; CRM.VIII.3.h Criminal law Trial procedure Rights of accused Right to make full answer and defence 33 An accused is entitled, after the close of the case for the prosecution, to make full answer and defence personally or by counsel.[FN1] The right to make full answer and defence has constitutional dimensions. A violation of the right may entitle the accused to a stay of proceedings if it is one of those clearest of cases where a stay is the only appropriate remedy.[FN2] An order for production or an adjournment is more often the appropriate remedy at trial,[FN3] but is no longer available on an appeal from conviction. The accused is entitled to a remedy upon establishing an impairment of the right to make full answer and defence but the degree of impairment or prejudice to his or her rights must be assessed and considered in relation to the remedy sought. An accused who seeks a stay of proceedings must prove on a balance of probabilities an impairment of the right to make full answer and defence and irreparable prejudice to that right. If the accused seeks a new trial, he or she need only persuade the appellate court of the reasonable possibility that the breach affected the outcome at trial or the overall fairness of the trial process.[FN4] 34 Full answer and defence is, firstly, the ability to probe the evidence of the Crown. Secondly, it is the right to adduce all evidence not known to be false that may raise a conviction of innocence or reasonable doubt of guilt. Finally, it is the right to make submissions to the trier of fact on the law and on the evidence.[FN5] 35 The right to full answer and defence includes the right to full cross-examination of prosecution witnesses,[FN6] the right to call witnesses and the accused to testify,[FN7] the right not to be taken by surprise by newly discovered evidence or evidence not disclosed at the preliminary,[FN8] the right to present argument[FN9] and the right not to be unduly interfered with by the trial judge by excessive judicial cross-examination of witnesses.[FN10] Disclosure of the contents of a sealed wiretap packet has also been found to be necessary for an accused
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to make full answer and defence.[FN11] 36 Full answer and defence also includes the right to the assistance of able and effective counsel.[FN12] The right to assistance of effective counsel has common law, statutory and constitutional roots.[FN13] FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 650(3); R. v. Seaboyer (1991), 66 C.C.C. (3d) 321 (S.C.C.) (s. 7 of Charter grounds full answer and defence). FN2. Canadian Charter of Rights and Freedoms, see R.S.C. 1985, App. II (No. 44), ss. 7, 11(d), 24(1); R. v. La (1997), 8 C.R. (5th) 155 (S.C.C.) (on facts of case, loss of tape recording not amounting to abuse of process or denying right to full answer and defence; stay not warranted); R. v. Wicksted (1996), 29 O.R. (3d) 144 (Ont. C.A.); affirmed (1997), 31 O.R. (3d) 800 (S.C.C.) (accused's rights violated but facts not warranting stay of proceedings; documents and records remaining available; adjournment appropriate remedy); R. v. Carosella (1997), 4 C.R. (5th) 139 (S.C.C.) (sexual assault crisis centre adopting policy of taking misleading notes and shredding files in which application for production possible; destruction of file preventing accused from making full answer and defence; stay of proceedings entered); R. v. Majid (1997), 119 C.C.C. (3d) 161 (Sask. Q.B.) (herpes simplex encephalitis irreparably damaging accused's memory; tapes and transcripts of accused's evidence at first trial available; no prejudice sufficient to deny accused right to make full answer and defence; stay denied); see also R. v. McQuaid (1998), 13 C.R. (5th) 217 (S.C.C.) (accused having to demonstrate on balance of probabilities that right to disclosure infringed and that failure to disclose impairing right to make full answer and defence; burden discharged if accused showing reasonable possibility that non-disclosure affecting outcome at trial or overall fairness of trial process; lack of due diligence by defence counsel in pursuing Crown disclosure significant factor in assessing overall fairness); see also Constitutional Law. FN3. R. v. McQuaid (1998), 13 C.R. (5th) 217 (S.C.C.); R. v. Bjelland (2009), 2009 CarswellAlta 1110 (S.C.C.) (Crown breaching accused's right to make full answer and defence; appropriate remedy adjournment and disclosure order rather than exclusion of evidence). FN4. R. v. McQuaid (1998), 13 C.R. (5th) 217 (S.C.C.); see also R. v. Carosella (1997), 4 C.R. (5th) 139 (S.C.C.); R. v. Baxter (1997), 115 C.C.C. (3d) 64 (B.C. C.A.) (Crown failing to disclose statutory declarations of alleged co-conspirators, correspondence and undertakings until more than one week into trial; late disclosure impairing accused's ability to make full answer and defence; new trial ordered). FN5. R. v. Ford (1993), 78 C.C.C. (3d) 481 (B.C. C.A.); leave to appeal refused (1993), 157 N.R. 399 (note) (S.C.C.) (production of interview notes after Crown's case not infringement); R. v. Stinchcombe, [1991] 3 S.C.R. 326 (S.C.C.) (accused entitled to production of all relevant information held by Crown); R. v. Romain (1992), 75 C.C.C. (3d) 379 (Ont. Gen. Div.) (failure to disclose witness statement; new trial ordered); R. v. O'Connor (1995), 103 C.C.C. (3d) 1 (S.C.C.) (full answer and defence including right to
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full disclosure of Crown's case; non-disclosure of material information, shown on balance of probabilities to adversely affect accused's right to make full answer and defence, infringing accused's rights under s. 7 of Charter); R. v. Chaplin (1994), 36 C.R. (4th) 201 (S.C.C.) (Crown must disclose all evidence, whether inculpatory or exculpatory, unless beyond control of prosecution, clearly irrelevant or privileged); R. v. Gray (1995), 43 C.R. (4th) 52 (B.C. S.C.) (Crown failing over lengthy period of time to disclose evidence which might assist accused in making full answer and defence; non-disclosure and lengthy delay amounting to abuse of process warranting stay of proceedings); R. v. Leipert (1997), 4 C.R. (5th) 259 (S.C.C.) (Crown's duty of disclosure subject to informer privilege unless accused bringing himself within "innocence at stake" exception); see also R. c. Filion, [1992] R.J.Q. 1161 (Que. C.A.). FN6. R. v. Darrach, [2000] 2 S.C.R. 443 (S.C.C.); Lizotte v. R., [1951] S.C.R. 115 (S.C.C.) (improper for trial judge to interfere with relevant cross-examination); R. v. Carosella (1997), 4 C.R. (5th) 139 (S.C.C.) (sexual assault crisis centre destroying notes of interview with complainant to forestall possibility of having to produce records to court; destruction of file preventing accused from using notes to prepare cross-examination question, testing complainant's credibility, etc.; stay of proceedings entered); see also R. v. Anderson, [1938] 2 W.W.R. 49 (Man. C.A.); R. v. Giffin (1986), 69 A.R. 158 (Alta. C.A.); R. c. Bourassa (1991), 67 C.C.C. (3d) 143 (Que. C.A.) (accused should not be excluded during cross-examination). FN7. R. v. Cook (1960), 33 C.R. 126 (Alta. C.A.) (accused having absolute right to call any witnesses); R. v. Morrissey (2003), 177 C.C.C. (3d) 428 (Ont. S.C.J.); see also Canada Evidence Act, R.S.C. 1985, c. C-5, s. 4(1) (accused competent witness for defence). FN8. R. v. Caccamo, [1976] 1 S.C.R. 786 (S.C.C.); R. v. Demeter (1975), 10 O.R. (2d) 321 (Ont. C.A.); affirmed [1978] 1 S.C.R. 538 (S.C.C.); R. v. Rose (1998), 20 C.R. (5th) 246 (S.C.C.). FN9. Aucoin v. R., [1979] 1 S.C.R. 554 (S.C.C.); see also R. v. Gronka (1979), 45 C.C.C. (2d) 573 (Ont. C.A.); R. v. Conti (1986), 200 A.P.R. 118 (N.S. Co. Ct.). FN10. R. v. Stewart (1991), 62 C.C.C. (3d) 289 (Ont. C.A.) (excessive intervention by trial judge; new trial ordered); R. v. Scianna (1989), 47 C.C.C. (3d) 81 (Ont. C.A.) (constant and discourteous interference by judge improper); R. v. Turlon (1989), 70 C.R. (3d) 376 (Ont. C.A.) (extensive judicial cross-examination improper); R. v. Garner, [1994] 9 W.W.R. 350 (Sask. Q.B.) (trial judge vigorously intervening in examinationin-chief of defence expert witness; new trial ordered). FN11. R. v. Dersch, [1990] 2 S.C.R. 1505 (S.C.C.) (accused entitled to wiretap authorization and affidavit as matter of full answer and defence); R. v. Durette (1994), 28 C.R. (4th) 1 (S.C.C.) (full answer and defence providing for extensive and complete disclosure; minimal wiretap editing permissible); see also R. v. Garofoli, [1990] 2 S.C.R. 1421 (S.C.C.); R. v. Aranda (1992), 11 C.R. (4th) 339 (Ont. Gen. Div.) (affidavit must be
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provided prior to election by accused); R. v. McClure (2001), 40 C.R. (5th) 1 (S.C.C.) (access into files of other lawyer). FN12. R. v. Newman (1993), 20 C.R. (4th) 370 (Ont. C.A.); R. v. Sechon (1995), 104 C.C.C. (3d) 554 (Que. C.A.) (s. 7 of Charter entitling accused to counsel if length or complexity of trial or circumstances of accused preventing fair trial without assistance of counsel; if legal aid denied in such circumstances, proceedings should be stayed until counsel provided); R. v. Osborne (2003), 181 C.C.C. (3d) 108 (N.B. C.A.); R. v. Peterman (2004), 185 C.C.C. (3d) 352 (Ont. C.A.); R. c. Hajian (1995), 104 C.C.C. (3d) 562 (Que. S.C.); R. v. W. (W.) (1995), 100 C.C.C. (3d) 225 (Ont. C.A.) (incompetence of counsel depriving accused of right to full answer and defence if reasonable probability of different result but for counsel's deficient performance); see also R. c. Brigham (1992), 18 C.R. (4th) 309 (Que. C.A.) (incompetence of counsel may require new trial); R. v. Silvini (1991), 9 C.R. (4th) 233 (Ont. C.A.). FN13. R. v. W. (W.) (1995), 100 C.C.C. (3d) 225 (Ont. C.A.) (allegation on appeal that representation of two accused by same counsel creating conflict of interest requiring accused to show actual, as opposed to possible, miscarriage of justice). END OF DOCUMENT
CED Criminal Law Defences I.2.(h).(iii).A
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CED Criminal Law Defences I.2.(h).(iii).A Canadian Encyclopedic Digest Criminal Law Defences I Introduction 2 Defences (h) Procedure (iii) Pleas A Permitted Pleas Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. I.2.(h).(iii).A See Canadian Abridgment: CRM.VII.19 Criminal law Pre-trial procedure Pleas 37 An accused who is called upon to plead may plead guilty or not guilty, and may also make a special plea of autrefois acquit, autrefois convict or pardon.[FN1] An accused who is charged with defamatory libel may plead, in writing, justification, i.e., that the matter was true and published for the public benefit. A plea of not guilty may also be pleaded with a justification plea to a charge of defamatory libel.[FN2] FN1. Criminal Code, R.S.C. 1985, c. C-46, ss. 606 [am. R.S.C. 1985, c. 27 (1st Supp.), s. 125; 2002, c. 13, s. 49(1), (2)], 607 [am. R.S.C. 1985, c. 27 (1st Supp.), s. 126; c. 30 (3rd Supp.), s. 2; 1995, c. 22, Sched. I, items 19, 20; 2000, c. 24, s. 45]; R. v. Innocente (2004), 187 C.C.C. (3d) 533 (N.S. S.C.) (autrefois to be established on balance of probabilities). FN2. Criminal Code, R.S.C. 1985, c. C-46, ss. 611, 612. END OF DOCUMENT
CED Criminal Law Defences I.2.(h).(iii).B
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CED Criminal Law Defences I.2.(h).(iii).B Canadian Encyclopedic Digest Criminal Law Defences I Introduction 2 Defences (h) Procedure (iii) Pleas B Plea of Not Guilty Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. I.2.(h).(iii).B See Canadian Abridgment: CRM.VII.19.c Criminal law Pre-trial procedure Pleas Plea of not guilty 38 A plea of not guilty is a general denial and encompasses all defences or any ground of defence for which a special plea is not provided.[FN1] This includes res judicata, issue estoppel and the rule against multiple convictions.[FN2] FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 613; R. v. Denda (1986), 17 O.A.C. 222 (Ont. C.A.) (co-accused pleading guilty in front of jury panel; trial judge ought to have directed that plea not evidence against accused); see also R. c. Lessard (1979), 50 C.C.C. (2d) 175 (Que. C.A.); R. v. Jamieson (1987), 79 N.S.R. (2d) 304 (N.S. C.A.). FN2. R. v. Quinn (1905), 11 O.L.R. 242 (Ont. C.A.) (defence of res judicata allowed); R. v. Duhamel, [1984] 2 S.C.R. 555 (S.C.C.) (res judicata); R. v. Grdic, [1985] 1 S.C.R. 810 (S.C.C.) (defence of issue estoppel upheld); R. v. Kienapple, [1975] 1 S.C.R. 729 (S.C.C.) (multiple convictions for same delict precluded). END OF DOCUMENT
CED Criminal Law Defences I.2.(h).(iii).C
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CED Criminal Law Defences I.2.(h).(iii).C Canadian Encyclopedic Digest Criminal Law Defences I Introduction 2 Defences (h) Procedure (iii) Pleas C Plea of Guilty Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. I.2.(h).(iii).C See Canadian Abridgment: CRM.VII.19.b Criminal law Pre-trial procedure Pleas Guilty plea 39 A plea of guilty is a complete admission of all essential facts or material averments of the offence charged.[FN1] In itself, a guilty plea carries with it an admission of the essential legal ingredients of the offence admitted by the plea, and no more.[FN2] FN1. R. v. Grant (1924), 42 C.C.C. 344 (N.S. C.A.); R. v. K. (S.) (1995), 99 C.C.C. (3d) 376 (Ont. C.A.) (guilty plea not appropriate where accused not willing to admit to facts supporting conviction; trial judge erring in accepting plea); R. v. Gold (2004), 197 B.C.A.C. 37 (B.C. C.A.) (guilty plea neither unequivocal nor informed; plea set aside); see also McKenzie, Re (1935), 9 M.P.R. 559 (N.S. C.A.); Adgey v. R., [1975] 2 S.C.R. 426 (S.C.C.) (guidelines given where judge should order plea of not guilty); R. v. Simpson, [1988] 1 S.C.R. 3 (S.C.C.) (jury should be warned that guilty plea by coaccused not evidence against other accused). FN2. R. v. Gardiner (1979), 52 C.C.C. (2d) 183 (Ont. C.A.); affirmed [1982] 2 S.C.R. 368 (S.C.C.) (where facts on guilty plea disputed, Crown having onus to prove them beyond reasonable doubt); R. v. Lamoureux (1984), 40 C.R. (3d) 369 (Que. C.A.) (guilty plea must always be free and voluntary); R. v. Rajaeefard (1996), 104 C.C.C. (3d) 225 (Ont. C.A.) (trial judge improperly pressuring accused to plead guilty; guilty plea not given freely and voluntarily). END OF DOCUMENT
CED Criminal Law Defences I.2.(h).(iii).D
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CED Criminal Law Defences I.2.(h).(iii).D Canadian Encyclopedic Digest Criminal Law Defences I Introduction 2 Defences (h) Procedure (iii) Pleas D Refusal to Plead Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. I.2.(h).(iii).D See Canadian Abridgment: CRM.VII.19.c Criminal law Pre-trial procedure Pleas Plea of not guilty 40 Where an accused refuses to plead or does not answer directly, a plea of not guilty is entered on his or her behalf.[FN1] FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 606(2). END OF DOCUMENT
CED Criminal Law Defences I.2.(h).(iii).E
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CED Criminal Law Defences I.2.(h).(iii).E Canadian Encyclopedic Digest Criminal Law Defences I Introduction 2 Defences (h) Procedure (iii) Pleas E Plea of Guilty to Included or Other Offence Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. I.2.(h).(iii).E See Canadian Abridgment: CRM.VII.19.b.iv Criminal law Pre-trial procedure Pleas Guilty plea Guilty plea to lesser offence 41 An accused or defendant may plead not guilty to the charged offence but guilty to another offence arising out of the same transaction. Such a plea may be accepted by the court where the prosecution consents.[FN1] Where there is no consent given by the prosecution, the trial must proceed on the charged offence.[FN2] 42 Where a plea has been offered to a lesser offence but not accepted, the plea should be held in abeyance pending trial of the more serious offence. If the accused is acquitted, the guilty plea may then be recorded on the included offence.[FN3] The contrary view is that if the plea is not accepted it should be considered a nullity.[FN4] FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 606(4) [re-en. R.S.C. 1985, c. 27 (1st Supp.), s. 125]. FN2. R. v. Loyer, [1978] 2 S.C.R. 631 (S.C.C.); R. v. Rowbotham (1994), 30 C.R. (4th) 141 (S.C.C.) (proper practice with jury); R. v. Garnett (1995), 15 M.V.R. (3d) 198 (B.C. S.C. [In Chambers]) (provincial offences included). FN3. R. v. Loyer, [1978] 2 S.C.R. 631 (S.C.C.); see also R. v. Cole, [1965] 2 Q.B. 388 (Eng. Q.B.); R. v. St-Jean (1970), 15 C.R.N.S. 194 (Que. C.A.). FN4. R. v. MacDonald, 28 C.R.N.S. 324 (Ont. C.A.); affirmed [1977] 2 S.C.R. 832 (S.C.C.); R. v. Hazeltine, [1967] 2 Q.B. 857 (Eng. Q.B.). END OF DOCUMENT
CED Criminal Law Defences I.2.(h).(iii).F
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CED Criminal Law Defences I.2.(h).(iii).F Canadian Encyclopedic Digest Criminal Law Defences I Introduction 2 Defences (h) Procedure (iii) Pleas F Withdrawal of Guilty Plea Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. I.2.(h).(iii).F See Canadian Abridgment: CRM.VII.19.b.ii.C Criminal law Pre-trial procedure Pleas Guilty plea Duties of court Permitting withdrawal of plea; CRM.XI.5.o.xi Criminal law Post-trial procedure Appeal from conviction or acquittal Procedure on appeal Permitting withdrawal or change of plea 43 A guilty plea may be withdrawn at the discretion of the trial judge before sentence.[FN1] An accused may be permitted to do so if there are valid grounds raised in the application.[FN2] When an accused has established that the plea was entered in error, under improper inducements or threats, or where the accused was intoxicated, the application will succeed.[FN3] FN1. R. v. Thibodeau, [1955] S.C.R. 646 (S.C.C.); see also Adgey v. R., [1975] 2 S.C.R. 426 (S.C.C.); R. v. T. (R.) (1992), 17 C.R. (4th) 247 (Ont. C.A.) (guilty plea valid and not withdrawable when voluntary, unequivocal and informed); R. v. Taubler (1987), 20 O.A.C. 64 (Ont. C.A.) (withdrawal denied where accused treated reasonably and with patience). FN2. R. v. Bamsey, [1960] S.C.R. 294 (S.C.C.); R. v. Hick, [1991] 3 S.C.R. 383 (S.C.C.) (where co-accused acquitted, accused not permitted to withdraw plea as principal); R. v. Meers (1991), 64 C.C.C. (3d) 221 (B.C. C.A.) (plea may be withdrawn if based on misunderstanding); R. v. Atlay (1992), 70 C.C.C. (3d) 553 (B.C. C.A.) (judge may refuse application); R. v. Hughes, 76 A.R. 294 (Alta. C.A.) (concessions by Crown or police not eroding plea); R. v. K. (S.) (1995), 99 C.C.C. (3d) 376 (Ont. C.A.) (guilty plea set aside on appeal; accused unaware of contradiction between plea of guilty and denial of guilt); R. c. Laperrire (1996), 109 C.C.C. (3d) 347 (S.C.C.) (defence counsel acting in selfinterest pressuring accused into entering guilty pleas; pleas quashed). FN3. R. v. Lamoureux (1984), 40 C.R. (3d) 369 (Que. C.A.); R. v. Hansen (1977), 37 C.C.C. (2d) 371 (Man. C.A.) (accused in disturbed state of mind permitted to change
CED Criminal Law Defences I.2.(h).(iii).F
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plea); R. c. Laperrire (1996), 109 C.C.C. (3d) 347 (S.C.C.) (defence counsel acting in self-interest pressuring accused into entering guilty pleas; pleas quashed); R. v. Rajaeefard (1996), 104 C.C.C. (3d) 225 (Ont. C.A.) (trial judge improperly pressuring articling student appearing as agent for accused; withdrawal of guilty plea permitted); see also R. v. Kavanagh (1955), 22 C.R. 396 (Ont. C.A.) (accused pleading guilty under influence of drugs; new trial ordered); R. v. MacAdam (1986), 181 A.P.R. 332 (P.E.I. S.C.) (memory loss due to accident may provide basis for withdrawal of plea); R. v. Toussaint (1984), 40 C.R. (3d) 230 (Que. C.A.) (conduct of trial judge and counsel inducing plea); R. v. Huynh (1986), 75 A.R. 238 (Alta. C.A.) (erroneous translation invalidating guilty plea); R. v. Hunt (2004), 346 A.R. 45 (Alta. C.A.) (where there has been unequivocal free and voluntary admission of facts constituting offence, unexpected legal consequence not allowing withdrawal of guitly plea); R. v. Hoang (2003), 182 C.C.C. (3d) 69 (Alta. C.A.) (requirement that accused understand nature and consequences of guilty plea not requirement to canvas every conceivable consequence which may result or may be foregone). END OF DOCUMENT
CED Criminal Law Defences II.1.(a)
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CED Criminal Law Defences II.1.(a) Canadian Encyclopedic Digest Criminal Law Defences II Exemptions 1 Conjugal Unity (a) General Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. II.1.(a) See Canadian Abridgment: EVD.X.4.d.ii.A Evidence Witnesses Competence and compellability Interested person Criminal proceedings Spouse of accused; CRM.VII.5.j.ii Criminal law Pre-trial procedure Admissibility of private communications Privileged communications Spouses; EVD.XVII.2.b Evidence Privilege Privileged communications Husband and wife 44 Under English common law a husband and wife were, for many purposes, one person. As a consequence, there were a number of criminal offences which they were incapable of committing.[FN1] The doctrine of conjugal unity has been given effect in Canadian criminal law[FN2] and under the law governing the admissibility of evidence of one spouse when it concerns a charge against the other.[FN3] FN1. R. v. Kowbel, [1954] S.C.R. 498 (S.C.C.) (with respect to each other, husband and wife not capable of theft or conspiracy). FN2. Criminal Code, R.S.C. 1985, c. C-46, s. 159(2)(a) [re-en. R.S.C. 1985, c. 19 (3rd Supp.), s. 3] (husband and wife under certain conditions cannot be convicted of anal intercourse with each other); see also R. v. Reinke (1972), 8 R.F.L. 278 (Ont. Co. Ct.) (indictment charging wife with defamatory libel against husband quashed as at common law libel not possible between spouses). FN3. Canada Evidence Act, R.S.C. 1985, c. C-5, s. 4 [am. R.S.C. 1985, c. 19 (3rd Supp.), s. 17; 2002, c. 1, s. 166]. END OF DOCUMENT
CED Criminal Law Defences II.1.(b)
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CED Criminal Law Defences II.1.(b) Canadian Encyclopedic Digest Criminal Law Defences II Exemptions 1 Conjugal Unity (b) Conspiracy Between Spouses Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. II.1.(b) See Canadian Abridgment: CRM.VI.21.e.ii Criminal law Offences Conspiracy Specific defences Husband and wife 45 A husband and wife cannot be found guilty of conspiracy with each other, because they form but one person and are presumed to have but one will.[FN1] A conspiracy can exist, however, between a husband and wife and a third party.[FN2] FN1. R. v. Kowbel, [1954] S.C.R. 498 (S.C.C.) (conviction for conspiracy between husband and wife to commit forgery quashed); R. v. Barbeau (1996), 110 C.C.C. (3d) 69 (Que. C.A.) (proving alleged conspiracy with husband and others requiring direct proof that accused meeting or conspiring with others); but see R. v. O'Connor (1975), 23 C.C.C. (2d) 110 (B.C. C.A.); leave to appeal refused (1975), 23 C.C.C. (2d) 110n (S.C.C.) (doctrine of conjugal unity not preventing possession for trafficking conviction where husband transporting to wife); R. v. Rowbotham (1988), 63 C.R. (3d) 113 (Ont. C.A.) (trial judge to instruct on spousal incompetency concerning conspiracy). FN2. R. v. Chambers (1973), 11 C.C.C. (2d) 282 (Alta. T.D.); but see R. v. Amar (1969), 7 C.R.N.S. 258 (B.C. C.A.) (wife not competent witness for prosecution where husband and third party charged with conspiracy). END OF DOCUMENT
CED Criminal Law Defences II.1.(c).(i)
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CED Criminal Law Defences II.1.(c).(i) Canadian Encyclopedic Digest Criminal Law Defences II Exemptions 1 Conjugal Unity (c) Competence and Compellability (i) Common Law Rule Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. II.1.(c).(i) See Canadian Abridgment: EVD.X.4.d.ii.A Evidence Witnesses Competence and compellability Interested person Criminal proceedings Spouse of accused 46 Under common law, with some exceptions, one spouse was not competent or compellable to give evidence for or against the other spouse.[FN1] FN1. R. v. Schell (2004), 188 C.C.C. (3d) 254 (Alta. C.A.) (separate and apart for several years, competent and compellable); R. v. Salituro, [1991] 3 S.C.R. 654 (S.C.C.) (irreconcilably separated but not divorced; spouse competent witness for Crown; common law rule adjusted); R. v. Hawkins (1996), 2 C.R. (5th) 245 (S.C.C.); R. v. Grewal (1992), 78 C.C.C. (3d) 188 (Ont. Gen. Div.) (whether irreconcilably separated to be determined by trial judge); R. v. Edelenbos (2004), 187 C.C.C. (3d) 465 (Ont. C.A.); R. v. McGinty, [1986] 4 W.W.R. 97 (Y.T. C.A.) (spouse victim of assault; competent and compellable under common law exception); R. v. Marchand (1980), 55 C.C.C. (2d) 77 (N.S. C.A.) (divorced wife competent and compellable as to husband's acts during marriage); R. v. Pabani (1994), 89 C.C.C. (3d) 437 (Ont. C.A.); leave to appeal refused (1994), 91 C.C.C. (3d) vi (S.C.C.) (earlier statement that accused making during separation from wife admissible; not precluded by s. 10 of Divorce Act); R. v. Jeffrey (1993), 84 C.C.C. (3d) 31 (Alta. C.A.) (Crown need not prove irrevocable separation beyond reasonable doubt); R. v. Couture (2007), 2007 CarswellBC 1365 (S.C.C.); R. v. Martin (2009), 2009 CarswellSask 159 (Sask. C.A.) (accused and witness maintaining separate residences but having intimate relationship; trial judge finding spousal incompetency rule applying but witness competent; trial judge erring; spousal incompetency rule not applying to common-law relationships). END OF DOCUMENT
CED Criminal Law Defences II.1.(c).(ii)
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CED Criminal Law Defences II.1.(c).(ii) Canadian Encyclopedic Digest Criminal Law Defences II Exemptions 1 Conjugal Unity (c) Competence and Compellability (ii) Statutory Rule Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. II.1.(c).(ii) See Canadian Abridgment: EVD.X.4.d.ii.A Evidence Witnesses Competence and compellability Interested person Criminal proceedings Spouse of accused 47 Under statutory law the spouse of an accused is a competent witness for the defence, but not for the prosecution.[FN1] Where a marriage takes place after the event charged, the spouse or accused will be able to claim the common law rule of incompetency as a prosecution witness, subject, however, to the statutory and common law exceptions.[FN2] FN1. Canada Evidence Act, R.S.C. 1985, c. C-5, s. 4(1); see also R. v. Dillabough (1975), 28 C.C.C. (2d) 482 (Ont. C.A.) (wife not competent against husband for assault on third party). FN2. Hoskyn v. Commissioner of Police for the Metropolis, [1979] A.C. 474 (U.K. H.L.) (marriage two days before trial; wife not compellable witness for prosecution); R. v. Hawkins (1996), 111 C.C.C. (3d) 129 (S.C.C.) (Crown witness at preliminary inquiry not competent and compellable at trial after marrying accused in interim; testimony from preliminary inquiry admissible as exception to hearsay rule based on necessity and reliability); see also R. v. Lonsdale (1973), 15 C.C.C. (2d) 201 (Alta. C.A.) (marriage after incident but before trial subjecting wife to common law); R. v. McGinty, [1986] 4 W.W.R. 97 (Y.T. C.A.); R. v. Marchand (1980), 55 C.C.C. (2d) 77 (N.S. C.A.) (common law rule of spousal incompetency no longer applying when couple divorced); R. v. Bailey (1983), 32 C.R. (3d) 337 (Ont. C.A.); R. v. Couture (2007), 2007 CarswellBC 1365 (S.C.C.). END OF DOCUMENT
CED Criminal Law Defences II.1.(c).(iii)
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CED Criminal Law Defences II.1.(c).(iii) Canadian Encyclopedic Digest Criminal Law Defences II Exemptions 1 Conjugal Unity (c) Competence and Compellability (iii) Statutory Exceptions Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. II.1.(c).(iii) See Canadian Abridgment: EVD.X.4.d.ii.A Evidence Witnesses Competence and compellability Interested person Criminal proceedings Spouse of accused 48 Under Canadian law the wife or husband of a person charged with a variety of offences or attempts to commit such offences under the Criminal Code, or the Youth Criminal Justice Act, is both a competent and compellable witness for the prosecution, without the consent of the person charged.[FN1] Additionally, with respect to some Criminal Code offences, the husband or wife of the person charged is a competent and compellable witness if the complainant or victim is under the age of 14 years.[FN2] FN1. Canada Evidence Act, R.S.C. 1985, c. C-5, s. 4(2) [re-en. 2002, c. 1, s. 166]; Criminal Code, R.S.C. 1985, c. C-46, ss. 151, 152 [both rep. & sub. 2005, c. 32, s. 3; am. 2008, c. 6, s. 54(b)], 153 [re-en. R.S.C. 1985, c. 19 (3rd Supp.), s. 1; am. 2005, c. 32, s. 4; 2008, c. 6, s. 54(c)], 155 [am. R.S.C. 1985, c. 27 (1st Supp.), s. 21], 159 [re-en. R.S.C. 1985, c. 19 (3rd Supp.), s. 3], 160(2) [en. R.S.C. 1985, c. 19 (3rd Supp.), s. 3], (3) [en. R.S.C. 1985, c. 19 (3rd Supp.), s. 3; am. 2008, c. 6, s. 54(d)], 170 [rep. & sub. 2005, c. 32, s. 9.1; am. 2008, c. 6, s. 54(f)], 172 [am. R.S.C. 1985, c. 19 (3rd Supp.), s. 6], 173 [am. R.S.C. 1985, c. 19 (3rd Supp.), s. 7; 2008, c. 6, s. 54(h)], 179 [am. R.S.C. 1985, c. 27 (1st Supp.), s. 22; R.S.C. 1985, c. 19 (3rd Supp.), s. 8], 212 [am. R.S.C. 1985, c. 19 (3d Supp.), s. 9; 1997, c. 16, s. 2; 1999, c. 5, s. 8; 2005, c. 32, s. 10.1], 215 [am. 1991, c. 43, Sched., s. 2; 2000, c. 12, ss. 93, 95(a); 2005, c. 32, s. 11], 218 [rep. & sub. 2005, c. 32, s. 12], 271 [am. R.S.C. 1985, c. 19 (3rd Supp.), s. 10; 1994, c. 44, s. 19], 272 [re-en. 1995, c. 39, s. 145; am. 2008, c. 6, s. 28], 273 [am. 1995, c. 39, s. 146; 2008, c. 6, s. 29], 280, 281, 282 [am. 1993, c. 45, s. 4], 283 [am. 1993, c. 45, s. 5], 291-294; Youth Criminal Justice Act, S.C. 2002, c. 1, s. 136(1). FN2. Canada Evidence Act, R.S.C. 1985, c. C-5, s. 4(4); Criminal Code, R.S.C. 1985, c. C-46, ss. 220 [re-en. 1995, c. 39, s. 141], 221, 235, 236 [re-en. 1995, c. 39, s. 142], 237, 239 [re-en. 1995, c. 39, s. 143; am. 2008, c. 6, s. 16], 240, 266, 267 [re-en. 1994, c. 44, s. 17], 268 [am. 1997, c. 16, s. 5], 269 [re-en. 1994, c. 44, s. 18].
