Criminal Law Notes

Criminal 2003-2004 Outline: Professor Trotter
CRIMINAL 2003-2004 OUTLINE: PROFESSOR TROTTER...........................................1

1. SOURCES OF CRIMINAL LAW...................................................................................5
Constitution Act, 1982..................................................................................................................................................5
Constitution Act, 1982......................................................................................................................................5
Criminal Code of Canada.................................................................................................................................5
Frey v. Fedoruk ................................................................................................................................................5
2. SCOPE OF CRIMINAL LAW........................................................................................6
2.1. !en "s An Act Criminal#....................................................................................................................................$
Law Reform Commission of Canada, Reort! "ur Criminal Law ..................................................................#
2.1.1. "$scenity..........................................................................................................................................................#
R. v. %utler .......................................................................................................................................................#
Tests of %&n'ue ()*loitation of +e),..........................................................................................................................$
R. v. &aco$ ........................................................................................................................................................'
2.2. Presum*tion of "nnocence.....................................................................................................................................8
R. v. "akes........................................................................................................................................................8
2.2.1. MEANING OF PROOF \BEYON A REASONABLE OUBT\............................!
R. v. Lifc(us.....................................................................................................................................................8
2.2.2. %urden of )roof on Crown...............................................................................................................................9
*oolmin+ton v. ,.).). ....................................................................................................................................9
R. v. "akes .......................................................................................................................................................9
2.2.-. ./Air of Reality.................................................................................................................................................9
R. v. "solin.......................................................................................................................................................9
2.2.0. *(ere Accused1s Credi$ility in 2ssue............................................................................................................13
R. v. *.4,.5 ...................................................................................................................................................13
2.3. "OI FOR "AGUENESS OR O"ERBREAT#.....................................................10
2.3. -oi' for -a.ueness or O/er0rea't!..................................................................................................................10
R. v. )(armaceutical 6ociety 4765 ................................................................................................................13
R. v. 8eywood ...............................................................................................................................................13
2.4. +trict "nter*retation of Penal +tatutes...............................................................................................................11
R9 :ero; of Canada Ltd. And Re+ional Assessment Commissioner Re+ion 7o. 13 ..................................11
R. v. %ud+et Car Rentals 4<oronto5 Ltd. .......................................................................................................11
R. v. =oulis ....................................................................................................................................................12
R. v. )are ........................................................................................................................................................12
3. ACTUS REUS..............................................................................................................12
3.1. -oluntariness........................................................................................................................................................12
R. v. >in+........................................................................................................................................................12
1
Ra$ey v. R. ....................................................................................................................................................12
R. v. Lucki .....................................................................................................................................................12
R. v. *olfe .....................................................................................................................................................1-
R. v. Ryan ......................................................................................................................................................1-
>il$ride v. Lake..............................................................................................................................................1-
3.2. Commission of an &nla1ful Act.........................................................................................................................14
-.2.1. )rostitution.....................................................................................................................................................10
8utt v. R. ........................................................................................................................................................10
Reference Re ss. 19- ? 195.14154c5 of t(e CCC 4)rostitution Reference5 ....................................................10
-.2.2. Consent and Constructive )ossession............................................................................................................15
@ars(all v. R. ................................................................................................................................................15
R. v. <errence.................................................................................................................................................1#
Re C(am$ers and <(e Aueen ........................................................................................................................1#
-.2.-. Consent and Assault.......................................................................................................................................1'
R. v. &o$idon...................................................................................................................................................1'
-.2.0. Consent and Fraud..........................................................................................................................................18
R. v. Cuerrier..................................................................................................................................................18
-.2.5. )u$lic ,istur$ances........................................................................................................................................19
R. v. Lo(nes....................................................................................................................................................19
-.2.#. 7o Lia$ility in A$sence of *ron+ful Act......................................................................................................19
R. v. %urt ........................................................................................................................................................19
3.3. Omissions..............................................................................................................................................................20
Fa+an v. Commissioner of @etroolitan )olice.............................................................................................23
R. v. @iller......................................................................................................................................................21
R. v. <(ornton ................................................................................................................................................21
R. v. %rowne ..................................................................................................................................................22
)eole v. %eardsley .......................................................................................................................................22
3.4. Causation..............................................................................................................................................................23
-.0.1. Bnconscious A+ent........................................................................................................................................2-
R. v. @ic(ael ..................................................................................................................................................2-
-.0.2. ,an+erous ,rivin+ Causin+ %odily 8arm.....................................................................................................20
R. v. F. 4,.L.5 ................................................................................................................................................20
-.0.-. 2nvoluntary @anslau+(ter..............................................................................................................................20
Commonwealt( v. Root .................................................................................................................................20
-.0.0. @anslau+(ter..................................................................................................................................................25
6mit(ers v. R. ................................................................................................................................................25
R. v. Cri$$in ..................................................................................................................................................25
-.0.5. First ,e+ree @urder.......................................................................................................................................2#
R. v. 8ard$ottle...............................................................................................................................................2#
-.0.#. 6econd ,e+ree @urder...................................................................................................................................2#
R. ". NETTE$ %2001& 3 SCR 4!!.....................................................................................26
R. v. 7ette.......................................................................................................................................................2#
-.0.'. 2ntervenin+ Acts.............................................................................................................................................2'
R. v. 6mit(......................................................................................................................................................2'
<(e Aueen v. %in+aore ................................................................................................................................2'
-.0.'.1. Criminal ./<(in 6kull..................................................................................................................................28
R. v. %laue......................................................................................................................................................28
4. MENS REA..................................................................................................................2'
2
4.1. +u02ecti/e an' O02ecti/e 3ault...........................................................................................................................29
R. v. <(erou;..................................................................................................................................................29
4.2. Pu0lic elfare an' 4e.ulator5 Offences...........................................................................................................29
%eaver v. R. ...................................................................................................................................................29
R. v. )ierce Fis(eries Ltd. ..............................................................................................................................-3
R. v. 8ickey ...................................................................................................................................................-3
R. v. City of 6ault 6te. @arie..........................................................................................................................-3
R. v. *(olesale <ravel =rou 2nc., ...............................................................................................................-1
0.2.1. C(arter 6tandards...........................................................................................................................................-2
Reference re 6ection 90425 of t(e @otor Ce(icle Act 4%.C.5 ........................................................................-2
R. v. Cancoil <(ermal Cor. ..........................................................................................................................-2
R. v. *(olesale <ravel =rou 2nc. ................................................................................................................--
4.3. Criminal Offences................................................................................................................................................34
0.-.1. @urder D s. 229..............................................................................................................................................-0
6imson v. R. .................................................................................................................................................-0
0.-.2. Constructive @urder D ss. 2-3 4a5 and 4d5.....................................................................................................-0
Caillancourt v. R. ...........................................................................................................................................-0
R. v. @artineau...............................................................................................................................................-5
0.-.-. First ,e+ree @urder D s. 2-1425.....................................................................................................................-#
R. v. 6mit(.....................................................................................................................................................-#
R. v. 7y+aard and 6c(immens.......................................................................................................................-#
0.-.0. First ,e+ree @urder of )olice "fficer D s. 2-14054a5....................................................................................-'
R. v. @unro and @unro .................................................................................................................................-'
R. v. Collins ...................................................................................................................................................-'
0.-.5. Constructive First ,e+ree @urder D s. 2-1455...............................................................................................-8
R. v. Arkell.....................................................................................................................................................-8
4.4. +u02ecti/e 3ault....................................................................................................................................................38
0.0.1. @otive............................................................................................................................................................-8
Lewis v. R.......................................................................................................................................................-8
R. v. @at(e.....................................................................................................................................................-9
0.0.2. 2ntention or >nowled+e..................................................................................................................................-9
R. v. 6teane.....................................................................................................................................................-9
R. v. 8i$$ert...................................................................................................................................................-9
R. v. %uEEan+a and ,uroc(er.........................................................................................................................03
0.0.-. Recklessness and *ilful %lindness................................................................................................................03
6ansre+ret v. R................................................................................................................................................03
R. v. <(erou;..................................................................................................................................................03
R. v. Currie.....................................................................................................................................................01
R. v. %londin...................................................................................................................................................01
R. v. 6and(u....................................................................................................................................................02
R. v. ,uon+.....................................................................................................................................................02
4.5. O02ecti/e 3ault.....................................................................................................................................................42
0.5.1. Criminal 7e+li+ence......................................................................................................................................02
"1=rady v. 6arlin+........................................................................................................................................0-
R. v. <itc(ner..................................................................................................................................................0-
R. v. Ro+ers....................................................................................................................................................0-
R. v. 6(ar......................................................................................................................................................00
R. v. <utton and <utton...................................................................................................................................00
*aite v. R.......................................................................................................................................................00
R. v. Anderson................................................................................................................................................05
R. v. Crei+(ton................................................................................................................................................05
-
0.5.2. )redicate "ffences..........................................................................................................................................0#
R. v. ,esousa..................................................................................................................................................0#
R. v. =osset.....................................................................................................................................................0'
R. v. Crei+(ton................................................................................................................................................0'
R. v. >rus(el...................................................................................................................................................08
5. SE(UAL ASSAULT....................................................................................................4!
5.1. Crimes of 4a*e.....................................................................................................................................................48
)aaFo(n v. R................................................................................................................................................08
6ansre+ret v. R................................................................................................................................................09
5.2. Crimes of +e)ual Assault.....................................................................................................................................49
R. v. C(ase......................................................................................................................................................53
5.2.1. ,efence of @istaken %elief in Consent.........................................................................................................53
R. v. %ulmer....................................................................................................................................................53
R. v. "solin.....................................................................................................................................................51
5.2.2. Rae 6(ield )rovisions...................................................................................................................................51
R. v. 6ea$oyer.................................................................................................................................................51
5.2.-. Reformulated Rae 6(ield )rovision.............................................................................................................52
R. v. ,arrac(...................................................................................................................................................52
5.2.0. Consent and 6e;ual Assault...........................................................................................................................5-
R. v. 9wanc(uk...............................................................................................................................................5-
R. v. ,arrac(...................................................................................................................................................50
@alcolm..........................................................................................................................................................50
6. EFENCES.................................................................................................................54
$.1. 6ista7e of 3act.....................................................................................................................................................54
R. v. 8essG R. v. 7+uyen................................................................................................................................50
#.1.1. <ransferrin+ @ens Rea of "ne "ffense to Anot(er.......................................................................................55
R. v. Ladue......................................................................................................................................................55
R. v. >undeus.................................................................................................................................................55
$.2. 6ista7e of 8a1.....................................................................................................................................................5$
R. v. Cam$ell and @lynarc(uk.....................................................................................................................5#
R. v. ,rainville...............................................................................................................................................5#
R. v. @acLean.................................................................................................................................................5'
R. v. Cancoil <(ermal Cor............................................................................................................................5'
$.3. "nsanit5..................................................................................................................................................................58
Cooer v. R.....................................................................................................................................................58
>Feldson v. R..................................................................................................................................................58
R. v. A$$ey.....................................................................................................................................................58
R. v. C(aulk....................................................................................................................................................59
R. v. "ommen.................................................................................................................................................59
R. v. 6wain......................................................................................................................................................59
R. v. &acHuard.................................................................................................................................................59
$.4. Automatism...........................................................................................................................................................59
R. v. Ra$ey.....................................................................................................................................................59
R. v. )arks.......................................................................................................................................................#3
R. v. 6tone.......................................................................................................................................................#1
0
$.5. "nto)ication...........................................................................................................................................................$2
R. v. %ernard...................................................................................................................................................#2
R. v. ,aviault..................................................................................................................................................#2
R. v. Ro$inson................................................................................................................................................#-
$.$. 9ecessit5................................................................................................................................................................$4
)erka v. R........................................................................................................................................................#0
R. v. @or+entaler, 6molin+ and 6cott............................................................................................................#5
R. v. Latimer...................................................................................................................................................#5
$.:. ;uress....................................................................................................................................................................$$
R. v. Carker 47o. 25........................................................................................................................................##
R. v. )aHuette..................................................................................................................................................##
R. v. 8i$$ert...................................................................................................................................................#'
R. v. RuEic......................................................................................................................................................#8
$.8. +elf ;efence...........................................................................................................................................................$8
R. v. )intar......................................................................................................................................................#8
R. v. Cadwallader...........................................................................................................................................#9
R. v. %o+ue.....................................................................................................................................................#9
R. v. ,ee+an...................................................................................................................................................#9
R. v. Lavallee..................................................................................................................................................'3
R. v. )etel........................................................................................................................................................'3
R. v. @alott.....................................................................................................................................................'1
R. v. )awliuk...................................................................................................................................................'1
$.9. Pro/ocation...........................................................................................................................................................:2
R. v. Cameron.................................................................................................................................................'2
R. v. 8ill.........................................................................................................................................................'2
R. v. <(i$ert....................................................................................................................................................'-
R. v. 7ealy......................................................................................................................................................'-
). PARTIES TO A CRIME...............................................................................................)4
,unlo and 6ylvester v. R..............................................................................................................................'0
R. v. Lo+an.....................................................................................................................................................'5
1. +ources of Criminal 8a1
Constitution Act, 1982
s. 9142-5 emowers Federal +overnment to le+islate on criminal matters.
s. 914205 emowers Federal +overnment to esta$lis( enitentiaries.
s. 924#5 emowers )rovinces to esta$lis( u$lic reformatory risons.
s. 9241-I155 emowers )rovinces to le+islate on matters of roerty and civil ri+(ts 41-5,
administration of Fustice 4courts5 in )rovince 4105 and unis(ment for infrin+in+ suc(
laws 4155.
Criminal Code of Canada, 4+C 1985, c. C-4$ <at $=
s. 9 a$olis(ed all CJL criminal offences.
s. 8 reserved all CJL defences.
Frey v. Fedoruk >1950? +C4 51: <at 3=
5
f.! seen on roerty lookin+ into mot(er1s window. c(ased wit( knife and detained
(im. )oliceman was called and arrested wit(out a warrant. sued for malicious rosecution
and false imrisonment. ,ismissed at trial. %CCA affirmed ar+uin+ was +uilty of crime at CJL
and t(erefore t(ere was a le+al Fustification for detainin+ (im. aealed.
i.! *as +uilty of a CJL criminal offence and t(erefore Fustified in $ein+ detainedK
r.! 7o one s(all $e convicted of a crime unless t(e offence is reco+niEed in t(e CC.
c.! Criminal offences are found in CC and esta$lis(ed CJL. 6ince t(ere was no offence for $ein+
a eein+ tom, t(ere was no Fustification for detainin+ . Aeal allowed.
2. +co*e of Criminal 8a1
2.1. !en "s An Act Criminal#
8a1 4eform Commission of Cana'a, 4e*ort: Our Criminal 8a1 <19:$=, 2:-8 <at 1$9=
An act is criminal w(en!
1. it is wron+fulG
2. it causes (arm to ot(er eole, to society or, in secial cases to t(ose needin+ rotection
from t(emselvesG
-. it causes (arm t(at is $ot( serious in nature and de+reeG
0. it causes (arm t(at is $est dealt wit( t(rou+( t(e criminal law.
2.1.1. O0scenit5
R. v. Butler >1992? 1 +C4 452 <at 1:4=
f.! L owned a s(o w(ere (e sold orno+ra(ic videos and se;ual ara(ernalia. C(ar+ed wit(
233 counts of sellin+, ossessin+ and e;osin+ to u$lic eye, o$scene material, contrary to w(at
is now s. 1#-485 of CC. <rial Fud+e found all materials o$scene $ut said most was rotected $y s.
24$5 of C(arter. 8 films were found to $e o$scene $ecause t(ey included violence and lack of
consent wit( se;ual activity and could $e said to de(umaniEe menJwomen under s. 1. L was
convicted of 8 counts of o$scenity and acHuitted on all ot(ers. Crown aealed to CA, w(o said
materials were outside of scoe of C(arter $ecause t(ey were constituted urely (ysical
activity. L aealed.
i.! *(at is t(e meanin+ of o$scenity under s. 1#-485 of t(e CCK
r.! s. 1#-485 of CC defines o$scenity D /a u$lication a dominant c(aracteristic of w(ic( is t(e
undue e;loitation of se;Mand any one of t(e followin+ su$Fects, namely, crime, (orror, cruelty
and violence, s(all $e deemed to $e o$scene.
2nterretation of s. 1#-485
s. 1#-485 is e;clusive, o$Fective test t(at alies to $ot( u$lications and o$Fects w(ic(
e;loit se; as a dominant c(aracteristic.
<ests of /Bndue 9;loitation of 6e;N
4A5 /Community 6tandard of <oleranceN <est
#
must consider standards of community as a w(ole and not a small. <(e standard is a
national standard D must determine w(at Canadians would tolerate ot(er Canadians $ein+
e;osed to on t(e $asis of t(e de+ree of (arm t(at may flow from suc( e;osure. /8armN
means t(at it redisoses ersons to act in an antiIsocial manner. /AntiIsocial conductN is
conduct w(ic( society formally reco+niEes and incomati$le wit( it roer functionin+.
Community standards must resond to c(an+in+ times.
4%5 /,e+radation or ,e(umaniEationN <est
2ncludes scenes t(at ortray violence and cruelty in conFunction wit( se;G erformance of
indi+nities w(ic( de+radeJde(umaniEe eole uon w(om t(e are erformed
@aterials t(at lace women and men in ositions of su$ordination, servile su$mission or
(umiliation w(ic( run a+ainst rinciles of eHuality and di+nity of all (uman $ein+s.
Aearance of consent is not determinative.
<(e line $etween mere ortrayal of se; and de(umaniEation is t(e /unduenessN concet.
4C5 /2nternal 7ecessities <estN or /Artistic ,efenceN
=enuine literaryJartistic use of material to seriously look at t(e t(eme is not Oundue1 4e.+.
a sc(olarly $ook5.
@ust look at aut(or1s artistic urose, t(e manner in w(ic( t(e story was
ortrayedJdeveloed, t(e deiction and interlay of c(aracter, t(e creation of visual effect
t(rou+( skillful camera tec(niHues.
@ust assess w(et(er e;loitation of se; (as Fustifia$le role in advancin+ lot or t(eme,
and considerin+ work as a w(ole, does not reresent /dirt for dirt1s sakeN $ut (as
le+itimate role w(en measure $y internal necessities of t(e work itself.
4,5 Relations(i of <ests to 9ac( "t(er
)orn can $e divided into - cate+ories! 415 e;licit se; wit( violence, 425 e;licit se;
wit(out violence $ut is de+radin+ or de(umaniEin+, 4-5 e;licit se; wit(out violence t(at
is not de+radin+Jde(umaniEin+. 415 is e;ressly mentioned in s. 1#-485 of CCC. 425 may
include se; couled wit( crime, (orror or cruelty. 4-5 is not covered.
415 will always constitute undue e;loitation of se;. 425 may $e undue of risk of (arm is
su$stantial. 4-5 will not $e undue unless it emloys c(ildren.
c.! 7ew trial ordered to determine if material is o$scene.
R. v. Jacob <199$=, 4 C.4. <5t!= 8$ <Ont. CA= <at :=
f.! walked t(rou+( streets of =uel( $areI$reasted. )olice asked (er to cover u, declined
statin+ it was (er constitutional ri+(t. @ot(er of c(ildren reHuested s(e cover u I declined.
@ot(er called olice. c(ar+ed wit( committin+ and indecent act in a u$lic sace contrary to s.
1'-4154a5 of CCC. <rial Fud+e found act $eyond community standard of tolerance and ordered
s(e ay a fine of P'5. aealed.
i.! ,id commit an indecent act under s. 1'-4154a5 of t(e CCCK
r.! 6. 1'-4154a5 makes it criminal to willfully commint an indecent act in a u$lic lace in t(e
resence of one or more ersons. An /indecentN act is an act t(at involves /t(e undue
'
e;loitation of se;N. <(e test is o$Fective /community standard of tolerance.N <(erefore, not all
acts $eyond t(e community standard of tolerance will $e indecent, $ecause some acts 4e.+.
s(ootin+ (eroin5 do not involve a se;ual conte;t. Conduct (as a se;ual conte;t w(en t(e act,
viewed o$Fectively in all circumstances, is done for se;ual +ratification. /Considerin+ t(e
circumstancesN includes any art of $ody touc(ed, words and +estures, and t(e intent or urose
of t(e erson committin+ t(e act, as aears from t(e evidence.
a.! *eiler &.A.!
8ere t(ere is no indication t(at was doin+ anyt(in+ for se;ual +ratification, t(erefore s(e did
not commit and indecent act.
c.! <rial Fud+e erred in law $y alyin+ t(e wron+ test to determine if act was indecent. Aeal
allowed.
2.2. Presum*tion of "nnocence
R. v. akes <198$=, 50 C4 <3'= 1 <+CC= <at 9:=
f.! L found in ossession of 13 vials of (as(is( oil. 6. 8 of t(e Narcotic Control Act rovides t(at
if a erson is found in ossession of a narcotic, t(at erson is assumed to $e in ossession for t(e
uroses of traffickin+, unless demonstrates ot(erwise. <rial Fud+e found s. 8 unconstitutional
as it contravenes t(e resumtion of innocence under s. 114d5 of t(e C(arter. Crown aealed.
i.! ,oes reHuirin+ t(e accused to rove t(at (eJs(e is not +uilty of traffickin+ narcotics, as is
assumed under s. 8 of t(e Act, contravene t(e resumtion of innocence under s. 114d5K

r.! <(ere is no rational connection $etween ossessin+ a narcotic and t(e resumtion t(at suc( a
ossessor will traffic t(e narcotic. <(erefore s. 8 is not a Fustifia$le limit of resumtion of
innocence under s. 114d5.
a.! *(y (ave resumtion of innocenceK
)rotects fundamental li$erty of every accused ersonG accused faces +rave social and
ersonal conseHuencesG essential in a society committed to fairness and social FusticeG
)"2 confirms fait( in (umankind as lawIa$idin+ until roven ot(erwise.
)"2 must (ave minimum - comonents!
1. must $e roven +uilty %AR,G
2. Crown must carry $urden of roofG
-. Criminal rosecution carried out in accordance wit( lawful rocedures and fairness.
c.! s. 8 of Narcotic Control Act does violate s. 114d5 of t(e C(arter.
2.2.1. 6eanin. of Proof %@e5on' a 4easona0le ;ou0t,
R. v. !ifc"us, >199:? 3 +C4 320 <at 8:=
f.! L convicted of fraud. <rial Fud+e told Fury t(at /roof $eyond a reasona$le dou$tN is used in
t(eir /ordinary, every day sense.N L aealed on meanin+ of /roof $eyond a reasona$le dou$tN.
i.! *(at does Nroof $eyond a reasona$le dou$tN meanK
8
r.! Nroof $eyond a reasona$le dou$tN means!
)resumtion of innocenceG
%urden of roof lies wit( Crown and not accusedG
2s not a dou$t $ased on symat(y or reFudice $ut on reason and common senseG
Lo+ically connected to evidence or lack t(ereofG
,oes not mean a$solute certaintyG
,oes not mean Oro$a$ly1 +uilty D in suc( a case one s(ould acHuit.
&ud+es s(ould not tell t(e Fury!
<(at t(e standard of roof is similar to t(at used $y Furors in t(eir everyday livesG
9Huatin+ it to roof /to a moral certaintyNG
,o not use adFectives ot(er t(an /reasona$leN as t(ey are misleadin+G
,o not instruct Fury to convict if t(ey are Osure1 t(e accused is +uilty.
c.! Aeal allowed. 7ew trial ordered.