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END OF DOCUMENT
CED Criminal Law Defences II.1.(c).(iv)
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CED Criminal Law Defences II.1.(c).(iv) Canadian Encyclopedic Digest Criminal Law Defences II Exemptions 1 Conjugal Unity (c) Competence and Compellability (iv) Common Law Exceptions Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. II.1.(c).(iv) See Canadian Abridgment: EVD.X.4.d.ii.A Evidence Witnesses Competence and compellability Interested person Criminal proceedings Spouse of accused 49 As an exception to the general rule that a husband or wife could not testify against his or her spouse, the common law permitted the spouse to give evidence where the charge involved the liberty, health or person of the other spouse.[FN1] This common law is recognized by statute in Canada.[FN2] 50 Under existing law a spouse whose person, liberty or health has been threatened by the other spouse is competent to testify against that spouse.[FN3] 51 Where the offence falls within that category of offences, which at common law provides that one spouse is competent to testify against the other, that spouse is also compellable at the instance of the prosecution. This includes being compelled to attend court, being called to the witness stand and, once there, being required to answer all questions in accordance with the laws of evidence, subject only to the privilege with respect to inter-spousal communications.[FN4] FN1. Moss v. Moss, [1963] 2 Q.B. 799 (Eng. Q.B.); see also Bentley v. Cooke (1784), 99 E.R. 729 (Eng. K.B.) (cases of violence being exceptions on ground of necessity). FN2. Canada Evidence Act, R.S.C. 1985, c. C-5, s. 4(5). FN3. R. v. Sillars, [1979] 1 W.W.R. 743 (B.C. C.A.) (no threat to wife occurring when husband setting fire to motel unit in which she lived); see also R. v. Czipps (1979), 12 C.R. (3d) 193 (Ont. C.A.); R. v. MacPherson (1980), 52 C.C.C. (2d) 547 (N.S. C.A.) (competency under common law exception for cases of personal violence against spouse extending to children of marriage); R. v. Wood (1982), 8 C.C.C. (3d) 217 (Ont. Prov. Ct.) (wife incompetent against husband for harassing telephone calls as not interfering with her person, liberty or health).
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FN4. R. v. McGinty, [1986] 4 W.W.R. 97 (Y.T. C.A.); R. v. Czipps (1979), 12 C.R. (3d) 193 (Ont. C.A.); R. v. Lonsdale (1973), 15 C.C.C. (2d) 201 (Alta. C.A.); but see Hoskyn v. Commissioner of Police for the Metropolis, [1979] A.C. 474 (U.K. H.L.) (spouse competent but not compellable). END OF DOCUMENT
CED Criminal Law Defences II.1.(c).(v)
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CED Criminal Law Defences II.1.(c).(v) Canadian Encyclopedic Digest Criminal Law Defences II Exemptions 1 Conjugal Unity (c) Competence and Compellability (v) Privileged Inter-spousal Communications Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. II.1.(c).(v) See Canadian Abridgment: CRM.VII.5.j.ii Criminal law Pre-trial procedure Admissibility of private communications Privileged communications Spouses; EVD.XVII.2.b Evidence Privilege Privileged communications Husband and wife 52 No husband is compellable to disclose any communication made to him by his wife during their marriage, and no wife is compellable to disclose any communication made to her by her husband during their marriage.[FN1] 53 When the communication under consideration is some form of correspondence or writing, the privilege does not apply.[FN2] 54 Oral communications between spouses, lawfully intercepted, are privileged and cannot be used by the prosecution in evidence, except with the consent of the spouse holding the privilege.[FN3] FN1. Canada Evidence Act, R.S.C. 1985, c. C-5, s. 4(3); R. v. Zylstra (1995), 41 C.R. (4th) 130 (Ont. C.A.) (privilege to be asserted in presence of jury; judge to give jury special charge that decision to invoke privilege that of witness and not accused); see also R. v. Marchand (1980), 55 C.C.C. (2d) 77 (N.S. C.A.); R. v. Kanester (1966), 49 C.R. 402 (S.C.C.); adopting dissenting reasons of Maclean J.A. (1966), 48 C.R. 352 (B.C. C.A.) (privilege not surviving divorce; privilege can be waived as being privilege of person to whom communications made); R. v. Lloyd (1980), 16 C.R. (3d) 221 (B.C. C.A.); reversed on other grounds [1981] 2 S.C.R. 645 (S.C.C.) (privilege can be waived by recipient); R. v. Andrew (1986), 26 C.C.C. (3d) 111 (B.C. S.C.). FN2. R. v. Kotapski (1981), 66 C.C.C. (2d) 78 (Que. S.C.); affirmed (1984), 13 C.C.C. (3d) 185 (Que. C.A.); leave to appeal refused (1984), 57 N.R. 318 (S.C.C.) (statement from husband to wife not covered by marital privilege). FN3. R. v. Jean (1979), 7 C.R. (3d) 338 (Alta. C.A.); affirmed [1980] 1 S.C.R. 400
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(S.C.C.) (privilege, when claimed, applying to enumerated compellable offence in s. 4(2) of Canada Evidence Act); see also Criminal Code, R.S.C. 1985, c. C-46, s. 189(6); R. v. Lloyd, [1981] 2 S.C.R. 645 (S.C.C.) (intercepted communication excluded and wife acquitted of trafficking in narcotics). END OF DOCUMENT
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CED Criminal Law Defences II.2.(a) Canadian Encyclopedic Digest Criminal Law Defences II Exemptions 2 De Minimis Non Curat Lex (a) Definition of De Minimis Defence Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. II.2.(a) See Canadian Abridgment: CRM.V.7 Criminal law Defences De minimis non curat lex 55 The legal maxim de minimis non curat lex means that the court may properly overlook the breaking of the law by irregularities, very slight consequences or a trifling deviation which, if continued in practice, would weigh little or nothing on the public interest. The law does not concern itself with trifles.[FN1] FN1. Would v. Herrington, [1932] 2 W.W.R. 385 (Man. C.A.) (conviction for voting in favour of $5 payment to council member quashed as de minimis); R. v. Morris, [1972] 1 W.L.R. 228 (Eng. C.A.) (de minimis available in accident situation if physical result clearly trivial); R. v. Harbottle (1992), 14 C.R. (4th) 363 (Ont. C.A.); affirmed [1993] 3 S.C.R. 306 (S.C.C.) (holding legs of deceased during strangulation beyond de minimis); R. v. Lepage (1989), 74 C.R. (3d) 368 (Sask. Q.B.) (pushing person so trifling that de minimis maxim applying); R. v. Starvish (1986), 76 N.S.R. (2d) 43 (N.S. Co. Ct.); reversed on other grounds (1987), 79 N.S.R. (2d) 136 (N.S. C.A.) (fishing 1.2 nautical miles inside Canadian waters not de minimis); R. v. Cribbin (1994), 89 C.C.C. (3d) 67 (Ont. C.A.) (need not be substantial contribution to cause of death as long as outside de minimis range); R. v. Clarke (1998), 23 C.R. (5th) 329 (Ont. Prov. Div.) (accused attempting to pry boards off window, enter vacant building and establish "squat" to publicize plight of homeless; actions causing real physical damage; de minimis non curat lex inapplicable); R. v. Perivolaris (1998), 1998 CarswellOnt 5267 (Ont. Prov. Div.) (snatching necklace de minimis); see also 437. END OF DOCUMENT
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CED Criminal Law Defences II.2.(b) Canadian Encyclopedic Digest Criminal Law Defences II Exemptions 2 De Minimis Non Curat Lex (b) Application of De Minimis Defence Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. II.2.(b) See Canadian Abridgment: CRM.V.7 Criminal law Defences De minimis non curat lex 56 There is some authority that the defence of de minimis non curat lex provides a full defence for a variety of otherwise unlawful acts. Although the defence is raised most often during drug cases, it has a more general application.[FN1] The de minimis defence has had some recognition as a potential defence at the highest level.[FN2] FN1. R. v. Cuerrier (1998), 127 C.C.C. (3d) 1 (S.C.C.) (assault by handshake or social buss subject to de minimis defence); R. v. Kubassek (2004), 188 C.C.C. (3d) 307 (Ont. C.A.) (pushing religious official at same sex marriage not de minimis); R. v. Carson (2004), 185 C.C.C. (3d) 541 (Ont. C.A.); leave to appeal refused (2004), 2004 CarswellOnt 4007 (S.C.C.) (when defence applicable); R. v. Kerwin (1930), 1 M.P.R. 172 (N.S. C.A.) (conviction quashed on charge of keeping liquor for sale where few drops only); see also R. v. Peleshaty, [1950] 1 W.W.R. 108 (Man. C.A.) (accused acquitted for illegal possession of liquor on basis of de minimis where ten drops of liquor in each of two bottles); R. v. Jacobson (1972), 9 C.C.C. (2d) 59 (Ont. C.A.) (conviction quashed for theft of one library book); R. v. Webster (1981), 10 M.V.R. 310 (Ont. Dist. Ct.) (de minimis applying to charge of unlawful parking); R. v. Drainville (1991), 5 C.R. (4th) 38 (Ont. Prov. Div.) (three-minute obstruction of roadway not de minimis). FN2. R. v. Hinchey (1996), 111 C.C.C. (3d) 353 (S.C.C.); Canadian Foundation for Children, Youth & the Law v. Canada (Attorney General) (2004), 180 C.C.C. (3d) 353 (S.C.C.); R. v. Carson (2004), 185 C.C.C. (3d) 541 (Ont. C.A.); leave to appeal refused (2004), 2004 CarswellOnt 4007 (S.C.C.). END OF DOCUMENT
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CED Criminal Law Defences II.3.(a) Canadian Encyclopedic Digest Criminal Law Defences II Exemptions 3 Immunity (a) Children Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. II.3.(a) See Canadian Abridgment: CRM.I.5.b Criminal law General principles Criminal responsibility Children 57 Persons under the age of 12 years are immune from criminal prosecution.[FN1] 58 No person aged 12 or 13 years may be tried for sexual interference, an invitation to sexual touching or indecent exposure, unless the person is in a position of trust or authority towards the complainant or is a person upon whom the complainant is dependent, or is in a relationship with the complainant that is exploitative of the complainant.[FN2] FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 13; see also Youth Criminal Justice Act, S.C. 2002, c. 1 (persons 12 years of age or more but under 18 years subject to jurisdiction of youth court); R. v. Sawchuk, [1991] 5 W.W.R. 381 (Man. C.A.); leave to appeal refused (1991), [1992] 1 W.W.R. lxv (S.C.C.) (child to be measured in chronological age). FN2. Criminal Code, R.S.C. 1985, c. C-46, s. 150.1(3) [re-en. 2005, c. 32, s. 2(2)]; see also R. v. Cardinal (1982), 1982 CarswellAlta 219 (Alta. C.A.); affirmed [1984] 2 S.C.R. 523 (S.C.C.) (rule of immunity not incapacity; party over 14 years can be convicted even where principal immune); R. v. Tatam (1921), 15 Cr. App. R. 132 (Eng. C.A.) (at common law, male under 14 years could not be convicted of sodomy). END OF DOCUMENT
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CED Criminal Law Defences II.3.(b) Canadian Encyclopedic Digest Criminal Law Defences II Exemptions 3 Immunity (b) Crown Immunity Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. II.3.(b) See Canadian Abridgment: PUB.III.2.c.ii Public law Public authorities Public officers Exemptions from operation of statutes Miscellaneous; PUB.III.9.b.ii Public law Public authorities Armed forces Jurisdiction of civil courts Immunities and privileges of servicemen; EVD.XVII.4.a Evidence Privilege Public interest immunity Crown privilege 59 The Crown and its agents[FN1] are immune from prosecution under all enactments, except where the enactment mentions or refers to the Crown or its agents to make it binding upon them.[FN2] Crown immunity applies only if the acts committed are designed to effect Crown purposes.[FN3] 60 Crown officials, and ministers of the Crown, are subject to subpoena in the criminal courts. Their occupation affords no privilege or immunity from compellability.[FN4] 61 Statutory authority to commit an act that would otherwise be illegal does not invoke Crown immunity. It gives rise to a defence of statutory justification.[FN5] FN1. R. v. Eldorado Nuclear Ltd., [1983] 2 S.C.R. 551 (S.C.C.) (at common law whether person being servant or agent of Crown depending on degree of control exercised by Crown over performance of duties by servant or agent); R. v. Shirose (1997), 115 C.C.C. (3d) 310 (Ont. C.A.); reversed in part on other grounds (1999), 24 C.R. (5th) 365 (S.C.C.) (RCMP officers not Crown agents under statute or at common law; no Crown immunity for reverse sting operation involving trafficking in very large quantity of narcotics); see also Formea Chemicals Ltd. v. Polymer Corp., [1968] S.C.R. 754 (S.C.C.) (reference to Crown in statute extending to Crown officers, servants and agents); Canadian Broadcasting Corp. v. Ontario (Attorney General), [1959] S.C.R. 188 (S.C.C.) (Canadian Broadcasting Corp. being agent of Her Majesty) . FN2. R. v. Eldorado Nuclear Ltd., [1983] 2 S.C.R. 551 (S.C.C.) (some doubt whether definition of "every one" in s. 2 of Criminal Code having effect of making Code binding on Crown); see also Canadian Broadcasting Corp. v. Ontario (Attorney General),
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[1959] S.C.R. 188 (S.C.C.) (Crown excluded where not included expressly or by implication). FN3. R. v. Eldorado Nuclear Ltd., [1983] 2 S.C.R. 551 (S.C.C.) (Crown corporations immune as being agents for all their purposes); R. v. Canadian Broadcasting Corp., [1983] 1 S.C.R. 339 (S.C.C.) (Canadian Broadcasting Corp. convicted for exhibiting obscene film; corporation's action inconsistent with lawful powers); see also R. v. Stradiotto, 1973 CarswellOnt 845 (Ont. C.A.) (no Crown immunity for careless driving by military personnel acting in course of employment, as carrying out duties not requiring careless driving); R. v. Sellers (1985), 73 A.R. 274 (Alta. Q.B.) (running red light not undertaken to effect Crown purposes; no immunity for military policeman); R. v. Anderson (1983), 3 C.C.C. (3d) 308 (N.B. Q.B.) (immunity granted to military member accused of failing to have vehicle weighed according to law); R. v. Anderson, [1930] 2 W.W.R. 595 (Man. C.A.) (armed forces members immune from charge of driving without licence); R. v. Rhodes, [1934] O.R. 44 (Ont. H.C.); R. v. Fattore, [1972] 5 W.W.R. 636 (B.C. Prov. Ct.); R. v. Coleman, [1939] 2 W.W.R. 381 (Man. C.A.). FN4. R. v. Williams (1981), 64 C.C.C. (2d) 514 (B.C. S.C.); Canadian Javelin Ltd., Re, [1982] 2 S.C.R. 686 (S.C.C.) (compellability of former premier); R. v. Baines, [1909] 1 K.B. 258 (Eng. K.B.); but see Quebec (Attorney General) v. Canada (Attorney General), [1979] 1 S.C.R. 218 (S.C.C.) (commissioner of provincial commission without authority to subpoena Solicitor General of Canada). FN5. R. v. Eldorado Nuclear Ltd., [1983] 2 S.C.R. 551 (S.C.C.). END OF DOCUMENT
CED Criminal Law Defences II.3.(c)
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CED Criminal Law Defences II.3.(c) Canadian Encyclopedic Digest Criminal Law Defences II Exemptions 3 Immunity (c) Immunity of Crown Attorneys and Judges Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. II.3.(c) See Canadian Abridgment: TOR.XIV Torts Malicious prosecution and false imprisonment; JDG.V.5.b Judges and courts Justices, magistrates and provincial courts Civil liability Statutory protection; PUB.I.3.a.iv.A Public law Crown Principles of tort regarding Crown Liability of Crown for torts of servants Liability for specific torts Action for malicious prosecution by Crown officers 62 Absolute immunity for the Attorney General and his or her agents, the Crown attorneys, is not justified in the interests of public policy. Policy considerations in favour of absolute immunity must give way to the right of a private citizen to seek a remedy when a prosecutor acts maliciously, in fraud of his or her duties, resulting in damage to the victim.[FN1] 63 Judges, as a general rule, are absolutely immune from civil action for anything said or done in performance of their duties.[FN2] FN1. Proulx c. Qubec (Procureur gnral) (2004), 159 C.C.C. (3d) 225 (S.C.C.) (prosecutors enjoy only relative immunity); Folland v. Ontario (2003), 170 O.A.C. 17 (Ont. C.A.); leave to appeal refused (2003), 194 O.A.C. 200 (note) (S.C.C.); Dix v. Canada (Attorney General) (2002), 315 A.R. 1 (Alta. Q.B.) (legal malice by prosecutor); Nelles v. Ontario, [1989] 2 S.C.R. 170 (Attorney General and Crown attorneys not immune from suits for malicious prosecution); Prete v. Ontario (1993), 86 C.C.C. (3d) 442 (Ont. C.A.); leave to appeal refused (1994), 87 C.C.C. (3d) vi (note) (S.C.C.) (statutory limitation unable to stand in face of Charter; Crown Attorney subject to suit); McGillivary v. New Brunswick (1994), 92 C.C.C. (3d) 187 (N.B. C.A.); leave to appeal refused (1995), 120 D.L.R. (4th) vii (note) (S.C.C.) (civil action against police and other Crown experts dismissed; no cause of action). FN2. Royer c. Mignault, [1988] R.J.Q. 670 (Que. C.A.); leave to appeal refused (1988), 50 D.L.R. (4th) viii (note) (S.C.C.) (superior court judge protected by absolute immunity); Charters v. Harper (1987), 79 N.B.R. (2d) 28 (N.B. Q.B.); MacKeigan v. Hickman, [1989] 2 S.C.R. 796 (S.C.C.) (judges enjoying immunity from compulsion to attend before commissions of inquiry); Taylor v. Canada (Attorney General) (2000), 184
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D.L.R. (4th) 706 (Fed. C.A.); leave to appeal refused (2000), 2000 CarswellNat 2566 (S.C.C.); Edwards v. Canada (Attorney General) (1999), 182 D.L.R. (4th) 736 (Ont. S.C.J.); Crowe v. Canada (Attorney General) (2007), 2007 CarswellNat 3995 (F.C.); affirmed on other grounds (2008), 2008 CarswellNat 3835 (F.C.A.) (immunity of judges from suit is important constitutional principle). END OF DOCUMENT
CED Criminal Law Defences II.3.(d).(i)
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CED Criminal Law Defences II.3.(d).(i) Canadian Encyclopedic Digest Criminal Law Defences II Exemptions 3 Immunity (d) Internationally Protected Persons (i) Consular Officers and Employees Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. II.3.(d).(i) See Canadian Abridgment: ITL.V International law Immunities of foreign states 64 Consular officers are not liable to arrest or detention pending trial except in the case of a grave crime.[FN1] Consular officers, furthermore, are not amenable to the jurisdiction of the judicial or administrative authorities of the receiving state in respect of acts performed in the exercise of consular functions.[FN2] Consular officers may be called upon to attend as witnesses, but cannot be required to give evidence.[FN3] The immunities of a consular officer may be waived in writing by the sending state.[FN4] 65 Consular employees are not amenable to the jurisdiction of the judicial or administrative authorities of the receiving state in respect of acts performed in the exercise of consular functions.[FN5] These employees may be called upon to attend as witnesses and give evidence, except that there is no obligation to give evidence concerning their functions, to provide correspondence or documents regarding their functions or to give evidence as experts in their law.[FN6] FN1. Foreign Missions and International Organizations Act, S.C. 1991, c. 41, s. 3, Sched. II (Vienna Convention on Consular Relations), art. 411; see also Foreign Missions and International Organizations Act, S.C. 1991, c. 41, s. 3, Sched. II (Vienna Convention on Consular Relations), art. 532 (members of private staff or of family of consul having same immunities). FN2. Foreign Missions and International Organizations Act, S.C. 1991, c. 41, s. 3, Sched. II (Vienna Convention on Consular Relations), art. 431; R. v. Bonadie (1996), 109 C.C.C. (3d) 356 (Ont. Prov. Div.) (consul immune from prosecution for perjury and attempting to obstruct justice if charges arising out of performance of consular duties; committing acts outside accused's consular district not depriving accused of immunity). FN3. Foreign Missions and International Organizations Act, S.C. 1991, c. 41, s. 3, Sched. II (Vienna Convention on Consular Relations), art. 44; R. v. Bonadie (1996), 109
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C.C.C. (3d) 356 (Ont. Prov. Div.) (decision to give evidence in performance of consular functions not amounting to waiver of further or future immunities) R. v. Yushko (1997), 1997 CarswellOnt 732 (Ont. Prov. Div.) (consular immunity limited; warrant issued). FN4. Foreign Missions and International Organizations Act, S.C. 1991, c. 41, s. 3, Sched. II (Vienna Convention on Consular Relations), art. 45; R. v. Bonadie (1996), 109 C.C.C. (3d) 356 (Ont. Prov. Div.) (decision to testify in performance of consular functions not amounting to waiver of immunities; waiver only effective if coming directly from sending state and in written form); see also Criminal Code, R.S.C. 1985, c. C-46, s. 7(4) (public service employees liable for prosecution in Canada for acts outside Canada). FN5. Foreign Missions and International Organizations Act, S.C. 1991, c. 41, s. 3, Sched. II (Vienna Convention on Consular Relations), art. 431. FN6. Foreign Missions and International Organizations Act, S.C. 1991, c. 41, s. 3, Sched. II (Vienna Convention on Consular Relations), art. 44. END OF DOCUMENT
CED Criminal Law Defences II.3.(d).(ii)
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CED Criminal Law Defences II.3.(d).(ii) Canadian Encyclopedic Digest Criminal Law Defences II Exemptions 3 Immunity (d) Internationally Protected Persons (ii) Diplomatic Agents Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. II.3.(d).(ii) See Canadian Abridgment: ITL.V.2 International law Immunities of foreign states Diplomatic personnel 66 Diplomatic agents of foreign states in Canada are inviolable. They are not liable to any form of arrest or detention, and enjoy immunity from Canadian criminal jurisdiction.[FN1] Diplomatic agents are not obliged to give evidence as a witness.[FN2] The immunity of a diplomatic agent extends to the members of his or her family if they are not Canadian nationals,[FN3] but all such immunities can be waived by the sending state.[FN4] 67 Members of the administrative and technical staff of a foreign mission, and their families, enjoy the same immunities from Canadian criminal jurisdiction as diplomatic agents if they are not Canadian nationals or permanent residents in Canada.[FN5] 68 Members of the service staff of a foreign mission who are not Canadian nationals or permanent residents are immune only from criminal jurisdiction in respect of acts performed in the course of their duties.[FN6] FN1. Foreign Missions and International Organizations Act, S.C. 1991, c. 41, s. 3, Sched. I (Vienna Convention on Diplomatic Relations), arts. 29, 31; see also R. v. Palacios (1984), 45 O.R. (2d) 269 (Ont. C.A.) (duration of diplomatic immunity considered); R. v. Rose (1946), 3 C.R. 277 (Que. K.B.) (stolen diplomatic documents); R. v. Yushko (1997), 1997 CarswellOnt 732 (Ont. Prov. Div.) (neither consular immunity existing at time of arrest, charge and issuance of warrant, not subsequent diplomatic immunity, barring execution of warrant). FN2. Foreign Missions and International Organizations Act, S.C. 1991, c. 41, s. 3, Sched. II (Vienna Convention on Consular Relations), art. 312; see also R. v. McGinty, [1986] 4 W.W.R. 97 (Y.T. C.A.) (foreign diplomats may testify in court if so wish). FN3. Foreign Missions and International Organizations Act, S.C. 1991, c. 41, s. 3,
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Sched. II (Vienna Convention on Consular Relations), art. 371. FN4. Foreign Missions and International Organizations Act, S.C. 1991, c. 41, s. 3, Sched. II (Vienna Convention on Consular Relations), art. 321; see also R. v. Pentonville Prison Governor, [1971] 2 Q.B. 274 (Eng. Q.B.) (accused on diplomatic agent passport not immune; accused on commercial business, not official diplomatic mission; accused not having been accepted and received officially); R. v. Lunan (1947), 3 C.R. 56 (Ont. C.A.) (no immunity concerning documents taken from Russian Embassy); R. v. B. (A.), [1941] 1 K.B. 454 (Eng. C.A.); Nain v. Ncham (1995), 1995 CarswellOnt 1984 (Ont. Gen. Div.) (members of family of diplomatic agent). FN5. Foreign Missions and International Organizations Act, S.C. 1991, c. 41, s. 3, Sched. II (Vienna Convention on Consular Relations), art. 372; see also R. v. Madan, [1961] 2 Q.B. 1 (Eng. C.A.). FN6. Foreign Missions and International Organizations Act, S.C. 1991, c. 41, s. 3, Sched. II (Vienna Convention on Consular Relations), art. 373. END OF DOCUMENT
CED Criminal Law Defences II.3.(d).(iii)
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CED Criminal Law Defences II.3.(d).(iii) Canadian Encyclopedic Digest Criminal Law Defences II Exemptions 3 Immunity (d) Internationally Protected Persons (iii) International Organization Representatives Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. II.3.(d).(iii) See Canadian Abridgment: ITL.VI.2 International law International organizations and government bodies Miscellaneous 69 Representatives of states and governments that are members of a recognized international organization, where it is provided by order, have immunity from personal arrest or detention and, in respect of all acts done or words written or spoken by them in their capacity as representatives, immunity from legal process of every kind.[FN1] 70 Designated officials of a recognized international organization, where it is provided by order, have immunity from legal process in respect of words spoken or written and all acts performed by them in their official capacity.[FN2] 71 Designated experts performing missions for a recognized international organization, where it is provided by order, have immunity from personal arrest or detention and, in respect of words spoken or written and acts done by them in the course of the performance of their mission, immunity from legal process of every kind.[FN3] FN1. Foreign Missions and International Organizations Act, S.C. 1991, c. 41, s. 5(1) [am. 2000, c. 24, s. 54; 2002, c. 12, s. 3(1)-(4)], Sched. III (Convention on the Privileges and Immunities of the United Nations), art. IV, ss. 11, 12; Privileges and Immunities Accession Order (United Nations), C.R.C. 1978, c. 1317. FN2. Foreign Missions and International Organizations Act, S.C. 1991, c. 41, s. 5(1) [am. 2000, c. 24, s. 54; 2002, c. 12, s. 3(1)-(4)], Sched. III (Convention on the Privileges and Immunities of the United Nations), art. IV. FN3. Foreign Missions and International Organizations Act, S.C. 1991, c. 41, s. 5(1) [am. 2000, c. 24, s. 54; 2002, c. 12, s. 3(1)-(4)], Sched. III (Convention on the Privileges and Immunities of the United Nations), art. IV, s. 22(a), (b). END OF DOCUMENT
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CED Criminal Law Defences II.3.(d).(iv) Canadian Encyclopedic Digest Criminal Law Defences II Exemptions 3 Immunity (d) Internationally Protected Persons (iv) NATO Representatives Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. II.3.(d).(iv) See Canadian Abridgment: ITL.VI.2 International law International organizations and government bodies Miscellaneous 72 Every person designated by a member state of NATO as its principal permanent representative to the organization in the territory of another member state, and their official resident staff, enjoy the same immunities and privileges as diplomatic representatives and their official staff of comparable rank.[FN1] 73 Any other representative of a member state to the NATO council or any of its subsidiary bodies who is not a principal permanent representative, while present in the territory of another member state for the discharge of his or her duties, is immune from arrest or detention to the same extent as diplomatic persons of comparable rank. In respect of words spoken or written and of acts done by them in their official capacity, other representatives are immune from Canadian legal process.[FN2] 74 Officials of the NATO organization agreed upon by the Chairman of the Council Deputies and the member states are immune from Canadian legal process in respect of words spoken or written, and of acts done by them in their official capacity and within the limits of their authority.[FN3] 75 Experts employed on missions on behalf of the NATO organization, so far as is necessary, while present in the territory of Canada for the discharge of their duties, are immune from personal arrest, detention and seizure of their personal baggage. They are also immune from Canadian legal process in respect of words spoken or written or acts done by them in performance of their official functions for NATO.[FN4] FN1. Privileges and Immunities (North Atlantic Treaty Organization) Act, R.S.C. 1985, c. P-24, Sched., art. 12; see also 66-68. FN2. Privileges and Immunities (North Atlantic Treaty Organization) Act, R.S.C. 1985,
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c. P-24, Sched., art. 131(a), (b); see also 67-69. FN3. Privileges and Immunities (North Atlantic Treaty Organization) Act, R.S.C. 1985, c. P-24, Sched., arts.17, 18(a). FN4. Privileges and Immunities (North Atlantic Treaty Organization) Act, R.S.C. 1985, c. P-24, Sched., art. 211(a), (b). END OF DOCUMENT
CED Criminal Law Defences II.3.(d).(v)
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CED Criminal Law Defences II.3.(d).(v) Canadian Encyclopedic Digest Criminal Law Defences II Exemptions 3 Immunity (d) Internationally Protected Persons (v) Sovereigns and Heads of Foreign States Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. II.3.(d).(v) See Canadian Abridgment: ITL.V International law Immunities of foreign states 76 Any sovereign or other head of a foreign state or of any political subdivision of a foreign state, while acting as such in a public capacity, is immune from the jurisdiction of any court in Canada.[FN1] FN1. State Immunity Act, R.S.C. 1985, c. S-18, ss. 2, 3; see also Mighell v. Sultan of Johore (1893), [1894] 1 Q.B. 149 (Eng. C.A.) (independent sovereign of smallest state standing on same footing as monarch of greatest); Sultan of Johore v. Abubakar Tunku Aris Bendahar, [1952] A.C. 318 (Singapore P.C.); Lorac Transport Ltd. v. "Atra" (The) (1986), [1987] 1 F.C. 108 (Fed. C.A.) (exception for commercial activity considered); Schreiber v. Canada (Attorney General) (2002), 167 C.C.C. (3d) 51 (S.C.C.) (immunity of Germany from civil action in Canadian courts). END OF DOCUMENT
CED Criminal Law Defences II.3.(e).(i)
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CED Criminal Law Defences II.3.(e).(i) Canadian Encyclopedic Digest Criminal Law Defences II Exemptions 3 Immunity (e) Parliamentary Immunity (i) Members of Senate and House of Commons Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. II.3.(e).(i) See Canadian Abridgment: CNL.VI.2.b.ii.B Constitutional law Nature and status of Dominion and provinces Status and constitution of Parliament Members of Parliament Privileges of members Immunity from arrest 77 Members of the Senate and House of Commons have absolute immunity from criminal prosecution for their speeches and debates during proceedings in Parliament.[FN1] This immunity does not cover acts, otherwise criminal, that occur in either House.[FN2] 78 Statements made by members outside the Senate or Commons are not protected by parliamentary immunity.[FN3] 79 Members of Parliament are not compelled to attend as witnesses before any criminal court in Canada while the House is in session.[FN4] FN1. Constitution Act, 1867, see R.S.C. 1985, App. II (No. 5); Parliament of Canada Act, R.S.C. 1985 c. P-1, s. 4; see also Bill of Rights, 1688 (1 Will. & Mar. 2, c. 2); Roman Corp. v. Hudson's Bay Oil & Gas Co., [1971] 2 O.R. 418 (Ont. H.C.); affirmed [1972] 1 O.R. 444 (Ont. C.A.); affirmed [1973] S.C.R. 820 (S.C.C.) (object of privilege being to protect member from harassment inside and outside of House); Reference re Amendment to the Constitution of Canada, [1981] 1 S.C.R. 753 (S.C.C.) (no limit in law which ties immunities and privileges of members of Parliament to British House of Commons so long as they do not exceed those held by British House). FN2. Elliot's Case (1629), 3 State Tr. 293 (assault on Speaker in chair could be dealt with by law out of Parliament); see also Bradlaugh v. Gossett (1884), 12 Q.B.D. 271 (Eng. Q.B.) (nothing said by member can be dealt with by ordinary courts, but ordinary crime committed in House would not be withdrawn from criminal courts); but see Wason, Re (1869), L.R. 4 Q.B. 573 (Eng. Q.B.) (members of either House cannot be inquired into by criminal proceedings for anything they may do or say).
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FN3. R. v. Atlantic Sugar Refineries Co. (1976), 34 C.R.N.S. 234 (Que. S.C.); affirmed 36 C.R.N.S. 296 (Que. C.A.) (cabinet minister unable to invoke privilege for comments made at press conference outside Parliament); see also Stopforth v. Goyer (1979), 23 O.R. (2d) 696 (Ont. C.A.) (comments in lobby of Parliament building protected by qualified privilege); but see Roman Corp. v. Hudson's Bay Oil & Gas Co., [1972] 1 O.R. 444 (Ont. C.A.); affirmed [1973] S.C.R. 820 (S.C.C.) (absolute parliamentary privilege attaching to press release and telegram outside House as both acts within proceedings in Parliament). FN4. Maingot, Parliamentary Privilege in Canada (1982), pp. 134, 137; see also Beauchesne, Rules and Forms of the House of Commons of Canada, 5th ed. (1978), 64, p. 22; May, Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 20th ed. (1983). END OF DOCUMENT
CED Criminal Law Defences II.3.(e).(ii)
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CED Criminal Law Defences II.3.(e).(ii) Canadian Encyclopedic Digest Criminal Law Defences II Exemptions 3 Immunity (e) Parliamentary Immunity (ii) Members of Provincial Legislatures Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. II.3.(e).(ii) See Canadian Abridgment: CNL.VI.3.a.iv.B Constitutional law Nature and status of Dominion and provinces Status and constitution of legislatures Of provinces Members of legislatures Privileges 80 Members of provincial legislatures have immunity from criminal prosecution for their speeches and debates during proceedings in the Provincial House.[FN1] FN1. Fielding v. Thomas, [1896] A.C. 600 (Nova Scotia P.C.) (provincial legislatures having power to confer upon themselves same privileges as British House of Commons or Canadian House of Commons); Club de la Garnison de Qubec v. Lavergne (1918), 27 Que. K.B. 37 (Que. K.B.) (member of legislative assembly could not be expelled from club because of remarks made in House); Landers v. Woodworth (1878), 2 S.C.R. 158 (S.C.C.) (action for assault by member of Provincial House successful where member forcibly removed because not apologizing as dictated by House); but see Reference re Legislative Privilege (1978), 18 O.R. (2d) 529 (Ont. C.A.) (member of provincial legislature not relieved from testimonial duties as witness in criminal proceeding as those matters beyond constitutional competence of provincial legislature). END OF DOCUMENT
CED Criminal Law Defences II.3.(f)
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CED Criminal Law Defences II.3.(f) Canadian Encyclopedic Digest Criminal Law Defences II Exemptions 3 Immunity (f) Military Personnel Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. II.3.(f) See Canadian Abridgment: PUB.III.9.b.ii Public law Public authorities Armed forces Jurisdiction of civil courts Immunities and privileges of servicemen 81 A Canadian military service tribunal has concurrent jurisdiction with the "civil" criminal courts to try persons subject to the National Defence Act for any offence committed in Canada other than murder, manslaughter and offences of abduction. Where persons subject to the Act are tried by a "civil" criminal court, they may not be tried by a service tribunal for the same offence.[FN1] 82 Foreign visiting forces, when designated, are not subject to Canadian criminal jurisdiction for acts in regard to the property or security of the foreign state, the person or property of a member or dependant of the visiting force, or regarding any act done or anything omitted in performance of their duties.[FN2] FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 5; National Defence Act, R.S.C. 1985, c. N-5, ss. 66 [re-en. R.S.C. 1985, c. 31 (1st Supp.), s. 45; am. 1998, c. 35, s. 20], 70 [am. 1998, c. 35, s. 22], 71 [re-en. R.S.C. 1985, c. 31 (1st Supp.), s. 46]; R. v. Marsaw (1997), 119 C.C.C. (3d) 3 (Can. Ct. Martial App. Ct.) (whether charge one of sexual assault); R. v. MacKay (1980), 54 C.C.C. (2d) 129 (S.C.C.) (narcotics conviction by military tribunal constitutional). FN2. Visiting Forces Act, R.S.C. 1985, c. V-2, ss. 3, 5, 6(1), (2); see also Exemption of United States Forces from Proceedings in Canadian Criminal Courts, Re, [1943] S.C.R. 483 (S.C.C.) (foreign forces in Canada by consent immune from criminal jurisdiction); R. v. Chung Chi Cheung (1938), 1938 CarswellFor 6 (Hong Kong P.C.). END OF DOCUMENT
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CED Criminal Law Defences II.4.(a) Canadian Encyclopedic Digest Criminal Law Defences II Exemptions 4 Mental Disorder (a) Exemption From Conviction Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. II.4.(a) See Canadian Abridgment: CRM.V.14.c Criminal law Defences Mental disorder Mental disorder negativing mens rea 83 No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission, or of knowing that it was wrong.[FN1] Thus, a finding of mental disorder is not sufficient in itself to justify a verdict of not criminally responsible. The disorder must either render the accused incapable of appreciating the nature and consequences of the act or render him or her incapable of knowing that the act is wrong. Further, the incapacity must exist when the act is performed and relate to the conduct that is the subject matter of the offence with which the accused is charged.[FN2] FN1. Criminal Code, R.S.C. 1985, c. C-46, ss. 2 "mental disorder" [en. S.C. 1991, c. 43, s. 1], 16(1) [re-en. S.C. 1991, c. 43, s. 2]; R. v. Chaulk, [1990] 3 S.C.R. 1303 (S.C.C) (insanity operating as exemption from criminal liability); R. v. Ratti, [1991] 1 S.C.R. 68 (S.C.C.) (powers of appeal court in insanity cases); see also Criminal Code, R.S.C. 1985, c. C-46, ss. 672.34-672.36 [all en. S.C. 1991, c. 43, s. 4]; R. v. Mailloux, [1988] 2 S.C.R. 1029 (S.C.C.) (appeal powers considered); R. v. Buxbaum (1989), 70 C.R. (3d) 20 (Ont. C.A.); leave to appeal refused (1989), 37 O.A.C. 318 (note) (S.C.C.) (accused not able to raise insanity on appeal if not raised at trial). FN2. R. v. Fraser (1997), 6 C.R. (5th) 420 (Ont. C.A.); R. v. Larose (2004), 244 Sask. R. 130 (Sask. Q.B.) (defence available only where disorder depriving accused of ability to appreciate nature and quality of acts committed and of ability to know acts morally wrong). END OF DOCUMENT
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CED Criminal Law Defences II.4.(b) Canadian Encyclopedic Digest Criminal Law Defences II Exemptions 4 Mental Disorder (b) Presumption of Mental Order Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. II.4.(b) See Canadian Abridgment: CRM.V.14.b Criminal law Defences Mental disorder Presumption of sanity 84 Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility.[FN1] FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 16(2) [re-en. S.C. 1991, c. 43, s. 2]; R. v. Chaulk, [1990] 3 S.C.R. 1303 (S.C.C.) (presumption of sanity reasonable limit); see also R. v. Ratti, [1991] 1 S.C.R. 68 (S.C.C.); R. v. Romeo, [1991] 1 S.C.R. 86 (S.C.C.). END OF DOCUMENT
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CED Criminal Law Defences II.4.(c) Canadian Encyclopedic Digest Criminal Law Defences II Exemptions 4 Mental Disorder (c) Mental Disorder at Time of Trial Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. II.4.(c) See Canadian Abridgment: CRM.VII.22 Criminal law Pre-trial procedure Determination of fitness to stand trial 85 Where an accused is, on account of mental disorder, found unfit to stand trial, any plea which has been made must be set aside.[FN1] Such a verdict does not prevent an accused from being tried subsequently upon becoming fit to stand trial.[FN2] FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 672.31 [en. S.C. 1991, c. 43, s. 4]. FN2. Criminal Code, R.S.C. 1985, c. C-46, ss. 672.32 [en. S.C. 1991, c. 43, s. 4], 672.33 [en. S.C. 1991, c. 43, s. 4; am. 2005, c. 22, s. 13]. END OF DOCUMENT
CED Criminal Law Defences II.4.(d)
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CED Criminal Law Defences II.4.(d) Canadian Encyclopedic Digest Criminal Law Defences II Exemptions 4 Mental Disorder (d) Burden of Proof on Defence Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. II.4.(d) See Canadian Abridgment: EVD.II.8.b Evidence Proof Proof of specific issues Sanity 86 When mental disorder is raised by the defence, it must be established by the defence on a balance of probabilities.[FN1] 87 An accused may raise the issue of mental disorder either during the trial proper or after a finding of guilt but prior to the entry of the verdict of guilty.[FN2] In appropriate circumstances, the accused may raise the issue for the first time on appeal.[FN3] 88 Where the accused's own evidence tends to put his or her mental capacity for criminal intent into question, the Crown is entitled to put forward its own evidence of insanity.[FN4] FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 16(3) [re-en. S.C. 1991, c. 43, s. 2]; R. v. Chaulk, [1990] 3 S.C.R. 1303 (S.C.C.); R. v. Proctor, [1992] 2 W.W.R. 289 (Man. C.A.); R. v. Romeo, [1991] 1 S.C.R. 86 (S.C.C.); R. v. Malcolm, [1989] 6 W.W.R. 23 (Man. C.A.) (negative inference may be drawn from refusal of accused to be examined by Crown psychiatrist); R. v. Larose (2004), 244 Sask. R. 130 (Sask. Q.B.) (burden of proof on party alleging accused's status as not criminally responsible on balance of probabilities); but see R. v. Stevenson (1990), 58 C.C.C. (3d) 464 (Ont. C.A.) (refusal to discuss with Crown psychiatrist not subject to inference); R. v. Warsing (2002), 167 C.C.C. (3d) 545 (B.C. C.A.) (no weight for expert opinion if underlying facts unproven); R. v. David (2002), 169 C.C.C. (3d) 165 (Ont. C.A.) (where contradictory defences, mental disorder to be considered first). FN2. R. v. Swain, [1991] 1 S.C.R. 933 (S.C.C.) (mental disorder raised by prosecution); R. v. Warsing, [1998] 3 S.C.R. 579 (S.C.C.). FN3. R. v. Warsing, [1998] 3 S.C.R. 579 (S.C.C.) (fresh evidence admissible on appeal despite its availability at trial with exercise of due diligence; need to achieve just result overarching consideration; appellate court lacking jurisdiction to limit new trial to issue
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of mental disorder); R. v. Pietrangelo (2008), 2008 CarswellOnt 3286 (Ont. C.A.); leave to appeal refused (2008), 2008 CarswellOnt 6205 (S.C.C.) (Crown first raising issue on appeal as to accused not criminally responsible due to mental disorder (NCRMD); accused found NCRMD and stay entered). FN4. R. v. Swain, [1991] 1 S.C.R. 933 (S.C.C.). END OF DOCUMENT
CED Criminal Law Defences II.4.(e)
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CED Criminal Law Defences II.4.(e) Canadian Encyclopedic Digest Criminal Law Defences II Exemptions 4 Mental Disorder (e) Mental Disorder Raised by Crown Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. II.4.(e) See Canadian Abridgment: EVD.II.8.b Evidence Proof Proof of specific issues Sanity 89 In appropriate circumstances, the Crown may independently adduce evidence of mental disorder and, when this is permitted, the burden of proof on the Crown is on the balance of probabilities.[FN1] 90 The Crown may lead evidence of insanity where the trier of fact has concluded that the accused is otherwise guilty of the offence charged.[FN2] 91 The Crown may also lead evidence of insanity if the accused's own defence has put the accused's capacity for criminal intent in issue.[FN3] FN1. R. v. Swain, [1991] 1 S.C.R. 933 (S.C.C.); R. v. Chaulk, [1990] 3 S.C.R. 1303 (S.C.C.) (Crown may adduce rebuttal evidence concerning insanity); see also R. v. Hendry (1985), 37 Man. R. (2d) 66 (Man. C.A.) (appeal court may raise insanity); R. v. Talbot (No. 2) (1977), 38 C.C.C. (2d) 560 (Ont. H.C.). FN2. R. v. Swain, [1991] 1 S.C.R. 933 (S.C.C.) (issue to be tried after guilty verdict but prior to entry of conviction); R. v. Thomson (1991), 10 C.R. (4th) 201 (Ont. C.A.) (no violation of Charter where prosecution raises insanity); R. v. Fairholm (1990), 60 C.C.C. (3d) 289 (B.C. C.A.) (where insanity raised by Crown, judge should appoint counsel if accused unrepresented). FN3. R. v. Swain, [1991] 1 S.C.R. 933 (S.C.C.). END OF DOCUMENT
CED Criminal Law Defences II.4.(f).(i)
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CED Criminal Law Defences II.4.(f).(i) Canadian Encyclopedic Digest Criminal Law Defences II Exemptions 4 Mental Disorder (f) When Persons are Mentally Disordered (i) Disease of the Mind Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. II.4.(f).(i) See Canadian Abridgment: CRM.V.14.a.i Criminal law Defences Mental disorder Requirements Disease of mind 92 A mental disorder means a disease of the mind.[FN1] 93 A person has a disease of the mind who has any illness, disorder or abnormal condition that impairs the human mind and its functioning excluding, however, self-induced states caused by alcohol or drugs, as well as transitory mental states such as hysteria or concussion. The disease of the mind must be of such intensity as to render the accused incapable of appreciating the nature and quality of the violent act or of knowing that it is wrong.[FN2] 94 To constitute a disease of the mind, an illness, abnormal condition or disorder must be shown to be the cause of the impairment of the human mind and its functioning. At the relevant time the disease of the mind must have caused impairment of the accused's faculties of reason, memory and understanding.[FN3] 95 A self-induced state of chronic alcoholism may lead to a disease of the mind, as may the chronic use of drugs. However, an isolated use of drugs or alcohol leading to a self-induced state will not fall within the meaning of disease of the mind, unless there is evidence of a preexisting malfunctioning of the mental processes.[FN4] 96 Transitory mental states such as concussion are excluded from disease of the mind when they are caused by an external source. Where, however, a transitory state is due to the psychological or emotional make-up of the accused, rather than to an external source, the accused may have a disease of the mind.[FN5] 97 Subjective conditions or weaknesses internal to the accused may be a disease of the mind, but transient disturbances of consciousness due to certain specific external factors do not fall within the concept of disease of the mind.[FN6] 98 Some of the disorders and conditions found capable of being a disease of the mind are ar-
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teriosclerosis,[FN7] brain damage,[FN8] chronic alcoholism,[FN9] communicated insanity,[FN10] delusion,[FN11] dissociative state,[FN12] epilepsy,[FN13] erotomania,[FN14] manic depressive disorder (also known as bipolar affective disorder),[FN15] psychopathic personality disorder,[FN16] psychosis (such as schizophrenia)[FN17] and irresistible impulse.[FN18] 99 The mental disorder or illness that causes a disease of the mind may be permanent or temporary, curable or incurable.[FN19] FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 2 "mental disorder" [en. S.C. 1991, c. 43, s. 1]. FN2. Cooper v. R., [1980] 1 S.C.R. 1149 (S.C.C.); R. v. Worth (1995), 40 C.R. (4th) 123 (Ont. C.A.); leave to appeal refused (1996), 206 N.R. 155 (note) (S.C.C.) (wrong meaning legally or morally wrong); R. v. Fraser (1997), 6 C.R. (5th) 420 (Ont. C.A.) (erotomania); see also R. v. Oakley (1986), 24 C.C.C. (3d) 351 (Ont. C.A.) (any medically recognized disorder or mental illness may be disease of mind save transient mental disturbances caused by such external factors as violence or drugs); R. v. Simpson (1977), 16 O.R. (2d) 129 (Ont. C.A.); R. v. Rabey, [1980] 2 S.C.R. 513 (S.C.C.) (question of law for judge if state disease of mind; for jury to decide if accused suffering from condition). FN3. R. v. Parks (1990), 78 C.R. (3d) 1 (Ont. C.A.); affirmed [1992] 2 S.C.R. 871 (S.C.C.); Cooper v. R., [1980] 1 S.C.R. 1149 (S.C.C.) (borderline mentally defective person could be insane based on natural imbecility). FN4. Director of Public Prosecutions v. Beard, [1920] A.C. 479 (U.K. H.L.) (drunkenness can reach extreme stage of insanity); see also R. v. Godfrey, [1984] 3 W.W.R. 193 (Man. C.A.); leave to appeal refused (1984), 8 D.L.R. (4th) 122n (S.C.C.) (insanity should have been left to jury where self-induced use of drugs and pre-existing mental disorder); R. v. Hilton (1977), 34 C.C.C. (2d) 206 (Ont. C.A.). FN5. R. v. Rabey, [1980] 2 S.C.R. 513 (S.C.C.) (external source of transitory mental state may produce state of non-insane automatism); R. v. Parks, [1992] 2 S.C.R. 871 (S.C.C.) (sleepwalking). FN6. R. v. Rabey, [1980] 2 S.C.R. 513 (S.C.C.) (ordinary stresses and disappointments of life not being external cause for malfunctioning of mind); R. v. Parks, [1992] 2 S.C.R. 871 (S.C.C.) (sleepwalking); see also 107. FN7. R. v. Rabey (1977), 40 C.R.N.S. 46 (Ont. C.A.); affirmed [1980] 2 S.C.R. 513 (S.C.C.); see also R. v. Mackie, [1933] 1 W.W.R. 273 (Man. C.A.); R. v. Kemp (1956), [1957] 1 Q.B. 399 (Eng. Q.B.); R. v. Butler (1988), 72 Nfld. & P.E.I.R. 25 (P.E.I. T.D.) (episodic discontrol); Cooper v. R., [1980] 1 S.C.R. 1149 (S.C.C.) (natural imbecility disease of mind). FN8. R. v. Revelle (1979), 48 C.C.C. (2d) 267 (Ont. C.A.); affirmed (1981), 61 C.C.C. (2d) 575 (note) (S.C.C.) (accused in dissociative state due to brain damage and other
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factors); R. v. Malcolm, [1989] 6 W.W.R. 23 (Man. C.A.) (delirium tremens disease of mind). FN9. Director of Public Prosecutions v. Beard, [1920] A.C. 479 (U.K. H.L.) (insanity may supervene as result of alcoholic excess); see also R. v. Hilton (1977), 34 C.C.C. (2d) 206 (Ont. C.A.) (accused suffering disease of mind due to alcohol). FN10. R. v. Windle, [1952] 2 Q.B. 826 (Eng. C.A.) (communicated insanity arising when person in constant attendance on person of unsound mind). FN11. R. v. Abbey, [1982] 2 S.C.R. 24 (S.C.C.) (delusion not to be equated with defence of irresistible impulse; irresistible impulse may be symptom of disease of mind); R. v. Campbell (1987), 1987 CarswellOnt 3266 (Ont. Dist. Ct.) (lack of recall not necessarily dissociative state). FN12. R. v. Parnerkar, [1972] 1 W.W.R. 161 (Sask. C.A.); affirmed (1973), [1974] S.C.R. 449 (S.C.C.); R. v. Sullivan (1995), 37 C.R. (4th) 333 (B.C. C.A.) (combination of alcohol and unique psychological vulnerability; intoxicated accused shooting wife immediately after being told that wife not loving accused but loving another woman); see also R. v. James (1974), 30 C.R.N.S. 65 (Ont. H.C.); R. v. MacLeod (1980), 52 C.C.C. (2d) 193 (B.C. C.A.); R. v. Rabey, [1980] 2 S.C.R. 513 (S.C.C.). FN13. R. v. Sullivan, [1984] A.C. 156 (U.K. H.L.); see also Bratty v. Attorney-General for Northern Ireland, [1961] 3 All E.R. 523 (U.K. H.L.); R. v. Gillis (1973), 13 C.C.C. (2d) 362 (B.C. Co. Ct.); R. v. O'Brien, [1966] 3 C.C.C. 288 (N.B. C.A.). FN14. R. v. Fraser (1997), 6 C.R. (5th) 420 (Ont. C.A.). FN15. R. v. Warsing (1997), 119 C.C.C. (3d) 385 (B.C. C.A.); affirmed [1998] 3 S.C.R. 579 (S.C.C.) (insanity compelling conclusion if history and other facts described in fresh evidence established and believed; new trial ordered). FN16. R. v. Craig (1974), 22 C.C.C. (2d) 212 (Alta. T.D.) (psychopathic condition disease of mind); see also R. v. Simpson (1977), 16 O.R. (2d) 129 (Ont. C.A.); Chartrand v. R., [1977] 1 S.C.R. 314 (S.C.C.). FN17. Bratty v. Attorney-General for Northern Ireland, [1961] 3 All E.R. 523 (U.K. H.L.); R. v. S. (G.) (1995), 103 C.C.C. (3d) 467 (Ont. C.A.); R. v. Weldon (1995), 86 O.A.C. 362 (Ont. C.A.); leave to appeal refused (1996), 94 O.A.C. 400 (S.C.C.) (uncontradicted expert evidence of paranoid schizophrenia leading to no other reasonable conclusion than that accused mentally disordered); R. v. W. (J.M.) (1998), 123 C.C.C. (3d) 245 (B.C. C.A.) (schizophrenia); see also R. v. Hilton (1977), 34 C.C.C. (2d) 206 (Ont. C.A.) (schizophrenic psychosis); R. v. Gorecki (No. 2) (1976), 14 O.R. (2d) 218 (Ont. C.A.); R. v. Mailloux (1986), 25 C.C.C. (3d) 171 (Ont. C.A.); affirmed [1988] 2 S.C.R. 1029 (S.C.C.) (toxic psychosis). FN18. R. v. Charest (1990), 76 C.R. (3d) 63 (Que. C.A.).
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FN19. R. v. Rabey (1977), 40 C.R.N.S. 46 (Ont. C.A.); affirmed [1980] 2 S.C.R. 513 (S.C.C.); see also R. v. Oakley (1986), 24 C.C.C. (3d) 351 (Ont. C.A.). END OF DOCUMENT
CED Criminal Law Defences II.4.(f).(ii)
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CED Criminal Law Defences II.4.(f).(ii) Canadian Encyclopedic Digest Criminal Law Defences II Exemptions 4 Mental Disorder (f) When Persons are Mentally Disordered (ii) Delusions Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. II.4.(f).(ii) See Canadian Abridgment: CRM.V.14.a.i.E Criminal law Defences Mental disorder Requirements Disease of mind Delusions 100 Where a person has committed an act as a result of a delusion, a defence of mental disorder may be raised if that person was incapable of appreciating the nature and quality of the act or omission, or of knowing that it was wrong.[FN1] FN1. R. v. Ratti, [1991] 1 S.C.R. 68 (S.C.C.) (where accused knowing act would be morally condemned by reasonable members of society, delusion not providing shield); R. v. Oommen (1993), 21 C.R. (4th) 117 (Alta. C.A.); affirmed (1994), 30 C.R. (4th) 195 (S.C.C.) (Criminal Code, s. 16(1) embracing circumstances of insane delusion); R. v. Chaulk, [1990] 3 S.C.R. 1303 (S.C.C.) (old Criminal Code, s. 16(3) redundant); R. v. Budic, [1979] 1 W.W.R. 11 (Alta. C.A.) (delusions of being poisoned); R. v. Riel (No. 2) (1885), 2 Man. R. 321 (Man. Q.B.); leave to appeal refused (1885), 1885 CarswellMan 1 (Manitoba P.C.); R. v. W. (J.M.) (1998), 123 C.C.C. (3d) 245 (B.C. C.A.) (accused mentally disordered but aware that acts morally wrong; despite delusions, accused retaining capacity to rationally decide whether or not to carry out plan knowing it to be legally and morally wrong; conviction affirmed); R. v. W. (J.M.) (1998), 123 C.C.C. (3d) 245 (B.C. C.A.) (where accused understood right and wrong and chose to act on delusions no mental disorder defence). END OF DOCUMENT
CED Criminal Law Defences II.4.(f).(iii)
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CED Criminal Law Defences II.4.(f).(iii) Canadian Encyclopedic Digest Criminal Law Defences II Exemptions 4 Mental Disorder (f) When Persons are Mentally Disordered (iii) Meaning of "Incapable" Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. II.4.(f).(iii) See Canadian Abridgment: CRM.V.14.a.ii Criminal law Defences Mental disorder Requirements Appreciation of nature and quality of act 101 A person is incapable when there is a complete loss of ability to appreciate the nature and quality of the act, or of knowing the act or omission is wrong. It is not merely an inability to calmly consider the act.[FN1] FN1. R. v. Schwartz, [1977] 1 S.C.R. 673 (S.C.C.). END OF DOCUMENT
CED Criminal Law Defences II.4.(f).(iv)
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CED Criminal Law Defences II.4.(f).(iv) Canadian Encyclopedic Digest Criminal Law Defences II Exemptions 4 Mental Disorder (f) When Persons are Mentally Disordered (iv) Meaning of "Appreciate" Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. II.4.(f).(iv) See Canadian Abridgment: CRM.V.14.a.ii Criminal law Defences Mental disorder Requirements Appreciation of nature and quality of act 102 A person appreciates the nature and quality of an act when there is an understanding of the physical nature, character and consequences of the act. A person may appreciate an act even though lacking appropriate feelings of remorse or guilt for what was done. An incapacity to appreciate the penal consequences of an act does not assist an accused in raising a mental disorder defence.[FN1] FN1. R. c. Landry, [1991] 1 S.C.R. 99 (S.C.C.) (accused incapable of appreciating physical consequence protected); R. v. Abbey, [1982] 2 S.C.R. 24 (S.C.C.) (appreciation limited to appreciation of physical consequences, not penal consequences); see also Kjeldsen v. R., [1981] 2 S.C.R. 617 (S.C.C.); R. v. Kirkby (1985), 47 C.R. (3d) 97 (Ont. C.A.); leave to appeal refused (1986), 54 C.R. (3d) xxvii (S.C.C.) (in exceptional cases, insanity defence should go to jury even if all experts giving evidence accused appreciating nature and quality of act or knowing act legally wrong). END OF DOCUMENT
CED Criminal Law Defences II.4.(f).(v)
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CED Criminal Law Defences II.4.(f).(v) Canadian Encyclopedic Digest Criminal Law Defences II Exemptions 4 Mental Disorder (f) When Persons are Mentally Disordered (v) Meaning of "Nature and Quality" Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. II.4.(f).(v) See Canadian Abridgment: CRM.V.14.a.ii Criminal law Defences Mental disorder Requirements Appreciation of nature and quality of act 103 The nature and quality of an act refers to its physical characteristics and consequences.[FN1] FN1. R. c. Landry, [1991] 1 S.C.R. 99 (S.C.C.); R. v. Abbey, [1982] 2 S.C.R. 24 (S.C.C.); see also R. v. Schwartz, [1977] 1 S.C.R. 673 (S.C.C.) (nature and quality dealing with physical character of act); R. v. Harrop, [1940] 3 W.W.R. 77 (Man. C.A.); R. v. Cracknell, [1931] O.R. 634 (Ont. C.A.). END OF DOCUMENT