2.2.2. @ur'en of Proof on Cro1n
#oolmin$ton v. %.&.&., >1935? A.C. 4$2 <A.8.= <at :$=
f.! 4A5 wife left (im and moved in wit( (er mot(er. said (e took +un to t(reaten suicide
and scare wife into returnin+. After (e t(reatened to kill (imself, (e said (e ulled out t(e +un to
s(ow (er and it accidentally went off, killin+ (er. was arrested and said /2 want to say not(in+
e;cet 2 done it, and t(ey can do w(at t(ey like wit( me. 2t was Fealousy 2 suoseMN <rial
Fud+e instructed Fury t(at CJL was for Crown to demonstrate t(at killed (is wife, and if so
must assume malice and it is u to to rove accident, necessity or infirmity. B(eld on aeal.
i.! "nce killin+ (as $een esta$lis(ed, is it a correct interretation of t(e law t(at murder is
resumed and t(e defendant must rove (is innocenceK
r.! *(en dealin+ wit( murder case Crown carries $urden of roof and must rove %AR, 415
deat( was result of a voluntary act of t(e accusedG 425 accused killed wit( malice @alice can $e
imlied w(ere t(e voluntary act is 4a5 intentional and 4$5 unrovoked.
c.! Aeal allowed. Conviction Huas(ed.
R. v. akes <198$=, 50 C4 <3'= 1 <+CC= <at 9:=
)resumtion of innocence reHuires t(at Crown carry $urden of roof.
2.2.3. %Air of 4ealit5, Test for Criminal ;efences
R. v. solin, >1993? 4 +C4 595 <at 82=
f.! L c(ar+ed wit( se;ual assault. L ar+ued t(at comlainant was ea+er $ut not active articiant
in all acts, and ar+ued defence of (onest $ut mistaken $elief in consent. <rial Fud+e said /no air
of realityN to t(e defence. L convicted.
i.! @ust t(ere $e evidence to suort a defenceK
9
r.! s. 2#5405 of CCC sets out reHuirements of all defences, namely a defence s(ould not $e ut to
t(e Fury if a reasona$le Fury roerly instructed could not acHuit on t(e $asis of t(e evidence
tendered to suort t(e defence.
<(is is a Huestion of law and must $e decided $y trial Fud+e usin+ a 2 ste test!
1. Fud+e must review all evidence and decide if it is sufficient to warrant uttin+ t(e defence
to t(e FuryG
2. 2f evidence meets t(at t(res(old 4/sufficient evidence5, Fud+e must ut defence to Fury,
w(ic( in turn will wei+(t it and decide w(et(er it raises a reasona$le dou$t.
2.2.4. !ere Accuse'Bs Cre'i0ilit5 in "ssue
R. v. #.'%.(, >1991? 1 +C4 :42 <at 85=
f.! L was convicted of se;ual assault in trial t(at itted credi$ility of a+ainst comlainant. 2n
rec(ar+e to Fury, trial Fud+e c(aracteriEed core issue to $e w(et(er t(ey $elieved t(e comlainant
or t(e . convicted.
i.! ,id t(e trial Fud+e1s c(ar+e to Furors leave t(em wit( imression t(at t(ey must accet
accused evidence in order to acHuit (imK
r.! )roer instructions to a Fury w(ere credi$ility is an issue would $e!
1. if you $elieve , acHuit.
2. if you do not $elieve $ut are left wit( reasona$le dou$t $ased on t(e evidence, acHuit.
-. $ased on t(e 1s evidence you do accet, are you convinced $eyond a reasona$le dou$t $y t(at
evidence of t(e 1s +uiltK
c.! <(e c(ar+e as a w(ole did no misdirect t(e Fury. Conviction u(eld.
2.3. -oi' for -a.ueness or O/er0rea't!
R. v. &"armaceutical )ociety '*)( >1992? 2 +C4 $0$ <at 35=
f.! L 412 accused5 c(ar+ed wit( consiracy to lessen cometition unduly, contrary to s. 054154c5
of Competition Act, relatin+ to sale of rescrition dru+s. <rial Fud+e Huas(ed c(ar+e citin+ word
/undulyN as makin+ law too va+ue. 766C overturned trial Fud+e.
i.! ,oes t(e word Ounduly1 make s. 054154c5 of t(e Act too va+ue and t(erefore unlawfulK
r.! =ont(ier &.!
,octrine of Ca+ueness is a rincile of fundamental Fustice under s. ' and s. 1 4Orescri$ed $y
law15 and is $ased on rationales of!
1. fair notice to t(e citiEen D formal asect 4actual knowled+e of statute5G su$stantive asect
4understandin+ t(at certain conduct is su$Fect of le+al restrictions5
2. limitation of enforcement discretion D A law must not $e so devoid of recision in its
content t(at a conviction will automatically flow from t(e decision to rosecuteG one must
$e a$le to mount a defence to a c(ar+e and allow Fudiciary to rule on conviction.
R. v. +ey,ood >1994? 3 +C4 :$1 <at 42=
f.! L c(ar+ed wit( va+rancy $y $ein+ a erson w(o was convicted of a se;ual offence and /found
loiterin+ at or near a sc(ool +round, lay+round, u$lic ark or $at(in+ areaN contrary to s.
13
1'94154$5 of CCC. <rial Fud+e found section violated s. ' and 114d5 of C(arter $ut found
reasona$le under s. 1. CA allowed aeal. Crown aealed, $ut )arliament (ad already relaced
rovision wit( a more narrowly worded s. 1#1.
i.! ,oes some asect of t(e ro(i$ition on li$erty contained in s. 1'94154$5 violate t(e rinciles
of fundamental FusticeK
r.! "ver$readt( and va+ueness are related in t(at $ot( are t(e result of a lack of sufficient
recision $y a le+islature in t(e means used to accomlis( an o$Fective. 2n case of va+ueness, t(e
means are not clearly definedG in over$readt( t(e means are too sweein+ in relation to t(e
o$Fective. For an enactment to violate s. ' due to over$readt(, t(ere must $e a restriction in life,
li$erty or security of t(e erson in a manner t(at is unnecessarily $road, +oin+ $eyond w(at is
needed to ac(ieve +overnment o$Fective.
a.! Cory &.!
)urose of section is to rotect c(ildren from $ecomin+ victims of se;ual offences. 8ere
t(e section is overly $road in its +eo+ra(ical am$it D since some u$lic arks, $at(in+
areas 4$eac(es5 will not contain c(ildren. Also, section alies for life wit( no ossi$ility
of review. 2t alies to all convicted of /serious ersonal inFury offenceN $ut does not
allow for determination if t(ey are t(reats to c(ildren 4new le+islation assed $y
)arliament accounts for t(is5. 6ection fails minimal imairment test under s. 1
=ont(ier &.
2nterretin+ section so it is read to only ro(i$it loiterin+ wit( a malevolent urose
removes va+ueness, since it narrows lia$ility and creates a clear $asis for le+al de$ate.
<(is restraint on li$erty is minor, since it allows use of t(e enumerated locations 4arks,
$at(in+ areas, etc.5 unless it is a situation w(ere a Fud+e can draw and adverse inference
4e.+. a erson wit( (istory of offences a+ainst c(ildren (an+in+ around a sc(ool yard wit(
draw susicion, $ut (an+in+ around a ark will not5.
c.! 5I0 for Q. 6ection is too over$road and t(erefore infrin+es s. ' and cannot $e saved $y s. 1.
2.4. +trict "nter*retation of Penal +tatutes
R- .ero/ of Canada !td. And Re$ional Assessment Commissioner Re$ion *o. 10 <1980=, 30
O4 <2'= 90 <CA=, re/B' on ot!er .roun's >1981? 2 +C4 13: <at 49=
a.! &essu &.A.!
Courts s(ould use Interpretation Acts as source of rules for statutory interretation, and not
e;clusively t(e rules of 9n+lis( CJL. Interpretation Acts rovide for a /lar+e and li$eral
construction and interretation as will $est ensure t(e attainment of t(e o$Fect of t(e ActN
R. v. Bud$et Car Rentals '1oronto( !td. <1981=, 5: CCC <2'= 201 <Ont. CA= <at 50=
a.! 8owland C.&.".!
*(ere t(ere are two different reasona$le constructions of a enal statute, emloy /strictN or
narrower interretation D i.e. t(e conduct of t(e erson must $e clearly and unmistaka$ly fall
wit(in t(e kind of conduct w(ic( is roscri$ed $y t(e statute.
11
R. v. 2oulis <1981=, 20 C.4. <3'= 3$0 <Ont. CA= <at 52=
a.! @artin &.A.!
2f a enal rovision is reasona$ly caa$le of two interretations t(e interretation w(ic( is t(e
more favoura$le to t(e L must $e adoted.
R. v. &are >198:? 2 +C4 $18 <at 53=
f.! L indecently assaulted and t(en killed a ' year old $oy. L was c(ar+ed wit( first de+ree
murder on $asis of s. 210455 Rnow s. 2-1455S of CC, in t(at /murder is first de+ree murderMw(en
t(e deat( is causedMwhile committingN an indecent assault 4now se;ual assault5.
i.! @ust court contruct s. 210455 4/w(ile committin+N5 suc( t(at murder only $ecomes first
de+ree murder if t(e deat( and indecent assault occur simultaneouslyK
r.! *(ere dou$t or am$i+uities arise in t(e construction and alication of a statute affectin+
li$erty, it s(ould $e alied in a manner as to favour t(e L.
a.! *ilson &.!
2nterretin+ /w(ile committin+N suc( t(at murder only $ecomes first de+ree murder if t(e deat(
and indecent assault occur simultaneously cannot reasona$ly reflect t(e intention of t(e
le+islature. /ContinuityN is ac(ieved $ecause t(ere is continuin+ domination, or e;loitation of
ower, over t(e victim $y t(e accused.
c.! Aeal overturned, conviction reIinstated.
3. Actus Reus
3.1. -oluntariness
R. v. 3in$, >19$2? +C4 :4$ <at 292=
<(ere must $e a willower to do an act w(et(er t(e accused knew or not t(at it was ro(i$ited $y
law.
Rabey v. R., >1980? 2 +C4 513 <at 292=
7o act can $e criminal unless it is done voluntarily 4consciously5.
R. v. !ucki <1955=, 1: 4 44$ <+as7. Pol. Ct.= <at 29:=
f.! L made a ri+(t turn onto a street. *(ile doin+ so (e skidded over onto t(e left side of t(e road
and collided wit( anot(er car. L was c(ar+ed wit( inconveniencin+ ot(er ersons usin+ t(e
(i+(way, contrary to s. 125495 of The Vehicles Act.
i.! ,id t(e L voluntarily /inconvenienceN ot(er ersons usin+ t(e roadK
r.! A erson w(o $y an involuntary act for w(ic( (e is not to $lame +ets onto t(e wron+ side of
t(e road is not +uilty under s. 125495.
a.! =olden$er+ AC)@.!
12
L was on wron+ side of road $y an involuntary act. 2t was not (is faulty drivin+ t(at laced (im
in osition w(ere (e ended u.
c.! For L.
R. v. #olfe <19:5=, 20 CCC <2'= 382 <Ont. CA= <at 298=
f.! L was artIowner of a (otel in >in+ston. L told comlainant t(at (e was not allowed in t(e
(otel. Comlainant s(owed u anyway. L went to call olice. *(ile doin+ so, comlainant
unc(ed L, w(o t(en, $y refle; 4as found $y t(e trial Fud+e5, (it comlainant in t(e (ead wit( t(e
tele(one receiver, causin+ a 0Iinc( cut. L was convicted of assault causin+ $odily (arm.
i.! ,id L voluntarily and intentional strike t(e comlainant wit( t(e (one receiverK
a.! =ale C&".!
<(ere must $e intent in order to $e +uilty of assault causin+ $odily (arm.
c.! For L. Conviction Huas(ed.
R. v. Ryan <19$:=, 40 A8C4 488 <Aus. AC= <at 299=
f.! L went into a service station wit( a sawedIoff s(ot+un and demanded money from attendant.
After +ettin+ money, L told attendant to ut (ands $e(ind (is $ack, and w(ile L was tyin+ t(em
wit( a cord, attendant made sudden movement and, accordin+ to L, +un accidentally disc(ar+ed
and killed attendant. 2t was s(own t(at sli+(t ressure on t(e tri++er $y L caused t(e disc(ar+e I
L ar+ued t(is was an involuntary refle; caused $y attendant1s movement. &ury dismissed defence
of accident and convicted L of murder.
i.! *as t(e ressure alied to t(e tri++er $y t(e L an involuntary act t(at was sufficient to
remove t(e actus reus comonent of murderK
r.! A fully conscious man w(o (as ut (imself in a situation w(ere (is fin+er is on a tri++er of a
loaded rifle levelled at anot(er man, commits a voluntary act if (e resses t(e tri++er in
immediate resonse to a sudden t(reat or are(ension of dan+er, and is criminally lia$le for t(e
conseHuences of suc( an act.
a.! *indeyer &.!
2n t(is case, t(ou+( t(e L, if +iven more time, may (ave c(osen a different course of action, t(e
law cannot call an act involuntary merely $ecause t(e mind worked Huickly and imulsively.
c.! Aeal dismissed. L conviction u(eld.
3ilbride v. !ake, >19$2? 9D84 490 <+C= <at 301=
f.! L arked (is car. At some oint after leavin+ t(e car, t(e warrant of fitness 4w(ic( L roved
was recently urc(ased5 on t(e winds(ield (ad some(ow fallen off and was lost. +ave L a
ticket for (avin+ ve(icle on road wit(out warrant of fitness.
1-
i.! Can somet(in+ done lawfully $y L $ecome an offence $y reason of an intervenin+ cause
$eyond (is influence or control, and w(ic( roduced an effect entirely outside (is means of
knowled+eK
r.! A erson cannot $e made criminally resonsi$le for an act or omission t(at is $eyond a
erson1s control D t(ere is no voluntariness.
a.! *ood(ouse &.!
2n t(is case t(e L did lace t(e ve(icle on t(e road 4t(is is a continuous act5. "nce t(e warrant
disaeared durin+ (is a$sence 4$y some ot(er act5, L could not voluntarily take anot(er course,
and any inactivity on (is art after t(e warrant was removed was involuntary and unrelated to t(e
offence. <(e resultin+ omission to carry t(e warrant was not wit(in (is conduct or control.
3.2. Commission of an &nla1ful Act
3.2.1. Prostitution
+utt v. R., >19:8? 2 +C4 4:$ <at 18:=
f.! L, after smilin+ at an undercover officer 4w(o smiled $ack5, entered (is car and asked (im /if
(e wanted a +irlN and t(at s(e was /a workin+ +irlMa rostitute.N "fficer said yes, and after
+oin+ to a (otel, L was arrested. L convicted for solicitin+ a erson in a u$lic lace for t(e
urose of rostitution under s. 195.1.
i.! 8ow does one interret t(e word /solicitN in s. 195.1 of t(e CCCK
r.! <o solicit 4wit( re+ards to rostitution5 one must $ot( confront a erson and /ressin+ly or
ersistentlyN make it known t(at t(ey are availa$le for rostitution.
a.! 6ence &.!
<(ere is not(in+ in w(at L said ot(er t(an t(e demonstration t(at s(e was availa$le for
rostitution. For t(ere to $e solicitation, t(ere must $e /somet(in+ moreN 4i.e. imortune5.
Lookin+ at (istory and develoment of t(e law, it is clear t(at )arliament wis(ed to
reHuire some acts on t(e art of t(e erson w(ic( would contri$ute to u$lic
inconvenience. <(e L1s acts do not satisfy t(is.
c.! For A. Conviction Huas(ed.
Reference Re ss. 194 5 196.1'1('c( of t"e CCC '&rostitution Reference(, >1990? 1 +C4 1123
<at 19$=
f.! <(e offence of communicatin+ for t(e urose of rostitution was c(allen+ed under s. 24$5 of
t(e C(arter. Court a+reed t(at t(e law did infrin+e s. 24$5 $ut was divided on Huestion of w(et(er
s. 1 saved t(e law. All a+reed t(at t(e law was not too va+ue as not to $e /rescri$ed $y law.N
i.! Are ss. 19- and 195.14154c5 saved $y s. 1K *(at is t(e act t(at is $ein+ criminaliEedK
10
r.! @aFority! Le+islation is aimed at reventin+ nuisanceIrelated ro$lems identified wit( t(e
solicitation for uroses of rostitution. ,issent D not all u$lic solicitation for t(e uroses of
rostitution cause a nuisance t(erefore t(e le+islation is overly $road and not Fustifia$le.

a.! ,ickson C&C. 42 Fud+es concurrin+5!
) ? 6 "$Fective and Rational Connection! eradicate t(e various forms of social nuisance
arisin+ from u$lic solicitation of se; 4e.+. street con+estion and noise, oral (arassment of
nonIarticiants, +eneral detrimental effects on $ystanders, esecially c(ildren.5<(e
elimination of t(is is a ressin+ and su$stantial o$Fective. A rational connection $etween
t(e le+islation and t(e revention of social nuisance e;ists.
@inimal 2mairment! 8ere t(e e;ression concerns an economic transaction of se; for
money, w(ic( does not lie at t(e core of t(e +uarantee of F"9. Communication for t(e
uroses of rostitution can $e restricted 4Hutt v. R.5. <(erefore, since t(e o$Fective is t(e
+eneral curtailment of visi$le solicitation for uroses of rostitution, and not secifically
to end street nuisance, t(e le+islation is not unduly intrusive D t(e sc(eme need not $e t(e
/erfectN sc(eme, rat(er it is sufficient if it is aroriately and carefully tailored in t(e
conte;t of t(e infrin+ed ri+(t.
,eleterious 9ffects! $enefit of limits under w(ic( communication $etween rostitutes and
customers can take lace outwei+(s intrusiveness linked to enforcement of t(e rovision.
*ilson &. 4L18eureu;I,u$e concurrin+5 4dissent5!
<(e le+islation criminaliEes u$lic solicitation of se; in any u$lic lace 4to w(ic( t(e
u$lic (ave access as of ri+(t or $y e;ress or imlied invitation5 or lace oen to u$lic
view. <(is includes laces w(ere t(ey may $e many eole, or no eole. <(is +oes
$eyond t(e +eneral concern over t(e nuisance caused $y street solicitation in maFor
centres of oulation. 2n fact, no nuisance or adverse imact needs to $e s(own. <(e
u$lic sale of se; does not always cause a nuisance. <(e le+islation also ro(i$its all
forms of communication D a wink or nod could suffice D t(is could tra innocent arties.
@inimal imairment is t(erefore not met.
3.2.2. Consent an' Constructi/e Possession
Relatin+ to dru+s, weaons, stolen roerty, c(ild orno+ra(y, etc.
Actual ossession Rs. 04-54a5S or Constructive ossession Rs. 04-54$5S
7ars"all v. R., >19$9? 3 CCC 149 <Alta. CA= <at 205=
f.! L was in a car t(at was stoed $y t(e RC@). <(e officer found mariFuana in t(e car 42.2 l$s5.
L did not touc( t(e ot, nor did (e smoke it 4(e did not control or take control of t(e ot, nor did
(e control t(e car5, $ut (e was aware t(at it was in t(e car and t(at t(e ot(ers were smokin+ it.
<(ere was no evidence t(at L rotested to t(e acts of t(e ot(ers, or try to searate (imself from
t(e actions of t(e ot(ers or t(eir comany. <rial Fud+e found t(at, +iven t(e amount of time L
was in t(e car 4from Cancouver to Cal+ary5, t(e L acHuiesced to t(e ot(ers actions and was
t(erefore in /ossessionN of t(e ot under t(e Narcotic Control Act and t(e CCC.
i.! *as t(e L in ossession of t(e ot, as wit(in t(e meanin+ of /ossessionN under t(e Narcotic
Control ActK
15
r.! 2n order for t(ere to $e constructive ossession of a narcotic under s. 04-54$5 t(ere must $e
$ot( Oknowled+e1 t(at a erson (as a narcotic and Oconsent1 to t(at erson (avin+ t(e narcotic.
8owever, in order to consent, one must (ave a measure of control over t(e narcotic. )assin+ a
Foint is not /ossessionNG it is a /refle; actionN.
a.! @c,ermid &A.!
s. 04-54$5 of t(e CC defines /ossessionN as /w(ere one of two or more ersons, wit( t(e
knowled+e and consent of t(e rest, (as anyt(in+ in (is custody, it s(all $e deemed to $e
in t(e custody and ossession of eac( and all of t(em.N /ConsentN is defined as
/voluntary a+reement to or acHuiescence in w(at anot(er rooses or desiresG
comliance, concurrence, ermission.N
A was faced wit( c(oice of +ettin+ out of car and (itc(in+ to Cal+ary 4and ossi$ly
missin+ classes5 or stayin+ in t(e car. 8e consented to stay in t(e car, $ut t(is does not
mean (e consented to t(e resence of t(e ot. 8e (ad no control over t(e ersons wit( t(e
ot and was not owner of t(e car.
c.! Aeal allowed. L conviction Huas(ed.
R. v. 1errence, >1983? 1 +C4 35: <at 209=
f.! L was invited $y 8ayes to take a ride in (is $rot(erIinIlaw1s new car. L a+reed. <(is (ad
occurred in t(e ast and since 8ayes (ad keys, L did not susect at t(e time t(at t(e car was
stolen. ")) cruiser c(ased car and was stoed at a roadI$lock. )rior to it stoin+, L Fumed
from car and ran into a field. <rial Fud+e found t(at L consented to 8ayes ossession of a stolen
car and t(erefore L was in constructive ossession of car. CA overturned trial Fud+e1s decision,
statin+ t(at /ossessionN reHuires some form of control over t(e su$Fect matter.
i.! *as t(e L in ossession of t(e car, as wit(in t(e meanin+ of /ossessionN under s. 04-54$5 of
t(e CCK
a.! Ritc(ie &.!
For t(ere to $e ossession under s. 04-54$5 of t(e CC t(ere must $e knowled+e, consent and a
/measure of control Rover t(e su$Fect matterS on t(e art of t(e erson deemed to $e in
ossessionN
c.! Aeal allowed. L conviction Huas(ed.
Re C"ambers and 1"e 8ueen <1985=, 20 CCC <3'= 440 <Ont. CA= <at 212=
f.! Cocaine was found on t(e to s(elf of an oen closet full of women1s clot(in+, under
women1s sweaters and on to of (otos of C(am$ers modelin+ women1s clot(in+. <(ere was
men1s clot(in+ on t(e floor and a small rack (an+er wit( men1s clot(in+. A +ym $ack wit( men1s
clot(in+ and a /deckN (oldin+ a small amount of cocaine was also found D t(ese $elon+ed to
C(am$ers $oyfriend. C(am$ers committed to trial for ossession of cocaine wit( t(e urose of
traffickin+. <rial Fud+e Huas(ed t(e trial commitment statin+ t(at alt(ou+( C(am$ers (ad
knowled+e t(at cocaine was in (er room, s(e did not Oconsent1 to it $ein+ t(ere, since s(e did not
(ave t(e necessary measure of control over it.
1#
i.! 2s t(ere evidence t(at C(am$ers (ad ossession of t(e cocaineK
r.! 2n order for t(ere to $e constructive ossession of a narcotic under s. 04-54$5 of CC t(ere must
$e $ot( Oknowled+e1 t(at a erson (as a narcotic and Oconsent1 to t(at erson (avin+ t(e narcotic.
<o consent, one must (ave a measure of control over t(e narcotic. <o (ave control, one must
(ave t(e ower to accet or refuse any various use of t(e narcotic 4e.+. ower to accet or refuse
to store dru+s in one1s room is sufficient to form reHuisite consent for constructive ossession5.
a.! @artin &A.!