CED Criminal Law Defences II.4.(f).(vi)
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CED Criminal Law Defences II.4.(f).(vi) Canadian Encyclopedic Digest Criminal Law Defences II Exemptions 4 Mental Disorder (f) When Persons are Mentally Disordered (vi) Meaning of "Knowing" Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. II.4.(f).(vi) See Canadian Abridgment: CRM.V.14.a.iii Criminal law Defences Mental disorder Requirements Knowledge of wrongful act or omission 104 To know is to merely be aware of the physical character of the act without necessarily having perception and ability to perceive the consequences, impact and results of the physical act, elements which are necessary for appreciation.[FN1] FN1. R. v. Barnier, [1980] 1 S.C.R. 1124 (S.C.C.); see also Cooper v. R., [1980] 1 S.C.R. 1149 (S.C.C.) (appreciation being important additional requirement to mere knowledge of physical act); R. v. Winters (1985), 51 Nfld. & P.E.I.R. 271 (Nfld. C.A.) (knowing and appreciating not synonymous). END OF DOCUMENT
CED Criminal Law Defences II.4.(f).(vii)
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CED Criminal Law Defences II.4.(f).(vii) Canadian Encyclopedic Digest Criminal Law Defences II Exemptions 4 Mental Disorder (f) When Persons are Mentally Disordered (vii) Meaning of "Wrong" Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. II.4.(f).(vii) See Canadian Abridgment: CRM.V.14.a.iii Criminal law Defences Mental disorder Requirements Knowledge of wrongful act or omission 105 A person may be aware that it is ordinarily wrong to commit a crime, but by reason of mental disorder may believe that it would be "right" according to the ordinary morals of society to commit a crime. Moral "wrong" is not to be judged by personal standards, but by an accused's awareness that society regards the act as wrong. An accused may not substitute his or her own moral code for that of society.[FN1] FN1. R. v. Chaulk, [1990] 3 S.C.R. 1303 (S.C.C.) (insanity available as defence where accused incapable of knowing act legally or morally wrong); R. v. Proctor, [1992] 2 W.W.R. 289 (Man. C.A.) ("wrong" not concerned only with formal law, but with ordinary standards of society); R. v. Oommen (1994), 30 C.R. (4th) 195 (S.C.C.) (issue whether accused possessing capacity of ordinary person to know that act wrong in context of standards of ordinary person); R. v. Worth (1995), 40 C.R. (4th) 123 (Ont. C.A.); leave to appeal refused (1996), 109 C.C.C. (3d) vi (note) (S.C.C.) (wrong meaning legally or morally wrong); R. v. W. (J.M.) (1998), 123 C.C.C. (3d) 245 (B.C. C.A.) (accused mentally disordered but aware that acts morally wrong; despite delusions, accused retaining capacity to rationally decide whether or not to carry out plan knowing it be legally and morally wrong; conviction affirmed). END OF DOCUMENT
CED Criminal Law Defences II.4.(f).(viii)
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CED Criminal Law Defences II.4.(f).(viii) Canadian Encyclopedic Digest Criminal Law Defences II Exemptions 4 Mental Disorder (f) When Persons are Mentally Disordered (viii) Automatism and Mental Disorder Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. II.4.(f).(viii) See Canadian Abridgment: CRM.V.3 Criminal law Defences Automatism 106 Where a person has acted in a state of automatism brought on by a malfunction of the mind, or by a mental disorder that had its source primarily in some subjective condition or weakness internal to the accused, it may be considered a disease of the mind, and a mental disorder defence may be available. The ordinary stresses and disappointments of life that are common to all people do not constitute an external cause explaining a malfunctioning of the mind, which takes it out of the category of a disease of the mind. A defence of non-insane automatism is not available for acts carried out where an accused is under such a subjective condition, weakness, stress or disappointment.[FN1] FN1. R. v. Rabey, [1980] 2 S.C.R. 513 (S.C.C.); R. v. Stone (1997), 6 C.R. (5th) 367 (B.C. C.A.); affirmed (1999), 24 C.R. (5th) 1 (S.C.C.) (accused stabbing wife 47 times following verbal abuse; facts possibly raising insane automatism or provocation; no reason to charge jury on non-insane automatism); see also R. v. Revelle (1979), 48 C.C.C. (2d) 267 (Ont. C.A.); affirmed (1981), 61 C.C.C. (2d) 575 (note) (S.C.C.) (where accused in state of automatism and disease of mind being contributing factor along with alcohol and other illness, defence being insanity, not non-insane automatism); R. v. Oakley (1986), 24 C.C.C. (3d) 351 (Ont. C.A.); R. v. Chetwynd (1986), 74 N.S.R. (2d) 75 (N.S. C.A.) (insane automatism caused by alcoholic blackout argued, but not put to jury as no evidence of disease of mind); R. v. Parks (1990), 78 C.R. (3d) 1 (Ont. C.A.); affirmed [1992] 2 S.C.R. 871 (S.C.C.) (somnambulism may be disease of mind). END OF DOCUMENT
CED Criminal Law Defences II.4.(g)
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CED Criminal Law Defences II.4.(g) Canadian Encyclopedic Digest Criminal Law Defences II Exemptions 4 Mental Disorder (g) Consequence of Mental Disorder Verdict Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. II.4.(g) See Canadian Abridgment: CRM.VIII.10.b Criminal law Trial procedure Verdict Not criminally responsible by reason of mental disorder 107 Where a verdict of not criminally responsible on account of mental disorder is rendered in respect of an accused, he or she will be dealt with by the Review Board. The Review Board may make one of several dispositions, including discharge, discharge with conditions or detention.[FN1] 108 Under the old law of insanity, it was preferable that the trial judge inform a jury of the consequences of a verdict of not guilty on account of insanity, to avoid speculation by the jury on what would happen to the accused in that event.[FN2] FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 672.54 [en. S.C. 1991, c. 43, s. 4; am. 2005, c. 22, s. 20]; Orlowski v. British Columbia (Attorney General) (1992), 75 C.C.C. (3d) 138 (B.C. C.A.) (difference between "threat" and "significant threat"); Winko v. Forensic Psychiatric Institute (1999), 25 C.R. (5th) 1 (S.C.C.) (offender found not criminally responsible due to mental disorder entitled to absolute discharge unless board or court finding that offender posing significant threat to safety of public; "significant threat" meaning relative risk of physical or psychological harm to members of public beyond merely trivial or annoying; Criminal Code, s. 672.54 not violating Charter, ss. 7, 15(1)); Bese v. Forensic Psychiatric Institute (1999), 25 C.R. (5th) 68 (S.C.C.); Orlowski v. Forensic Psychiatric Institute (1999), 25 C.R. (5th) 76 (S.C.C.); R. v. Lepage (1999), 25 C.R. (5th) 84 (S.C.C.); R. v. Jones (1994), 27 C.R. (4th) 238 (Ont. C.A.) (issue on release disposition one of probability; absolute discharge rejected on appeal); Davidson v. British Columbia (Attorney General) (1993), 87 C.C.C. (3d) 269 (B.C. C.A.) (task of board in context of likelihood of threat to public); but see R. v. Hoeppner (1999), 25 C.R. (5th) 91 (Man. C.A.); referred for further consideration (1999), 66 C.R.R. (2d) 375 (note) (S.C.C) (Criminal Code, ss. 672.54, 672.81(1) violating Charter, s. 7, without capping provisions; capping provisions not proclaimed in force). FN2. R. v. Jollimore (1985), 19 C.C.C. (3d) 510 (N.S. C.A.); see also R. v. Conkie,
CED Criminal Law Defences II.4.(g)
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[1978] 3 W.W.R. 493 (Alta. C.A.). END OF DOCUMENT
CED Criminal Law Defences II.4.(h)
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CED Criminal Law Defences II.4.(h) Canadian Encyclopedic Digest Criminal Law Defences II Exemptions 4 Mental Disorder (h) Condition Short of Mental Disorder Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. II.4.(h) See Canadian Abridgment: CRM.V.14 Criminal law Defences Mental disorder 109 Where an accused is charged with an offence which requires proof of a specific intent, evidence that the accused was suffering from a disease of the mind, although falling short of proof of mental disorder, may nevertheless be evidence to negative the specific intent required for the charged offence.[FN1] 110 Persons suffering from minor mental and emotional disorders may successfully defend charges of shoplifting or theft by production of evidence to the effect that due to their mental state they did not form the specific intent to steal.[FN2] FN1. R. v. Swain, [1991] 1 S.C.R. 933 (S.C.C.) (evidence of planning or deliberation or specific intent for murder may be denied by evidence of mental impairment); R. c. Leblanc (1991), 4 C.R. (4th) 98 (Que. C.A.); leave to appeal refused (1991), 136 N.R. 410 (note) (S.C.C.); R. v. Stevenson (1990), 58 C.C.C. (3d) 464 (Ont. C.A.); R. v. Baltzer (1974), 27 C.C.C. (2d) 118 (N.S. C.A.); R. v. Lechasseur (1977), 1 C.R. (3d) 190 (Que. C.A.); R. v. Hilton (1977), 34 C.C.C. (2d) 206 (Ont. C.A.); R. v. Wright, [1979] 5 W.W.R. 481 (Alta. C.A.); leave to appeal refused (1979), 29 N.R. 623n (S.C.C.) (evidence relevant not to issue of capacity, but for purpose of showing accused not forming intent); R. v. Kirkby (1985), 47 C.R. (3d) 97 (Ont. C.A.); leave to appeal refused (1986), 54 C.R. (3d) xxvii (S.C.C.) (planned and deliberate murder); R. v. Rabey (1977), 40 C.R.N.S. 46 (Ont. C.A.); affirmed [1980] 2 S.C.R. 513 (S.C.C.) (medical evidence rejected for insanity defence may be considered on issue of existence of specific intent); R. v. Fournier (1982), 30 C.R. (3d) 346 (Que. C.A.); Chartrand v. R., [1977] 1 S.C.R. 314 (S.C.C.) (diminished responsibility not defence); R. c. Listes (1994), 36 C.R. (4th) 259 (Que. C.A.) (evidence of rage and morbid jealousy coupled with alcoholic condition capable of reducing murder to manslaughter). FN2. R. v. Leclair (1979), 11 C.R. (3d) 287 (Ont. C.A.) (theft being crime of specific intent); R. v. Gorman (1972), 9 C.C.C. (2d) 318 (Ont. C.A.); R. v. Clarke (1971), 56 Cr. App. R. 225 (Eng. C.A.) (evidence of depression suffered by accused shoplifter suffi-
CED Criminal Law Defences II.4.(h)
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cient to quash conviction); R. v. Rogers (1965), 48 C.R. 90 (B.C. C.A.) (insulin shock considered as defence to shoplifting). END OF DOCUMENT
CED Criminal Law Defences III.1.(a)
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CED Criminal Law Defences III.1.(a) Canadian Encyclopedic Digest Criminal Law Defences III Justifications 1 Defence of Property (a) Justifiable Force to Prevent Injury to Property Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. III.1.(a) See Canadian Abridgment: CRM.V.6 Criminal law Defences Defence of property 111 A person in defence of property may use as much force as is reasonably necessary to prevent the commission of an offence for which, if it were committed, the offender might be arrested without warrant and that would be likely to cause immediate and serious injury to the property of any person.[FN1] FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 27(a) (reasonable belief in anything being done to property amounting to offence mentioned in s. 27(a) also warranting use of force by authority of s. 27(b)); see also R. v. Baxter (1975), 33 C.R.N.S. 22 (Ont. C.A.); R. v. Figueira (1981), 63 C.C.C. (2d) 409 (Ont. C.A.) (where overlap of s. 27 with other defences, counsel should request it be put to jury); R. v. Scopelliti (1981), 34 O.R. (2d) 524 (Ont. C.A.) (use of deadly force justified only under ss. 27, 34 of Criminal Code); R. v. Budgell (1986), 185 A.P.R. 181 (Nfld. Dist. Ct.) (firing of several shots at poachers not justified); R. v. Clark, [1983] 4 W.W.R. 313 (Alta. C.A.) (defender of property not expected to measure necessary force with nicety). END OF DOCUMENT
CED Criminal Law Defences III.1.(b)
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CED Criminal Law Defences III.1.(b) Canadian Encyclopedic Digest Criminal Law Defences III Justifications 1 Defence of Property (b) Taking Personal Property from Trespasser Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. III.1.(b) See Canadian Abridgment: CRM.V.6.b Criminal law Defences Defence of property Personal property 112 Every person who is in peaceable possession of personal property, and everyone lawfully assisting him or her, is justified in preventing a trespasser from taking it or in taking it from a trespasser who has taken the property, if he or she does not strike or cause bodily harm to the trespasser.[FN1] 113 Where a person who is in peaceable possession of personal property lays hands upon it, a trespasser who persists in attempting to keep it or to take it from the person in peaceable possession, or from anyone lawfully assisting him or her, is deemed to commit an assault without justification or provocation.[FN2] FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 38(1); R. v. Sidhu (2005), 2005 CarswellOnt 150 (Ont. C.J.); see also R. v. Weare (1983), 4 C.C.C. (3d) 494 (N.S. C.A.) (accused acquitted for unlawfully pointing firearm at sheriff attempting to repossess furniture at accused's home; accused using no more force than, on reasonable grounds, believing necessary); R. v. Doucette (1960), 33 C.R. 174 (Ont. C.A.) (conduct of bailiff seizing property considered); R. c. Auger, [1987] R.J.Q. 1475 (Que. Mag. Ct.) (towed car may be taken). FN2. Criminal Code, R.S.C. 1985, c. C-46, s. 38(2); see also R. v. Baxter (1975), 33 C.R.N.S. 22 (Ont. C.A.) (deemed assault under s. 41(2), which is similar to s. 38(2), interpreted to mean that mere passive resistance not amounting to deemed assault; must be some force used). END OF DOCUMENT
CED Criminal Law Defences III.1.(c)
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CED Criminal Law Defences III.1.(c) Canadian Encyclopedic Digest Criminal Law Defences III Justifications 1 Defence of Property (c) Personal Property and Claim of Right Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. III.1.(c) See Canadian Abridgment: CRM.V.6.b Criminal law Defences Defence of property Personal property 114 Everyone who is in peaceable possession of personal property under a claim of right,[FN1] and everyone acting under his or her authority, is protected from criminal responsibility for defending that possession, even against a person entitled by law to possession of it, if he or she uses no more force than is necessary.[FN2] 115 Everyone who is in possession of personal property, but does not claim it as of right or does not act under the authority of a person who claims it as of right, is not justified or protected from criminal responsibility for defending such possession against a person who is entitled by law to possession of it.[FN3] FN1. R. v. Breed, [1956] Crim. L.R. 199 (Eng. C.A.) (claim of right not necessarily claim of legal right, but claim accused honestly believing to be right). FN2. Criminal Code, R.S.C. 1985, c. C-46, s. 39(1); see also R. v. Doucette (1960), 33 C.R. 174 (Ont. C.A.); R. v. Nykolyn, [1949] S.C.R. 392 (S.C.C.) (person in peaceable possession of suitcases under claim of right entitled to resist persons attempting to take them); R. v. Lei (1997), 120 C.C.C. (3d) 441 (Man. C.A.); leave to appeal refused (1998), 228 N.R. 195 (note) (S.C.C.) (honest but mistaken belief in entitlement); R. v. Sidhu (2005), 2005 CarswellOnt 150 (Ont. C.J.). FN3. Criminal Code, R.S.C. 1985, c. C-46, s. 39(2). END OF DOCUMENT
CED Criminal Law Defences III.1.(d)
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CED Criminal Law Defences III.1.(d) Canadian Encyclopedic Digest Criminal Law Defences III Justifications 1 Defence of Property (d) Unlawful Entry of Dwelling-House Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. III.1.(d) See Canadian Abridgment: CRM.V.6.a Criminal law Defences Defence of property Dwelling house and real property 116 Everyone who is in peaceable possession of a dwelling-house, and everyone lawfully assisting or acting under this authority, is justified in using as much force as is necessary to prevent any person from forcibly breaking into or forcibly entering the dwelling-house without lawful authority.[FN1] FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 40; see also R. v. Clark, [1983] 4 W.W.R. 313 (Alta. C.A.) (defence of property that would justify killing only arising under selfdefence; see s. 34); but see R. v. Scopelliti (1981), 34 O.R. (2d) 524 (Ont. C.A.) (deadly force justified under s. 27); R. v. Baxter (1975), 33 C.R.N.S. 22 (Ont. C.A.); R. v. Hussey (1924), 18 Cr. App. R. 160 (Eng. C.A.) (in defence of house, owner or family may kill trespasser); R. v. Stonechild (1981), 61 C.C.C. (2d) 251 (Man. Co. Ct.); R. v. Kephart, [1989] 1 W.W.R. 529 (Alta. C.A.) (accused entitled to resist police). END OF DOCUMENT
CED Criminal Law Defences III.1.(e)
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CED Criminal Law Defences III.1.(e) Canadian Encyclopedic Digest Criminal Law Defences III Justifications 1 Defence of Property (e) Trespassing on Dwelling-House or Real Property Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. III.1.(e) See Canadian Abridgment: CRM.V.6.a.i Criminal law Defences Defence of property Dwelling house and real property Removal of trespasser 117 Everyone who is in peaceable possession of a dwelling-house or real property, and everyone lawfully assisting or acting under his or her authority, is justified in using force to prevent any person from trespassing on the dwelling-house or real property, or to remove a trespasser therefrom, if he or she uses no more force than is necessary.[FN1] 118 Defence of a house or real property against a trespasser contains four elements: the accused must be in possession of the land; the possession must be peaceable; the victim of the assault must be a trespasser; and the force used to eject the trespasser must be reasonable in the circumstances.[FN2] 119 A trespasser who resists an attempt by a person who is in peaceable possession of a dwelling-house or real property, or a person lawfully assisting or acting under his or her authority to prevent entry or to remove the trespasser, shall be deemed to commit an assault without justification or provocation.[FN3] FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 41(1); R. v. Jamieson (2002), 166 C.C.C. (3d) 501 (B.C. C.A.) (victim sitting on floor not trespasser); R. v. Keating (1992), 76 C.C.C. (3d) 570 (N.S. C.A.) (invitee on private property may cease to have that status and become trespasser; accused in any event may hold honest belief that person trespassing); R. v. Miller, [1988] 1 S.C.R. 230 (S.C.C.) (accused striking peace officer over head with bottle; no justification); R. v. Scopelliti (1981), 34 O.R. (2d) 524 (Ont. C.A.) (section applying to commercial and residential premises); R. v. Baxter (1975), 33 C.R.N.S. 22 (Ont. C.A.) (shooting at mere trespasser not justified); R. v. Matson (1970), 1 C.C.C. (2d) 374 (B.C. C.A.) (section not applicable where occupier assaulting trespasser trying to leave); R. v. MacLeod (1987), 77 N.S.R. (2d) 87 (N.S. C.A.); R. v. Colet, [1981] 1 S.C.R. 2 (S.C.C.) (police trespassers); R. v. Dixon (1993), 26 C.R. (4th) 173 (N.B. C.A.) (breaking bottle and threatening use of bottle not unjustified); R. v. Swenson, [1994] 9 W.W.R. 124 (Sask. C.A.) (night-club bouncer not entitled to defence where us-
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ing unreasonable force; injured customer invitee, not trespasser); R. v. Rossignol (2005), 280 N.B.R. (2d) 312 (N.B. C.A.) (s. 41 not applying when force used and death resulting); R. v. McKay (2007), 2007 CarswellMan 88 (S.C.C.) (defence of property cannot justify commission of aggravated assault; findings of trial judge not sufficient to enter conviction; new trial ordered); see also R. v. Gunning (2005), 196 C.C.C. (3d) 123 (S.C.C.) (accused charged with second degree murder in respect of fatal shooting of victim who entered accused's home uninvited during party; accused denying intent to kill victim, rather testifying that he had taken out and loaded gun to intimidate or scare victim into leaving and gun then discharging accidentally; trial judge erring in failing to instruct jury regarding defence of house or property; while intentional shooting could not be justified on this basis, defence advanced in respect of use of firearm prior to and up to alleged accidental shooting). FN2. R. v. Born With A Tooth (1992), 4 Alta. L.R. (3d) 289 (Alta. C.A.) (peaceable possession of Indians on Crown land may be relevant aspect); R. v. George (2000), 145 C.C.C. (3d) 405 (Ont. C.A.); leave to appeal refused (2001), 2001 CarswellOnt 160 (S.C.C.) (no defence where uncertainty over peaceable possession); R. v. Garvie (2004), 2004 CarswellOnt 1561 (Ont. S.C.J.) (accused throwing wife out of apartment because she wanted to take daughter home, not because she was trespasser; whether section applying; whether force used unreasonable). FN3. Criminal Code, R.S.C. 1985, c. C-46, s. 41(2); R. v. Baxter (1975), 33 C.R.N.S. 22 (Ont. C.A.) (mere passive resistance by trespasser not assault; forcible resistance required); R. v. Scopelliti (1981), 34 O.R. (2d) 524 (Ont. C.A.); R. v. Richardson (1983), 8 C.C.C. (3d) 309 (N.S. C.A.); R. v. Kellington, [1972] 5 W.W.R. 396 (B.C. S.C.) (overt act of removal and overt act of resistance required for assault); see also R. v. Spencer, [1978] 1 W.W.R. 250 (B.C. S.C.) (common hallway of apartment building not property of apartment tenant); R. v. Miller (1986), 25 C.C.C. (3d) 554 (Sask. C.A.); affirmed [1988] 1 S.C.R. 230 (S.C.C.); R. v. Stanley, [1977] 4 W.W.R. 578 (B.C. C.A.) (deceased resisting attempt to remove him from residence committing unprovoked assault); R. v. Alkadri (1986), 29 C.C.C. (3d) 467 (Alta. C.A.); leave to appeal refused (1986), 29 C.C.C. (3d) 467n (S.C.C.) (accused claiming that murder victim becoming resisting trespasser; accused entitled to have s. 41(2) put to jury); see also R. v. Gunning (2005), 196 C.C.C. (3d) 123 (S.C.C.) . END OF DOCUMENT
CED Criminal Law Defences III.1.(f)
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CED Criminal Law Defences III.1.(f) Canadian Encyclopedic Digest Criminal Law Defences III Justifications 1 Defence of Property (f) Lawful Entry of Dwelling-House or Real Property Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. III.1.(f) See Canadian Abridgment: CRM.V.6.a Criminal law Defences Defence of property Dwelling house and real property 120 Everyone is justified in peaceably entering a dwelling-house or real property by day to take possession of it if he or she, or some other person under whose authority he or she acts, is lawfully entitled to possession of it.[FN1] 121 Where a person not having peaceable possession of a dwelling-house or real property under a claim of right, or not acting under the authority of such a person, assaults a person who is lawfully entitled to possession of it and who is entering it peaceably by day to take possession of it, for the purpose of preventing him or her from entering, the assault is deemed to be without justification or provocation.[FN2] 122 Where a person having peaceable possession of a dwelling-house or real property under a claim of right, or a person acting under the authority of such a person, assaults any person who is lawfully entitled to possession of it and who is entering it peaceably by day to take possession of it, for the purpose of preventing him or her from entering, the assault is deemed to be provoked by the person who is entering.[FN3] FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 42(1). FN2. Criminal Code, R.S.C. 1985, c. C-46, s. 42(2). FN3. Criminal Code, R.S.C. 1985, c. C-46, s. 42(3). END OF DOCUMENT
CED Criminal Law Defences III.1.(g)
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CED Criminal Law Defences III.1.(g) Canadian Encyclopedic Digest Criminal Law Defences III Justifications 1 Defence of Property (g) Necessary Force Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. III.1.(g) See Canadian Abridgment: CRM.V.6 Criminal law Defences Defence of property 123 A person, in defending his or her own home or property, is not obliged to retreat, even if this is possible. A person is entitled to stand his or her ground in defence of such property, but it is a question of fact on all of the evidence whether the force used was necessary. A person has a right to defend his or her property, but is not entitled to kill a trespasser in the absence of some threat to his or her person.[FN1] FN1. R. v. Clark, [1983] 4 W.W.R. 313 (Alta. C.A.) (not reasonable to kill another merely to prevent crime directed only against property); R. v. Deegan, [1979] 6 W.W.R. 97 (Alta. C.A.) (person need not give up house to adversary before using force); R. v. Antley (1963), 42 C.R. 384 (Ont. C.A.) (person on own property not required to retreat); R. v. Jack (1994), 91 C.C.C. (3d) 446 (B.C. C.A.) (accused need not retreat from his own home and may defend property); R. v. Rode (2004), 187 C.C.C. (3d) 1 (B.C. C.A.) (no obligation to retreat from home); R. v. Rossignol (2005), 280 N.B.R. (2d) 312 (N.B. C.A.) (s. 41 not applying when force used and death resulting); but see R. v. Hussey (1924), 18 Cr. App. R. 160 (Eng. C.A.) (in defence of house, owner or family may kill trespasser). END OF DOCUMENT
CED Criminal Law Defences III.1.(h)
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CED Criminal Law Defences III.1.(h) Canadian Encyclopedic Digest Criminal Law Defences III Justifications 1 Defence of Property (h) Excessive Force Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. III.1.(h) See Canadian Abridgment: CRM.V.6 Criminal law Defences Defence of property 124 Everyone who is authorized by law to use force is criminally responsible for any excess thereof according to the nature and quality of the act that constitutes the excess.[FN1] FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 26; R. v. Clark, [1983] 4 W.W.R. 313 (Alta. C.A.) (intentionally stabbing people leading to finding of intent to cause grievous bodily harm); R. v. Figueira (1981), 63 C.C.C. (2d) 409 (Ont. C.A.) (infliction of serious injury with knife not justified merely to prevent trespass); R. v. Paquin (1983), 29 Sask. R. 78 (Sask. Q.B.) (bar bouncer breaking customer's jaw not using unreasonable force); R. v. Miller (1986), 25 C.C.C. (3d) 554 (Sask. C.A.); affirmed [1988] 1 S.C.R. 230 (S.C.C.). END OF DOCUMENT
CED Criminal Law Defences III.2
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CED Criminal Law Defences III.2 Canadian Encyclopedic Digest Criminal Law Defences III Justifications 2 Obedience to Superior Orders Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. III.2 See Canadian Abridgment: CRM.V.18 Criminal law Defences Obedience to orders 125 A person charged with genocide, a crime against humanity, or a war crime[FN1] may raise a defence of obedience to superior orders if: (a) the accused was under a legal obligation to obey the order; (b) the accused did not know that the order was unlawful; and (c) the order was not manifestly unlawful.[FN2] 126 It is a well recognized principle in both the armed forces and police forces that commands from superior officers must be obeyed. It follows that it is not fair to punish members of the military or police officers for obeying and carrying out orders unless the orders were manifestly unlawful.[FN3] 127 A peace officer, public officer or member of the armed forces is precluded from raising a defence of superior orders in instances involving torture.[FN4] FN1. Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24, ss. 11, 14; see also Criminal Code, R.S.C. 1985, c. C-46, ss. 32(2) (those bound by military law justified in obeying superior to suppress riot), 32(3) (civilians justified in obeying peace officer); R. v. Trainer (1864), 176 E.R. 488 (civilian justified in obeying directions of superior; civilian acquitted of manslaughter charge); but see R. v. Berrie (1975), 30 C.R.N.S. 145 (B.C. Prov. Ct.) (penitentiary officers shaving victim by force guilty of assault notwithstanding orders); Brannan v. Peek, [1948] 1 K.B. 68 (Eng. K.B.) (order of superior to police officer affording no defence); R. v. Lemire, [1965] S.C.R. 174 (S.C.C.). FN2. Keighley v. Bell (1866), 176 E.R. 781 (Eng. C.P.) (officer or soldier justified in acting under not manifestly illegal orders of superior); R. v. Smith (1900), 17 Cape S.C.R. 561 (Special Ct. of Cape Colony) (South African soldier shooting farmhand under orders from superior; soldier acquitted of murder); Commonwealth v. Shortall (1903), 55 Atlantic R. 952 (Penn. S.C.) (soldier bound to obey orders of superior; orders protecting soldier); State v. Roy (1951), 64 S.E. 2d 840 (N.C. S.C.) (order by superior officer to assault female not justified; order unlawful and not related to military duty); R. v.
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Perzenowski, [1946] 3 W.W.R. 678 (Alta. C.A.) (orders no excuse for killing fellow prisoner of war); R. v. Kaehler, [1945] 1 W.W.R. 566 (Alta. C.A.) (prisoners of war convicted for stealing car); R. v. MacKay (1980), 54 C.C.C. (2d) 129 (S.C.C.) (serviceman may be tried in military court); see also National Defence Act, R.S.C. 1985, c. N-5, s. 74 [am. 1998, c. 35, s. 25] (every person disobeying lawful command of superior officer guilty of offence). FN3. R. v. Finta (1994), 88 C.C.C. (3d) 417 (S.C.C.); reconsideration refused (June 23, 1994), Doc. 23023, 23097 (S.C.C.) (even where order manifestly unlawful, defence available if accused under real and imminent compulsion or threat); but see Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24, ss. 11, 14. FN4. Criminal Code, R.S.C. 1985, c. C-46, s. 269.1(3) [en. R.S.C. 1985, c. 10 (3rd Supp.), s. 2]; see also Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24, s. 14(2). END OF DOCUMENT
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CED Criminal Law Defences III.3.(a) Canadian Encyclopedic Digest Criminal Law Defences III Justifications 3 Protection of Persons Administering and Enforcing the Law (a) Conduct Required or Authorized by Law Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. III.3.(a) See Canadian Abridgment: CRM.V.13.a Criminal law Defences Lawful authority To administer or enforce law 128 Everyone who is required or authorized by law to do anything in the administration or enforcement of the law as a private person, as a peace or public officer, in aid of a peace or public officer or by virtue of his or her office is, if acting on reasonable and probable grounds, justified in doing what he or she is required or authorized to do and in using as much force as is necessary for that purpose.[FN1] 129 Where a person is required or authorized by law to execute a process or to carry out a sentence, he or she or any person who assists him or her is, if acting in good faith, justified in executing the process or in carrying out the sentence notwithstanding that the process or sentence is defective or that it was issued or imposed without jurisdiction or in excess of jurisdiction.[FN2] 130 A peace officer who is proceeding lawfully to arrest, with or without warrant, any person for an offence for which that person may be arrested without warrant, and everyone lawfully assisting the peace officer, is justified, if the person to be arrested takes flight to avoid arrest, in using as much force as is necessary to prevent the escape by flight, unless the escape can be prevented by reasonable means in a less violent manner.[FN3] The peace officer must also believe on reasonable grounds that the force is necessary to protect the peace officer, anyone lawfully assisting the peace officer or any other person from imminent or future death or grievous bodily harm.[FN4] FN1. Criminal Code, R.S.C. 1985, c. C-46, ss. 25(1), 25.1 [en. 2001, c. 32, s. 2; am. 2005, c. 10, s. 34(1)(f)(ii)] (officer justified in committing unlawful act if properly authorized and directed), 494 (where private person authorized to arrest), 495 [am. R.S.C. 1985, c. 27 (1st Supp.), s. 75]; R. v. Asante-Mensah (2003), 11 C.R. (6th) 1 (S.C.C.) (latitude for police officers); R. v. Brennan (1989), 75 C.R. (3d) 38 (Ont. C.A.) (s. 25(1) no justification for going through stop sign); R. v. F. (V.A.) (1989), 53 C.C.C. (3d) 74 (Sask. Q.B.) (prison guard may rely on s. 25(1)); R. v. Stonechild (1981), 61 C.C.C. (2d)
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251 (Man. Co. Ct.) (reasonable and probable being more than mere suspicion); R. v. Finta (1994), 88 C.C.C. (3d) 417 (S.C.C.); application for re-hearing refused (June 23, 1994), Doc. 23023, 23097 (S.C.C.) (police officer must obey and implement law unless law manifestly illegal; police officer defence available if order illegal); R. v. Hebert (1996), 107 C.C.C. (3d) 42 (S.C.C.) (ss. 25 and 26 only applying to individuals required or authorized by law to use force); Potts v. Edmonton (City) Police Service (2005), 2005 CarswellAlta 291 (Alta. Q.B.) (plaintiff inflicting significant bite on officer's leg; single forceful kick directed by officer towards plaintiff's head separate in time from bite and not delivered in self-defence, but rather deliberate act as angry response to injury; conduct not attracting protection of s. 25; liability on civil standard made out); see also R. v. Landry, [1986] 1 S.C.R. 145 (S.C.C.) (peace officer having authority at common law to enter private premises to effect arrest without warrant); Eccles v. Bourque, [1973] 5 W.W.R. 434 (B.C. C.A.); affirmed [1975] 2 S.C.R. 739 (S.C.C.) (section not conferring power to do anything and everything to assist or advance exercise of power); R. v. O'Donnell, [1985] 2 S.C.R. 216 (S.C.C.) (under section, police not to use as much force as necessary to carry out investigation; force to be used only when warranted for lawful arrest); R. v. Redshaw (1975), 31 C.R.N.S. 255 (Ont. Co. Ct.) (illegal turn by peace officer protected by section); R. v. Godoy (1997), 7 C.R. (5th) 216 (Ont. C.A.); affirmed (1998), 41 O.R. (3d) 95 (S.C.C.); additional reasons at (1998), 21 C.R. (5th) 205 (S.C.C.) (police possessing common law authority to enter dwelling-house to investigate disconnected 9-1-1 call; police acting in course of duty and entry justifiable in circumstances; accused guilty of assaulting police officer); but see R. v. Walker (1979), 48 C.C.C. (2d) 126 (Ont. Co. Ct.) (section not requiring or authorizing police officer to go through stop sign to answer bank call); Bottrell v. R. (1981), 22 C.R. (3d) 371 (B.C. C.A.) (circumstances determining amount of force necessary for arrest by peace officer); R. v. Swinimer (1986), 171 A.P.R. 173 (N.S. T.D.) (fact that peace officer doing considerable physical damage to plaintiff not precluding application of section; force not required to be measured with nicety); Reynen v. Antonenko, [1975] 5 W.W.R. 10 (Alta. T.D.). FN2. Criminal Code, R.S.C. 1985, c. C-46, s. 25(2), (3) [re-en. 1994, c. 12, s. 1] (persons not justified in using force intended or likely to cause death or grievous bodily harm); R. v. Berrie (1975), 30 C.R.N.S. 145 (B.C. Prov. Ct.) (forceful shaving of penitentiary inmate's beard not required or authorized by law); R. v. Devereaux (1996), 112 C.C.C. (3d) 243 (Nfld. C.A.) (detainee refusing to sign property release form; statutes, regulations and operational procedures not authorizing forcible return of detainee to cell; peace officer defence available when correctional officer acting in good faith); see also Yoner, Re (1969), 7 C.R.N.S. 239 (B.C. S.C.); Gaul v. Ellice (Township) (1902), 1902 CarswellOnt 101 (Ont. Div. Ct.) (where warrant or process bad in law, persons acting under it in good faith without culpable negligence protected from criminal responsibility); Bottrell v. R. (1981), 22 C.R. (3d) 371 (B.C. C.A.) (grievous bodily harm meaning serious hurt or pain). FN3. Criminal Code, R.S.C. 1985, c. C-46, s. 25(4) [re-en. 1994, c. 12, s. 1]; R. v. Roberge, [1983] 1 S.C.R. 312 (S.C.C.) (police officer in fresh pursuit into another
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province retaining protection of section); see also Criminal Code, R.S.C. 1985, c. C-46, s. 25(5) [en. 1994, c. 12, s. 1] (use of force in preventing inmate's escape from penitentiary); Shynall v. Priestman, [1959] S.C.R. 615 (S.C.C.) (peace officer may be justified in using deadly force under section); R. v. Mitchell (1937), 69 C.C.C. 406 (Ont. Co. Ct.) (police officer not justified in shooting innocent party believed to be in flight); Beim v. Goyer, [1965] S.C.R. 638 (S.C.C.); Kirkpatrick v. Lament, [1965] S.C.R. 538 (S.C.C.); R. v. Suchacki, [1923] 3 W.W.R. 1202 (Man. C.A.) (illegal arrest resulting in loss of jurisdiction); R. c. Gosset, [1993] 3 S.C.R. 76 (S.C.C.); R. v. Tricker (1995), 96 C.C.C. (3d) 198 (Ont. C.A.); leave to appeal refused (1996), 103 C.C.C. (3d) vi (note) (S.C.C.). FN4. Criminal Code, R.S.C. 1985, c. C-46, s. 25(4)(d) [re-en. 1994, c. 12, s. 1]. END OF DOCUMENT
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CED Criminal Law Defences III.3.(b) Canadian Encyclopedic Digest Criminal Law Defences III Justifications 3 Protection of Persons Administering and Enforcing the Law (b) Use of Force to Prevent Commission of Offence Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. III.3.(b) See Canadian Abridgment: CRM.V.13.a.ii.C Criminal law Defences Lawful authority To administer or enforce law Justification for use of force Preventing commission of offence 131 Everyone is justified in using as much force as is reasonably necessary to prevent the commission of an offence for which, if it were committed, the person accused of it might be arrested without warrant, and which would be likely to cause immediate and serious injury to the person or property of anyone.[FN1] FN1. Criminal Code, R.S.C. 1985, c. C-46, ss. 27(a), 27.1 [en. 2004, c. 12, s. 2] (person on aircraft and use of force to prevent offence); R. v. Hebert (1996), 107 C.C.C. (3d) 42 (S.C.C.) (s. 27 designed to permit innocent bystander witnessing offence to use force to prevent commission of offence; individual assaulted not entitled to rely on s. 27 as legal authority for using force to repel assault); see also Criminal Code, R.S.C. 1985, c. C-46, s. 27(b) (anything believed to be offence mentioned in s. 27(a) may also be prevented with justification); R. v. Figueira (1981), 63 C.C.C. (2d) 409 (Ont. C.A.) (where overlap of section with other defences, counsel should request this defence be put to jury); R. v. Scopelliti (1981), 34 O.R. (2d) 524 (Ont. C.A.) (deadly force may be justified under section); R. v. Gee, [1982] 2 S.C.R. 286 (S.C.C.) (section not providing partial defence where excessive force); R. v. Morris (1981), 23 C.R. (3d) 175 (Alta. Q.B.); R. v. Baxter (1975), 33 C.R.N.S. 22 (Ont. C.A.) (section overlapping with those of defence of person or property); but see R. v. Bridges (1989), 48 C.C.C. (3d) 535 (B.C. S.C.). END OF DOCUMENT
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CED Criminal Law Defences III.3.(c) Canadian Encyclopedic Digest Criminal Law Defences III Justifications 3 Protection of Persons Administering and Enforcing the Law (c) Arrest of Wrong Person Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. III.3.(c) See Canadian Abridgment: CRM.VII.9.e.iii Criminal law Pre-trial procedure Arrest Legality Arrest of wrong person 132 A person authorized to execute a warrant to arrest, believing in good faith and on reasonable and probable grounds that the person arrested is the person named in the warrant, is protected from criminal responsibility in respect thereof to the same extent as if that person were the person named in the warrant.[FN1] FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 28(1); see also Criminal Code, R.S.C. 1985, c. C-46, s. 28(2) (providing for persons assisting in arrest and keepers of prisons receiving and detaining arrested persons). END OF DOCUMENT
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CED Criminal Law Defences III.3.(d) Canadian Encyclopedic Digest Criminal Law Defences III Justifications 3 Protection of Persons Administering and Enforcing the Law (d) Duty of Person Arresting Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. III.3.(d) See Canadian Abridgment: CRM.VII.9.d Criminal law Pre-trial procedure Arrest Duties following arrest 133 It is the duty of everyone who executes a process or warrant to have it with him or her, where it is feasible to do so, and to produce it when requested to do so. It is also the duty of everyone who arrests a person, whether with or without warrant, to give notice to that person, where it is feasible to do so, of the process or warrant under which he or she makes the arrest, or the reason for the arrest.[FN1] FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 29(1), (2); see also Criminal Code, R.S.C. 1985, c. C-46, s. 29(3) (failure to comply with s. 29(1), (2)); R. v. Fielding (1967), 1 C.R.N.S. 221 (B.C. C.A.) (reason for arrest given by stating substance of offence without statute and section number); R. v. Gamracy, [1974] S.C.R. 640 (S.C.C.) (peace officer discharging duty by telling accused reason for arrest being outstanding warrant without giving details of warrant content); R. v. Beaudette (1957), 118 C.C.C. 295 (Ont. C.A.) (person need not be informed if circumstances obvious); R. v. Shore (1960), 129 C.C.C. 70 (B.C. C.A.) (person need not be informed of reasons for arrest if knowing reason); but see R. v. Acker (1970), 9 C.R.N.S. 371 (N.S. C.A.) (failure to advise drunken accused of arrest and reasons for arrest fatal to assault peace officer charge); R. v. Richard (1974), 27 C.R.N.S. 337 (Que. S.C.) (failure to have available warrant at time of arrest making arrest unlawful). END OF DOCUMENT
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CED Criminal Law Defences III.3.(e) Canadian Encyclopedic Digest Criminal Law Defences III Justifications 3 Protection of Persons Administering and Enforcing the Law (e) Preventing Breach of the Peace Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. III.3.(e) See Canadian Abridgment: CRM.V.13.a.ii.D Criminal law Defences Lawful authority To administer or enforce law Justification for use of force Preventing breach of peace 134 Everyone who witnesses a breach of the peace is justified in interfering to prevent the continuance or renewal thereof and may detain any person who commits or is about to join in or to renew the breach of the peace, for the purpose of giving him or her into custody of a peace officer, if he or she uses no more force than is reasonably necessary to prevent the continuance or renewal of the breach of the peace, or than is reasonably proportioned to the danger to be apprehended from the continuance or renewal of the breach of the peace.[FN1] FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 30; see also Criminal Code, R.S.C. 1985, c. C-46, s. 31 (peace officer justified in arresting those involved in breach of peace and receiving them in custody); R. v. Doucette (1960), 33 C.R. 174 (Ont. C.A.); Frey v. Fedoruk, [1950] S.C.R. 517 (S.C.C.) (breach of peace taking place when assault committed on individual or public alarm and excitement caused; mere annoyance or insult not sufficient); R. v. Coney (1882), 8 Q.B.D. 534 (Eng. Q.B.) (assault being breach of peace); R. v. Lefebvre (1984), 15 C.C.C. (3d) 503 (B.C. C.A.); R. v. Biron, [1976] 2 S.C.R. 56 (S.C.C.); Blanchard v. Galbraith (1966), 10 Crim. L.Q. 122 (Man. Q.B.) (police officer may act on anticipated breach of peace); R. v. Richter (1970), 73 W.W.R. 140 (Alta. Dist. Ct.); R. v. Knowlton, [1974] S.C.R. 443 (S.C.C.); Hayes v. Thompson, [1985] 3 W.W.R. 366 (B.C. C.A.) (peace officer may arrest for apprehending breach of peace); R. c. Blanger (1987), 19 Q.A.C. 161 (Que. C.A.). END OF DOCUMENT
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CED Criminal Law Defences III.3.(f) Canadian Encyclopedic Digest Criminal Law Defences III Justifications 3 Protection of Persons Administering and Enforcing the Law (f) Suppression of Riots Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. III.3.(f) See Canadian Abridgment: CRM.V.13.a.ii.D Criminal law Defences Lawful authority To administer or enforce law Justification for use of force Preventing breach of peace 135 Every peace officer is justified in using, or ordering the use of, as much force as he or she believes, in good faith and on reasonable and probable grounds, is necessary to suppress a riot, and is not excessive, having regard to the danger to be apprehended from the continuance of the riot.[FN1] FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 32(1); see also Criminal Code, R.S.C. 1985, c. C-46, ss. 32(2)-(5), 33 (military and others justified in using force in riot; duty of officers if rioters not dispersing); St. Pierre v. Boisseau, [1952] Que. Q.B. 292 (Que. C.A.) (all private citizens agents of Crown for suppression of riots); Hbert v. Martin, [1931] S.C.R. 145 (S.C.C.) (constable not liable for killing man in riot when fearing for safety or life). END OF DOCUMENT
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CED Criminal Law Defences III.3.(g) Canadian Encyclopedic Digest Criminal Law Defences III Justifications 3 Protection of Persons Administering and Enforcing the Law (g) Excessive Force Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. III.3.(g) See Canadian Abridgment: CRM.V.13.a.iii Criminal law Defences Lawful authority To administer or enforce law Excessive force 136 Everyone who is authorized by law to use force is criminally responsible for any excess thereof according to the nature and quality of the act that constitutes the excess.[FN1] FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 26; see also R. v. Gee, [1982] 2 S.C.R. 286 (S.C.C.) (no partial defence of justification under s. 27 to reduce murder to manslaughter); R. v. O'Donnell, [1985] 2 S.C.R. 216 (S.C.C.); R. v. Roberge, [1983] 1 S.C.R. 312 (S.C.C.) (firing of three shots by peace officer during car pursuit not excessive); R. v. Berrie (1975), 30 C.R.N.S. 145 (B.C. Prov. Ct.); R. v. Mitchell (1937), 69 C.C.C. 406 (Ont. Co. Ct.). END OF DOCUMENT
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CED Criminal Law Defences III.4.(a) Canadian Encyclopedic Digest Criminal Law Defences III Justifications 4 Protection of Persons in Authority (a) Correction of Child by Force Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. III.4.(a) See Canadian Abridgment: CRM.V.13.b Criminal law Defences Lawful authority Physical discipline of children 137 Every schoolteacher, parent or person standing in place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his or her care, if the force does not exceed what is reasonable under the circumstances.[FN1] 138 What is reasonable under the circumstances only allows for minor corrective force of a transitory or trifling nature. Discipline by use of objects, or blows or slaps to the head is unreasonable. Punishment stemming from frustration, loss of temper or abusive personality is not lawful.[FN2] 139 A person can stand in the place of a parent only if that status is obtained in one of two manners: the person assumes parental obligations, including financial; or there is a delegation of parental rights by the natural parents.[FN3] FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 43; R. v. Ogg-Moss, [1984] 2 S.C.R. 173 (S.C.C.) (mentally retarded adult neither child nor pupil, and counsellor not being teacher or person standing in place of parent); R. v. Nixon, [1984] 2 S.C.R. 197 (S.C.C.); R. v. Halcrow (1993), 80 C.C.C. (3d) 320 (B.C. C.A.); affirmed (1995), 95 C.C.C. (3d) 94 (S.C.C.) (accused's religious beliefs not relevant to issue of excessive force); R. v. Atkinson, [1994] 9 W.W.R. 485 (Man. Prov. Ct.) (use of belt to discipline young children prima facie unreasonable; accused acquitted in absence of description of belt or evidence of how accused using belt); R. v. D. (R.S.) (1995), 102 C.C.C. (3d) 319 (Ont. Prov. Div.) (contemporary community standards relevant to what amount of force reasonable under circumstances contemplated by s. 43); R. v. M. (R.W.) (1995), 103 C.C.C. (3d) 375 (P.E.I. Prov. Ct.) (past reaction of child to less severe forms of punishment possibly justifying imposition of corporal punishment; in circumstances, striking child with belt with sufficient force to leave marks on several parts of child's body constituting excessive force); R. v. Graham (1995), 39 C.R. (4th) 339 (N.B. Q.B.) (teacher striking disruptive child in classroom; lawful in circumstances); R. v. Murphy (1996), 108 C.C.C. (3d) 414