8ere t(e dru+s were found in C(am$ers room and s(e (ad t(e ower to eit(er consent or
wit((old (er consent to (er room $ein+ used to store t(e cocaine. Allowin+ t(e cocaine to remain
was t(e reHuisite act t(at allows for a trial. 2t is not necessary t(at s(e (ave any interest in t(e
cocaine itself or its sale.
c.! C(am$ers s(ould $e committed to trial.
3.2.3. Consent an' Assault
6. 2#5 of CC defines assault as arisin+ w(enever a one intentionally alies force to a erson
/directly or indirectlyN wit(out t(e erson1s consent.
R. v. Jobidon, >1991? 2 +C4 :14 <at 219=
f.! L a+reed to a fist fi+(t wit( t(e victim. L struck t(e victim wit( (is fist and knocked
unconscious onto t(e (ood of a car. L t(en struck t(e victim a furt(er 0I# times in t(e (ead.
Cictim died of contusions to t(e (ead caused $y t(e L $lows. 6. 222 of t(e CC rovides t(at
cula$le (omicide is eit(er murder or manslau+(ter and t(at a erson commits cula$le
(omicide w(en (e causes t(e deat( of a (uman $ein+ $y means of an unlawful act. L was
c(ar+ed wit( assault under s. 2#5 of t(e CCC 4an unlawful act5 and t(erefore was c(ar+ed wit(
manslau+(ter under s. 222. <rial Fud+e found t(at t(ere was consent $etween t(e men to a fair
fi+(t and t(at consent vitiates assault and t(erefore L was acHuitted. CA overturned, citin+ CJL
limit t(at consent to a fi+(t in rivateJu$lic is not a defence to a c(ar+e of assault if actually
$odily (arm is intended or caused. L aealed.
i.! @ust t(e Crown rove a lack of consent in all cases of assault or are t(ere CJL limitations
w(ic( restrict or ne+ate t(e le+al effectiveness of consent in certain tyes of casesK
r.! Bnder s. 2#5 of CC 4assault5, consent $etween adults is vitiated w(en t(ey intentionally aly
force to cause serious (urt or nonItrivial $odily (arm in t(e course of a fistIfi+(t or $rawl.
a.! =ont(ier &.!
*(ere t(e CC (as not erased t(e CJL limit alica$le to fist fi+(ts, it must continue to
define t(e scoe of le+ally effective consent concernin+ assault. <(is means consent is a
defence in t(e criminal law.
)u$lic olicy considerations suortin+ a limit on defence of consent in fistIfi+(ts
include t(e uselessness of fi+(ts, t(e ossi$ility of fi+(ts leadin+ to lar+er $rawls and t(e
distur$ance of t(e u$lic eace, t(e sanctity of t(e (uman $ody.
<(is does not affect a$ility to freely +ive consent to articiate in rou+( sortin+
activities so lon+ as t(e intentional alication of force to w(ic( one consents are wit(in
1'
t(e customary norms and rules of t(e +ame. <(is does not affect consent to medical
rocedures. <(is does not affect consent in activities t(at (ave ositive social value 4i.e.
stunt eole in a cultural roduct5. <(is does not aly to force w(ic( causes minor (urt
or trivial (arm. <(is does not cover /ordinaryN sc(oolyard scuffles, $ut leaves Huestion
oen w(en t(ere is true intent to (arm and t(e result involves more t(an trivial $odily
(arm.
c.! L aeal dismissed. Cictim did not +ive le+al consent to t(e fi+(t, t(erefore L +uilty of assault
and manslau+(ter.
3.2.4. Consent an' 3rau'
R. v. Cuerrier <1998=, 12: CCC <3'= 1 <+CC= <at 241=
f.! L was c(ar+ed wit( a++ravated assault under s. 2#8 of t(e CC. L was 82C ositive. 8e (ad
unrotected se; wit( 2 women, $ot( of w(om testified t(at t(ey would not (ave consented to se;
(ad t(ey known (e was 82C ositive. L was acHuitted.
i.! ,id L, $y not informin+ (is artners t(at (e was 82CIositive, commit fraud a+ainst t(e
comlainants w(ic( t(en vitiates t(eir consent to se;ual intercourse and su$seHuently makes (im
lia$le to a c(ar+e of a++ravated assaultK
r.! 6. 2#5 alies to all forms of assault, includin+ se;ual assault Rs. 2#5425S. 6. 2#54-54c5
states t(at no consent is o$tained $y reason of fraud. 2t is no lon+er necessary to consider
w(et(er t(e fraud related to t(e /nature and Huality of t(e act.N
9ssential elements of t(e act of fraud are dis(onesty, w(ic( can include nonIdisclosure of
imortant facts, and derivation or risk of derivation. <(e e;istence of fraud s(ould not vitiate
consent unless Crown s(ows t(at t(ere is a si+nificant risk of serious $odily (arm as a result of
act of fraud.
a.! Cory &. 4- ot(ers concurrin+5!
)ersons w(o know t(ey are 82CIositive and en+a+e in intercourse wit(out advisin+
t(eir artner of t(e disease may $e found to fulfill t(e reHuirements for fraud, namely
dis(onesty and derivation. <(is fraud may vitiate a artner1s consent to se;.
L18eureu;I,u$e &.!
<o determine if fraud vitiates consent, one must determine if t(e deceit derived t(e
comlainant of t(e a$ility to e;ercise (is or (er will in relation to (is or (er (ysical
inte+rity wit( resect to t(e activity in Huestion 4in t(is case se;ual intercourse5.
@cLac(lin &. 4=ont(ier &. concurrin+5!
)resently, it is consistent wit( needs and mores of society to return t(e CJL to t(e oint
w(ere it reco+niEed t(at decetion as to se;ually transmitted disease carryin+ a (i+( risk
of infection, constituted fraud vitiatin+ consent to se;ual intercourse. <est for decetion
and inducement of consent due to fraud would $e o$Fective.
L18eureu;I,u$e1s analysis is too $road, in t(at it could oen u lia$ility to eole w(o
romise marria+eJfur coats for se;. ,eceit as to venereal disease vitiates consent 4rat(er
t(an romises of fur coats5 $ecause t(e deceit +oes to t(e nature of t(e act. A erson w(o
18
consents to se; $elievin+ t(at t(e artner is disease free is fraudulently deceived if t(at
erson is not disease free. 6uc( a erson does not consent to e;c(an+in+ diseased $odily
fluids 4+oes to nature and Huality of t(e act5.
3.2.5. Pu0lic ;istur0ances
R. v. !o"nes, >1992? 1 +C4 1$: <at 253=
f.! L, on two searate occasions, yelled and swore, and at one time t(reatened to s(oot (is
nei+($our, )orter, if (e (ad a +un, $ecause )orter was +iven to collectin+ eHuiment on (is
remises and runnin+ motors t(at made loud noises. )orter comlained t(at (e was /distur$edN
$y L imu+ned conduct. L was c(ar+ed and convicted wit( u$lic distur$ance.
i.! *(at constitutes a u$lic distur$ance under s. 1'54154a5 of t(e CCK 8ow does one define a
distur$anceK ,id cause a distur$anceK *as )orter1s sense of $ein+ emotionallyJmentally
distur$ed enou+( to cause a distur$anceK
r.! s. 1'54154a5 reHuires an e;ternally manifested distur$ance in or near a u$lic lace, consistin+
eit(er in t(e act itself or in a secondary conseHuence of t(e act, t(at interferes wit( t(e ordinary
and customary use of t(e remises $y t(e u$lic 4t(is can $e as small as $ein+ distracted from
one1s work5. Courts can infer from evidence of eace officer w(et(er conduct of a erson
amounts to a u$lic distur$ance. @entalJemotional annoyance does not amount to a distur$ance.
a.! @cLac(lin &.!
6. 1'54154a5 rovides t(at! everyone w(o, not $ein+ in a dwellin+ (ouse, causes a
distur$ance in or near a u$lic lace, 4i5 $y fi+(tin+, screamin+, s(outin+, swearin+,
sin+in+ or usin+ insultin+ or o$scene lan+ua+eMis +uilty of an offence unis(a$le on
summary conviction.
6tatutory construction defines a distur$ance as not merely mental or emotional
annoyance. As a olicy, emloyin+ t(e /emotional distur$anceN interretation would ut
an unfair $urden on everyone to determine in every circumstance w(et(er t(eir actions
would distur$ t(e mentalJemotional tranHuility of ot(ers D t(is would imort +reat
uncertainty in t(e criminal law. Bsin+ t(e /u$lic distur$anceN interretation allows t(e
courts to $alance $etween individual li$erty and u$lic interest in eaceJtranHuility D
2t is clear t(at L committed one of t(e enumerated acts, $ut t(ere is no evidence t(at L1s
acts or t(e secondary conseHuences of t(e acts interfered wit( t(e ordinary and customary
use of t(e remises $y t(e u$lic.
3.2.$. 9o 8ia0ilit5 in A0sence of ron.ful Act
R. v. Burt <1985=, 4: C4 <3'= 49 <+as7. E@= <at 259=
f.! L1s car was $ein+ driven and sHueeled its tires 4leavin+ 25 feet of tire marks5. An RC@)
officer followed t(e car w(en it turned into t(e L residence and stoed. As officer ulled u, (e
saw L and called to (im I L i+nored officer. L was c(ar+ed under s. 25- Rnow s. 1#9415S of t(e
Vehicles Act w(ic( makes an owner of a ve(icle vicariously lia$le for any violation of t(e Act in
19
w(ic( (isJ(er ve(icle is involved D (eJs(e does not (ave to take art in t(e violation nor $e aware
of it 4no need for actus reus or mens rea5. A conviction involves any com$ination of fines, rison
time, susension of license. <rial Fud+e found s. 25- violated s. ' of t(e C(arter.
i.! Can one erson $e criminally lia$le on t(e $asis of t(e acts of anot(erK ,oes a$sence of actus
reus reHuirement under s. 25- render t(e le+islation constitutionally invalidK
r.! Fundamental Fustice encomasses t(e concet t(at a erson s(ould not $e unis(ed in t(e
a$sence of a wron+ful act.
a.! =erein &.!
Bnder traditional CJL, a erson was not $e convicted of an offence unless (e committed
t(e ro(i$ited act 4actus reus5. Bnder criminal le+islation t(ere are cases of vicarious
criminal lia$ility, suc( as assistin+, encoura+in+ or counselin+ an offence. Also (ad t(ree
e;cetions, w(ic( include u$lic nuisance $y emloyee, criminal li$el and criminal
contemt of Court.
<(ou+( t(e urose of t(e le+islation is valid 4to ac(ieve safe and orderly oeration of
ve(icles on u$lic (i+(ways5, t(e effect of t(e le+islation is to convict an owner of a
ve(icle of a su$stantive offence or actual violation 4in t(is case /e;cessive noiseN5
wit(out reHuirin+ t(at t(e owner actually commit t(e offence.
c.! For L. 6ection violates s. ' $ecause it allows for criminal conviction wit(out actus reus.
3.3. Omissions
Fa$an v. Commissioner of 7etro9olitan &olice, >19$8? 3 All (4 442 <(n..CA= <at 2$9=
f.! Q 4A5 was directed numerous times $y @orris, a olice consta$le, to ark in a certain
location. @orris told Q to ark very near w(ere (e was standin+. drove u and stoed t(e
car, wit( t(e left w(eel on @orris1s left foot. @orris said, /=et off my foot.N resonded,
/Fuck you, you can wait.N 9n+ine of t(e car stoed runnin+. @orris reeated demand.
slowly turned on car and reversed it off @orris1s foot. 2t was not clear if turned i+nition off to
sto en+ine or turned it off after en+ine (ad stoed. convicted of assault, since (e
/knowin+ly, rovocatively and unnecessarily allowed t(e w(eel to remain on t(e foot of officer.
aealed.
i.! After discoverin+ t(e w(eel of (is car was on @orris1 foot, was leavin+ t(e w(eel on @orris1
foot 4w(ile sayin+ /Fuck you, you can wait5 an omission 4an inactivity5 $y t(e , or was it an
act t(at satisfies t(e actus reus and mens rea reHuirement of an assaultK
a.! &ames &.!
<(e initial action $y may (ave $een unintentional, $ut t(e time w(en t(e knew t(e w(eel
was on @orris1 foot t(e 415 remained seated in car so (is $ody t(rou+( medium of car was in
contact wit( @orris, 425 switc(ed off i+nition, 4-5 maintained w(eel of car on @orris1 foot and
405 used words indicatin+ intention to kee w(eel on @orris1 foot. <(is is not an omission $ut is
a continuous act t(at satisfies t(e actus reus and mens rea reHuirement of a $attery.
23
%rid+e &. 4dissent5!
"nce w(eel accidentally came to rest on @orris1 foot, did not(in+ t(at could amount to an
assault D remainin+ in t(e car and turnin+ off t(e i+nition is irrelevant, since @orris1 situation
would (ave $een no $etter (ad steed out of t(e car and left it runnin+.
c.! For L. committed t(e intentional tort of $attery $y intentionally not removin+ t(e w(eel of
t(e car from @orris1 foot 4a continuin+ act5.
R. v. 7iller >1983? 1 All (4 9:8 <(n.. A8= <at 2:2=
f.! L was out drinkin+, went $ack to w(ere (e was sleein+. 8e lay on (is mattress and lit a
ci+arette. 8e t(en fell aslee and awoke to find t(e mattress on fire. 8e +ot u and went to slee
in t(e ne;t room. L was convicted wit( arson, under s. 1415 and 4-5 of Criminal Damage Act, for
dama+in+ a (ouse $y fire, eit(er intentionally or t(rou+( recklessness, wit(out lawful e;cuse.
i.! 2s actus reus of t(e offence of arson resent w(en L accidentally starts a fire and t(en, w(et(er
intentionally or t(rou+( recklessness, fails to take stes to e;tin+uis( t(eK
r.! *(ere an individual $ecomes aware t(at an act of (is, w(et(er intentional or not, resents a
risk of dama+e to anot(er1s roerty, t(at individual (as a resonsi$ility to take stes to try and
revent or reduce t(e dama+e. 2f (e does not, eit(er t(rou+( not +ivin+ any t(ou+(t to t(e risk or
$y reco+niEin+ t(e risk $ut c(oosin+ not to act to reventJreduce dama+e, (e will $e lia$le.
a.! Lord ,ilock.!
<akes osition of 6te(en &. in R. v. Tolson, t(at actus reus is not meant to $e a ver$ $ut a noun,
w(ic( allows $ot( actions and omissions to fall under t(e e;ression. 6(ould focus on t(e
conduct of t(e accused and (is state of mind at t(e time of t(e conduct.
c.! L aeal dismissed.
R. v. 1"ornton <1991=, 3 C4 <4t!= 381 <Ont. CA=, affB' >1993? 2 +C4 445 <at 285=
f.! L knew (e was 82C ositive $ut donated $lood to t(e Red Cross anyways. Red Cross detected
t(e 82C and ut (is $lood aside. Accused was c(ar+ed wit( committin+ a nuisance contrary to s.
183 of t(e CC, w(ic( rovides t(at every one commits a common nuisance w(o does an
unlawful act or fails to disc(ar+e a le+al duty and t(ere$y endan+ers t(e lives, safety or (ealt( of
t(e u$lic. <rial Fud+e found t(at donatin+ $lood and knowin+ t(e urose for w(ic( t(e
donations are collected amount to involvement in a medical rocedure. 6. 21# of CC makes it a
le+al duty for t(ose w(o articiate in a medical rocedure to (ave and use reasona$le
knowled+e, skill and care in so doin+. &ud+e ruled t(at L failed to disc(ar+e t(is duty and was
convicted. L aealed.
i.! Can a /le+al dutyN wit(in meanin+ of s. 183 4nuisance5 $e one w(ic( arises at CJL or must it
$e from statuteK 2s t(ere a /le+al dutyN at CJL to not donate contaminated $loodK
r.! At CJL t(ere is a le+al duty to refrain from conduct w(ere it is reasona$ly foreseea$le t(at
suc( conduct would cause serious (arm to ot(er ersons. 4"nt. CA5
21
"mittin+ to disclose t(at you are 82CIositive w(en donatin+ $lood violates t(e duty
under s. 21# of t(e CC of t(ose w(o articiate in a medical rocedure 4donatin+ $lood5 to (ave
and use reasona$le knowled+e, skill and care in so doin+. 46CC5
a.! Lamer C&C.!
6. 21# of CC imosed on L a duty of care in +ivin+ (is $lood to Red Cross. <(is duty of care was
$reac(ed $y not disclosin+ t(at (is $lood contained 82C. <(is common nuisance o$viously
endan+ered t(e life, safety and (ealt( of t(e u$lic.
R. v. Bro,ne <199:=, 11$ CCC <3'= 183 <Ont. CA= <at 28$= <lea/e to a**eal to +CC refuse'=
f.! L and deceased were dru+ artners. ,eceased swallowed $a+ of crack.. At 2 am L found (er
s(akin+ and sweatin+ and said (e would take (er to t(e (osital. 8e called a ca$, w(ic( took 13
minutes to arrive and 15 minutes to +et to t(e (osital. 6(e died s(ortly after arrival. L was
c(ar+ed wit( criminal ne+li+ence causin+ deat( under s. 219415 of t(e CC. <rial Fud+e found t(at
L /undertookN 4wit(in meanin+ of s. 21' of CC5 to take care of deceased w(ile s(e (ad t(e crack
in (er $ody. 6. 21' states t(at everyone /w(o undertakes to do an act is under a le+al duty to do
it if an omission to do t(e act is or may $e dan+erous to life.N <(is undertakin+ 4w(ic( $e+an at
11!-3m5 imosed a duty on L to take deceased to (osital immediately. &ud+e found t(at callin+
ta;i instead of 911 reflected a /wanton and reckless disre+ardN for deceased, contrary to s.
219415 of CC and convicted L.
i.! *(at kind of an undertakin+ +ives rise to a le+al duty wit(in t(e meanin+ of s. 21', t(e $reac(
of w(ic( 4$y omission5 can result in criminal lia$ilityK
r.! @ust first determine if t(ere was an undertakin+ in t(e nature of a $indin+ commitment
4(i+(er t(an civil standard of care5 in order for a le+al duty to arise under s. 21', re+ardless of
nature of relations(i $etween t(e arties.
a.! A$ella &A.!
2n t(is case t(ere is no evidence of a $indin+ undertakin+. L said (e would take deceased to
(osital and (e did. <(ere was no evidence t(at callin+ 911 would (ave $een a $etter otion, or
even t(at (ad s(e arrived earlier, (er life could (ave $een saved.
c.! L Aeal allowed. Conviction set aside.
&eo9le v. Beardsley <190:=, 113 9 1128 <6ic!. +C= <at 289=
f.! L 4R5, w(ile (is wife was away, (ad anot(er woman stay wit( (im. L saw woman take many
mor(ine ta$lets. L was very drunk and asked a tenant to take woman into a room in t(e
$asement and look after (er. 6(e later died. L was c(ar+ed wit( manslau+(ter and was convicted.
4A5 ar+ued t(at L (ad a duty of care for t(e woman, w(ic( reHuired (im to take stes for (er
rotection, t(e failure of w(ic( amounted to an omission t(at makes (im resonsi$le for (er
deat(. "n aeal t(e conviction was overturned. aealed.
22
i.! *as t(e L under a duty of care to t(e womanK 2f so, did (is inaction amount to an omission
t(at makes (im criminally resonsi$le for (er deat(K
r.! A le+al duty is not $ased on morality or moral duties.
a.! @cAlvay C&.!
2n t(is case t(e L and woman were comanions. <(e woman was not owed a duty as a (us$and
owes (is wife. <(e fact t(at t(e woman was in t(e (ouse created a moral duty $ut no le+al duty
of care.
c.! L conviction set aside.
3.4. Causation
2n some offences, t(e actus reus reHuires t(e causin+ of certain circumstances. <(ese include all
(omicides 4s. 2225, willful dama+e to roerty 4s. 0-35, arson 4s. 0--5, and causin+ $odily (arm
4s. 2215 or deat( 4s. 2235 $y criminal ne+li+ence.
3.4.1. &nconscious A.ent
R. v. 7ic"ael <1840=, 9 CFP 35$ <CCC4= <at 308=
f.! L urc(ased a oison 4laudanum5 wit( t(e intention of +ivin+ it to (er $a$y son to kill (im. L
+ave oison to wet nurse and asked (er to +ive a teasoon every ni+(t to (er son. *et nurse did
not, (owever w(ile s(e was out of t(e room, t(e wet nurse1s 5 yearIold c(ild +ave t(e L $a$y T
of t(e $ottle, and t(e $a$y died. L was c(ar+ed wit( murder.
i.! Can L, w(o (ad intended to kill (er c(ild t(rou+( +ivin+ t(e wet nurse oison and instructin+
(er to +ive a teasoon eac( ni+(t, $e convicted of t(e murder of (er $a$y w(en T t(e $ottle of
oison was delivered to (er $a$y $y t(e 5 year old c(ild of t(e wet nurseK

r.! *(ere deat( is caused $y an unconscious a+ent, t(e rincial is considered, at law, to (ave
done t(e act causin+ deat(.
a.! 6ince t(e L +ave t(e wet nurse t(e oison and asked (er to deliver let(al dose, at law t(e 5
year old w(o delivered t(e oison was an unconscious a+ent and t(e delivery of t(e oison $y
t(e c(ild can $e considered to (ave $een done $y t(e L (erself.
2-
9 C 9 7 <
2 n t e r v e n i n +
C a u s e s
C o l u n t a r i n e s s
A c t
" m m i s s i o n I d u t y
c.! L convicted of murder.
3.4.2. ;an.erous ;ri/in. Causin. @o'il5 Aarm
R. v. F. '%.!.( <1989=, :3 C4 <3'= 391 <Alta. CA= <at 320=
f.! <(e L struck a Faywalkin+ edestrian and inFured (im. L was c(ar+ed wit( dan+erous drivin+
causin+ $odily (arm under s. 2094-5 of CC. <rial Fud+e found t(at L was +uilty of dan+erous
drivin+ under s. 209415, $ut acHuitted L, findin+ t(at L actions did not /causeN inFury. Crown
aealed.
i.! ,id t(e trial Fud+e misdirected (imself as to t(e le+al effects of t(e facts found $y (im and
t(ere$y wron+ly acHuitK
r.! 2n cases under ss. 2094-5 and 405, t(e court s(ould 4i5 determine w(et(er t(e drivin+ (as $een
roven to dan+erous drivin+ under s. 209415G 4ii5 determine w(et(er t(e inFuries meet t(e test of
O$odily (arm1 defined $y s. 2#'425 D /any (urt or inFury t(at interferes wit( (ealt( or comfort
t(at is more t(an merely transient or triflin+ in natureNG 4iii5 *(ere recedin+ Huestions answered
adversely to L, determine correlative link $etween dan+erous drivin+ and $odily (arm.
a.! @cClun+ &A.!
L was drivin+ dan+erously and s(ould (ave seen t(e victim, $ut (e did not, t(erefore (e struck
(im and caused $odily (arm. Bnder t(e trial Fud+eUs findin+ of dan+erous drivin+, a s. 2094-5
offence was roven.
c.! Aeal allowed. L convicted of dan+erous drivin+ causin+ $odily (arm.
3.4.3. "n/oluntar5 6anslau.!ter
Common,ealt" v. Root <19$1=, 1:0 A. 2' 310 <Pa. +C= <at 338=
f.! L acceted deceased c(allen+e to a car race. At time of accident, $ot( were drivin+ $etween
'3I93 m( 4seed limit was 53 m(5. L was in lead and deceased attemted to ass (im $y
drivin+ in t(e left lane 4w(ere (i+(way (ad narrowed to 2 lanes5 and cras(ed into an oncomin+
truck and died. L found +uilty of involuntary manslau+(ter.
i.! *as L1s unlawful and reckless conduct a sufficiently direct cause of deat( to warrant (is
$ein+ c(ar+ed wit( criminal (omicideK
r.! Bnlawful and reckless conduct is one art of crime of involuntary manslau+(ter. <(e ot(er is
t(at suc( conduct must $e t(e direct cause of deat( 4not tort rincile of /ro;imate causeN5.
a.! C(arles Alvin &ones C&.!