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(B.C. C.A.) (delegation of parental authority to uncle acting as babysitter; taping hyperactive child to chair not excessive); see also R. v. Shannon (1966), 49 C.R. 291 (N.B. C.A.) (right to discipline child continuing as long as child residing with and supported by parent); R. v. Haberstock (1970), 1 C.C.C. (2d) 433 (Sask. C.A.) (honest and reasonable belief may justify punishment from teacher); R. v. Trynchy (1970), 11 C.R.N.S. 95 (Y.T. Mag. Ct.) (person standing in place of parent including driver of school bus); R. v. Dimmell (1980), 55 C.C.C. (2d) 239 (Ont. Dist. Ct.) (force used not expected to be measured neatly); R. v. K. (M.), [1992] 5 W.W.R. 618 (Man. C.A.); leave to appeal allowed [1993] 1 W.W.R. lix (S.C.C.) (kicking son excessive but within acceptable range); R. v. D. (D.) (1991), 65 C.C.C. (3d) 511 (Ont. C.A.) (spanking child lawful if not excessive; s. 43 defence must be explained to jury); R. v. Eldridge (1993), 13 Alta. L.R. (3d) 196 (Alta. Prov. Ct.) (boyfriend interfering with parent's lawful duty; parent entitled to use reasonable force to prevent interference). FN2. Canadian Foundation for Children, Youth & the Law v. Canada (Attorney General) (2004), 180 C.C.C. (3d) 353 (S.C.C.) (mentally retarded adult not a child or pupil); R. v. Poulin (2002), 169 C.C.C. (3d) 378 (P.E.I. T.D.) (biblical imperative to use the rod excessive); Winnipeg Child & Family Services (Central Area) v. W. (K.L.), [2000] 2 S.C.R. 519 (S.C.C.) (parental scope of discretion); R. v. Kaur (2004), 2004 CarswellOnt 4592 (Ont. C.J.) (accused acknowledging applying force in form of light slap to cheek of daughter who was acting in intentionally disrespectful manner; slap not causing daughter any pain or continuing physical effects, administered for purpose of correcting daughter's disrespectful behaviour and perhaps expressing symbolic disapproval of behaviour; only slaps to head properly characterized as corporal punishment or discipline unreasonable and falling outside scope of s. 43; accused not guilty of assault); R. v. Sinclair (2008), 2008 CarswellMan 55 (Man. C.A.); leave to appeal refused (2008), 2008 CarswellMan 351 (S.C.C.) (accused shaking and throwing child on bed; child bouncing off bed, hitting head on wall; child dying of hematoma; force used by caregiver must be for corrective purposes and reasonable in circumstances; conduct cannot arise out of frustration or anger). FN3. R. v. F. (V.A.) (1989), 53 C.C.C. (3d) 74 (Sask. Q.B.) (youth worker not assuming obligations of parent); R. v. F. (J.) (1990), 57 C.C.C. (3d) 216 (Ont. Prov. Ct.) (teacher acting lawfully in blocking student and taking by arm). END OF DOCUMENT
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CED Criminal Law Defences III.4.(b) Canadian Encyclopedic Digest Criminal Law Defences III Justifications 4 Protection of Persons in Authority (b) Surgical Operations Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. III.4.(b) See Canadian Abridgment: CRM.V.22 Criminal law Defences Surgical operation 140 Everyone is protected from criminal responsibility for performing a surgical operation upon any person for the benefit of that person if the operation is performed with reasonable care and skill, and it is reasonable to perform the operation, having regard to the state of health of the person at the time the operation is performed and to all the circumstances of the case.[FN1] FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 45; B. (N.) v. Htel-Dieu de Qubec (1992), 69 C.C.C. (3d) 450 (Que. S.C.) (stopping respiratory support justifiable); R. v. Morgentaler (No. 5) (1975), [1976] 1 S.C.R. 616 (S.C.C.) (s. 45 no defence to abortion as otherwise provided for by law); see also R. v. Rogers (1968), 4 C.R.N.S. 303 (B.C. C.A.); leave to appeal refused [1968] S.C.R. ix (S.C.C.) (naturopath guilty of criminal negligence); R. v. Watson, [1936] 2 W.W.R. 560 (B.C. C.A.) (intoxicated doctor acquitted); R. v. Giardine (1939), 71 C.C.C. 295 (Ont. Co. Ct.) (doctor administering poison to patient not grossly negligent and not guilty of criminal negligence); R. v. Simard (1963), 43 C.R. 70 (Que. Q.B.) (doctor acting same way as any other doctor with equal qualifications; conviction quashed); Wilson v. Swanson, [1956] S.C.R. 804 (S.C.C.). END OF DOCUMENT
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CED Criminal Law Defences III.4.(c) Canadian Encyclopedic Digest Criminal Law Defences III Justifications 4 Protection of Persons in Authority (c) Excessive Force Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. III.4.(c) See Canadian Abridgment: CRM.V.13.a.iii Criminal law Defences Lawful authority To administer or enforce law Excessive force 141 Everyone who is authorized by law to use force is criminally responsible for any excess thereof according to the nature and quality of the act that constitutes the excess.[FN1] FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 26; see also R. v. Taylor, [1985] 3 W.W.R. 415 (Alta. C.A.) (tying girl to post and beating her with paddle may be excessive); Campeau v. R. (1951), 14 C.R. 202 (Que. C.A.); R. v. Dupperon, [1985] 2 W.W.R. 369 (Sask. C.A.) (beating with belt leaving bruises not justified). END OF DOCUMENT
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CED Criminal Law Defences III.5 Canadian Encyclopedic Digest Criminal Law Defences III Justifications 5 Public Good and Obscenity Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. III.5 See Canadian Abridgment: CRM.VI.107.d.iii Criminal law Offences Obscenity and pornography Defences Public good 142 A defence of public good is available to an accused charged with any one of a variety of criminal offences tending to corrupt morals.[FN1] Where an accused establishes that the public good was served by the acts that are alleged to constitute the offence, and that the acts alleged did not extend beyond what served the public good, there will be no conviction. It is a question of law whether there is evidence that the act alleged went beyond what served the public good. It is a question of fact whether the acts did or did not extend beyond what served the public good. The motives of an accused, however, are irrelevant.[FN2] FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 163(1), (2) (obscene matter, crime comic, disgusting object, indecent show, articles or materials showing methods of causing abortion or miscarriage, article or material for cure of venereal disease or generative organs or for restoring sexual virility). FN2. Criminal Code, R.S.C. 1985, c. C-46, s. 163(3) [re-en. 1993, c. 46, s. 1(1)], (4), (5); see also R. v. American News Co. (1957), 25 C.R. 374 (Ont. C.A.) (public good being that necessary or advantageous to science, literature, art, religion, morality, administration of justice or other objects of general interest); R. v. Delorme (1973), 21 C.R.N.S. 305 (Que. C.A.) (onus of proof on Crown discharged by producing publication without expert evidence); R. v. Sutherland (1974), 18 C.C.C. (2d) 117 (Ont. G.S.P.) (Crown not obliged to call evidence as to test of community standards); R. v. MacMillan Co. (1977), 13 O.R. (2d) 630 (Ont. Co. Ct.) (children's educational book on sex serving public good). END OF DOCUMENT
CED Criminal Law Defences III.6.(a).(i)
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CED Criminal Law Defences III.6.(a).(i) Canadian Encyclopedic Digest Criminal Law Defences III Justifications 6 Self-Defence and Defence of Others (a) Self-Defence Against Unprovoked Assault (i) Death or Grievous Bodily Harm not Intended Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. III.6.(a).(i) See Canadian Abridgment: CRM.V.21.b Criminal law Defences Self defence Intention to kill or cause grievous bodily harm 143 Everyone who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force used is not intended to cause death or grievous bodily harm and is no more than is necessary to enable one to defend oneself.[FN1] For the defence to succeed, the jury must be left with a reasonable doubt on the existence of all elements of the defence: viz., (i) the accused was unlawfully assaulted; (ii) he or she did not provoke the assault; (iii) the force that the accused used was not intended to cause death or grievous bodily harm; and (iv) the force the accused used was no more than necessary to enable him or her to defend himself or herself. Conversely, the defence fails if the Crown proves beyond a reasonable doubt that any one of the four elements is not established.[FN2] 144 A person defending himself or herself against an unprovoked assault who did not intend to cause death or grievous bodily harm, and who accidentally causes death or grievous bodily harm, is entitled to invoke the law of self-defence pertaining to persons not intending to cause death or grievous bodily harm. If the force used was no more than was necessary for the purpose of self-defence, it is justifiable and hence lawful. If a person doing a lawful act accidentally kills or causes grievous bodily harm, then in the absence of criminal negligence the death or grievous bodily harm is caused by misadventure or accident and no criminal liability is incurred.[FN3] 145 Where there is an issue as to whether or not an accused intended to cause death or grievous bodily harm, the trial judge, notwithstanding that death or grievous bodily harm has resulted, should instruct the jury with respect to the law concerning persons not intending to cause death or grievous bodily harm, and then proceed to the law concerning persons claiming selfdefence against unprovoked assault who intended to cause death or grievous bodily harm.[FN4] 146 An accused's subjective belief that he or she is in imminent danger from an attack may
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be reasonable, although he or she may be mistaken in such belief.[FN5] In any case, the force used must be no more than is necessary to defend oneself.[FN6] FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 34(1); R. v. Reilly, [1984] 2 S.C.R. 396 (S.C.C.); R. c. Brisson, [1982] 2 S.C.R. 227 (S.C.C.) (section may be invoked only if no intention to cause death or grievous bodily harm); R. v. Baxter (1975), 33 C.R.N.S. 22 (Ont. C.A.) (person defending oneself under section must use only proportional force, but not expected to weigh to nicety exact amount of force); R. v. Bogue (1976), 13 O.R. (2d) 272 (Ont. C.A.); R. v. Squire (1975), 31 C.R.N.S. 314 (Ont. C.A.); reversed on other grounds (1976), [1977] 2 S.C.R. 13 (S.C.C.) (where accused willingly engaging in fight, accused cannot rely on section; accused not victim of unprovoked assault); R. v. Stanley, [1977] 4 W.W.R. 578 (B.C. C.A.) (section available where forced consent to fight); R. v. Antley (1963), 42 C.R. 384 (Ont. C.A.) (person having reasonable grounds to apprehend danger from attacker justified in striking first blow); R. v. Larlham, [1971] 4 W.W.R. 304 (B.C. C.A.) (accused not guilty of assault on police where illegally searched); Bottrell v. R. (1981), 22 C.R. (3d) 371 (B.C. C.A.) (grievous bodily harm meaning serious hurt or pain); R. v. Horsefall (1990), 61 C.C.C. (3d) 245 (B.C. C.A.); leave to appeal refused (1991), 61 C.C.C. (3d) vi (S.C.C.) ("bodily harm" considered in context of comfort); R. v. Bayard, [1989] 1 S.C.R. 425 (S.C.C.) (section not applicable where mental element for murder present); see also Criminal Code, R.S.C. 1985, c. C46, s. 2 "bodily harm" [en. 1994, c. 44, s. 2(2)]. FN2. R. v. Hebert (1996), 107 C.C.C. (3d) 42 (S.C.C.); R. v. Paice (2005), 195 C.C.C. (3d) 97 (S.C.C.) (s. 34(1) is expansive and allows a person to repel force). FN3. R. v. Baxter (1975), 33 C.R.N.S. 22 (Ont. C.A.) (s. 34(1), (2) of Criminal Code not mutually exclusive); R. v. Marky, [1976] 6 W.W.R. 390 (Alta. C.A.) (accused striking female with glass jug causing severe cut; act may not have been intended to cause injury and possibly otherwise justifiable; accused's conviction quashed); R. v. Kandola (1993), 80 C.C.C. (3d) 481 (B.C. C.A.) (even if death resulting, defence under s. 34(1) may apply). FN4. R. v. Baxter (1975), 33 C.R.N.S. 22 (Ont. C.A.); see also Martin v. R. (1985), 47 C.R. (3d) 342 (Que. C.A.) (accused raising self-defence to murder charge but using more force than necessary; accused possibly guilty of manslaughter if not having requisite intent). FN5. R. v. Baxter (1975), 33 C.R.N.S. 22 (Ont. C.A.) (s. 34(1) importing purely objective test; defence of mistake of fact applicable); R. v. Bolyantu (1975), 29 C.C.C. (2d) 174 (Ont. C.A.) (accused may believe in non-existent attack); R. c. Ptel (1993), 78 C.C.C. (3d) 543 (Que. C.A.); affirmed (1994), 87 C.C.C. (3d) 97 (S.C.C.) (no requirement of imminent danger in s. 34(2) defence; prior threats relevant; circumstances and experience of accused relevant); R. v. Alkerton, [1993] 1 S.C.R. 468 (S.C.C.) (victim raising clenched fists several feet away). FN6. R. v. Bogue (1976), 13 O.R. (2d) 272 (Ont. C.A.) (real difference between test un-
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der s. 34(1) and (2); s. 34(2) not requiring use of proportional force); R. v. Setrum (1976), 32 C.C.C. (2d) 109 (Sask. C.A.) (accused not intending to cause death or grievous bodily harm and using no more force than necessary; victim dying; accused having defence under s. 34(1)); R. v. Nelson (1953), 16 C.R. 407 (B.C. C.A.) (physical differences between parties relevant in determining whether force used being necessary); R. v. Antley (1963), 42 C.R. 384 (Ont. C.A.); R. v. Sulland (1982), 41 B.C.L.R. 167 (B.C. C.A.) (person may arm for self-protection and carry weapon for self-defence under appropriate circumstances); see also R. v. Richter (1970), 73 W.W.R. 140 (Alta. Dist. Ct.); Northwest v. R., [1980] 5 W.W.R. 48 (Alta. C.A.) (intoxication may be relevant to intent and capacity to form intent). END OF DOCUMENT
CED Criminal Law Defences III.6.(a).(ii)
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CED Criminal Law Defences III.6.(a).(ii) Canadian Encyclopedic Digest Criminal Law Defences III Justifications 6 Self-Defence and Defence of Others (a) Self-Defence Against Unprovoked Assault (ii) Death or Grievous Bodily Harm Intended and Caused Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. III.6.(a).(ii) See Canadian Abridgment: CRM.V.21.b Criminal law Defences Self defence Intention to kill or cause grievous bodily harm 147 Everyone who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if he or she causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his or her purposes, and the person assaulted believes on reasonable and probable grounds that he or she cannot otherwise preserve himself or herself from death or grievous bodily harm.[FN1] 148 The ultimate question is whether the accused caused death or grievous bodily harm under a reasonable apprehension of death or grievous bodily harm, and believed on reasonable and probable grounds that he or she could not otherwise preserve himself or herself from death or grievous bodily harm.[FN2] 149 The reasonable apprehension of death or grievous bodily harm must satisfy an objective standard. A person can rely on self-defence where he or she has made an honest but reasonable mistake as to whether he or she is being attacked. The danger reacted to need not be "imminent". Imminence is only one factor to be weighed in determining whether the accused had a reasonable apprehension of danger.[FN3] 150 In the context of a battered wife relationship there is no requirement for imminent danger. It may be reasonable to apprehend death or grievous bodily harm even where a physical assault is not in progress.[FN4] Once the accused raises self-defence in a case involving battered woman syndrome, the trial judge must instruct the jury on the principles governing that defence and, in particular, how the expert evidence may be of use in understanding: why an abused woman might remain in an abusive relationship; the nature and extent of the violence that may exist in a battering relationship; the accused's ability to perceive danger from her abuser; and whether the accused believed on reasonable grounds that she could not otherwise preserve herself from death or grievous bodily harm.[FN5]
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151 In deciding whether the accused's belief was based upon reasonable grounds, the trier of fact, of necessity, draws comparisons with what a reasonable person in the accused's situation might believe with respect to the extent and the imminence of the danger with which he or she was threatened, and the force necessary to defend against the apprehended danger.[FN6] 152 There is no requirement that the force used be proportionate. Whether the amount of force used against an accused was disproportionate to the nature of the force used by the accused is properly considered by the trier of fact as a circumstance, or an item of evidence, in deciding whether an accused had a reasonable apprehension of death or grievous bodily harm, and whether the accused had reasonable and probable grounds to believe that he or she could not otherwise preserve himself or herself from death or grievous bodily harm.[FN7] 153 An accused's belief that he or she was in imminent danger from an attack may be reasonable even though the belief may be mistaken.[FN8] FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 34(2); R. v. Setrum (1976), 32 C.C.C. (2d) 109 (Sask. C.A.) (where no evidence accused under reasonable apprehension of death or grievous bodily harm, section not to be left to jury); Martin v. R. (1985), 47 C.R. (3d) 342 (Que. C.A.) (provisions of s. 34 must be explained to jury in context of specific intent for murder); R. c. Brisson, [1982] 2 S.C.R. 227 (S.C.C.) (subsection justification for intentional causing of death or grievous bodily harm); R. v. Faid, [1983] 1 S.C.R. 265 (S.C.C.); R. v. McIntosh (1993), 84 C.C.C. (3d) 473 (Ont. C.A.); affirmed (1995), 95 C.C.C. (3d) 481 (S.C.C.) (s. 34(2) not to be read as including words of s. 34(1)); R. v. Cameron (1995), 96 C.C.C. (3d) 346 (Ont. C.A.) (trial judge erring in suggesting to jury that self-defence under s. 34(2) not available if accused provoking assault that led to use of deadly force); R. v. Hebert (1996), 107 C.C.C. (3d) 42 (S.C.C.) (no air of reality to assertion of reasonable apprehension of death or grievous bodily harm; s. 34(2) not contemplating concept of excessive force); R. v. Pintar (1996), 110 C.C.C. (3d) 402 (Ont. C.A.) (s. 34(2) not requiring that accused intending to cause serious bodily harm); R. v. Kindt (1998), 15 C.R. (5th) 307 (B.C. C.A.) (s. 34(2) applying even if accused not intending to cause death or grievous bodily harm); R. v. Sheri (2004), 186 O.A.C. 51 (Ont. C.A.); R. v. Gill (2004), 195 B.C.A.C. 296 (B.C. C.A.); R. v. Nieto (2007), 2007 CarswellMan 260 (Man. C.A.); leave to appeal refused (2008), 2008 CarswellMan 91 (S.C.C.) (unlawful assault not prerequisite for accused to rely on self-defence; air of reality to defence; appeal allowed on other grounds); see also R. v. Clark, [1983] 4 W.W.R. 313 (Alta. C.A.) (defence not available where accused using unreasonable and excessive force intended to cause grievous bodily harm; bodily harm under s. 212(a) of Criminal Code, R.S.C. 1970, c. C-34, and grievous bodily harm not to be equated); R. v. Preston (1953), 17 C.R. 20 (B.C. C.A.) (state of mind of accused to be considered regarding excessive force); R. v. Desveaux (1986), 51 C.R. (3d) 173 (Ont. C.A.) (new trial ordered where trial judge failing to point out distinction between s. 34(1) and s. 34(2) defence; accused not required to measure carefully force under s. 34(2)); R. v. Kerr (2004), 2004 CarswellAlta 811 (S.C.C.) (accused inmate carrying prison-made knife in anticipation of imminent attack by prison gang members; accused attacked; assailant dying of stab wound; accused acquitted of second degree murder and possession of weapon for purpose dangerous to public peace).
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FN2. R. c. Cinous (2002), 162 C.C.C. (3d) 129 (S.C.C.) (constituent elements for section 34(2) defence; must be no alternative course of action for accused); R. v. Baxter (1975), 33 C.R.N.S. 22 (Ont. C.A.); R. v. Bolyantu (1975), 29 C.C.C. (2d) 174 (Ont. C.A.); R. v. Ebsary (1984), 15 C.C.C. (3d) 38 (N.S. C.A.) (new trial ordered where trial judge ignoring principal defence under s. 34(2)); R. v. Nelson (1992), 13 C.R. (4th) 359 (Ont. C.A.) (provocation not relevant to defence under s. 34(2)); R. v. Plain (1997), 12 C.R. (5th) 373 (Ont. Gen. Div.) (evidence of conditions in segregation and degree of safety that segregation providing relevant in determining reasonableness of accused's belief that preemptive attack necessary to preserve his life); R. v. Ct (2008), 2008 CarswellMan 303 (Man. C.A.); leave to appeal refused (2008), 2008 CarswellMan 596 (S.C.C.) (accused shooting and killing store clerk; accused continuing to shoot after out of reach of store clerk's bat; claim for self defence must possess air of reality; objective element in air of reality test should not cater to criminal mind; subjective belief must be justifiable and reasonable; accused's belief that only alternative being to shoot his way out not reasonable). FN3. R. c. Cinous (2002), 162 C.C.C. (3d) 129 (S.C.C.) (imminence not formal requirement); R. v. Bogue (1976), 13 O.R. (2d) 272 (Ont. C.A.); R. v. Baxter (1975), 33 C.R.N.S. 22 (Ont. C.A.); R. v. C., [1966] 1 C.C.C. 380 (Sask. Q.B.) (essential issue being accused's state of mind at relevant time); R. c. Ptel (1993), 78 C.C.C. (3d) 543 (Que. C.A.); affirmed (1994), 87 C.C.C. (3d) 97 (S.C.C.) (no requirement of danger imminent); R. v. McConnell (1996), 48 C.R. (4th) 199 (S.C.C.) ("prison environment syndrome" analogous to "battered wife syndrome"; imminence not necessary when two accused attacking and killing fellow prison inmate because of victim's threats to accused); but see R. c. Charlebois (2000), 148 C.C.C. (3d) 449 (S.C.C.) (relaxed requirement of immediacy particular to battered women); R. v. Plain (1997), 12 C.R. (5th) 373 (Ont. Gen. Div.) (drug debt to victim and racial tensions making accused's apprehension of prison violence reasonable; accused making pre-emptive attack; Crown not disproving self-defence beyond reasonable doubt). FN4. R. v. Lavallee, [1990] 1 S.C.R. 852 (S.C.C.) (in "battering" relationship reasonable apprehension of death may be given meaning by expert evidence); R. v. Eyapaise (1993), 20 C.R. (4th) 246 (Alta. Q.B.) (battered woman defence may be available even where relationship not of lengthy duration); R. c. Ptel (1993), 78 C.C.C. (3d) 543 (Que. C.A.); affirmed (1994), 87 C.C.C. (3d) 97 (S.C.C.) (prior threats relevant; circumstances and experience of accused relevant); see also R. v. Siu (1992), 12 C.R. (4th) 356 (B.C. C.A.) (violent incident one hour before event relevant); R. v. M. (M.A.) (1998), 121 C.C.C. (3d) 456 (S.C.C.). FN5. R. v. M. (M.A.) (1998), 121 C.C.C. (3d) 456 (S.C.C.); R. v. Young (2008), 2008 CarswellBC 2085 (B.C. C.A.) (accused suffering from battered woman syndrome; trial judge's charge effectively removing battered woman defence from jury's consideration; new trial ordered). FN6. R. v. Baxter (1975), 33 C.R.N.S. 22 (Ont. C.A.); R. v. Bogue (1976), 13 O.R. (2d) 272 (Ont. C.A.); R. v. Reilly, [1984] 2 S.C.R. 396 (S.C.C.) (intoxication of accused can
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induce honest mistake but cannot induce mistake based on reasonable and probable grounds; reasonable person being one in full possession of faculties); R. v. Pintar (1996), 110 C.C.C. (3d) 402 (Ont. C.A.); R. v. Kagan (2004), 185 C.C.C. (3d) 417 (N.S. C.A.) (at trial accused adducing expert evidence indicating accused displaying some symptoms of syndrome characterized by misinterpretation of social cues; syndrome could have caused accused to assess facts prior to assault on victim in manner not ordinarily perceived by non-affected individuals; failure to charge jury regarding expert evidence requiring new trial); see also R. v. Vlcko (1972), 10 C.C.C. (2d) 139 (Ont. C.A.). FN7. R. v. Bogue (1976), 13 O.R. (2d) 272 (Ont. C.A.) (force need not be proportionate under s. 34(2), nor is it expected to be weighed to nicety); R. v. Hebert (1996), 107 C.C.C. (3d) 42 (S.C.C.) (accused not expected to weigh with nicety exact measure of responsive force when facing upraised knife or club); R. v. Raphael (2009), 2009 CarswellSask 78 (Sask. C.A.) (amount of force playing different role under s. 34(2) than under s. 34(1)); see also R. v. Marky, [1976] 6 W.W.R. 390 (Alta. C.A.); R. v. Siu (1992), 12 C.R. (4th) 356 (B.C. C.A.) (force in excess of what honestly believing necessary will preclude s. 34(2) defence). FN8. R. v. Baxter (1975), 33 C.R.N.S. 22 (Ont. C.A.) (defence of mistake of fact applicable to s. 34(2)); R. v. Fisher (1986), [1987] Crim. L.R. 334 (Eng. C.A.); see also R. v. Nelson (1992), 13 C.R. (4th) 359 (Ont. C.A.) (defence available where honest but mistaken belief). END OF DOCUMENT
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CED Criminal Law Defences III.6.(b) Canadian Encyclopedic Digest Criminal Law Defences III Justifications 6 Self-Defence and Defence of Others (b) Self-Defence in Case of Aggression Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. III.6.(b) See Canadian Abridgment: CRM.V.21.d Criminal law Defences Self defence Reasonable apprehension of death or grievous bodily harm 154 Everyone who has, without justification, assaulted another but did not commence the assault with intent to cause death or grievous bodily harm, or has without justification provoked an assault upon himself or herself by another, may justify the use of force subsequent to the assault if he or she uses the force under reasonable apprehension of death or grievous bodily harm from the violence of the person whom he or she has assaulted or provoked and in the belief, on reasonable or probable grounds, that it is necessary in order to preserve himself or herself from death or grievous bodily harm. To justify such use of force a person must also not have, at any time before the necessity of preserving himself or herself from death or grievous bodily harm arose, endeavoured to cause death or grievous bodily harm and must have declined further conflict or retreated from it as far as it was feasible to do so before the necessity of preserving himself or herself from death or grievous bodily harm arose.[FN1] FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 35; R. v. Bolyantu (1975), 29 C.C.C. (2d) 174 (Ont. C.A.) (where uncertainty as to whether accused commencing or provoking assault, or acting in self-defence, s. 35 should also be put with s. 34); R. v. Cameron (1995), 96 C.C.C. (3d) 346 (Ont. C.A.) (trial judge erring by suggesting to jury that selfdefence under s. 34(2) not available if accused provoking assault that led to use of deadly force); R. v. McIntosh (1995), 95 C.C.C. (3d) 481 (S.C.C.); see also R. v. Merson (1983), 4 C.C.C. (3d) 251 (B.C. C.A.) (further conflict referring to conflict generated by initial assault or provocation by accused); R. v. Doiron (1972), 18 C.R.N.S. 127 (N.B. C.A.) (intoxicated accused believing with reasonable grounds that victim intending and able to cause him grievous bodily harm; accused justified in shooting victim after two warning shots); R. v. Squire (1975), 31 C.R.N.S. 314 (Ont. C.A.); reversed on other grounds (1976), [1977] 2 S.C.R. 13 (S.C.C.) (person willingly engaging in fight without any necessity for defending himself falling within s. 35); R. v. Bayard, [1989] 1 S.C.R. 425 (S.C.C.) (proper instructions on conjunctive provisions of s. 35 required); R. v. Siu (1992), 12 C.R. (4th) 356 (B.C. C.A.) (jury instruction for s. 35 discussed); R. v. Chamberland (1988), 65 Alta. L.R. (2d) 175 (Alta. C.A.).
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END OF DOCUMENT
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CED Criminal Law Defences III.6.(c) Canadian Encyclopedic Digest Criminal Law Defences III Justifications 6 Self-Defence and Defence of Others (c) Provocation Defined Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. III.6.(c) See Canadian Abridgment: CRM.V.21.e Criminal law Defences Self defence Effect of provocation 155 In matters concerning self-defence against unprovoked assault or self-defence in case of aggression, provocation includes provocation by blows, words or gestures.[FN1] 156 What may constitute provocation is not confined to words, blows or gestures.[FN2] FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 36; R. v. Johnson (1956), 117 C.C.C. 237 (B.C. C.A.) (accused arming himself with bottle; doubt as to whether this being provocation or precaution for self-defence); see also Evans v. Bradburn (1915), 9 W.W.R. 281 (Alta. C.A.) (provocation by being called disgraceful name not justification for assault); Wentzell v. Winacht (1907), 41 N.S.R. 406 (N.S. C.A.). FN2. R. v. Nelson (1992), 13 C.R. (4th) 359 (Ont. C.A.) (turning up of stereo may constitute provocation); R. v. Stubbs (1988), 28 O.A.C. 14 (Ont. C.A.) (provocation not relevant to defence of self-defence under s. 34(2)); R. v. Roberts (2005), 2005 CarswellAlta 80 (S.C.C.) (must be air of reality to objective components of test for defence of provocation; no wrongful act or insult sufficient to result in reasonable person losing control). END OF DOCUMENT
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CED Criminal Law Defences III.6.(d) Canadian Encyclopedic Digest Criminal Law Defences III Justifications 6 Self-Defence and Defence of Others (d) Prevention of Assault and Defence of Others Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. III.6.(d) See Canadian Abridgment: CRM.V.21 Criminal law Defences Self defence; CRM.V.13.a.ii.C Criminal law Defences Lawful authority To administer or enforce law Justification for use of force Preventing commission of offence 157 Everyone is justified in using force to defend oneself or anyone under one's protection from assault, if one uses no more force than is necessary to prevent the assault or the repetition of it. This does not justify any wilful infliction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force used was intended to prevent.[FN1] FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 37; R. v. Lowther (1957), 26 C.R. 150 (Que. Q.B.) (section being extension of s. 34); R. v. Courtereille (2001), 40 C.R. (5th) 338 (B.C. C.A.); leave to appeal refused (2001), 2001 CarswellBC 894 (S.C.C.) (s. 37 requires proportionality; over 40 stab wounds not proportional); R. v. Finney (1999), 126 O.A.C. 115 (Ont. C.A.) (s. 37 available to accused who provokes initial assault); R. v. Basarabas (1981), 62 C.C.C. (2d) 13 (B.C. C.A.); reversed on other grounds [1982] 2 S.C.R. 730 (S.C.C.) (where death caused, issue of self-defence not to be determined by s. 37; section not including intentional killing); R. v. McIntosh (1993), 84 C.C.C. (3d) 473 (Ont. C.A.); affirmed (1995), 95 C.C.C. (3d) 481 (S.C.C.) (leaving s. 37 with jury unnecessary if accused approaching deceased with knife); R. v. Webers (1994), 95 C.C.C. (3d) 334 (Ont. Gen. Div.) ("under his protection" can mean anyone requiring protection which accused may be able to provide and not limited to formal guardianship relationship; family friend serving as protector entitled to use force to protect patient from alleged assault); but see R. v. Figueira (1981), 63 C.C.C. (2d) 409 (Ont. C.A.); R. v. Shannon (1981), 59 C.C.C. (2d) 229 (B.C. C.A.); R. v. Thomas (2002), 170 C.C.C. (3d) 81 (B.C. C.A.) (if not reasonably for protection then s. 37 not available). END OF DOCUMENT
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CED Criminal Law Defences III.6.(e) Canadian Encyclopedic Digest Criminal Law Defences III Justifications 6 Self-Defence and Defence of Others (e) Prevention of Immediate and Serious Injury to Any Person Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. III.6.(e) See Canadian Abridgment: CRM.V.21 Criminal law Defences Self defence; CRM.V.13.a.ii.C Criminal law Defences Lawful authority To administer or enforce law Justification for use of force Preventing commission of offence 158 A person in self-defence or in defence of another may use as much force as is reasonably necessary to prevent the commission of an offence for which, if it were committed, the offender might be arrested without warrant, and that would be likely to cause immediate and serious injury to any person or to any person's property.[FN1] FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 27(a); R. v. Gee, [1982] 2 S.C.R. 286 (S.C.C.) (section not providing for partial defence where accused using excessive force and maintaining act done to prevent harm to other person); R. v. Figueira (1981), 63 C.C.C. (2d) 409 (Ont. C.A.) (where overlap of section with other defences, counsel should request this defence be put to jury); R. v. Baxter (1975), 33 C.R.N.S. 22 (Ont. C.A.) (section overlapping with those of defence of person or property); R. v. Scopelliti (1981), 34 O.R. (2d) 524 (Ont. C.A.) (use of force in particular circumstances may be justified under more than one section); see also Criminal Code, R.S.C. 1985, c. C-46, s. 27(b) (reasonable belief in anything being done that would amount to offence mentioned in s. 27(a) also warranting use of force). END OF DOCUMENT
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CED Criminal Law Defences III.6.(f) Canadian Encyclopedic Digest Criminal Law Defences III Justifications 6 Self-Defence and Defence of Others (f) Retreat Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. III.6.(f) See Canadian Abridgment: CRM.V.21.g Criminal law Defences Self defence Miscellaneous 159 An accused is not prevented from relying on self-defence where he or she has failed to retreat from the conflict. A failure to retreat is only an element or factor to be taken into account in deciding whether it was necessary to use force, and whether the force used was reasonable.[FN1] 160 An accused claiming justification for the use of force causing death or grievous bodily harm, after commencing or provoking an assault that was not intended to cause death or grievous bodily harm, must, at a certain point in the ensuing conflict, as far as it was feasible to do so, have quit or retreated from the conflict to justify such force.[FN2] FN1. R. v. Proulx (1998), 127 C.C.C. (3d) 511 (B.C. C.A.) (no obligation to retreat); R. v. Rode (2004), 187 C.C.C. (3d) 1 (B.C. C.A.); Northwest v. R., [1980] 5 W.W.R. 48 (Alta. C.A.) (trial judge erring in concentrating on retreat being open to accused); R. v. Deegan, [1979] 6 W.W.R. 97 (Alta. C.A.) (even if person not in home, retreat not imperative for defence of self-defence to be relied on); R. v. Ward (1978), 4 C.R. (3d) 190 (Ont. C.A.) (not correct in law that self-defence justified only where person unable to retreat); but see R. v. Lelievre (1962), 37 C.R. 83 (Ont. C.A.) (to justify use of gun, evidence must show use necessary to preserve life, and before use accused retreating as far as possible); R. v. Westhaver (1992), 17 C.R. (4th) 401 (N.S. C.A.). FN2. Criminal Code, R.S.C. 1985, c. C-46, s. 35(c); see also R. v. Merson (1983), 4 C.C.C. (3d) 251 (B.C. C.A.) (accused must satisfy all requirements of s. 35 to justify conduct). END OF DOCUMENT
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CED Criminal Law Defences III.6.(g) Canadian Encyclopedic Digest Criminal Law Defences III Justifications 6 Self-Defence and Defence of Others (g) Burden of Proof Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. III.6.(g) See Canadian Abridgment: CRM.V.21.g Criminal law Defences Self defence Miscellaneous 161 When the defence of self-defence is raised it does not affect the burden upon the Crown of proving its case beyond a reasonable doubt. All the accused has to do to establish this defence is to introduce evidence raising at least a reasonable doubt as to guilt. The burden of negativing the defence rests on the prosecution. Where, on the whole of the evidence, the trier of fact is convinced of the innocence of an accused or is left in doubt as to whether he or she acted in self-defence, the accused should be acquitted.[FN1] FN1. R. v. C., [1966] 1 C.C.C. 380 (Sask. Q.B.); R. v. Lieberman (1970), 11 C.R.N.S. 168 (Ont. C.A.) (on issue of self-defence, no burden on accused); R. v. Hebert (1996), 107 C.C.C. (3d) 42 (S.C.C.); see also R. c. Brisson, [1982] 2 S.C.R. 227 (S.C.C.) (judge not required to put self-defence to jury where no evidence to give air of reality to defence); R. v. Gee, [1982] 2 S.C.R. 286 (S.C.C.) (must be foundation of fact to give air of reality to defence); R. v. Latour, [1951] S.C.R. 19 (S.C.C.) (defence need only satisfy minor burden to raise defence of self-defence); R. v. Mulder (1978), 40 C.C.C. (2d) 1 (Ont. C.A.); R. v. Deegan, [1979] 6 W.W.R. 97 (Alta. C.A.); R. v. Ebsary (1984), 15 C.C.C. (3d) 38 (N.S. C.A.); R. v. Nadeau, [1984] 2 S.C.R. 570 (S.C.C.) (any reasonable doubt regarding self-defence enuring to accused); R. v. Kong (2006), 2006 CarswellAlta 1134 (S.C.C.) (for judge to put defence of self-defence before jury, defence must possess "air of reality"; in considering whether "air of reality" test met, must be evidence upon which jury could reasonably draw inferences necessary to acquit). END OF DOCUMENT
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CED Criminal Law Defences III.6.(h) Canadian Encyclopedic Digest Criminal Law Defences III Justifications 6 Self-Defence and Defence of Others (h) Previous Acts of Violence by Victim Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. III.6.(h) See Canadian Abridgment: CRM.V.21.d Criminal law Defences Self defence Reasonable apprehension of death or grievous bodily harm 162 Where self-defence is raised, evidence not only of previous assaults by the deceased on the accused but also of previous acts of violence by the deceased, which were known to the accused, towards third persons[FN1] is admissible to show the accused's reasonable apprehension of violence from the deceased. Evidence of previous acts of violence by the deceased which were not known to the accused is also admissible to show the probability of the deceased having been the aggressor and to support an accused's evidence that he or she was attacked by the deceased. However, evidence regarding acts of violence by the deceased, which were not known to the accused, is admissible only when there is some other appreciable evidence of the victim's aggression on the occasion in question. An accused who introduces evidence of a deceased's disposition for violence may put his or her own disposition for violence in issue.[FN2] 163 Evidence of the deceased's prior acts of violence not known to the accused must have sufficient probative value for the purpose tendered to be admissible.[FN3] FN1. R. v. Varga (2001), 159 C.C.C. (3d) 502 (Ont. C.A.); leave to appeal refused (2002), 2002 CarswellOnt 4504 (S.C.C.); R. v. Speid (1985), 46 C.R. (3d) 22 (Ont. C.A.); R. v. Ryan (1989), 49 C.C.C. (3d) 490 (Nfld. C.A.) (acts of violence by deceased against members of accused's family); R. v. Siu (1992), 12 C.R. (4th) 356 (B.C. C.A.); R. v. Lawrence (1989), 52 C.C.C. (3d) 452 (Ont. C.A.); R. v. Sims (1994), 87 C.C.C. (3d) 402 (B.C. C.A.) (evidence of prior violent conduct of deceased relevant even though accused not relying on self-defence). FN2. R. v. Scopelliti (1981), 34 O.R. (2d) 524 (Ont. C.A.) (previous acts of violence on third person with significant probative value on issue of disposition for violence admissible where disposition relevant); see also R. v. Conway (1985), 17 C.C.C. (3d) 481 (Ont. C.A.) (accused's prior acts of violence relevant as to who was aggressor); R. v. Maurice (1986), 1986 CarswellAlta 782 (Alta. C.A.) (deceased's record may put accused's charac-
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ter in issue); R. v. Valley (1986), 26 C.C.C. (3d) 207 (Ont. C.A.); leave to appeal refused (1986), 26 C.C.C. (3d) 207 (note) (S.C.C.) (psychiatric evidence of deceased's sadomasochism excluded); R. v. Dubois (1976), 30 C.C.C. (2d) 412 (Ont. C.A.); R. v. Titus, [1983] 1 S.C.R. 259 (S.C.C.) (evidence of outstanding charge against witness admissible); R. v. Kendall (1987), 57 C.R. (3d) 249 (Ont. C.A.); R. v. Soares (1987), 34 C.C.C. (3d) 403 (Ont. C.A.); R. v. Delong (1989), 69 C.R. (3d) 147 (Ont. C.A.). FN3. R. v. Yaeck (1991), 68 C.C.C. (3d) 545 (Ont. C.A.); leave to appeal refused (1992), 71 C.C.C. (3d) vii (S.C.C.) (prior acts of violence by deceased excluded); R. v. Melaragni (1992), 76 C.C.C. (3d) 78 (Ont. Gen. Div.) (speculation and conjecture as to deceased's prior conduct not admissible). END OF DOCUMENT
CED Criminal Law Defences III.6.(i)