<ort lia$ility of ro;imate cause was reFected in murder case Commonwealth v. Redline.
<(e distinction $etween murder and involuntary manslau+(ter is not cause $ut t(e state
of mind of t(e offender. <(erefore it is consistent to reFect ro;imate cause lia$ility in
involuntary manslau+(ter cases.
2n t(is case, L reckless conduct was not sufficiently direct cause of deceased deat( to
make (im criminally lia$le.
20
c.! Aeal allowed. L conviction overturned.
3.4.4. 6anslau.!ter
)mit"ers v. R., >19:8? 1 +C4 50$ <at 310=
f.! L and deceased $ot( youn+ (ockey layers on two cometin+ teams. L was su$Fected to racial
insults $y t(e deceased 4and ot(ers5. "utside arena, L attacked kicked deceased in a$domen and
(e died. <(e medical evidence indicated t(at t(e deceased (ad died from as(y;ia from
asiration of forei+n materials due to vomitin+ and t(at t(e malfunction of t(e ei+lottis was
ro$a$ly caused $y t(e kick $ut could (ave resulted from fear. L testified (e (ad acted in selfI
defence $ut was convicted of manslau+(ter.
i.! *(en does an act leadin+ to deat( $ecome a (omicideK
r.! A erson commits (omicide w(en (e directly or indirectly, $y any means 4outside t(e Ode
minimus ran+e1 Rnot trivialS5, causes t(e deat( of a (uman $ein+ 4for manslau+(ter, t(ere must $e
an anticiation t(at t(e act would cause (armJdeat(5. A Fury is not limited $y medical evidence,
$ut can use lo+ic and common sense, in determinin+ causation. Le+al rincile /one takes (isJ(er
victim as (eJs(e finds t(em.N
a.! ,ickson &.!
<(e assault $y L was clearly an unlawful act and t(ere was evidence 4$ot( medical and witness
testimony5 $efore t(e Fury indicatin+ t(at t(e kick was at least a contri$utin+ cause of deat(,
outside t(e de minimis ran+e, and t(at was all t(at t(e Crown was reHuired to esta$lis(.
R. v. Cribbin <1994=, 89 CCC <3'= $: <Ont. CA= <at 32$=
f.! L and CR were drunk. ,eceased died followin+ a serious $eatin+ $y $ot( CR and L. 8owever
on t(e evidence t(e articiation of t(e L was si+nificantly less comared to CR. L c(ar+ed wit(
second de+ree murder and was convicted of manslau+(ter. L aealed and c(allen+ed t(e
constitutionality of t(e /de minimusN causation test for manslau+(ter.
i.! ,id Fud+e err $y not instructin+ t(e Fury t(at to constitute a cause of deat( t(e inFuries t(e L
inflicted must (ave $een a su$stantial cause of deat(K ,oes t(e standard instruction for causation
4a contri$utin+ cause of deat( outside t(e de minimis ran+e5 violate s. ' of t(e C(arterK
r.! <(e reHuirement for t(e L1s acts to $e a su$stantial cause of t(e deat( arises only in t(e
conte;t of s. 2-1455 of t(e Code 4first de+ree murder5. <(e de minimus standard of causation is
not too va+ue in conte;t of s. ' of C(arter. *(en one com$ines mens rea for manslau+(ter
4$odily (arm flowin+ from t(e unlawful act must $e o$Fectively foreseea$le5 wit( causation
reHuirement 4a contri$utin+ cause of deat( outside t(e de minimis ran+e5, t(ere is no dan+er t(at
a morally innocent erson will $e convicted.
a.! Ar$our &A.!
25
<(ere was no realistic view of t(e evidence t(at t(ere was some suervenin+ or intervenin+
cause of deat(. *(et(er CRUs assaults or t(e L1s assaults were t(e more immediate factor in
causin+ t(e victimUs deat( could not relieve t(e L of (is le+al resonsi$ility for t(e deat(.
c.! L Aeal allowed on ot(er +rounds 4instructions to Fury5.
3.4.5. 3irst ;e.ree 6ur'er
R. v. +ardbottle, >1993? 3 +C4 30$ <at 324=
f.! L to+et(er wit( a comanion forci$ly confined a youn+ womanG comanion $rutally se;ually
assaulted woman w(ile L watc(ed. L (eld woman1s le+s so s(e couldn1t kick w(ile comanion
stran+led woman to deat(. L was convicted of first de+ree murder as a arty. L aealed.
i.! *as L1s articiation sufficient to find (im +uilty of first de+ree murder ursuant to s. 2-1455
of CCK
r.! 6u$stantial Cause <est 4only alies to first de+ree murder5
L +uilty of first de+ree murder ursuant to s. 2-1455 if Crown esta$lis(ed %AR, t(at!
1. L was +uilty of t(e underlyin+ crime of /dominationN 4e.+. se;ual assaultG (iFackin+,
kidnain+5 or of attemtin+ to commit t(at crimeG
2. L was +uilty of t(e murder of t(e victim.
-. L articiated in murder in suc( a manner t(at (e was a su$stantial cause of t(e deat(G
0. t(ere was no intervenin+ act of anot(er w(ic( resulted in t(e L no lon+er $ein+
su$stantially connected to t(e deat( of t(e victimG i.e. t(e deat( was caused w(ile
committin+ t(e offence of domination as art of t(e same series of events.
a.! Cory &.!
s. 2-1455 is a sentencin+ rovision and only comes into lay after Fury (as concluded t(at L is
+uilty of murder $y causin+ deat( of victim. &ury must determine if a++ravatin+ circumstances
e;ist t(at Fustify ineli+i$ility of arole for 25 years D t(ere must $e a su$stantial and (i+( de+ree
of $lamewort(iness, a$ove and $eyond t(at of murder.
c.! Aeal dismissed. L firstIde+ree murder conviction u(eld.
3.4.$. +econ' ;e.ree 6ur'er
R. v. *ette, >2001? 3 +C4 488
f.! A 95IyearIold widow was ro$$ed and left $ound wit( electrical wire on (er $ed wit( a
+arment around (er (ead and neck. L was c(ar+ed wit( first de+ree murder under s. 2-1455 of t(e
CC. At trial, L testified t(at (e (ad +one alone to t(e victimUs (ouse only wit( intent to $reak and
enter, t(at t(e $ack door to t(e (ouse was oen as t(ou+( someone already (ad $roken into t(e
(ome, and t(at (e left after findin+ t(e victim already dead in (er $edroom. L convicted of
second de+ree murder. L aealed.
i.! *(at is t(e test of causation alica$le to second de+ree murderK
a.! 2aco$ucci, @aFor, %innie, Ar$our and Le%el &&.!
2#
2t is not aroriate in Fury c(ar+es to formulate a searate causation test for second de+ree
murder. <(e causation standard e;ressed in Smithers is still valid. <(e standard, (owever, need
not $e e;ressed as /a contri$utin+ cause of deat(, outside t(e de minimis ran+e.N 2t is refera$le
to use ositive terms suc( as /si+nificant contri$utin+ causeN rat(er t(an /not a trivial causeN or
/not insi+nificant.N
@cLac(lin C.&. and LU8eureu;I,u$V, =ont(ier and %astarac(e &&.!
<(e test for causation set out in Smithers s(ould not $e c(an+ed from /a contri$utin+ cause of
deat(, outside t(e de minimis ran+eN into /a si+nificant contri$utin+ cause.N <(ere is a
meanin+ful difference $etween /a contri$utin+ cause of deat( t(at is not trivial or insi+nificantN
and a /si+nificant contri$utin+ cause.N <(e su++ested c(an+e in drastically c(an+es t(e su$stance
of t(e causation test and i+nores t(e reason for usin+ a dou$le ne+ative. A /si+nificant
contri$utin+ causeN standard calls for a more direct causal relations(i t(an t(e /not
insi+nificantN or /not trivialN test, t(us raisin+ t(e t(res(old of causation for cula$le (omicide
from w(ere it currently stands. <(e word /si+nificantN imlies an elevated contri$ution and is
not eHuivalent to /not insi+nificant.N
3.4.:. "nter/enin. Acts
R. v. )mit", >1959? 2 All (4 193 <Cts.-6an. A**. Ct.= <at 333=
f.! L was a soldier. 8e articiated in a fi+(t wit( ot(er soldiers and sta$$ed one soldier wit( a
$ayonet in t(e $ack, uncturin+ t(e soldier1s lun+. 6oldier was carried to medical station and was
droed twice on t(e way. @edical officer did not areciate seriousness of t(e wound and did
not +ive immediate or roer treatment. <(ere was evidence t(at (ad deceased received
immediate and roer treatment 4$lood transfusion5, t(ere was a '5W c(ance of recovery. L was
convicted and sentenced to life imrisonment. L aealed.
i.! ,ue to t(e detrimental events w(ic( occurred w(ile transortin+ t(e deceased 4droin+ (im
twice5 and +iven t(e imroer treatment t(e deceased received, can it $e said t(at t(e L sta$$in+
was t(e cause of deat(K
r.! <(e ori+inal wound will $e considered t(e cause of deat( unless a second cause is so
overw(elmin+ as to make t(e ori+inal wound merely art of (istory w(ere deat( cannot $e said
to flow from t(e wound 4e.+. $ad fait( treatment5.
a.! <(e Lord C(ief &ustice!
2n t(is case a man was sta$$ed in t(e $ack, (is lun+ ierced and (aemorr(a+e results. 2 (ours
later t(e man dies due to t(e (aemorr(a+in+G in t(e interval t(ere is no time for careful
e;amination and t(e treatment turns out to $e (armful. 2n t(ese circumstances it is clear t(at
deat( resulted from t(e ori+inal wound.
c.! For . Conviction u(eld.
1"e 8ueen v. Bin$a9ore <19:4-5=, 11 +A+4 4$9 <+. Aus. +C= <at 33$=
f.! L assaulted t(e deceased, w(o stru++led to olice (eadHuarters and was rus(ed to t(e (osital,
w(ere a rofusely $leedin+ artery was sutured. ,eceased later left (osital a+ainst advice of
2'
medical officer w(o said (e mi+(t die if (e left. 8e returned $y am$ulance # (ours later, was
oerated on 0 T (ours later and died t(e ne;t day from $rain dama+e cause $y su$dural
(aemorr(a+e w(ic(, in evidence, was consistent wit( trauma to t(e (ead caused $y assault. L
convicted of murder.
i.! 6(ould +ross ne+li+enceJunreasona$le conductJetc., if it contri$utes to t(e deat( of a victim,
$reak t(e c(ain of causationK
r.! <(e act of t(e L causin+ inFuries from w(ic( t(e victim dies does not cease to $e a causative
act $ecause t(e victim t(ereafter acts to (is detriment or $ecause some -
rd
art is ne+li+ent.
a.! <(e Court!
Cites wit( aroval t(e rule set out in R. v. 6mit(! <(e ori+inal wound will $e considered
t(e cause of deat( unless a second cause is so overw(elmin+ as to make t(e ori+inal
wound merely art of (istory w(ere deat( cannot $e said to flow from t(e wound.
<(e L comlaint t(at deceased dearture from (osital denied (im oortunity of earlier
sur+ery t(at could (ave saved (is life. <(is, (owever, is not a new cause of deat( $ut to a
loss of oortunity of avoidin+ deat( from a still oeratin+ cause 4in t(is case t(e inFuries
inflicted $y t(e L5.
<(e act of t(e L causin+ inFuries from w(ic( t(e victim dies does not cease to $e a
causative act $ecause t(e victim t(ereafter acts to (is detriment or $ecause some -
rd
art
is ne+li+ent.
c.! For . Conviction u(eld.
3.4.:.1. Criminal %T!in +7ull, 4ule
R. v. Blaue, >19:5? 1 84 1411 <(n.. CA= <at 31:=
f.! &* was &e(ova(1s *itness. L came into (er (ouse and asked for se;ual intercourse. 6(e
refused and L attacked (er wit( knife, inflictin+ 0 serious wounds. Cictim was taken to (osital.
Cictim refused a $lood transfusion for reli+ious reasons and acknowled+ed so in writin+. Cictim
died t(e ne;t day. c(ar+ed wit( manslau+(ter. At trial, Fud+e advised Fury to use common
sense in determinin+ in determinin+ w(at caused victim1s deat( 4knife wound or (er decision to
not (ave a $lood transfusion5.
i.! ,oes law envisa+e t(e ossi$ility of unreasona$le conduct on t(e art of t(e victim as
$reakin+ t(e c(ain of causationK ,id Fud+e err in directin+ Fury to find t(at sta$ wound caused
victim1s deat(K
r.! 2t is t(e olicy of t(e law t(at t(ose w(o use violence on ot(er eole must take t(eir victims
as t(ey find t(emG it is not for assailants to Fud+e w(et(er t(e reli+ious $eliefs w(ic( in(i$it a
victim from accetin+ certain treatments is unreasona$le.
a.! Lawton L&.!
2f t(e victim1s reresentatives seek comensation for t(e victim1s deat(, t(e concet of
foreseea$ility and reHuirement of victim miti+ation can oerate in favour of wron+doer in
28
assessment of comensation. 6uc( a olicy at CJL for tort is not aroriate for criminal law,
w(ic( is concerned wit( maintenance of law and order and rotection of t(e u$lic.
4. 7ens Rea
A0solute lia0ilit5 D offences wit( no fault reHuirementG only need evidence of ro(i$ited act.
+trict lia0ilit5 D are u$lic welfareJre+ulatory offences 4outside CC5 4e.+. environmental
le+islationG worker1s safety le+islation5. Crown must rove criminal actG L can rely on defence of
due dili+ence.
7ens Rea D reHuires a criminal act alon+ wit( faultJmoral $lamewort(iness.
4.1. +u02ecti/e an' O02ecti/e 3ault
6u$Fective standards of fault!
4a5 intention, urose or willfulness 4(i+(est mens rea5 D not concerned wit( motiveG
4$5 knowled+e D awareness of circumstancesG
4c5 recklessness D a erson w(o sees t(e risk yet roceeds anyways 4e;tension of intention5G
4d5 willful $lindness D a erson w(o can make an inHuiry $ut c(ooses to remain i+norant
4e;tension of knowled+e5.
"$Fective standards of fault D criminal ne+li+enceG w(ere accused1s act is a marked and
su$stantial dearture of standards e;ected from all ersons
R. v. 1"erou/, >1993? 2 +C4 5 <at 351=
@cLac(lin &.!
<est for mens rea is su$Fective 4e;cet for offences w(ere actus reus is ne+li+ence or offences of
a$solute lia$ility5. <est is w(et(er t(e L su$Fectively, at least as a ossi$ility, areciated t(e
conseHuences of t(e ro(i$ited acts. 2n alyin+ test, look to L1s intention and facts as L
$elieved t(em to $e.
<(e Crown need not s(ow in every case recisely w(at t(ou+(t was in t(e accused1s mind at t(e
time of t(e act. 2n certain cases su$Fective awareness can $e inferred from t(e act itself.
4.2. Pu0lic elfare an' 4e.ulator5 Offences
Beaver v. R., >195:? +C4 531 <at 3$0=
f.! @% sold acka+e to undercover olice officer w(ic( in fact contained t(e narcotic
diacetylmor(ine. L was arty to t(e sale of t(e acka+e and t(erefore (ad constructive
ossession of it and was convicted of sellin+ and ossessin+ t(e narcotic. L ar+ued t(at (e (ad no
knowled+e t(at t(e su$stance in t(e acka+e was a narcotic and $elieved it was su+ar or milk.
i.! 2s t(e L +uilty of t(e offence even t(ou+( (e did not know t(at t(e acka+e contained ille+al
narctoticsK
r.! "ne w(o (as (ysical ossession of a acka+e w(ic( (e $elieves to contain a (armless
su$stance $ut w(ic( in fact contains a narcotic dru+, cannot $e convicted of $ein+ in ossession
of t(e dru+ under s. 04154d5 of t(e Opium and Narcotic Drug Act, since t(e construction of t(at
section reHuires mens rea.
29
a.! Cartwri+(t &.!
6ection 04154d5 is not an enactment of t(e class t(at e;cludes mens rea as an essential in+redient
of t(e offence.
R. v. &ierce Fis"eries !td., >19:1? +C4 5 <at 3$8=
f.! L c(ar+ed wit( t(e offence of $ein+ in ossession of undersiEed lo$sters contrary to s. -4154$5
of t(e Lo$ster Fis(ery Re+ulations. L ar+ued t(at t(ey did not know t(ey were in ossession of
t(e smaller lo$sters. L acHuitted. Crown aealed.
i.! *(et(er mens rea is an essential in+redient to $e esta$lis(ed $y evidence on a c(ar+e of
violatin+ t(e said s. -4154$5 of t(e Lo$ster Fis(ery Re+ulations.
r.! A criminal law is more likely one of strict lia$ility 4rat(er t(an reHuirin+ mens rea5 if!
415 it does not contain words suc( as Xknowin+lyX, XwilfullyX, Xwit( intentX or Xwit(out lawful
e;cuseX, articularly if t(ese words are found in ot(er sections of t(e same Act w(ic( create
offences reHuirin+ mens reaG
425 t(ere is no sti+ma attac(ed to a convictionG
a.! Ritc(ie &.!
<(e re+ulation (ere was intended for t(e urose of rotectin+ lo$ster $eds from deletion w(ic(
is of +eneral u$lic interest. *ords of re+ulation and lack of sti+ma attac(ed to a erson found to
(ave $een in $reac( of t(ese re+ulations infer strict lia$ility.
c.! Aeal allowedG L convicted.
R. v. +ickey <19:$=, 30 CCC <2'= 41$ <Ont. CA= <at 3:9=
f.! L was cau+(t in a radar tra and c(ar+ed wit( seedin+ contrary to s. 82 of t(e 8i+(way
<raffic Act. L testified t(at (e (onestly $elieved $ecause of t(e seedometer readin+ t(at (e was
not e;ceedin+ t(e seed limit. A test conducted $y t(e olice officer at t(e scene s(owed t(e
seedometer was in fact not workin+ roerly. L was convicted. "verturned on aeal. Crown
aealed.
i.! Can a mistake of fact ever amount to a valid defence to a c(ar+e of a$solute lia$ilityK
r.! &essu &A.!
6eedin+ is an offence of /a$solute lia$ilityN t(erefore reasona$le mistake of fact is not a
defence.
c.! Aeal allowed. L conviction reinstated.
R. v. City of )ault )te. 7arie, >19:8? 2 +C4 1299 <at 380=
f.! <(e L entered into an a+reement wit( comany for t(e disosal of city refuse. A river was
su$seHuently olluted. L was c(ar+ed under s. -2415 of The Ontario ater Resources
-3
Commission Act wit( causin+ disc(ar+e of materials into a water course. <rial Fud+e dismissed
c(ar+e, findin+ t(at comany was an indeendent contractor and t(at its emloyees were not
emloyees of t(e L. =en. ,iv. Fud+e found t(at t(e offence was one of strict lia$ility and
convicted L. ,iv. Ct. set aside conviction and (eld t(at it reHuired mens rea. Crown aealed.
i.! ,oes a $reac( of s. -2415 of The Ontario ater Resources Commission Act 4causin+ or
ermittin+ t(e disc(ar+e or deosit of any material into any water course5 reHuire mens reaK
r.! <(ree cate+ories of offences!
415 Criminal offences D mens rea must $e esta$lis(ed 4statute uses words like /willfully, wit(
intent, knowin+ly, intentionallyN5G
425 6trict lia$ility 4/u$lic welfareN5 offences D no mens rea reHuired $ut defence of reasona$le
mistake of fact or reasona$le care 4due dili+ence5 are availa$leG 4statute uses words like /cause,
ermitN5. Crown must demonstrate %AR, t(at committed t(e unlawful act, (owever $urden is
on to rove defenceG
4-5 A$solute lia$ility offences D no mens rea reHuired and no defence. *(ere statute is clear t(at
+uilt would follow on mere roof of t(e unlawful act. 2f statute not clear, assume strict lia$ility.
a.! ,ickson &.!
6. -2415 is rovincial enactment and cannot create a criminal offence. *ords of re+ulation do not
clearly indicate a$solute lia$ility, t(erefore s(ould $e considered offence of strict lia$ility 4no
mens rea5. As L did not lead evidence on defence of due dili+ence t(ere s(ould $e a new trial.
c.! Aeal dismissed. 7ew trial ordered.
R. v. #"olesale 1ravel 2rou9 :nc., >1991? 3 +C4 154 <at 39$=
f.! L c(ar+ed wit( misleadin+ advertisin+ contrary to s. #3425 of t(e Competition Act. "ffence
caries sentence uon conviction 4i5 $y indictment D discretionary fine, imrisonment u to 5
years or $ot(G 4ii5 $y summary conviction D a fine of P25,333, imrisonment u to 1 year or $ot(.
L ar+ued offence was criminal reHuirin+ full mens rea.
i.! 2s offence of misleadin+ advertisin+ under s. #3425 of t(e Competition Act a criminal offence
reHuirin+ full mens reaK

r.! Re+ulatory offences are directed rimarily at conseHuences of an act 4not t(e act itself5.
<(ey are concerned wit( t(e violation of a standard of reasona$le care, t(rou+( acts t(at are not
on t(eir face ille+al $ut if left unc(ecked would lead to (armful conseHuences. <rue crimes are
acts t(at are a$(orrent to $asic societal values. <(erefore lesser fault reHuirement for re+ulatory
offences 4ne+li+ence5 t(an for criminal offences 4mens rea5.
"ffence of misleadin+ advertisin+ is a strict lia$ility re+ulatory offence t(at does not
reHuire full mens rea $ut rat(er ne+li+ence 4lack of due dili+ence5. 2mrisonment is availa$le for
strict lia$ility offences 4since t(ere is moral fault of ne+li+ence5 $ut not for a$solute lia$ility
offences 4$ecause t(ere is no fault reHuirement and could imrison morally innocent5.
a.! Cory &.!
-1
<(e Competition Act is re+ulatory. <(e offence did not focus on dis(onesty $ut rat(er on
t(e (armful conseHuences of ot(erwise lawful conduct. Conviction would only su++est
t(at L (as made misleadin+ reresentation to t(e u$lic and was una$le to esta$lis( t(e
due dili+ence in reventin+ t(e error. <(is connotes a fault element of ne+li+ence.
=overnment cannot adeHuately monitor every industry so as to $e a$le to rove actual
intent or mens rea in eac( case. 2t can do no more t(an demonstrate t(at it (as set
reasona$le standards to $e met $y ersons in t(e re+ulated s(ere, and to rove %AR,
t(at t(ere (as $een a $reac( of t(ose standards $y t(e re+ulated L. <(e re+ulated L is
taken to $e aware of and to (ave acceted t(e imosition of a certain o$Fective standard
of conduct as a reIcondition en+a+in+ t(e re+ulated activity.
c.! Aeal dismissed.
4.2.1. C!arter +tan'ar's
Reference re )ection 9;'2( of t"e 7otor <e"icle Act 'B.C.( <198$=, 48 C4 <3'= 289 <+CC= <at
409=
f.! <(e %.C. !otor Vehicle Act rovided for minimum imrisonment for offence of drivin+ on a
(i+(way wit(out a valid driverUs licence. 6ection 90425 rovided t(at t(is offence was one of
a$solute lia$ility in w(ic( +uilt was esta$lis(ed $y t(e roof of drivin+, w(et(er or not t(e driver
knew of t(e ro(i$ition or susension. %%CA found s. 90425 unconstitutional as it was
inconsistent wit( s. ' of t(e C(arter.
i.! ,oes s. 90425, w(ic( creates an a$solute lia$ility offence for drivin+ wit(out a valid licence
unis(a$le $y Fail time, violate s. ' of t(e C(arterK
r.! A$solute lia$ility does not er se violate s. ' of t(e C(arter. An a$solute lia$ility offence
violates s. ' only if it (as t(e otential to derive life, li$erty or t(e security of t(e erson. <(e
com$ination of imrisonment and a$solute lia$ility violates s. '. =enerally, no imrisonment
may $e imosed for an a$solute lia$ility offence and an offence unis(a$le $y imrisonment
cannot $e an a$solute lia$ility offence.
a.! Lamer &.!
6ection 90425 enacts a$solute lia$ility offence for w(ic( conviction will result in a ersonUs $ein+
derived of (is li$erty. 7otwit(standin+ t(e desira$ility of keein+ $ad drivers off t(e roads or of
unis(in+ t(em, no evidence was s(own demonstratin+ t(is end or t(e risk of imrisonment of a
few innocent eole to $e a reasona$le and Fustifia$le limit on s. '.
c.! s. 90425 violates s. ' of t(e C(arter.
R. v. Cancoil 1"ermal Cor9. <198$=, 52 C4 <3'= 188 <Ont. CA= <at 41:=
f.! L removed t(e +uard surroundin+ t(e $lade of a lar+e metal s(earin+ mac(ine 4t(inkin+ it was
a (aEard5. An emloyee accidentally deressed t(e foot edal w(en usin+ t(e mac(ine and cut
off t(e tis of si; fin+ers. L c(ar+ed wit( violatin+ s. 104154a5 of t(e Occupational Health and
-2
Sa"et# Act 4emloyer ensurin+ rotective devices are rovided5. 6. -'415 of Act makes offence
unis(a$le $y fine not e;ceedin+ P25> or imrisonment not e;ceedin+ 12 mont(s or $ot(. A
statutory due dili+ence defence under s. -'425 was not availa$le for s. 104154a5. <rial Fud+e (eld
t(at t(e foot edal amounted to a +uard or rotective device and acHuitted L. Crown aealed.
i.! ,oes s. 104154a5 create an a$solute lia$ility offence t(us makin+ it unconstitutionalK
r.! <(e com$ination of imrisonment and a$solute lia$ility violates s. ' of t(e C(arter. Can read
down s. 104154a5 of t(e Occupational Health and Sa"et# Act to create an offence of strict lia$ility
wit( availa$ility to defence of due dili+ence.
a.! Lacourciere &A.!
6. 104154a5 su++ests an offence of a$solute lia$ility w(ic( would, +iven t(e otential enalty of
imrisonment, violate s. ' of t(e C(arter. <o avoid C(arter violation, t(e section must $e treated
as one of strict lia$ility rovidin+ L wit( t(e availa$ility of t(e due dili+ence defence.
c.! 7ew trial ordered.
R. v. #"olesale 1ravel 2rou9 :nc., >1991? 3 +C4 154 <at 421=
f.! L c(ar+ed wit( misleadin+ advertisin+ contrary to s. #3425 of t(e Competition Act. "ffence
caries sentence uon conviction 4i5 $y indictment D discretionary fine, imrisonment u to 5
years or $ot(G 4ii5 $y summary conviction D a fine of P25,333, imrisonment u to 1 year or $ot(.
L ar+ued offence was criminal reHuirin+ full mens rea.
i.! ,oes reHuirin+ t(e L to rove due dili+ence on $alance of ro$a$ilities as a defence to strict
lia$ility offences violate s. 114d5 of t(e C(arterK
r.! Reverse onus reHuirin+ L to rove due dili+ence on $alance of ro$a$ilities as defence to
strict lia$ility re+ulatory offences does not offend t(e resumtion of innocence under s. 114d5 of
t(e C(arter. =overnment must (ave fle;i$ility to imlement u$lic olicy t(rou+( re+ulation.
<(e fact t(at a re+ulated L is licensed imlies t(at t(e L (as knowled+e and accetance of t(e
standard of care reHuirement. <o reHuire Crown to disrove due dili+ence %AR, would make it
virtually imossi$le to rove re+ulatory offences since it is difficult to conceive of a situation
w(ere a re+ulated L could not rovide some evidence, no matter (ow inadeHuate, of due
dili+ence and t(us raise a R,.
a.! Cory &.!
<o reHuire t(e Crown to disrove due dili+ence %AR, would make it virtually
imossi$le for Crown to rove re+ulatory offences since it is difficult to conceive of a
situation w(ere a re+ulated L could not rovide some evidence, no matter (ow
inadeHuate, of due dili+ence and t(us raise a reasona$le dou$t. <(is would effectively
revent +overnments from imlementin+ u$lic olicy t(rou+( re+ulatory means.
<(e fact t(at a re+ulated L is licensed imlies t(at t(e L (as knowled+e and accetance of
t(e standard of care reHuirement. Crown must still rove actus reus %AR,. Fault is t(en
resumed unless t(e L successfully raises due dili+ence.
--
c.! L aeal dismissed. )resumtion of innocence is not violated $y strict lia$ility re+ulatory
offences.
4.3. Criminal Offences
4.3.1. 6ur'er G s. 229
229. Cula$le (omicide is murder
4a5 w(ere t(e erson w(o causes t(e deat( of a (uman $ein+
4i5 means to cause (is deat(, or
4ii5 means to cause (im $odily (arm t(at (e knows is likely to cause (is deat( and is
reckless w(et(er deat( ensues or not.
)im9son v. R. <1981=, 20 C4 <3'= 3$ <Ont. CA= <at 435=
f.! 4A5 was c(ar+ed wit( attemted murder under s. 2294a54ii5 of t(e CC.
i.! ,id t(e Fud+e err in directin+ t(e Fury t(at to $e found +uilty of attemted murder t(e Crown
must demonstrate %AR, t(at t(e accused /intended to cause t(e deat(, orMintended to cause
$odily (arm t(at (e knew or ou+(t to (ave known was likely to cause deat(MNK
r.! @artin &A.!
For attemted murder under s. 2294a54ii5 L must intend to cause $odily (arm t(at (e knew was
likely to cause deat( 4su$Fective test5. An intention to cause (arm t(at (e ou+(t to (ave known
would cause deat( is merely evidence from w(ic(, alon+ wit( t(e ot(er circumstances, a Fury
may infer t(at t(e L (as t(e reHuisite intent.
4.3.2. Constructi/e 6ur'er G ss. 230 <a= an' <'=
2-3. Cula$le (omicide is murder w(ere a erson causes t(e deat( of a (uman $ein+ w(ile
committin+ or attemtin+ to commit anot(er offence 4listed5, w(et(er or not t(e erson means to
cause deat( to any (uman $ein+ and w(et(er or not (e knows t(at deat( is likely to $e caused to
any (uman $ein+, if
4a5 (e means to cause $odily (arm for t(e urose of
4i5 facilitatin+ t(e commission of t(e offence, or
4ii5 facilitatin+ (is fli+(t after committin+ or attemtin+ to commit t(e offence,
and t(e deat( ensues from t(e $odily (armG
4d5 (e uses a weaon or (as it uon (is erson
4i5 durin+ or at t(e time (e commits or attemts to commit t(e offence, or
4ii5 durin+ or at t(e time of (is fli+(t after committin+ or attemtin+ to commit t(e
offence,
and t(e deat( ensues as a conseHuence.
<aillancourt v. R., >198:? 2 +C4 $3$ <at 438=
f.! L 4wit( knife5 and accomlice 4wit( +un5 committed armed ro$$ery in a ool (all. ,urin+
ro$$ery L stayed near door w(ile accomlice went to $ack. <(ere was an altercation wit( a
client, a s(ot was fired and client was killed. L testified t(at t(ey a+reed to commit ro$$ery only
-0
wit( knives, $ut accomlice s(owed u wit( +un. L o$Fected and insisted +un $e unloaded.
Accomlice took out t(ree $ullets and +ave t(em to w(o ut t(em in (is +love in t(e
$at(room 4found $y olice5. L said t(at at time of ro$$ery (e was certain t(at +un was unloaded.
L convicted of second de+ree murder Rs. 2-34d5S as arty Rs. 21425S. L aealed.
i.! ,oes s. 2-34d5 of CC violate eit(er ss. ' or 114d5 of t(e C(arterK
r.! For (omicide to $e murder t(ere must $e a minimal de+ree of fault. <(e mental element
reHuired $y s. 2-34d5 of t(e CC is so remote from t(e intention secific to murder t(at a
conviction violates fundamental Fustice. <(e rovision is so $road t(at under it a erson may $e
found +uilty of murder even t(ou+( t(e deat( was t(e result of an accident, wit(out intent.
a.! Lamer &.!
,ue to secial nature of t(e sti+ma attac(ed to a conviction for murder, and in order to avoid
unis(in+ t(e /morally innocentN, rinciles of fundamental Fustice in s. ' reHuire roof of
su$Fective mens rea. <(e resumtion of innocence in s. 114d5 of t(e C(arter is offended
w(en a L may $e convicted desite t(e e;istence of a reasona$le dou$t on an essential
element of t(e offence 4e.+. mens rea5.
6ection 21-4d5 cannot $e saved $y s. 1. 2t is clear t(at )arliamentUs o$Fective to deter t(e use
or carryin+ of a weaon in t(e commission of certain offences, $ecause of t(e increased risk
of deat(, was of sufficient imortance for t(e urose of s. 1. *(ile t(ese measures aear to
$e rationally connected to t(e o$Fective, t(ey unduly imair t(e ri+(ts and freedoms in
Huestion. 2t is not necessary to convict ersons w(o did not intend or foresee t(e deat( of
murder to deter ot(ers from usin+ or carryin+ weaons.

c.! L aeal allowed. 7ew trial ordered.
R. v. 7artineau, >1990? 2 +C4 $33 <at 453=
f.! L and < set out armed knowin+ t(at t(ey were +oin+ to commit a crimeG L testified t(at (e
t(ou+(t it would only $e a $reak and enter. < s(ot and killed two eole after ro$$in+ t(em and
t(eir (ouse. L alle+edly said or t(ou+(t, after (e (eard t(e s(ot w(ic( killed t(e first victim,
XLady, say your rayersX. L was convicted of second de+ree murder under s. 2-34a5 as a arty
under ss. 21415 and 425. CA (eld t(at s. 2-34a5 was inconsistent wit( ss. ' and 114d5 of t(e
C(arter 4$ased on Vaillancourt5 and ordered new trial. Crown aealed.
i. ,oes s. 2-34a5 of t(e CC infrin+e ss. ' or 114d5 of t(e C(arterK
r.! <(e rinciles of fundamental Fustice reHuire t(at a conviction for murder $e $ased uon roof
%AR, of su$Fective foresi+(t of deat(. 6. 2-34a5 of t(e CC e;ressly eliminates t(e reHuirement
for roof of su$Fective foresi+(t and t(erefore infrin+es ss. ' and 114d5 of t(e C(arter.
a.! Lamer &.!
<(e sti+ma and unis(ment attac(ed to murder s(ould $e reserved for t(ose w(o intentionally
cause deat( or inflict $odily (arm knowin+ t(at it is likely to cause deat(. <(e o$Fective of
-5
deterrin+ t(e infliction of $odily (arm durin+ t(e commission of certain offences $ecause of t(e
increased risk of deat( is sufficiently imortant to warrant overridin+ a C(arter ri+(t, (owever s.
2-34a5 unduly imairs C(arter ri+(ts $ecause it is not necessary to convict ersons w(o do not
intend or foresee t(e deat( of murder in order to ac(ieve t(is o$Fective.
7ote! ss. 2-34$5 and 4c5 (ave also $een struck down
4.3.3. 3irst ;e.ree 6ur'er G s. 231<2=
2-1425. @urder is first de+ree murder w(en it is lanned and deli$erate.
R. v. )mit" <19:9=, 51 CCC <2'= 381 <+as7. CA= <at 4$3=
f.! L, deceased and @ decided to +o (untin+ and after several (ours of s(ootin+ stoed at an
a$andoned (ouse. @ saw L and deceased ointin+ t(eir +uns at eac( ot(er aarently (avin+ an
ar+ument. L s(ot and felled deceased w(ile (e was runnin+ away, t(en s(ot (im in t(e (ead. L
s(ot deceased several more times in t(e (ead wit( @1s +un 4as insurance so @ wouldn1t tell5. L
was convicted of first de+ree murder and aealed.
i.! *as t(ere evidence of lannin+ and deli$eration $y t(e L to w(ic( a Fury could roerly find
t(e L +uilty of first de+ree murder, rat(er t(an second de+ree murderK
r.! @urder is first de+ree murder w(en it is lanned and deli$erate. O)lanned1 means /arran+ed
$efore(andN or /calculated sc(eme or desi+nNG Odeli$erate1 means /considered, not imulsiveN
$ut not /intentionalN since intent to murder occurs rior to lannin+. <(ere is a need for
somet(in+ $eyond intent for murder to $e first de+ree murder.
a.! Culliton C&6.!
2n t(is case t(ere was no evidence t(at t(e L considered murderin+ t(e deceased rior to t(e
ar+ument. <rial Fud+e ordered Fury to determine w(et(er L (ad t(e time to deli$erate and lan
t(e murder. <(ere is no evidence t(at t(e murder was lanned, and it was likely t(e result of a
sudden imulse.
c.! Aeal dismissed. Conviction for second de+ree murder su$stituted.
R. v. *y$aard and )c"immens, >1989? 2 +.C.4. 10:4 <at 4$8=
f.! @ $ou+(t car stereo from L7 for P133 usin+ a c(eHue si+ned Fointly $y < and 8. C(eHue
$ounced. L7 came to @1s motel and told (im t(at t(ere would $e trou$le if matter not cleared
u. Later, L7 and L6 went to aartment. L6 struck @ several times in fore(ead wit( $ase$all $at
and $roke @1s arm. L6 asked w(o si+ned c(eHue. @ said it was 8. L6 struck 8 t(ree times
$etween eyes wit( full twoI(anded swin+s. 8 died in (osital from multile skull fractures. L6
and L7 convicted of first de+ree murder under ss. 2294a54ii5 Rintent to cause $odily (arm likely
to cause deat( and reckless w(et(er deat( ensuesS and 2-1425 Rlanned and deli$erate murderS.

i.! ,id trial Fud+e err in directin+ Fury t(at t(ey could return a verdict of first de+ree murder on
t(e $asis of a com$ination of ss 2294a54ii5 and 2-1425K
-#
r.! Cory &.!
A erson can lan and deli$erate to cause $odily (arm t(at (e knows is likely to result in deat(
and recklessly ersist in t(at conduct desite t(e knowled+e of t(e risk of deat(. Accordin+ly a L
may $e convicted of first de+ree murder under s. 2-1425 w(ere t(e killin+ constitutes murder $y
virtue of s. 2294a54ii5.
4.3.4. 3irst ;e.ree 6ur'er of Police Officer G s. 231<4=<a=
2-1405. 2rresective of w(et(er a murder is lanned and deli$erateMmurder is first de+ree
murder w(en t(e victim is
4a5 a olice officerMemloyed for t(e reservation and maintenance of t(e u$lic eace, actin+
in t(e course of (is dutiesG
R. v. 7unro and 7unro <1983=, 8 CCC <3'= 2$0 <Ont. CA=, lea/e to a**eal to +CC refuse'
<at 4:0=
f.! Ls 4$rot(ers5 involved in ro$$ery. )olice came to $ack door and one L fired and killed olice
officer. Ls convicted of first de+ree murder under s. 2-14054a5 of CC. Ls testified t(at t(ey didn1t
know it was a olice officer.
i.! ,oes L need to know (e was murderin+ a olice officer to $e convicted of first de+ree murder
under s. 2-14054a5K
r.! 2f L is reckless as to t(e identity of t(e erson (e murdered and t(at erson is a olice officer
actin+ in t(e course of (is duties, t(at recklessness is sufficient to rovide t(e reHuisite mens rea
for first de+ree murder under s. 2-14054a5.
a.! @artin &A.!
2n t(is case, L knew a olice officer actin+ in t(e course of (is duties was enterin+ t(e remises.
Accordin+ly, (is recklessness wit( resect to w(et(er (e was s(ootin+ at a olice officer
sulied t(e necessary mens rea for murder under s. 2-1405, if mens rea wit( resect to t(at
element was necessary.
R. v. Collins <1989=, 48 CCC <3'= 343 <Ont. CA= <at 4:2=
f.! L killed a olice officer in a s(oin+ mall and was convicted of first de+ree murder under s.
2-14054a5.
r.! 6. 2-14054a5 reHuires t(e Crown rove %AR, t(at t(e victim was a olice officer actin+ t(e
course of (is duties and t(at t(e murderer (ad knowled+e of t(e identity of t(e victim as a olice
officer actin+ in t(e course of (is duties or was reckless as to suc( identity and acts of t(e victim.
a.! =oodman &A.!
<o not reHuire t(is knowled+e as to t(e identity of t(e victim on t(e art of t(e murderer would
offend s. ' of t(e C(arter, since a erson w(o intentionally kills a lainIclot(ed victim 4wit(out
lannin+ or deli$eration5 wit(out knowin+ t(eir identity would $e convicted of second de+ree
-'
murder if t(e victim is a civilian $ut first de+ree murder if t(e victim is a lainIclot(es olice
officer.
4.3.5. Constructi/e 3irst ;e.ree 6ur'er G s. 231<5=
2-1455. 2rresective of w(et(er a murder is lanned and deli$erateMmurder is first de+ree
murderMw(en t(e deat( is causedMw(ile committin+ or attemtin+ to commit an offence under
one of t(e followin+ sections
4$5 section 2'1 4se;ual assault5
R. v. Arkell, >1990? 2 +C4 $95 <at 4:4=
f.! L was convicted of first de+ree murder under s. 2-1455. Crown ar+ued victim was killed w(ile
L attemted to se;ually assault (er.
i.! ,oes s. 2-1455 contravene s. ' of t(e Charter as $ein+ ar$itrary and irrationalK
r.! s. 2-1455 reHuires roof %AR, of su$Fective foresi+(t 4intentional killin+5. )arliament (as
c(osen to imose a (eavier unis(ment for murders committed $y someone already a$usin+ (is
ower $y ille+ally dominatin+ anot(er 4see list of offences in section5 due to t(e +reater moral
$lamewort(iness of t(e crime. <(is is not ar$itrary or irrational,
c.! 6. 2-1455 does not infrin+e s. '.
4.4. +u02ecti/e 3ault
4.4.1. 6oti/e
+enerally t(e law does not care a$out motive 4e;cet in some defences5
role of motive to determine intent.
!e,is v. R., >19:9? 2 +C4 821 <at 4:9=
f.! L and < were c(ar+ed wit( murder of <1s dau+(ter and sonIinIlaw. L admitted mailin+ a
acka+e to victims on $e(alf of < $ut denied knowled+e t(at it contained a $om$.
i.! *(at is t(e le+al relevance of motive in criminal law mens reaK
r.! 2ntent v. @otive D 2ntent is t(e mens rea, i.e. t(e e;ercise of free will to use articular means
to roduce a articular resultG @otive is w(at recedes and induces t(e e;ercise of t(e will. !ens
rea of a crime takes no (eed of motive.
a.! ,ickson C&C.!
2n criminal sense, motive means /ulterior intentionN
@otive is a relevant and admissi$le as evidence
@otive is le+ally irrelevant to mens rea 4intent5 in criminal law
)roved a$sence of motive is imortant fact for accused and is wort(y to $e noted in
c(ar+e to FuryG vice versa if roven motive 4for Crown5
2ssue of motive will turn on t(e uniHue circumstances of eac( case.
c.! For Crown. Aeal dismissed.
-8
R. v. 7at"e <19:3=, 11 CCC <2'= 42: <@CCA= <at 482=
f.! L, a $ank security +uard offIduty, was drunk and as a Foke went over to a teller and told (er
t(at (e (ad a -8 in (is ocket and wanted t(e cas(. 6(e (it a silent alarm. 8e t(en told (er (e was
Fokin+ and s(ook (er (and and left. 8e was later arrested and c(ar+ed.
i.! ,id L (ave t(e reHuisite intent to (old u t(e $ank in order to $e c(ar+ed wit( attemted
ro$$eryK
a.! %ranca &A.!
*(ere t(e evidence $ot( oints to +uilty intent to attemt ro$$ery $ut also to a lack of intent 4a
Foke5 t(ere is no mens rea and t(erefore no crime of attemted ro$$ery.
c.! For L.
4.4.2. "ntention or Hno1le'.e
R. v. )teane >194:? 1 All (4 813 <(n.. CCA= <at 485=
f.! L was an actor emloyed in =ermany. *(en **22 $roke out (e was arrested. <(rou+(
various $rutalities and t(reats to (is family, L a+reed to $roadcast for t(e =ermans and make
some films 4t(ere was no evidence t(at t(ese films were $eneficial to =ermany and (armful to
%ritain5. L swore (e was in continual fear for (is family and (ad no intention to (el t(e enemy
$ut did w(at (e did to save (is family. 8e was convicted wit( doin+ acts likely to assist t(e
enemy wit( intent to assist t(e enemy. L aealed.
i.! ,id t(e L intend to assist t(e enemyK
r.! Lord =oddard C&.!
2n cannot $e inferred t(at a L under t(e su$Fection of t(e enemy necessarily intends t(e /natural
conseHuencesN of (isJ(er action. 2ntent to do t(e actual criminal act must $e roven $y t(e
Crown. <(ere is no +uilt if t(ere is no intent.
c.! For L. Aeal allowedG conviction Huas(ed.
R. v. +ibbert, >1995? 2 +C4 9:3 <+CC= <at 489=
f.! was c(ar+ed under s. 214154$5 4Oaidin+ and a$ettin+15 wit( attemted murder for $ein+ a
arty to t(e s(ootin+ of C $y %. says % t(reatened to s(oot (im if (e didn1t come wit( C to %1s
lace of residence and arran+e for C to come to t(e lo$$y. did so and C was s(ot 0 times $y %.
i.! *(at is t(e meanin+ of /uroseN in t(e conte;t of s. 214154$5 of t(e CC w(ic( imoses
criminal lia$ility as a arty to anyone w(o does or omits to do anyt(in+ for t(e /uroseN of
aidin+ any erson to commit an offence.
r.! Bnder s. 214154$5 /uroseN means /intentionN D i.e. a erson w(o consciously erforms an
act knowin+ t(e conseHuences t(at will flow from it /intendsN t(ese conseHuences or causes
t(em on /uroseN, irresective of w(et(er (eJs(e /desiredN t(ose conseHuences.
-9
a.! Lamer C&C.!
Bsin+ t(e definition of /uroseN as /intentionN will not result in unFust convictions $ecause of
t(e availa$ility of t(e defence of duress.