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CED Criminal Law Defences III.6.(i) Canadian Encyclopedic Digest Criminal Law Defences III Justifications 6 Self-Defence and Defence of Others (i) Excessive Force Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. III.6.(i) See Canadian Abridgment: CRM.V.21 Criminal law Defences Self defence; CRM.V.13.a.iii Criminal law Defences Lawful authority To administer or enforce law Excessive force 164 Everyone who is authorized to use force is criminally responsible for any excess thereof according to the nature and quality of the act that constitutes the excess.[FN1] FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 26; R. v. Faid, [1983] 1 S.C.R. 265 (S.C.C.) (no qualified defence of excessive force in self-defence); R. v. Reilly, [1984] 2 S.C.R. 396 (S.C.C.); R. c. Brisson, [1982] 2 S.C.R. 227 (S.C.C.); R. v. Clark, [1983] 4 W.W.R. 313 (Alta. C.A.) (accused intending to cause grievous bodily harm may be guilty only of manslaughter); R. v. Matson (1970), 1 C.C.C. (2d) 374 (B.C. C.A.) (judge erring in reasoning backwards from extent of injuries); R. v. Marky, [1976] 6 W.W.R. 390 (Alta. C.A.) (result not determining whether more force used than necessary); R. v. Nelson (1953), 16 C.R. 407 (B.C. C.A.) (slap on face not justifying blow fracturing jaw in several places); Martin v. R. (1985), 47 C.R. (3d) 342 (Que. C.A.); R. v. Kusyj, [1984] N.W.T.R. 152 (N.W.T. S.C.) (placing hand on shoulder not warranting knockout punch); R. v. Doucet (1987), 84 N.B.R. (2d) 159 (N.B. Q.B.) (pointing shotgun at unarmed complainant excessive); R. v. Hebert (1996), 107 C.C.C. (3d) 42 (S.C.C.) (ss. 25 and 26 to be read together; s. 26 inapplicable unless accused being person whom s. 25 authorizing to use force); R. v. McGraw (2004), 2004 CarswellOnt 4476 (Ont. S.C.J.) (trial judge erring in assessing reasonableness of response on basis of injury suffered); see also R. v. MacDonald (1997), 117 C.C.C. (3d) 376 (B.C. C.A.) (excessive force ruling out self-defence but possibly giving air of reality to defence of provocation). END OF DOCUMENT
CED Criminal Law Defences IV.1.(a)
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CED Criminal Law Defences IV.1.(a) Canadian Encyclopedic Digest Criminal Law Defences IV Excuses 1 Accident (a) Accident Defined Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. IV.1.(a) See Canadian Abridgment: CRM.V.1 Criminal law Defences Accident 165 "Accident" is an event happening by chance, or unexpectedly taking place, not according to the usual course of things. It is an unintended and unexpected occurrence, which produces hurt or loss.[FN1] FN1. R. v. Kolbe, [1974] 4 W.W.R. 579 (Alta. C.A.); Fenton v. J. Thorley & Co., [1903] A.C. 443 (U.K. H.L.); R. v. Morris, [1972] 1 W.L.R. 228 (Eng. C.A.). END OF DOCUMENT
CED Criminal Law Defences IV.1.(b)
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CED Criminal Law Defences IV.1.(b) Canadian Encyclopedic Digest Criminal Law Defences IV Excuses 1 Accident (b) Nature of Defence Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. IV.1.(b) See Canadian Abridgment: CRM.V.1 Criminal law Defences Accident 166 The defence of accident is simply a denial of the mens rea required for the offence charged.[FN1] Where the offence requires a mens rea consisting merely in knowledge of certain consequences or that a reasonable person would have foreseen certain consequences, accident may only be a defence inasmuch as the accused did not know of the consequences, or a reasonable person would not have foreseen the consequences.[FN2] FN1. R. v. Tennant (1975), 31 C.R.N.S. 1 (Ont. C.A.); R. v. Hughes, [1942] S.C.R. 517 (S.C.C.). FN2. R. v. Tennant (1975), 31 C.R.N.S. 1 (Ont. C.A.). END OF DOCUMENT
CED Criminal Law Defences IV.1.(c)
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CED Criminal Law Defences IV.1.(c) Canadian Encyclopedic Digest Criminal Law Defences IV Excuses 1 Accident (c) Accident as a Complete Defence Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. IV.1.(c) See Canadian Abridgment: CRM.V.1 Criminal law Defences Accident 167 If the Crown fails to establish the requisite mens rea, in that the act took place by accident, there will be a complete defence to the offence charged and any included offences.[FN1] FN1. R. v. Billingsley (1946), 4 C.R. 89 (N.B. C.A.) (accused's only defence to charge of attempted rape being that falling on complainant by accident; no obligation to submit to jury included offences); R. v. Bouvet (2007), 2007 CarswellNat 2120 (Can. Ct. Martial) (no intent to contact established; defence of accident); see also R. v. Arthurs (1972), [1974] S.C.R. 287 (S.C.C.) (accident as defence having more than one meaning in driving offence; either complete absence of negligence or momentary inattention); R. v. Baxter (1975), 33 C.R.N.S. 22 (Ont. C.A.) (accident and self-defence considered); R. v. Hansen (1988), 46 C.C.C. (3d) 504 (B.C. C.A.) (accident and vehicle offence); R. v. O'Brien (2003), 174 C.C.C. (3d) 208 (N.B. C.A.) (defence of accident and self-defence). END OF DOCUMENT
CED Criminal Law Defences IV.1.(d)
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CED Criminal Law Defences IV.1.(d) Canadian Encyclopedic Digest Criminal Law Defences IV Excuses 1 Accident (d) Accident and Homicide Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. IV.1.(d) See Canadian Abridgment: CRM.V.1 Criminal law Defences Accident 168 In homicide cases, accident will provide a complete defence only under certain circumstances. If there is a reasonable doubt that the killing was an accident and the accused was not engaged in an unlawful act, or criminal negligence, and did not know, nor ought to have known, the act was likely to cause death, then he or she has a complete defence of accident to the charge, whether it be murder or manslaughter.[FN1] 169 If death results from accident, but the actor was engaged at the time in an unlawful act that a reasonable person would know would subject another person to risk of at least some harm, the accused will not be guilty of murder but guilty of manslaughter.[FN2] 170 If death results from accident, but the actor was not engaged in an unlawful act, yet was criminally negligent in the act, the accused will be guilty of manslaughter.[FN3] 171 Where the defence of accident is raised, there is an obligation on the trial judge to direct the jury on the relationship of accident to the possible absence of intent.[FN4] FN1. R. v. Tennant (1975), 31 C.R.N.S. 1 (Ont. C.A.); R. v. Walker (2008), 2008 CarswellSask 347 (S.C.C.) (accused found not guilty of murder but guilty of manslaughter; alcohol consumption playing significant role in shooting accident; intent not proven beyond reasonable doubt); see also R. v. Ettinger (1986), 171 A.P.R. 361 (N.S. C.A.) (new trial ordered where defence of accident not defined and fully placed before jury); R. v. MacNeil (1958), 28 C.R. 48 (N.S. C.A.) (accused's explanation of accidental shooting not left with jury; new trial ordered); Charbonneau v. R., [1977] 2 S.C.R. 805 (S.C.C.) (claim of accident not made out; circumstances indicative of criminal negligence); R. v. Gunning (2005), 196 C.C.C. (3d) 123 (S.C.C.) (accused charged with second degree murder in respect of fatal shooting of victim who entered accused's home uninvited during party; accused denying intent to kill victim, rather testifying that he had taken out and loaded gun to intimidate or scare victim into leaving and gun then discharging accidentally; trial judge erring in failing to instruct jury regarding defence of house
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or property; while intentional shooting could not be justified on this basis, defence advanced in respect of use of firearm prior to and up to alleged accidental shooting); R. v. Valliere (2004), 2004 CarswellBC 3194 (B.C. S.C.) (Crown failing to prove beyond reasonable doubt that death of victim occuring through manslaughter as charged, as opposed to combination of accident and self-defence; accused acquitted). FN2. R. v. Tennant (1975), 31 C.R.N.S. 1 (Ont. C.A.). FN3. R. v. Tennant (1975), 31 C.R.N.S. 1 (Ont. C.A.); see also R. v. Tanner (1961), 3 Cr. L.Q. 523 (Ont. Mag. Ct.) (two accused shooting deceased in hunting accident); Charbonneau v. R., [1977] 2 S.C.R. 805 (S.C.C.). FN4. R. v. Stevenson (1990), 58 C.C.C. (3d) 464 (Ont. C.A.) (non-culpable examples of accident improper); R. v. Nelson (1992), 13 C.R. (4th) 359 (Ont. C.A.) (should be review of evidence relevant to accident); R. v. Black (1990), 55 C.C.C. (3d) 421 (N.S. C.A.) (accident distinct from self-defence); R. v. Soares (1987), 34 C.C.C. (3d) 403 (Ont. C.A.) (jury charge considered); R. v. Hanna (1990), 57 C.C.C. (3d) 392 (B.C. C.A.) (improper for Crown to lead defence of accident then rebut); R. v. Sutherland (1993), 84 C.C.C. (3d) 484 (Sask. C.A.) (judge erring by not defining accident and relating it to defence of lack of intent); R. v. Mathisen (2008), 2008 CarswellOnt 6489 (Ont. C.A.) (new trial ordered where trial judge failing to properly instruct jury on defence of accident; trial judge instructing jury as to unintended consequences of act but not unintended act). END OF DOCUMENT
CED Criminal Law Defences IV.2.(a)
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CED Criminal Law Defences IV.2.(a) Canadian Encyclopedic Digest Criminal Law Defences IV Excuses 2 Automatism (a) Automatism Defined Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. IV.2.(a) See Canadian Abridgment: CRM.V.3 Criminal law Defences Automatism 172 Automatism is a state of impaired consciousness, rather than one of unconsciousness, in which an individual, though capable of action, had no voluntary control over that action. The level of impairment of consciousness, rather than unconsciousness, is the issue in automatism.[FN1] FN1. R. v. Stone (1999), 24 C.R. (5th) 1 (S.C.C.) (defence must present expert testimony of automatism); R. c. Hotte (2006), 2006 CarswellQue 2155 (S.C.C.) (automatism characterized by involuntariness of act committed; diminished conflict tolerance is insufficient; loss of memory doesn't establish accused not conscious during acts or that actions were involuntary). END OF DOCUMENT
CED Criminal Law Defences IV.2.(b)
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CED Criminal Law Defences IV.2.(b) Canadian Encyclopedic Digest Criminal Law Defences IV Excuses 2 Automatism (b) Nature of Defence Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. IV.2.(b) See Canadian Abridgment: CRM.V.3 Criminal law Defences Automatism 173 Whether lack of consciousness relates to mens rea or actus reus, or both, may be important where the offence charged is one of absolute liability.[FN1] It is now settled that the defence of automatism amounts to a denial of the voluntariness component of the actus reus. Voluntariness, not consciousness, is the key legal element of automatistic behaviour.[FN2] FN1. R. v. Rabey, [1980] 2 S.C.R. 513 at 545 (S.C.C.) (absence of volition always defence to crime); but see R. v. Bray (1975), 24 C.C.C. (2d) 366 (Ont. Co. Ct.) (successful defence of automatism based on lack of mens rea). FN2. R. v. Stone (1999), 24 C.R. (5th) 1 at 62 (S.C.C.) (true automatism only includes involuntary behaviours). END OF DOCUMENT
CED Criminal Law Defences IV.2.(c)
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CED Criminal Law Defences IV.2.(c) Canadian Encyclopedic Digest Criminal Law Defences IV Excuses 2 Automatism (c) Burden of Proof Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. IV.2.(c) See Canadian Abridgment: CRM.V.3.c Criminal law Defences Automatism Onus 174 Where mental disorder automatism is raised as a defence it amounts to an assertion of involuntariness on the part of the accused. Such an assertion when supported by the logically probative opinion of a qualified expert will provide a sufficient evidentiary foundation for putting the defence to the jury. Logically probative evidence is relevant testimony that would tend to support the defence of mental disorder automatism. In addition to the evidentiary burden on an accused raising the automatism defence a legal burden also arises that the defence be established on a balance of probabilities.[FN1] FN1. R. c. Fontaine (2004), 18 C.R. (6th) 203 (S.C.C.) (must be "sufficient" evidence to discharge evidentiary burden); R. v. Stone (1999), 24 C.R. (5th) 1 (S.C.C.) (defence to be proven on balance of probabilities). END OF DOCUMENT
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CED Criminal Law Defences IV.2.(d) Canadian Encyclopedic Digest Criminal Law Defences IV Excuses 2 Automatism (d) Questions of Law and Fact Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. IV.2.(d) See Canadian Abridgment: CRM.V.3 Criminal law Defences Automatism 175 When determining whether to leave the defence of automatism with the trier of fact, a trial judge must first assess whether a proper foundation for the defence of automatism has been established. If so, the trial judge must next determine whether the condition alleged by the accused is mental disorder or non-mental disorder automatism.[FN1] 176 Establishing a proper foundation for automatism is equivalent to satisfying the evidentiary burden of the defence.[FN2] Whether the accused has satisfied the evidentiary burden is a question of mixed law and fact for the trial judge.[FN3] 177 If the accused has not laid a proper foundation for the defence, the presumption of voluntariness is effective and neither mental disorder or non-mental disorder automatism may be left with the trier of fact. However, the accused may still claim an independent defence of mental disorder.[FN4] FN1. R. v. Stone (1999), 24 C.R. (5th) 1 at 60 (S.C.C.); R. v. Parks, [1992] 2 S.C.R. 871 at 897 (S.C.C.); R. c. Fontaine (2004), 18 C.R. (6th) 203 (S.C.C.). FN2. R. v. Stone (1999), 24 C.R. (5th) 1 at 60, 61 (S.C.C.); R. c. Fontaine (2004), 18 C.R. (6th) 203 (S.C.C.) (air of reality test invalid). FN3. R. v. Stone (1999), 24 C.R. (5th) 1 at 61 (S.C.C.). FN4. Criminal Code, R.S.C. 1985, c. C-46, s. 16 [re-en. 1991, c. 43, s. 2]; R. v. Stone (1999), 24 C.R. (5th) 1 at 70 (S.C.C.). END OF DOCUMENT
CED Criminal Law Defences IV.2.(e)
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CED Criminal Law Defences IV.2.(e) Canadian Encyclopedic Digest Criminal Law Defences IV Excuses 2 Automatism (e) Automatism and Mental Disorder Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. IV.2.(e) See Canadian Abridgment: CRM.V.3.g Criminal law Defences Automatism Insane and non-insane 178 Automatism may be insane automatism or non-insane automatism.[FN1] Automatism which is caused by disease of the mind is classified as insane automatism and leads to the special verdict of not guilty by reason of mental disorder. Automatism not resulting from disease of the mind, subject to certain exceptions, leads to a complete acquittal.[FN2] Although the courts speak of "insane" automatism and "non-insane" automatism, in actuality true automatism only includes involuntary behaviour which does not stem from a disease of the mind.[FN3] Involuntary behaviour resulting from a disease of the mind is more correctly labelled a mental disorder rather than insane automatism.[FN4] 179 The assessment of which form of automatism to leave with the trier of fact depends upon whether or not the condition alleged by the accused is a mental disorder,[FN5] which is in turn defined as a disease of the mind.[FN6] The question of what mental conditions "disease of the mind" includes is a question of law. However, determining whether the condition from which the accused claims to have suffered satisfies the legal test for a disease of the mind involves an assessment of the particular evidence in the case; it is thus a mixed question of law and fact. The question of whether the accused actually suffered from a disease of the mind is a question of fact to be determined by the trier of fact.[FN7] It will only be in rare cases that automatism is not caused by mental disorder.[FN8] 180 Where the malfunctioning of the mind is a transient disturbance of consciousness due to an external factor, the defence is automatism. Ordinary stresses and disappointments of life do not constitute an external cause; however, there may be external events, which might be presumed to affect the average normal person, that might lead to a defence of automatism even though the accused has suffered no physical injury from these external events.[FN9] However, the internal cause theory cannot be regarded as a universal classificatory scheme for "disease of the mind". The continuing danger theory and policy concerns are also important.[FN10] 181 The internal cause approach is most useful in claims of psychological blow automat-
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ism.[FN11] 182 The internal cause factor requires the trial judge to compare the accused's automatistic reaction to the psychological blow to the way one would expect a normal person in the same circumstances to react, in order to determine whether the alleged condition is a disease of the mind.[FN12] Evidence of an extremely shocking trigger is required to establish that a normal person might have reacted to the trigger by entering an automatistic state, as the accused claims to have done.[FN13] It is thus a contextual objective test.[FN14] 183 In considering whether or not the condition is a disease of the mind, the trial judge may consider various policy components. Recurring danger to the public, as well as whether the condition is easily feigned, are legitimate concerns.[FN15] FN1. Bratty v. Attorney-General for Northern Ireland, [1961] 3 All E.R. 523 (U.K. H.L.) (epilepsy being disease of mind, not automatism); R. v. Stone (1999), 24 C.R. (5th) 1 at 58, 70 (S.C.C.) (accused stabbing wife 47 times following verbal abuse; facts possibly raising insane automatism or provocation; no reason to charge jury on non-insane automatism); see also R. v. Fournier (1982), 30 C.R. (3d) 346 (Que. C.A.) (only defence being insanity as, if accused in state of automatism, cause being internal). FN2. R. v. Oakley (1986), 24 C.C.C. (3d) 351 (Ont. C.A.); R. v. Stone (1999), 24 C.R. (5th) 1 at 58, 59 (S.C.C.); R. v. Vickberg (1998), 16 C.R. (5th) 164 (B.C. S.C.) (heroin addict stabbing friend while suffering involuntary intoxication from prescription medicines; acquittal entered); see also 107. FN3. R. v. Stone (1999), 24 C.R. (5th) 1 at 59 (S.C.C.) (now "mental disorder" and "nonmental disorder" automatism to accord with revised terminology in Criminal Code, s. 16). FN4. Criminal Code, R.S.C. 1985, c. C-46, s. 16 [re-en. 1991, c. 43, s. 2]; R. v. Stone (1999), 24 C.R. (5th) 1 at 59 (S.C.C.). FN5. R. v. Stone (1999), 24 C.R. (5th) 1 at 71 (S.C.C.). FN6. Criminal Code, R.S.C. 1985, c. C-46, s. 2 "mental disorder" [en. 1991, c. 43, s. 1]. FN7. R. v. Stone (1999), 24 C.R. (5th) 1 at 71 (S.C.C.). FN8. R. v. Stone (1999), 24 C.R. (5th) 1 at 72 (S.C.C.). FN9. R. v. Rabey, [1980] 2 S.C.R. 513 (S.C.C.) (some emotional shocks without physical injury may cause automatism); R. v. Oakley (1986), 24 C.C.C. (3d) 351 (Ont. C.A.) (toxic fumes may create external-source transient state of non-insane automatism); R. v. Bergamin (1996), 111 C.C.C. (3d) 550 (Alta. C.A.) (non-insane automatism not defence if accused's mental condition resulting from internal cause); R. v. Favretto (1997), 14 C.R. (5th) 94 (Ont. Gen. Div.) (irrelevant whether external cause consisting of objectively serious external act or accused reasonably perceiving it as such in circumstances); see also R. v. Stone (1999), 24 C.R. (5th) 1 at 72-77 (S.C.C.).
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FN10. R. v. Stone (1999), 24 C.R. (5th) 1 at 72-73 (S.C.C.) (internal cause theory starting from proposition that accused suffering from disease of mind). FN11. R. v. Stone (1999), 24 C.R. (5th) 1 at 74-75 (S.C.C.). FN12. R. v. Stone (1999), 24 C.R. (5th) 1 at 73-74 (S.C.C.). FN13. R. v. Stone (1999), 24 C.R. (5th) 1 at 75 (S.C.C.). FN14. R. v. Stone (1999), 24 C.R. (5th) 1 at 76 (S.C.C.) (objective element of test not violating Charter, ss. 7, 11(d)). FN15. R. v. Parks, [1992] 2 S.C.R. 871 at 897 (S.C.C.) ("continuing danger" and "internal cause" theories discussed); R. v. Stone (1999), 24 C.R. (5th) 1 at 77-79 (S.C.C.); R. v. Luedecke (2008), 2008 CarswellOnt 6024 (Ont. C.A.) (accused suffering from parasomnia engaging in non-consensual sexual relations; trial judge finding condition not "disease of the mind"; accused acquitted; Crown appealing; new trial ordered; finding of non-mental disorder automatism or mental disorder automatism requiring consideration of cause of parasomnia, due administration of justice policy concerns, risk of recurrence and potential danger to public). END OF DOCUMENT
CED Criminal Law Defences IV.2.(f)
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CED Criminal Law Defences IV.2.(f) Canadian Encyclopedic Digest Criminal Law Defences IV Excuses 2 Automatism (f) Automatism and Intoxication Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. To check the currency of the title, please refer to the subject title page. IV.2.(f) See Canadian Abridgment: CRM.V.3.e Criminal law Defences Automatism Effect of drugs or alcohol 184 Where automatism has been produced by voluntary intoxication from alcohol or drugs, only the defence of intoxication is required to be considered by the trier of fact.[FN1] Extreme intoxication, however, may produce a state akin to automatism[FN2] which may amount to a defence, unless such a defence is excluded by statute.[FN3] FN1. R. v. Honish, [1993] 1 S.C.R. 458 (S.C.C.) (self-induced drugs or alcohol not automatism). FN2. R. c. Daviault (1994), 93 C.C.C. (3d) 21 (S.C.C.) (extreme intoxication and sexual assault); R. v. Stone (1999), 24 C.R. (5th) 1 (S.C.C.) (extreme intoxication akin to automatism possible); R. v. Prescott (2008), 2008 CarswellOnt 6838 (Ont. C.J.) (accused under influence of alcohol and Imovane; conduct involuntary and properly defined as noninsane automatism). FN3. Criminal Code, R.S.C. 1985, c. C-46, s. 33.1 [en. 1995, c. 32, s. 1]; see also R. v. Vickberg (1998), 16 C.R. (5th) 164 (B.C. S.C.) (considering defence of intoxication as alternative to non-insane automatism); R. v. Cedeno (2005), 195 C.C.C. (3d) 468 (Ont. C.J.) (constitutional validity of s. 33.1). END OF DOCUMENT

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