R. v. Bu==an$a and %uroc"er <19:9=, 49 CCC <2'= 3$9 <Ont. CA= <at 493=
f.! Ls were active in romotin+ construction of Frenc( lan+ua+e 86 in 9sse; County. %elievin+
t(at t(e franco(one community was aat(etic a$out t(e issue, t(ey caused to $e rinted, under
t(e name of t(e 9sse; County Rateayers Association 4w(o did not know of t(is5, a arody
am(let w(ic( su++ests t(at t(e 9n+lis( community s(ould rid itself of t(e Frenc(. Ls were
c(ar+ed wit( willfully romotin+ (atred a+ainst franco(ones ursuant to s. -19425 of CC.
i.! *(at does /wilfullyN, w(ic( modifies t(e words /romotes (atredN, mean under s. -19425 of
t(e CCK
r.! /*ilfullyN, for t(e uroses of s. -19425 of t(e CC, means /intentionallyN $ut e;cludes
/recklesslyN. <(erefore in order to /wilfullyN romote (atred, one must eit(er 4a5 (ave conscious
urose to $rin+ a$out t(e conseHuence or 4$5 a erson w(o foresees t(at a conseHuence is
certain or su$stantially certain to result from an act w(ic( (e does in order to ac(ieve some ot(er
urose.
a.! @artin &A.!
A Fury must determine t(e Ls actual intent $y t(eir own testimony 4if $elieva$le5, t(e likeli(ood
of t(e relevant conseHuences ensuin+ from t(e act 4if more likely, t(en it is more likely t(at
accused intended conseHuences5, and from inferences from t(e relevant circumstances.
c.! For L. Aeal allowed. 7ew trial ordered.
4.4.3. 4ec7lessness an' ilful @lin'ness
)ansre$ret v. R. <1985=, 45 C4 <3'= 193 <+CC= <at 508=
i.! *(at is /recklessnessN and /wilful $lindnessNK
a.! @c2ntyre &.!
1. /recklessnessN as art of criminal mens rea must (ave a su$Fective element. 2t is t(e
attitude of one w(o, aware t(at t(ere is dan+er t(at (is conduct could $rin+ a$out t(e
result ro(i$ited $y law, ersists desite t(e risk.
2. /wilful $lindnessN arises w(ere a erson w(o (as $ecome aware of t(e need for some
inHuiry declines to do so $ecause (e does not wis( to know t(e trut(. <(e law assumes
t(at t(is erson (as t(e knowled+e of w(ic( (e wis(ed to remain i+norant.
R. v. 1"erou/, >1993? 2 +C4 5 <at 50$=
f.! L was (ead of comany doin+ residential construction. Comany entered into > wit( otential
(omeIowners and received deosits $y misreresentin+ t(at t(e deosits were insured. Comany
went insolvent and deosits were lost. <rial Fud+e found t(at L sincerely $elieved t(at residential
roFect would $e comleted and deosits would t(en not $e lostG L was found +uilty of fraud
under s. -834154a5 of CC.
03
i.! ,oes t(e fact t(at L sincerely $elieved t(at residential roFect would $e comleted and
deosits would t(en not $e lost 4(e was reckless re+ardin+ risk to ot(er1s ecuniary interests5
ne+ate t(e mens rea for t(e offence of fraudK
r.! 2t does not matter if L $elieved t(at deosits would not $e lost. @ens rea for fraud in t(is case
would $e t(e su$Fective awareness t(at one was undertakin+ a ro(i$ited act w(ic( could (ave as
a conseHuence t(e derivation of anot(er. *(en t(is mens rea is esta$lis(ed L is +uilty w(et(er
(e actually intended t(e ro(i$ited conseHuence or was reckless as to w(et(er it would occur.
a.! @cLac(lin &.!
<(e accused1s knowled+e of t(e risk to anot(er1s ecuniary interest t(rou+( a dis(onest act can
$e inferred from evidence 4L is free to counter inference wit( evidence5.
R. v. Currie <19:5=, 24 CCC <2'= 292 <Ont. CA= <at 510=
f.! L was aroac(ed $y an unknown man w(o asked (im to cas( a c(eHue 4to one 9= w(ose
name was endorsed on t(e $ack5 for (im, sayin+ (e would ay (im P5 for doin+ so. L did so,
si+nin+ (is own name, address and tele(one Y on t(e $ack. L was convicted of utterin+ a for+ed
document 4a c(eHue5, $y $ein+ wilfully $lind to t(e for+ed nature of t(e endorsement on t(e
c(eHue. L aealed.
i.! ,id t(e trial Fud+e err in t(e alication of t(e wilful $lindness rule $y imortin+ t(e civil
doctrine of constructive knowled+e into t(e ruleK
r.! @artin &A.!
<(e rule of wilful $lindness does not imort civil constructive knowled+e 4i.e. w(at a erson
/s(ouldN or /ou+(tN to (ave known5. <(e rule is t(at if a arty (as (is susicion aroused $ut t(en
deli$erately omits to make furt(er enHuiries $ecause (e wis(ed to remain i+norant, (e is deemed
to (ave knowled+e.
c.! For L. Aeal allowed.
R. v. Blondin <19:1=, 2 CCC <2'= 118 <@CCA= <at 513=
f.! L flew into Cancouver wit( a susiciously (eavy scu$aIdivin+ tank. Bon insection it was
discovered t(at t(e tank contained 2- l$s of (as(is(. L said (e was aid to $rin+ t(e tank to
Canada from &aan and t(at (e knew w(at was in t(e tank was ille+al. <(e trial Fud+e instructed
t(e Fury t(at in order to find L +uilty of imortin+ a narcotic, t(ey must find t(at L knew t(at t(e
su$stance in t(e tank was (as(is(. L was found not +uilty. Crown aealed.
i.! ,id t(e trial Fud+e err $y instructin+ t(e Fury t(at in order to convict L t(ey (ad to find t(at (e
knew t(at t(e su$stance in t(e tank was (as(is(K
r.! Ro$ertson &A.!
<o $e convicted of ille+ally imortin+ a narcotic into Canada, mens rea reHuires t(at it $e found
%AR, t(at t(e L $rou+(t t(e ille+al su$stance into Canada and knew it was a narcotic or t(e L
01
$rou+(t t(e ille+al su$stance into Canada and was eit(er reckless a$out w(at it was or was
wilfully $lind to w(at it was, inferrin+ t(at (e susected it mi+(t $e a narcotic.
c.! Aeal allowedG verdict set asideG new trial ordered.
R. v. )and"u <1989=, 50 CCC <3'= 492 <Ont. CA= <at 51$= <"9CO44(CT8I ;(C";(;=
f.! L was man of modest means w(o took an e;ensive tri to 2ndia to, as (e says, settle a family
estate. Bon returnin+ to Canada, a ound of (eroin was found sewn into Fackets in (is lu++a+e
as well as in (is wallet. L ar+ued t(at w(ile in 2ndia (e (ad an affair wit( a widow 4>5. >
testified t(at dru+s were laced in L1s wallet $y (er lover 465 wit(out (er knowled+e. 6 also +ave
(er t(e clot(in+ w(ic( s(e +ave to L to +ive to (er relatives in Canada. L was convicted for
imortin+ and ossessin+ (eroin contrary to ss. 5415 and 0425 of t(e Narcotic Control Act.
i.! ,id t(e L ossess t(e reHuisite mens rea reHuired for t(e offence of imortin+ and ossessin+
an ille+al narcoticK *as t(e L wilfully $lind or recklessK
r.! Recklessness is not eHuivalent to knowled+e. *ilful $lindness is t(e eHuivalent of actual
knowled+e 4imutin+ knowled+e5.

a.! Finlayson &A.!
2n t(is case, w(ile it may (ave $een reckless of t(e L to $elieve > and accet t(e
clot(in+, it does not follow t(at (e (ad knowled+e t(at t(e clot(es contained a narcotic.
c.! For LG aeal allowedG new trial ordered.
R. v. %uon$ <1998=, 124 CCC <3'= 392 <Ont. CA= <at 521=
f.! L was friends wit( L. L was linked to t(e murders of two eole, and called L and asked if (e
could (ide at (is lace. L a+reed, $ut olice later raided aartment and found L. )olice asked L
w(at L told (im and L said (e didn1t want to know anyt(in+ $ecause (e knew t(at (e would +et
in trou$le for (idin+ L. L was convicted wit( $ein+ an accessory after t(e fact to a murder under
s. 2-415 of t(e CC.
i.! *(at is t(e knowled+e reHuirement for $ein+ an accessory after t(e fact to murder under s.
2-415 of t(e CCK
r.! ,o(erty &A.!
Lia$ility $ased on wilful $lindness is su$Fective. Actual susicion, com$ined wit( a conscious
decision not to make inHuiries t(at would confirm t(e susicion, is eHuated wit( actual
knowled+e for t(e uroses of t(e criminal law. Lia$ility turns on t(e decision not to inHuire
once real susicions arise. . 6eculation as to w(at t(e accused may learn from t(e inHuiry is
irrelevant.
c.! Aeal dismissed. Conviction u(eld.
4.5. O02ecti/e 3ault
4.5.1. Criminal 9e.li.ence
02
219. 415 9very one is criminally ne+li+ent w(o
4a5 in doin+ anyt(in+, or
4$5 in omittin+ to do anyt(in+ it is (is Rle+alS duty to do,
s(ows wanton or reckless disre+ard for t(e lives or safety of ot(ers.
>2rady v. )9arlin$, >19$0? +C4 804 <at 534=
At t(e federal level, criminal ne+li+ence involves /advertantN 4intention or awareness of
t(e ne+li+ent act5 or /recklessN ne+li+ence. /RecklessN does not mean /intentN as in
su$Fective offences.
R. v. 1itc"ner <19$1=, 131 CCC $4 <Ont. CA= <at 535=
f.! L was drivin+ down 031 near 2n+ersoll and (ad assed numerous cars 4'5 m( in #3 m(
Eone5. As s(e was ullin+ u to &1s car, s(e was a$out to ass on t(e left $ut & $raked car slowed
down HuicklyG L slammed on $rakes $ut skidded and sideIswied &1s car, killin+ &. L was
convicted of criminal ne+li+ence in t(e oeration of a motor ve(icle causin+ deat(. L aealed.
i.! *(at constitutes criminal ne+li+enceK
a.! @orden &A.!
<o $e found +uilty of criminal ne+li+ence a Fury s(ould $e satisfied %AR, t(at t(e L acted eit(er
4a5 wit( deli$erate intention of doin+ or omittin+ to do somet(in+ w(ic( it was (is le+al duty to
do, t(e conseHuences of w(ic( (e knew or s(ould (ave known would endan+er t(e lives or safety
of ot(ers or 4$5 wit( suc( disre+ard for t(e lives and safety of ot(er as would indicate t(at (e was
(eedless of w(at t(e conseHuences of (is conduct mi+(t $e.
R. v. Ro$ers, >19$8? 4 CCC 2:8 <@CCA= <at 53:=
f.! L was an @, $ut struck from rolls in 19#3. 8e took on a youn+ $oy 41I2 years5 w(o (ad
c(icken o; at 0 mont(s and now (ad ecEema and was underwei+(t. L rescri$ed $oy a lowI
rotein diet 4contrary to w(at ot(er doctors said t(e $oy needed5. <(e c(ild1s (ealt( severely
deteriorated and L told $oy1s fat(er t(at t(is was t(e result of t(e /oisonN workin+ out of t(e
c(ild1s system. C(ild died and L was convicted of criminal ne+li+ence causin+ deat(
4manslau+(ter5 under ss. 21# 4t(ose w(o administer medical treatment under a duty to use
reasona$le knowled+e, skill and care5, 219 and 223. L aealed.
i.! Can a doctor $e c(ar+ed wit( criminal ne+li+ence causin+ deat( 4manslau+(ter5 w(en (e
(onestly $elieved, (owever incorrectly, t(at t(e treatment (e was rescri$in+ was $eneficialK
r.! Bnder ss. 21#, 219 and 223 of t(e CC, t(e L1s conduct as a doctor rovidin+ medical services
t(at could lace a atient at risk 4criminal ne+li+ence5 is Fud+ed $y an o$Fective standard D (is
su$Fective $elief is not relevant.
a.! 7emetE &A.!
L was under duty to (ave t(e reasona$le knowled+e of (is eers, w(ic( in t(is case was to (ave
t(e foresi+(t t(at t(e diet (e rescri$ed would (ave laced t(e life of t(e c(ild in dan+er. %y
continuin+ wit( (is rescrition, (e was reckless and $rou+(t a$out t(e deat( of t(e c(ild.
0-
c.! Aeal dismissed.
R. v. )"ar9 <1984=, 12 CCC <3'= 428 <Ont. CA= <at 543=
f.! L was c(ar+ed wit( 0 counts criminal ne+li+ence causin+ deat( 4$y car5 and dan+erous
drivin+ and was acHuitted. Crown aealed.
i.! ,oes criminal ne+li+ence causin+ deat( reHuire a mental element of intent or knowled+e on
t(e art of t(e accusedK
a.! @orden &A.!
Criminal ne+li+ence and dan+erous drivin+ reHuires voluntary fault or $lamewort(y state of
mind. Fault can $e ascri$ed if t(e drivin+ amounted to a marked and su$stantial dearture from
t(e standard of a reasona$le driver under t(e circumstances 4o$Fective5 and t(at t(e driver eit(er
realiEed and ran an o$vious and serious risk to t(e lives and safety of ot(ers, or +ave no t(ou+(t
to t(at risk 4su$Fective5. 2f t(ere is a reasona$le e;lanation for t(e marked and su$stantial
dearture 4e.+. a $ee stin+5, t(ere can $e no fault.
c.! Aeal dismissed.
R. v. 1utton and 1utton, >1989? 1 +C4 1392 <at 545=
f.! s were accused and convicted of manslau+(ter for failin+ to rovide t(e necessities of life to
t(eir son under s. 215425 of t(e CC. 6on was dia$etic. s were mem$ers of reli+ious sect t(at
$elieved in fait( (ealin+. "n two occasions stoed administerin+ insulin /$y =od1s
aut(orityN, $elievin+ t(at t(eir son was $ein+ cured $y t(e 8oly 6irit. After t(e second occasion
t(e son died. CA set aside conviction and ordered new trial. Crown aealed.
i.! *(at is t(e test for criminal ne+li+enceK
a.! @c2ntyre &. 4eventual maFority osition D in t(is case t(ere was -I- slit5!
<(ere is no distinction to $e made $etween actions or omissions in criminal ne+li+ence.
<(e meanin+ of /recklessN in conFunction wit( criminal ne+li+ence under s. 219 does not
imort a su$Fective reHuirement 4e.+. malice or intention5.
<(e test is an o$Fective test of reasona$leness, and roof of conduct t(at reveals marked
and si+nificant dearture from t(e standard t(at could $e e;ected from a reasona$ly
rudent erson in t(e conte;t of t(e articular circumstances. <(e 1s ercetion of t(e
facts are irrelevant e;cet w(en formin+ a $asis for concludin+ w(et(er or not t(e 1s
conduct, in view of (is ercetion of t(e facts, was reasona$le
Can rely on defence of mistake of fact if it is (onestly (eld and is reasona$le 4+iven t(e
o$Fective test of criminal ne+li+ence5.
#aite v. R., >1989? 1 +C4 143$ <at 559=
f.! L was drinkin+ and assed (ayride wit( youn+ c(ildren. L turned car around and aroac(ed
(ayride on wron+ side of road wit( li+(ts out, statin+ /let1s see (ow close we +etN. L struck and
killed 0 c(ildren and inFured one ot(er. L was found not +uilty of criminal ne+li+ence causin+
deat( $ut was convicted of 5 counts of dan+erous drivin+. CA overturned trial Fud+e, statin+ t(at
00
trial Fud+e erred $y instructin+ Fury t(at criminal ne+li+ence reHuired a su$Fective element. A
new trial was ordered. L aealed.
i.! 2s t(e test for criminal ne+li+ence causin+ deat( 4s. 2235 o$Fective or su$FectiveK
a.! @c2ntyre &.!
<est for criminal ne+li+ence causin+ deat( is o$Fective.
c.! Aeal dismissed.
R. v. Anderson <1990=, :5 C4 <3'= 50 <+CC= <at 5$0=
f.! was c(ar+ed wit( criminal ne+li+ence causin+ deat(G (e was /t(inkin+ of somet(in+ elseN,
ran a red li+(t and struck a car, killin+ a assen+er. was le+ally imaired $ut did not s(ow
si+ns of imairment. acHuitted at trial, wit( Fud+e statin+ t(at neit(er mens rea nor
conseHuences were material in decision as to +uiltJinnocence. CA overturned. aealed.
i.! *(et(er t(e trial Fud+e1s comments relatin+ to t(e relevance of conseHuences and intention
affected t(e outcomeK
r.! 2n a criminal ne+li+ence case t(ere must $e a more su$stantial connection $etween conduct
and conseHuencesG t(e +reater t(e risk of (arm created, t(e easier it is to conclude t(at a
reasona$le man would foresee t(e conseHuences. Crown is solely concerned wit( w(et(er L
action was a marked dearture from t(e standard of a reasona$le man D t(e L1s intention, and t(e
results of t(e action are not relevant to t(is oint.
a.! 6oinka &.!
<(e trial Fud+e said t(at neit(er mens rea or t(e conseHuences of t(e manner of drivin+
were material. <(is does not mean t(at evidence t(at t(e drove (is car after drinkin+
was not relevant D Fud+e was indicatin+ t(at if t(e drinkin+ and drivin+ and runnin+ a red
li+(t was not a marked dearture from t(e standard, it did not $ecome so $ecause a
collision occurred.
c.! For . Aeal allowed. L acHuittal reinstated.
R. v. Crei$"ton, >1993? 3 +C4 3 <at 5$3=
f.! L inFected cocaine into deceased1s $ody. <(is was conceded to constitute traffickin+ under s.
0415 of t(e Narcotic Control Act. ,eceased t(en died. was convicted of unlawful act 4dru+
traffickin+5 manslau+(ter contrary to s. 2224554a5 of t(e CC. <(e CJL (ad decided t(at w(ere
(ad committed unlawful act, o$Fective foreseea$ility of risk of $odily (arm w(ic( is neit(er
trivial nor transitory was sufficient 4does not include foreseea$ility of deat(5. aealed.
i.! ,oes unlawful act manslau+(ter contravene s. ' of t(e C(arterK
r.! <o $e convicted of criminal ne+li+ence, t(e carelessness or ne+li+ence must involve a
/marked deartureN from t(e standard of a reasona$le erson in t(e articular circumstances,
05
wit( e;cetion to t(ose incaa$le of areciatin+ t(e nature of t(e risk w(ic( t(e activity entails.
"t(er ersonal factors s(ould not $e considered 4e.+. a+e, education, etc.5
a.! @cLac(lin &. 4- ot(ers concurrin+5!
"$Fective mens rea is not concerned wit( w(at L intended or knew. @ental fault lies in failure to
direct mind to risk w(ic( reasona$le erson would (ave known. %ein+ (eld criminally ne+li+ent
$y t(is standard does not alone violate s. ' t(at t(e enalty of an offence s(ould $e
commensurate wit( its moral fault.
Lamer C&C. 4- ot(ers concurrin+5!
/@odified "$FectiveN <est is!
1. *ould a reasona$le erson in same circumstances (ave $een aware t(at t(e likely
conseHuences of (isJ(er unlawful conduct create risk of deat(K
2f no D acHuit. 2f yes,
2. *as t(e L unaware
4a5 $ecause L did not turn mind to t(e conseHuences of t(e conduct and t(us to t(e risk of
deat( likely to resultG or
4$5 $ecause L lacked caacity to turn (isJ(er mind to t(e conseHuences of t(e conduct and
t(us to t(e risk of deat( likely to result, due to (uman frailtiesK
2f 4a5 D convict 4cannot allow a$sence of actual awareness to $e an e;cuse5G
2f 4$5,
-. 2n t(e conte;t of t(e articular offence, would t(e reasona$le erson wit( 4frail5
caacities of t(e L (ave made (imself aware of t(e likely conseHuences of t(e unlawful
conduct and t(e resultin+ risk of deat(K
c.! Aeal dismissed.
4.5.2. Pre'icate Offences
Lia$ility ascri$ed $y roof of commission of an underlyin+ offence accomanied $y certain
conseHuences.
<(ree tyes of redicate offences
1. Bnlawful act manslau+(ter Rs. 2224554a5S
2. Bnlawful act causin+ $odily (arm Rs. 2#9S
-. A++ravated assault Rs. 2#8S
<(e fault reHuirement 4mens rea5 for t(ese offences is rooted in t(e redicate offences!
t(ere must $e roer fault for t(e redicate offence 4or unlawful act5G
<(e fault reHuirement of t(e conseHuence of t(e unlawful act 4e.+. deat(5 is an o$Fective
one! reasona$le foreseea$ility of $odily (arm t(at is not transitory or trivial 4e.+.
in(erently dan+erous conduct5. <(ere is no need for reasona$le foreseea$ility of deat(.
*(en a redicate offence is $ased in ne+li+ence, Crown must still s(ow /marked and
su$stantialN dearture.
R. v. %esousa, >1992? 2 +C4 944 <at 5:1=
f.! alle+edly t(rew a $ottle a+ainst a wall durin+ a fi+(tG t(e $roken +lass inFured t(e arm of a
$ystander. was c(ar+ed wit( unlawfully causin+ $odily (arm contrary to s. 2#9 of t(e CC.
0#
<rial Fud+e stated t(at s. 2#9 created criminal resonsi$ility for causin+ $odily (arm $y way of
an unlawful act. <(e unlawful act could $e t(e violation of a federal or rovincial statute,
includin+ an a$solute lia$ility offence, t(erefore since s. 2#9 allowed ossi$ility of rison, it
violated s. ' of t(e C(arter. CA overturned. aealed.
i.! *(at are t(e constitutional reHuirements under s. ' for t(e redicate offence of unlawful act
causin+ $odily (armK
a.! 6oinka &.!
<(e redicate offence must $e constitutional and must not $e one of a$solute lia$ility. <(e
/unlawful actN must $e a $reac( of valid federal or rovincial statute involvin+ an act t(at is
/o$Fectively dan+erous.N <(e fault reHuirement of t(e resultin+ (arm caused $y t(e redicate
offence is an o$Fective one D reasona$le foreseea$ility of nonItrivial (arm 4not deat(5.
R. v. 2osset <1993=, 23 C4 <4t!= 280 at 284 <+CC=
*(en t(e redicate offence is one of criminal ne+li+ence, t(e marked and su$stantial dearture
test is also reHuired.
R. v. Crei$"ton, >1993? 3 +C4 3 <at 5:9=
f.! was c(ar+ed wit( CJL unlawful act manslau+(ter. 8e inFected cocaine into deceased1s $ody.
<(is was conceded to constitute traffickin+ under s. 0415 of t(e Narcotic Control Act. Crown
ar+ued was +uilty of manslau+(ter as deat( was direct conseHuence of t(is unlawful act,
contrary to s. 2254554a5 of t(e CC D t(e CJL (ad decided t(at w(ere (ad committed unlawful
act, o$Fective foreseea$ility of risk of $odily (arm w(ic( is neit(er trivial nor transitory was
sufficient 4does not include foreseea$ility of deat(5. was convicted. CA u(eld conviction.
aealed.
i.! *(et(er t(e o$Fective test for unlawful act manslau+(ter reHuired reasona$le foresi+(t of
deat( or merely reasona$le foresi+(t of $odily (arm under s. ' of t(e C(arterK
r.! 2n determinin+ t(e constitutionality of a mens rea reHuirement, t(e court must consider! 415 t(e
sti+ma attac(ed to t(e offenceG 425 t(e roortionality of moral $lamewort(iness wit(
unis(mentG 4-5 t(e idea t(at t(ose causin+ intentional (arm s(ould $e more severely unis(ed
t(an t(ose causin+ (arm unintentionally 4!artineau5
<(e mens rea of unlawful act manslau+(ter reHuires o$Fective foreseea$ility of risk of
$odily (arm t(at is not trivialJtransitory, in t(e conte;t of a dan+erous act. <(ere is no
reHuirement of foreseea$ility of a risk of deat(. ReHuirin+ foreseea$ility of deat( we would
remove t(e /t(in skullN rule reHuirin+ t(at you take your victim as you find t(em
a.! @cLac(lin &.!
Alyin+ t(e rinciles from !artineau!
1. <(e sti+ma associated wit( manslau+(ter is roerG it would s(ock t(e conscience of t(e
u$lic if t(e only time a erson could $e convicted of unlawful or ne+li+ent deat(
4manslau+(ter5 was w(en t(ey were +uilty of a++ravated assault 4w(ere risk of deat( is
foreseea$le5. <(erefore a risk of foreseea$le (arm is aroriate.
0'
2. @anslau+(ter (as no minimum sentence, w(ic( allows for t(e aroriate fle;i$ility in
sentencin+ +ive t(e lurality of circumstances t(at surround manslau+(ter, and t(e
concomitant lurality of moral fault of t(e offender.
-. @anslau+(ter is an unintentional crime and t(erefore t(e enalties are li+(ter t(an t(ose
for intentional crimes like murder.
R. v. 3rus"el <2000=, 31 C4 <5t!= 295 <Ont. CA= <at 58$=
f.! was convicted of criminal (arassment under s. 2#04254c5 of t(e CC, w(ic( rovides t(at /no
erson s(allMknowin+ t(at anot(er erson is (arassed or recklessly as to w(et(er t(e ot(er
erson is (arassed, en+a+e in conductMR4254c5 D $esettin+ or watc(in+ t(e dwellin+I(ouse,
4etc.5SMt(at causes t(e ot(er erson reasona$ly, in all t(e circumstances, to fear for t(eir safety
or t(e safety of anyone known to t(em. aealed.
i.! ,oes s. 2#0 violate s. ' of t(e C(arter $y failin+ to reHuire t(e L to (ave t(e intention to cause
t(e victim to fear for t(eir safety or t(e safety of anyone known to t(emK
r.! <(ere is no constitutional reHuirement t(at t(e rule of symmetry 4t(at mens rea s(ould relate
to t(e conseHuences ro(i$ited $y t(e offence5 $e /erfectN in all casesG t(ere must simly $e
sufficient $lamewort(iness in t(e actus reus to w(ic( t(e cula$le mental state attac(es.
a.! CatEman &A.!
)arliament (as outlined cula$le activities in s. 2#0425 t(at, $y o$Fective standards, would
reasona$ly cause fear. =iven t(at t(ere is a sufficiently $lamewort(y element in t(e actus reus to
w(ic( t(e cula$le mental state attac(es, t(ere is no mens rea reHuirement of foresi+(t t(at t(e
unlawful activities would cause actual fear.
c.! Aeal dismissed.
5. +e)ual Assault
T!e -ictim Credi$ilit# Consent !ista%e
Se&ual histor# with No e""ect 6ome effect 6ome effect
Se&ual histor# with '
rd
parties
7o effectZZ 7o effect 6ome effectK
ZZromiscuity is not correlative wit( (onesty
5.1. Crimes of 4a*e
&a99a?o"n v. R., >1980? 2 +C4 120 <at $1$=
f.! L was c(ar+ed wit( rain+ real estate saleswoman after a lunc( w(ere $ot( arties consumed
alco(ol. <(e comlainant ran out of t(e (ouse naked wit( a manUs $ow tie around (er neck and
(er (ands ti+(tly tied $e(ind (er $ack wit( a $at(ro$e sas(. 6(e was uset and e;(i$ited +reat
fear and emotional stress. L claims s(e only coyly o$Fected and t(at t(e se; was consensual.
<rial Fud+e refused to ut defence of mistake of fact to Fury. L was convicted. L aealed.
i.! ,oes t(e crime of rae reHuire mens reaK Can t(e defence of mistake of fact $e raised a+ainst
a c(ar+e of raeK
r.! ,ickson &. 4dissentin+5!
08
!ens rea of rae
*(en one commits t(e actus reus 4se;ual intercourse wit(out consent5 wit( t(e intention to
commit se;ual intercourse and wit( knowled+e t(at consent was wit((eld, or recklessness as to
t(e wit((oldin+ of consent.
@c2ntyre &.!
,efence of mistake of fact
<(e trial Fud+e must ut $efore t(e Fury any defences w(ere t(ere is evidence w(ic( would
convey a sense of reality in t(e defence. 2n order to raise t(e defence of mistaken $elief in
consent, t(e $elief needs to $e (onestly (eld, $ut need not $e /reasona$leN 4o$Fective5G t(e
evidence must $e suorted $y sources ot(er t(an t(e L in order to +ive it any air of reality.
c.! Aeal dismissed.
)ansre$ret v. R., >1985? 1 +C4 5:0 <at $40=
f.! L lived wit( comlainant 4C5, for 1 year. 6(e ended relations(i and asked (im to leave. 8e
later $roke into (er (ouse and t(reatened (er. <o calm (im down s(e fei+ned a ossi$ility of
reconciliation and t(ey (ad se;. C comlained to olice $ut was convinced $y L1s )" to not
ress c(ar+es. L $roke into (er (ome a second time and, inter alia, t(reatened (er wit( a $utc(er
knife. 6(e a+ain fei+ned a ossi$ility of reconciliation to calm (im down, and consented to (ave
se; sole urose of calmin+ (im down for fear t(at (e mi+(t kill (er. 6(e called olice and L was
arrested and c(ar+ed . L was acHuitted of rae at trial, as t(e trial Fud+e found t(at L (onestly
$elieved C consented and t(at C a+reed t(at L (eld suc( and (onest $elief. L was convicted on
aeal. L aealed to 6CC ar+uin+ defence of mistake of fact.
i.! Can L rely on t(e defence of mistake of fact to a c(ar+e of rae, w(en (e unreasona$ly $ut
(onestly $elieved t(at consent was +ivenK
r.! L cannot defend c(ar+e of rae t(rou+( t(e defence of mistake of fact w(ere it is found t(at (e
was wilfully $lind to t(e e;istin+ facts su++estin+ no consent D at law (e is resumed to know
t(at no consent was +iven 4t(erefore t(ere is not /mistake of factN5 and (is $elief in anot(er state
of facts is irrelevant. 8owever if L is reckless 4sees t(e risk t(at no consent was +iven $ut takes
t(e c(ance5 and (olds an (onest $elief t(at consent was +iven, (e may rely on t(e defence of
mistake of fact even if (is (onest $elief was unreasona$le.
a.! @c2ntyre &.!
<rial Fud+e found t(at L was wilfully $lind to t(e reality of (is $e(aviour after t(e second
incident. <(erefore it is resumed t(at L knew t(at C only consented $ecause of (is t(reats
t(erefore (e cannot ar+ue t(at (e (onestly $elieved s(e consented
5.2. Crimes of +e)ual Assault
7ew 6e;ual Assault )rovisions
2'1. %asic se;ual assault rovision 413 years5G 6ousal immunity was a$ro+atedG
2'2. 6e;ual assault wit( weaonG t(reats to t(ird artyJ$odily (arm 410 years5
09
2'-. A++ravated se;ual assaultG maimed, disfi+ured, wounded or life t(reatened 4life5
2'-415. @eanin+ of consent
2'-425. ,efence of mistaken $elief in consent
2'0. Corro$oration reHuirements and warnin+s a$olis(ed
2'5. ,octrine of recent comlaint a$ro+ated
2'#, 2''. Restrictions laced on crossI; of witness as to (er revious se;ual (istory
2#5. Assault Rread wit( s. 2'-.1425S
2#5405. =eneral alication of consentG (onest and mistaken $elief in consent
R. v. C"ase, >198:? 2 +C4 293 <at $50=
f.! L +ra$$ed 15 yearIold comlainant1s 4C5 $reasts and tried to +ra$ (er +enitals $ut was
unsuccessful. C, wit( (el of 11 yearIold $rot(er, were a$le to call for (el and L left. L was
convicted of se;ual assault. "n aeal t(e conviction was set aside $ecause L did not make
contact wit( C1s +enitalsG conviction for common assault was su$stituted. Crown aealed.
i.! *(at is t(e meanin+ of /se;ual assaultN as it is used in ss. 2#5 and 2'1of t(e CCK
r.! @c2ntyre &.!
6e;ual assault is a +eneral intent assault w(ic( is committed in circumstances of a se;ual nature,
suc( t(at t(e se;ual inte+rity of t(e victim is violated. <(e test to determine w(et(er t(e
imu+ned conduct (as t(e reHuisite se;ual nature is o$Fective! 2n li+(t of all t(e circumstances, is
t(e se;ual conte;t of t(e assault visi$le to a reasona$le o$serverK Can consider art of t(e $ody
touc(ed, t(e nature of t(e contact, t(e situation in w(ic( it occurred, t(e words and +estures
accomanyin+ t(e act, t(reats w(ic( may or may not $e accomanied $y force, t(e intent of t(e
erson committin+ t(e act, or any ot(er circumstances surroundin+ t(e conduct.
c.! Crown aeal allowed. L convicted of se;ual assault.
5.2.1. ;efence of 6ista7en @elief in Consent
R. v. Bulmer, >198:? 1 +C4 :82 <at $55=
f.! Comlainant 4C5, a rostitute, (ad a+reed to rovide services to L. <(ey went to (otel room
and L and : were t(ere. : wanted (er services told C s(e would (ave to rovide services for
free. Fri+(tened, s(e erformed se;ual acts for all t(ree. 6(e denied consent and receivin+
ayment. L ar+ued t(at C consented or in t(e alternative t(at (e (eld an (onest $ut mistaken
$elief t(at C consented. L was convicted of indecent assault. L aealed.
i.! *(at is reHuired to raise t(e defence of mistake of factK
a.! @c2ntyre &.!
<wo distinct stes involved in raisin+ defence of mistaken $elief in consent. 415 &ud+e must
decide if t(e defence s(ould $e ut to t(e Fury, $ased on t(e /air of reality test.N 425 2f Fud+e uts
defence to Fury, (e must e;lain t(e law 4articularly t(at an (onest, mistaken $elief need not $e
reasona$le5, review t(e relevant evidence, and leave t(e Fury to $e satisfied %AR, t(at no
consent was +iven.
53
R. v. solin, >1993? 4 +C4 595 <at $59=
@istaken $elief in consent does not reHuire corro$oratin+ evidence outside of t(e testimony of
t(e L. Like ot(er defences, Fud+e must assess w(et(er t(ere is evidentiary $asis rovidin+ /air of
realityN to t(e defence.
5.2.2. 4a*e +!iel' Pro/isions
2''. 9;cludes evidence of se;ual reutation for t(e urose of c(allen+in+ or suortin+ t(e
credi$ility of t(e comlainant.
2'#. 4reI19925 Constitutes a $lanket e;clusion of evidence of se;ual activity of t(e
comlainant, su$Fect to - e;cetions D re$uttal evidence, evidence +oin+ to identity, and
evidence relatin+ to consent to se;ual activity on t(e same occasion as t(e trial incident.
4B7C"76<2<B<2"7AL D Sea$o#er5
R. v. )eaboyer, >1991? 2 +C4 5:: <at $$$=
f.! 6 was c(ar+ed wit( se;ual assault of woman (e was drinkin+ wit( at a $ar. Crown +ave
evidence t(at 6 used force 4(ysical $ruises5. 6 denied oortunity to crossI; comlainant on (er
revious se;ual conduct w(ic( may (ave caused $ruises 4s. 2'#5.
= was c(ar+ed wit( se;ually assaultin+ friend at sc(ool. = contends t(at t(ere was no
assault and t(at comlainant was se;ual a++ressor. = denied c(ance to crossIe;amine
comlainant and resent evidence of rior and su$seHuent se;ual conduct of comlainant to
suort t(is defence 4s. 2''5.
i.! ,o t(e /rae s(ieldN rovisions of t(e CC 4ss. 2'#, 2''5 violate t(e ri+(t to a fair trial under s.
' of t(e CharterK
r.! A erson1s rior se;ual e;erience (as no link to determinin+ w(et(er s(e is trut(ful,
t(erefore s. 2'' of t(e CC does not infrin+e ri+(t to a fair trial under s. ' of t(e C(arter.
6. 2'# violates s. ' of t(e C(arter. )rinciles for Fudiciary to follow in allowin+ evidence
of ast se;ual conduct wit( t(e L or ot(er ersons 4e;cetional circumstances5!
1. 9vidence of ast consensual se;ual conduct is not admissi$le to suort +eneral inference
t(at comlainant was 4a5 more likely to (ave consented to t(e se;ual conduct at trial, or
4$5 less wort(y of $elief.
2. 9vidence of ast consensual se;ual conduct is admissi$le w(ere it ossesses ro$ative
value on an issue at trial t(at is not su$stantially outwei+(ed $y dan+er of unfair
reFudice to comlainant.
7onIe;(austive e;amles of admissi$le evidence D evidence t(at tends to 4i5 rove ot(er
erson t(an L caused (ysical conseHuences of alle+ed raeG 4ii5 rove $ias or motive to
fa$ricate on art of comlainantG 4iii5 rove accused $elieved comlainant was
consentin+ G 4iv5 s(ow a attern of se;ual conduct similar to accused1s version of t(e
alle+ed encounterG 4v5 re$ut Crown evidence re+ardin+ comlainants se;ual conduct.
-. 6uc( evidence of ast se;ual conduct must $e esta$lis(ed as le+itimate $y affidavit or
testimony a$sent t(e Fury 4voir dire5.
51
0. "nce suc( evidence is admitted in Fury trial, &ud+e must warn Fury a+ainst inferrin+ from
t(e evidence of ast se;ual conduct t(at t(e comlainant mi+(t (ave consented to t(e
alle+ed act or is less wort(y of credit 4not allowed $y s. 2''5.
a.! @cLac(lin &.!
8owever s. 2'# can $e e;ected to e;clude relevant evidence and is t(erefore
unconstitutional. 9;amles! 415 ,efence of (onest, mistaken, $ut not necessarily
reasona$le, $elief of consent may $e $ased on evidence of acts erformed $y comlainant
at some ot(er time or laceG 425 Ri+(t of defence to attack credi$ility on +round t(at
comlainant was $iased or (ad motive to fa$ricate evidence may reHuire evidence of acts
erformed $y comlainant at some ot(er time or laceG 4-5 9vidence of se;ual activity
may $e relevant to e;lain (ysical conditions w(ic( Crown relies on to esta$lis(
intercourse or use of force, e.+. semen, re+nancy, inFury or disease. 405 9vidence on
attern of conduct may $e relevant, t(ou+( t(is must $e carefully scrutiniEed.
c.! 6. 2'# offends s. ' of t(e C(arter. 6. 2'' does not.
5.2.3. 4eformulate' 4a*e +!iel' Pro/ision
6. 2'# was reformed and came into force in Au+ust, 1992. 2t aeared to comletely
ro(i$it t(e use of rior se;ual (istory of t(e comlainant on t(e issue of consent or to s(ow t(at
t(e comlainant was less wort(y of $elief D w(ic( would $e unconstitutional as Sea$o#er called
for discretion 4e.+. usin+ suc( evidence to rove motive for comlainant to fa$ricate
accusations5.
6. 2'#.1 reHuired written notice for a (earin+ to determine admissi$ility of evidence of
rior se;ual (istory under s. 2'#425. 6. 2'#.2 rovides for e;clusion of u$lic and t(e nonI
comella$ility of t(e comlainant at t(e (earin+ to determine admissi$ility of evidence of ast
se;ual conduct.
R. v. %arrac", >2000? 2 +C4 443 <at $84=
f.! c(ar+ed wit( se;ual assault. After voir dire Fud+e refused to allow evidence of
comlainant1s ast se;ual conduct. convicted. L c(allen+ed s. 2'#, 2'#.1 and 2'#.2.
i.! ,oes s. 2'# of t(e CC violate t(e ri+(t to a fair trial under ss. ' and 114d5 of t(e C(arterK
r.! 6. 2'#415! 9vidence of revious consensual or nonIconsensual se;ual activity wit( L or
someone else is only ro(i$ited w(en makin+ two +eneral inferences from t(e se;ual nature of
t(e activity D t(at t(e comlainant is more likely to (ave consented or is a less wort(y of $elief.
6uc( evidence may $e admissi$le to 4i5 draw nonIse;ual inferencesG 4ii5 su$stantiate ot(er
secific, le+itimate se;ual inferences. 6. 2'#425! For evidence to $e considered relevant, it must
(ave si+nificant ro$ative value t(at is not su$stantially outwei+(ed $y t(e dan+er of reFudice to
t(e administration of Fustice.
a.! =ont(ier &.!
Ri+(t to full answer and defence under ss. ' and 114d5 does not entitle L to Ot(e most
favoura$le rocedures ima+ina$le.1 <(e ri+(t to a fair trial under s. ' and 114d5 is not
automatically $reac(ed w(en a arty is derived of relevant information $ecause it is not
/si+nificantlyN ro$ative. 9vidence of comlainant1s se;ual (istory will likely $e allowed
52
more often w(en it refers to ast se;ual encounters wit( t(e L rat(er t(an t(ird arties. 2t
is likely most relevant w(en dealin+ wit( issues of identity, motivation for falsification,
mistake of fact, etc.
c.! Aeal dismissed. 6. 2'# is constitutional.
5.2.4. Consent an' +e)ual Assault
2'-.1.415 /ConsentN means t(e voluntary a+reement of t(e comlainant to en+a+e in t(e se;ual
activity in Huestion. 425 7o consent w(en it is o$tained $y erson ot(er t(an comlainantG
comlainant is incaa$le of consentin+ 4e.+. into;ication5G L induces consent t(rou+( a$use of
osition of trust, ower or aut(orityG comlainant e;resses $y wordsJconduct lack of a+reementG
comlainant (avin+ consented to en+a+e in se;ual activity, e;resses $y wordsJconduct a lack of
a+reement to continue. 4-5 ss. 425 is nonIe;(austive
2'-.2. %elief in consent is no defence to se;ual assault w(ere 4a5 L1s $elief arose from selfI
induced into;ication, or recklessness or willful $lindnessG 4$5 L did not take resonsi$le stes, in
t(e circumstances known to (imJ(er at t(e time, to determine if comlainant was consentin+.
R. v. -,anc"uk, >1999? 1 +C4 330 <at $91=
f.! Comlainant interviewed $y for a Fo$ in (is van. After interview, invited comlainant to
see some of (is work in t(e trailer $e(ind t(e van. initiated a num$er of touc(in+ involvin+
touc(in+, eac( more intimate t(an t(e revious, notwit(standin+ t(e fact t(at t(e comlainant
said XnoX on eac( occasion. Any comliance $y comlainant was done out of fear and it was
clear t(at knew comlainant was afraid and was not a willin+ articiant. <rial Fud+e acHuitted
t(e L of se;ual assault relyin+ on t(e defence of imlied consent. CA u(eld. Crown aealed.
i.! *(et(er t(e trial Fud+e erred in (is conclusion t(at t(e defence of Ximlied consentX e;istsK
r.! @aFor &.!
Actus reus of se;ual assault is unwanted se;ual touc(in+ w(ic( violates erson1s se;ual
inte+rity. <(ree elements! 4i5 o$Fective touc(in+G 4ii5 o$Fective se;ual nature of contactG 4iii5
a$sence of comlainant1s su$Fective consent to t(e contact. <(ere is no defence of imlied
consent in assault, as t(is incorrectly imlies t(at comlainant1s consent can $e determined
o$Fectively. Comlainant w(o did consent can (ave t(at consent vitiated if s(e (onestly feared
4su$Fectively5 t(at s(e would oen (erself to use of force $y if s(e did not consent. <(e fear
need not $e reasona$le nor $e communicated to .
ReHuisite mens rea of se;ual assault is t(e intention to touc(, knowin+ of, or $ein+
reckless of or wilfully $lind to, a lack of consent, eit(er $y words or actions, from erson $ein+
touc(ed. L can rely on defence of (onest $ut mistaken $elief in consent. <(e evidence must s(ow
t(at t(e su$Fectively $elieved t(at t(e comlainant effectively said /yesN t(rou+( (er words or
actions.. %elief t(at silence, assivity or am$i+uous conduct constitutes consent is error in law.
cannot rely on (is $elief t(at /no means yesN. <(ere can $e no /testin+ t(e watersN as t(is is
reckless conductG
)er L18I,! Bntil L first takes reasona$le stes to assure t(ere is consent, (e cannot rely
on defence of (onest $ut mistaken $elief in consent.
c.! Aeal allowed. convicted of se;ual assault.
5-
R. v. %arrac" <1998=, 122 CCC <3'= 225 <Ont. CA=, affB', >2002? 2 +C4 443 <at :08=
f.! s. 2'-.24$5 of t(e CC 4w(ic( states t(at an L cannot rely on t(e defence of mistaken $elief in
consent to a c(ar+e of se;ual assault if (e /did not take reasona$le stes, in t(e circumstances
know to t(e L at t(e time, to ascertain t(at t(e comlainant was consentin+.N5 was c(allen+ed
under s. '. Ar+ued t(at s. 2'-.24$5 creates o$Fective standard 4Oreasona$le stes to ascertain
consent15 t(at does not reHuire a /marked deartureN from t(e o$Fective norm 4re! Creighton5.
i.! ,oes s. 2'-.24$5 of t(e CC violate s. ' of t(e C(arter $y creatin+ an o$Fective standard t(at
does not reHuire t(e L1s conduct to $e a /marked deartureN from t(e o$Fective norm.
r.! AuasiIo$Fective test for s. 2'-.24$5! 415 @ust ascertain circumstances known to L at time 425
would reasona$le erson in suc( circumstances (ave taken furt(er stes to ascertain consent
$efore roceedin+ wit( se;ual activityK 2f noJmay$e t(en L not reHuired to take more stes.
a.! @orden AC&".!
6e;ual assault is not one of t(ose /very fewN offences w(ic( carries a sufficient sti+ma to reHuire
t(at its mens rea must $e comletely su$Fective. <(is is $ecause it is an offence of +eneral intent,
coverin+ $road ran+e of conduct, wit( no minimum enalty and ma;imum is 13 years.
2ntroducin+ o$Fective comonent is not unconstitutional as it does not reHuire all reasona$le
stes to $e taken $y t(e L, as t(e standard must consider w(at stes L s(ould (ave taken in t(e
articular circumstances of t(e time. <(e rovision does not reHuire t(at a mistaken $elief in
consent $e reasona$le.
7alcolm <2000=, 35 C4 <5t!= 3$$ <6an CA= <at :09=
8eler &.!
AuasiI"$Fective <est for s. 2'-.24$5
415 Ascertain circumstances known to L. 425 Ask if reasona$le man, aware of t(ese
circumstances, would take furt(er stes $efore roceedin+ wit( se;ual activity. 2f yes, and L (as
not taken furt(er stes, L cannot rely on defence of (onest $ut mistaken $elief in consent. 2f no
or may$e, L not reHuired to take furt(er stes and can rely on t(e defence.
$. ;efences
$.1. 6ista7e of 3act
1. *(ere t(ere is su$Fective mens rea, t(e mistake need only $e (onest and need not $e
reasona$le 4reasona$leness only relevant to assessment of L credi$ility5G
2. *(ere t(ere is o$Fective mens rea, mistake must $e $ot( (onest and reasona$leG
-. *ere t(ere is due dili+ence defence 4re+ulatory offences5, mistake must $e $ot( (onest
and reasona$le, wit( onus of roof on LG
0. *(ere offence is one of a$solute lia$ility, mistake cannot $e a defence
R. v. +essJ R. v. *$uyen, >1990? 2 +C4 90$ <at :15=
f.! Ls were c(ar+ed wit( se;ual intercourse wit( female under 10 under s. 10#415 of CC 4since
reealed5 and were denied use of defence of mistaken $elief t(at female was over 10. L1s
constitutionally c(allen+ed section.
50
i.! ,oes s. 10#415 of t(e CC violate s. ' of t(e C(arter +iven t(at it is an offence of strict lia$ility
t(at does not allow t(e defence of (onest $ut mistaken $elief t(at t(e female was over 10K
r.! For nonIre+ulatory mens rea offences, a$solute lia$ility 4not allowin+ a defence of (onest
mistake of fact or due dili+ence to counter mens rea5 violates s. ' of t(e C(arter.
a.! *ilson &.!
2n 198' )arliament relaced s. 10#415 wit( s. 153.1, w(ic( allows a due dili+ence defence
4defence to se;ual acts wit( female under 10 if L took all reasona$le stes to ascertain a+e of
comlainant5. 6ince )arliament (as concluded t(at it can meet o$Fective of rotectin+ youn+
females in a manner t(at restricts L1s ri+(ts less t(at s. 10#415, it can $e concluded t(at s. 10#415
does not minimally imair t(e L1s ri+(ts.
c.! For . 6. 10#415 violates s. ' and cannot $e saved $y s. 1.
$.1.1. Transferrin. 7ens Rea of One Offense to Anot!er
R. v. !adue, >19$5? 4 CCC 2$4 <ITCA= <at :2$=
f.! coulated or attemted to coulate wit( a dead woman contrary to w(at is now s. 1824$5 of
t(e CC. L tried to raise defence of (onest $ut mistaken $elief t(at woman was not dead.
i.! 2s defence of (onest $ut mistaken $elief t(at woman was not dead availa$leK
r.! ,avey &A.!
2n t(is case L intention to rae was transferred to t(e crime of coulatin+ wit( a dead erson. L
cannot rely on (onest $ut mistaken $elief t(at woman was not dead since were s(e in fact not
dead (e would (ave $een +uilty of rain+ (er since (e did not o$tain (er consent.
c.! aeal dismissed.
R. v. 3undeus, >19:$? 2 +C4 2:2 <at :28=
f.! offered to sell undercover olice officer two calets of mescaline. 8e in fact +ave t(e officer
L6,. was convicted of dru+ traffickin+, contrary to t(e (ood and Drugs Act. %CCA
overturned conviction, statin+ t(at reHuisite mens rea was not resent since intended to sell
mescaline and not L6, D CA (eld t(at trial Fud+e misdirected (imself $y transferrin+ t(e mens
rea to traffic mescaline to satisfy t(e reHuisite mens rea to traffic L6,. Crown aealed.
i.! 2n order to $e +uilty of traffickin+ L6,, must t(e L know and intend to sell L6,, or is it
sufficient for t(e L to know and intend to sell an illicit dru+, re+ardless of w(at dru+ (e in fact
sellsK
r.! ,e =randre &.!
2f it is found t(at t(e L (as t(e reHuisite mens rea to traffic any illicit dru+, t(at mens rea will $e
sufficient to u(old a conviction for traffickin+ L6, even t(ou+( L $elieved (e was traffickin+ a
55
different dru+ in a lower scale of ro(i$ition and re+ulation 4e.+. mescaline5. <o e;onerate
(imself L must tender evidence t(at (e (ad (onestly $elieved (e was not sellin+ an illicit dru+
4defence of mistake5.
a.! Laskin C&C. 4dissentin+5!
2t is not enou+( for t(e Crown to s(ow t(at t(e L intended to traffick a lesser illicit dru+
4mescaline5 to suort a conviction for traffickin+ a +reater illicit dru+ 4L6,5 w(en t(e sanctions
for traffickin+ t(e +reater dru+ are (i+(er t(an t(ose for t(e lesser dru+. 2n +eneral it is not
ossi$le to transfer t(e mens rea of one crime to t(e actus reus of anot(er. L can rely on t(e
defence of (onest $ut mistaken $elief even t(ou+( $y doin+ so (e would $e admittin+ to
committin+ a different offence t(an t(e one c(ar+ed.
c.! Crown aeal allowed. conviction reIinstated.
$.2. 6ista7e of 8a1
R. v. Cam9bell and 7lynarc"uk <19:3=, 10 CCC <2'= 2$ <Alta. ;ist. Ct.= <at :40=
f.! stried at a lace over 12 days. 6(e ori+inal (ad declined to en+a+e in t(e dance, $ut was
told $y t(e mana+er t(at a 6ureme Court &ud+e (ad ruled t(at $ottomless dancin+ was ok, and
t(at it was reorted in t(e aers 4in fact, t(is decision was overIturned on aeal5. 6(e was
c(ar+ed under s. 1#'425 of t(e CC for aearin+ as a erformer in an immoral, indecent or
o$scene erformance. convicted and aealed.
i.! Can t(e rely on t(e defence of mistake of law since s(e relied on t(e widely reorted
statement of law $y a 6ureme Court of Al$erta &ustice w(ic( was later overIturned on aealK
r.! >erans ,C&.!
@istake of law is not a criminal defence unless t(e mistake 4i5 ne+atives a reHuisite malicious
intentG 4ii5 was aut(oriEed $y anot(er law t(at is intra vires 4if t(e law is ultra vires t(ere can $e
no defence5. An (onest mistake of law can $e a miti+atin+ factor in sentencin+.
c.! Aeal dismissed. %ut +iven a$solute disc(ar+e.
R. v. %rainville <1991=, 5 C4 <4t!= 38 <Ont. Pro/. ;i/.= <at :52=
f.! was c(ar+ed wit( misc(ief under s. 0-34154c5 of t(e CC for $lockin+ a arcel of land to
rotest t(e construction of a road. <(e CA (eld t(at a$ori+inal ri+(ts to t(e land (ad $een
e;tin+uis(ed $y a 1853 treaty, $ut t(e rotesters $elieved t(at t(ose ri+(ts s(ould revail. L was
convicted and aealed ar+uin+ colour of ri+(t defence..
i.! 2s assive civil diso$edience a defence to misc(iefK Can t(e rely on a defence to misc(ief $y
colour of ri+(t 4i.e. (onest $elief in e;istence of facts or law w(ic(, if t(ey actually e;isted,
would at law Fustify or e;cuse t(e actK5
r.! Fournier )rov. ,iv. &.!
Civil diso$edience does not make an ille+al action le+al. <(e nature and de+ree of t(e
diso$edience s(ould only $e a consideration in sentencin+. Colour of ri+(t defence can arise
from (onest mistake in fact or lawG test is su$Fective and t(e $elief need not $e reasona$le. "ne
5#
can (ave an (onest $elief t(at t(ey (ave a le+al ri+(t, $ut not a moral ri+(t, to rely on t(e colour
of ri+(t defence.
R. v. 7ac!ean <19:4=, 1: CCC <2'= 84 <9+ Co. Ct.= <at :58=
f.! L (ad license susendedG (e worked at a federal airort. Re+ulations reHuired t(at a erson
must (old all valid rovincial licenses and ermits in order to oerate a car on airort roerty. L
(oned t(e Re+istrar of @otor Ce(icles and asked if (e needed a valid license to drive at t(e
airort. <(e erson indicated t(at (e did not and only reHuired ermission from (is $oss. L $oss
+ave (im ermission. L was involved in an accident w(ile drivin+ at t(e airort and was c(ar+ed
under s. 259405 of t(e CC for drivin+ w(ile disHualified. L was acHuitted. Crown aealed.
i.! 2s L1s i+norance of t(e Re+ulations a valid e;cuseK
r.! @istake of law will $e allowed as a criminal defence w(ere L made $ona "ide dili+ent effort
to ascertain and a$ide $y law and acted in +ood fait( reliance on results of suc( effort.
a.! "18earn Co. Ct. &.!
<(ere is a distinction $etween statute and re+ulations as t(e u$lic are +enerally more aware of
statute t(an re+ulations, statutes are easier to find t(at re+ulations and romul+ation is more
effective wit( statute t(an wit( re+ulations. L in t(is case made a $ona fide and dili+ent effort to
determine w(at t(e law was $y aroac(in+ t(e Re+istrar.
c.! Aeal dismissed.
R. v. Cancoil 1"ermal Cor9. <198$=, 2: CCC <3'= 295 <Ont. CA= <at :$8=
f.! L told $y +overnment safety insector t(at it was allowed to remove a +uard on a metal s(ear.
<wo mont(s later a worker was inFured $y t(e metal s(ear. L was c(ar+ed and acHuitted for
safety violations. Crown aealed.
i.! 2s t(ere a defence of /officially induced error of lawNK
r.! ,efence of /officially induced errorN is availa$le to an alle+ed violation of a criminal, HausiI
criminal or re+ulatory offence w(ere L (as reasona$ly relied uon erroneous le+al oinion or
advice of an official w(o is resonsi$le for administrationJenforcement of t(e articular law. <(e
trier of fact will determine on reonderance of evidence if L was misled $y t(e official. <(e
reasona$leness of t(e L1s reliance on t(e official will deend on several factors includin+ L1s
efforts to ascertain t(e roer law, comle;ityJo$scurity of t(e law, osition of t(e official and
reasona$leness of t(e advice +iven.
a.! Lacourciere &A.!
<(e evidence in case is too sarse to determine availa$ility of t(e defence.
5'
$.3. "nsanit5
1#. rovides a defence to a criminal act or omission w(ile sufferin+ from mental disorder t(at
rendered erson incaa$le of!
1. areciatin+ nature and Huality of act or omission or
2. knowin+ t(at t(e act or omission was wron+.
L is resumed cometent until s(own to (ave a mental disorder on $alance of ro$a$ilities, wit(
t(e $urden of roof lyin+ on t(e arty t(at raises t(e issue.
Coo9er v. R., >1980? 1 +C4 1149 <at :88=
f.! L, an outIatient at a syc(iatric (osital convicted of murder 4$y c(okin+5 of an inIatient at
t(e (osital. ,efence of insanity was not raised at trial $ut Fud+e ut defence to Fury. L aealed
statin+ t(at trial Fud+e inadeHuately ut defence of insanity to t(e Fury.
i.! *(at is t(e test for s. 1# defence of insanityK
r.! ,ickson &.!
<woIste test for s. 1# defence of insanity! 415 A Fud+e must determine w(et(er t(e
evidence is sufficient to indicate t(e L suffers from a condition t(at could, at law, constitute a
disease of t(e mind. 425 2f so, it is u to t(e trier of fact to determine w(et(er L was caa$le of
areciatin+ t(e nature and Huality of t(e act, or of knowin+ t(at it was le+ally wron+.
,isease of t(e mind is a le+al concet. 2t em$races any illness, disorder or a$normal
condition w(ic( imairs t(e (uman mind and its functionin+. 8owever selfIinduced states
caused $y alco(olJdru+s, as well as transitory states like (ysteria or concussion, are not included.
<(e disease must $e of suc( intensity as to render t(e accused incaa$le of areciatin+ t(e
natureJHuality of t(e act or of knowin+ t(at it was le+ally wron+. Areciatin+ reHuires more
t(an mere knowled+e t(at t(e act is $ein+ committedG it involves estimation and understandin+ of
t(e conseHuences of t(e act.
3?eldson v. R., >1981? 2 +C4 $1: <at :99=
a.! @c2ntyre &.!
6. 1# defence of insanity does not e;tend to t(ose w(o (ave t(e necessary understandin+ of t(e
nature, c(aracter and conseHuences of t(e act, $ut merely lack aroriate feelin+s of
remorseJ+uilt for w(at (e (as done, even t(ou+( t(e lack of feelin+ comes from a /disease of t(e
mindN.
R. v. Abbey, >1982? 2 +C4 24 <at 800=
f.! After arrival at Cancouver 2nt1l airort from )eru, L s(oulder $a+ was searc(ed and cocaine
was found. *(en asked w(at was in t(e $a+ L said /7aturally, cocaine.N 8e was c(ar+ed wit(
traffickin+ of cocaine and raised insanity defence. <rial Fud+e acHuitted $y reason of insanity,
statin+ t(at s. 1# was satisfied $ecause L failed to areciate t(e enal conseHuences of (is act.
Crown aealed.
i.! *(et(er t(e ina$ility to areciate t(e enal conseHuences of an act is sufficient to Fustify a
defence of insanity under s. 1# of t(e CC.
58
a.! ,ickson &.!
A delusion t(at renders L incaa$le of areciatin+ le+al sanctions attac(ed to commission of a
crime does not +o to t(e mens rea of t(e offence and t(erefore does not satisfy t(e first ste of
t(e test for insanity under s. 1#. A delusion t(at renders L incaa$le of areciatin+ le+al
sanctions does not in t(is case satisfy second $ranc( of second ste of s. 1# test, as L knew t(at
w(at (e was doin+ was le+ally wron+.
R. v. C"aulk, >1990? 3 +C4 1303 <at 802=
a.! Lamer C&C!
Bnder s. 1# defence of insanity t(e disease of t(e mind must cause L to fail to know t(at t(e act
is le+ally wron+ or morally wron+. A erson w(o knows t(at it is ordinarily wron+ to commit a
crime $ut $y reason of a disease of t(e mind $elieves t(at it would $e morally ri+(t to do so
would $e entitled to $e acHuitted $y reason of insanity.
R. v. ommen, >1994? 2 +C4 50: <at 804=
2n alyin+ s. 1#, a Fud+e s(ould not focus on +eneral caacity to know moral ri+(t from wron+
$ut w(et(er t(e L ossesses t(e caacity of an ordinary erson to rationally know t(at a
articular act was morally wron+ in t(e circumstances (avin+ re+ard to t(e everyday standards of
t(e ordinary erson.
R. v. ),ain, >1991? 1 +C4 933 <at 804=
Crown can only raise evidence of insanity if L (as ut (isJ(er mental state in issueG allowin+
Crown to adduce evidence of insanity over and a$ove L1s wis(es violates s. '. Crown can only
indeendently raise evidence of insanity after a findin+ of +uilt $ut $efore conviction is entered.
R. v. Jac@uard <199:=, 113 CCC <3'= 1 <+CC= <at 805=
9vidence of a mental disorder s(ort of a fullI$lown defence under s. 1# of t(e CC may $e
admitted as a means of ne+ativin+ mens rea.
$.4. Automatism
6ane automatism is unconscious, involuntary $e(aviour, t(at does not result from a disease of t(e
mind. 2t results in a comlete acHuittal.
2nsane automatism is unconscious, involuntary $e(aviour, t(at does result from a disease of t(e
mind. 2t results in acHuittal $y insanity.
R. v. Rabey, >1980? 2 +C4 513 <at 815=
f.! L was interested in : $ut s(e Fust wanted to $e friends. *(ile (elin+ (er wit( some
(omework, (e came across a letter seakin+ a$out (er se;ual interest in a man named =. <(is
made (im an+ry, uset and confused. L later $y c(ance met u wit( :. 8e asked (er w(at s(e
t(ou+(t of (im, s(e said Fust a friend. 8e t(en struck (er - times in t(e (ead wit( t(e rock and
$e+an to c(oke (er $ut t(en stoed. L was arrested and c(ar+ed wit( causin+ $odily (arm. 2n
(is statement to olice L said t(at (e could not remem$er arts of t(e incident. "ne secialist
59
testified t(at L (ad entered a dissociative state 4not disease of t(e mind5 as a result of t(e
syc(olo+ical $low of t(e letter and t(at (is unconscious actions were involuntary. At CA, L1s
dissociative state was (eld to $e a disease of t(e mind and a new trial was ordered so Fury could
decide on t(e facts w(et(er t(is disease of t(e mind e;isted at t(e time of t(e L1s act. L aealed.
i.! *as t(e L1s dissociative state a disease of t(e mind for t(e uroses of determinin+ t(e
alication of CC s. 1# defence of insanity or t(e defence of automatismK
r.! Any malfunctionin+ of t(e mindJmental disorder (avin+ its rimary source in some
su$Fective condition or internal weakness of L may $e a disease of t(e mind if it revents L from
knowin+ w(at (e is doin+. A transient distur$ance of consciousness due to certain secific
e;ternal factors does not fall wit(in t(e concet of disease of t(e mind. "rdinary stresses and
disaointments of life do not constitute t(e reHuisite e;ternal factors sufficient to (ave a
malfunctionin+ of t(e mind t(at falls out of t(e cate+ory of disease of t(e mind.
a.! Ritc(ie &.!
2n t(is case t(e L1s infatuation wit( : created an a$normal condition in (is mind, and (is
disaointment wit( (er, caused $y t(e erceived sli+(t in t(e letter (e found, cannot $e said to
$e a sufficient e;ternal factor causin+ (is automatism. Rat(er (is automatism was rooted in t(e
L1s syc(olo+icalJemotional makeu. <(erefore (is dissociative state was a disease of t(e mind.
c.! L aeal dismissed. 7ew trial ordered.
R. v. &arks, >1992? 2 +C4 8:1 <at 829=
f.! L (ad ersonal ro$lems t(at contri$uted to difficulty sleein+. "ne ni+(t (e fell aslee in
livin+ room, $ut +ot u a few (ours later, ut on Facket and runnin+ s(oes, drove 2- km to inI
laws, $roke into (ouse, $eat and stran+led fat(erIinIlaw to unconsciousness and sta$$ed mot(erI
inIlaw wit( a knife from t(e kitc(en and $eat (er wit( $lunt instrument. 6(e later died. L drove
to olice station wit( t(e knife. 8e (ad $adly cut (ands and was in +reat distress. 8e stated t(at
(e Fust killed (is inIlaws. L was c(ar+ed wit( murder and attemted murder. 8e entered defence
of sleewalkin+ 4nonIinsane automatism5 and was acHuitted $y Fury. Crown aealed.
i.! 2s sleewalkin+ a form of nonIinsane automatism and not a disease of t(e mindK
r.! *(en defence of nonIinsane automatism is raised $y L, trial Fud+e must first determine if
t(ere is sufficient evidentiary $asis to ut defence to t(e Fury. 2f so, Fud+e must consider w(et(er
t(e alle+ed condition is, in law, nonIinsane automatism 4i.e. is t(e condition not a result of a
disease of t(e mindK5. 8ere t(e Fud+e must not only consider t(e evidence, $ut t(e followin+
olicy issues!
1. ,oes alle+ed condition result from an internal or e;ternal cause 4former wei+(in+ in
favour of disease of t(e mind5K
2. ,oes t(e condition ose a t(reat of recurrent violence 4if so, favours disease of t(e
mind5K
-. *ould t(e flood+ates oen if t(e condition is considered automatisticK
0. *ould findin+ t(e condition automatistic (arm t(e credi$ility of t(e criminal Fustice
systemK
#3
&ury must t(en decide if facts s(ow t(at L suffered from alle+ed condition at t(e relevant time.
Crown must t(en rove a$sence of automatism %AR,, $ecause it carries $urden of
demonstratin+ voluntariness of action.
6leewalkin+ can $e considered a form of nonIinsane automatism 4i.e. not a disease of t(e mind5.
a.! La Forest &.!
2n t(is case evidence s(ows t(at t(e L was sleewalkin+. )olicy considerations in determinin+
w(et(er sleewalkin+ can at law $e a defence of nonIinsane automatism! 415 sleewalkin+
cannot $e adeHuately c(aracteriEed as resultin+ from an internal or e;ternal causeG 425 t(ere is
very low ro$a$ility of recurrent violence w(ile sleewalkin+G 4-5 t(ere is no evidence t(at
flood+ates would $e oened in reco+niEin+ sleewalkin+ as nonIinsane automatism $ecause it is
difficult to fakeG 405 w(ile findin+ sleewalkin+ to $e a full defence may (arm credi$ility of
Fustice system to some, t(eir views must $e discounted $ecause it is a fundamental recet of our
criminal law t(at only t(ose w(o voluntarily act wit( reHuisite intent s(ould $e unis(ed.
c.! Aeal dismissed. AcHuittal u(eld.
R. v. )tone, >1999? 2 +C4 2990 <at 84:=
f.! decided to visit sons from revious marria+e. 8is current wife e;ressed o$Fections to t(e
visit $ot( $efore and after. 6(e t(en t(reatened divorce, claimed s(e told olice (e was a$usin+
(er, t(at (e was $ad in $ed and (ad a small enis. testified (e felt a /w(oos(N sensation
was(in+ over (is $ody. 8e t(en realiEed t(at (e killed (is wife wit( a # inc( (untin+ knife
4sta$$ed 0' times5. 8e ut $ody in truck tool$o;, and flew to @e;ico. 8e later returned to
Canada and turned (imself in. <rial Fud+e stated t(at unconsciousness was esta$lis(ed $ut said
t(ere was only evidence to suort insane automatism. found +uilty of manslau+(ter and
sentenced to 0 years. aealed.
i.! *as t(ere sufficient evidence to ut t(e defence of sane automatism to t(e FuryK 8ow can
demonstrate t(at mere words caused (im to enter an automatistic state suc( t(at (is actions were
involuntaryK
r.! carries le+al $urden to rove sane automatism on $alance of ro$a$ilities $ased on
e;ert syc(iatric or syc(olo+ical evidence. <rial Fud+e must consider t(is evidence, as well as
severity of tri++erin+ stimulus, corro$oratin+ evidence of $ystanders, corro$oratin+ medical
(istory of automatistic states, motive for crime, w(et(er tri++er is also victim. <(e trial Fud+e
must t(en conclude t(at a roerly instructed Fury could find acted involuntarily on $alance of
ro$a$ilities.
Court must take (olistic aroac( to determinin+ if 1s condition is a disease of t(e mind
$y considerin+ all of t(e followin+!
1. Internal Cause Theor#! ,oes alle+ed condition result from an internal or e;ternal cause
4former wei+(in+ in favour of disease of t(e mind5K
2. Continuing Danger Theor#! ,oes t(e condition ose a t(reat of recurrent violence 4if so,
favours disease of t(e mind5K
#1
-. )olic# (actors! Court can consider ot(er olicy factors in order to come to a conclusive
answer. Can consider, $ut not limited to! 4a5 would t(e flood+ates oen if t(e condition is
considered automatisticK 4$5 would findin+ t(e condition automatistic (arm t(e credi$ility
of t(e criminal Fustice systemK
a.! %astarac(e &.!
Law resumes eole act voluntarily to avoid lacin+ onerous $urden of rovin+ voluntariness
%AR, on Crown. Reversal of onus does constitute a limitation on 1s s. 114d5 C(arter ri+(ts $ut
t(ese are Fustifia$le under s. 1. 2n t(is case trial Fud+e did not en+a+e in (olistic aroac(,
(owever t(e findin+ at trial was correct. <(e tri++er in t(is case was not an /e;traordinary
e;ternal eventN 4Ra$e#5 t(at would amount to an e;treme s(ock or syc(olo+ical $low t(at
would cause a normal erson in t(e circumstances to suffer a dissociation in t(e a$sence of a
disease of t(e mind.
c.! 5I0, defence of sane automatism was correctly wit((eld from Fury. Aeal dismissed.
$.5. "nto)ication
R. v. Bernard, >1988? 2 +C4 833 <at 8$8=
f.! L was convicted of se;ual assault causin+ $odily (arm contrary to s. 2'24c5 of t(e CC. L
admitted forcin+ t(e comlainant to (ave se;ual intercourse wit( (im and stated t(at (is
drunkenness caused t(e attack on (er. L aealed.
i.! *(et(er evidence of selfIinduced into;ication is a defence to se;ual assault.
r.! 415 =eneral intent offence! is one in w(ic( t(e only intent involved relates solely to t(e
erformance of t(e act in Huestion wit( no furt(er ulterior intent or urose. 425 6ecific intent
offence! is one w(ic( involves t(e erformance of t(e actus reus couled wit( an intent or
urose +oin+ $eyond t(e mere erformance of t(e act. 6e;ual assault is a +eneral intent offence.
,runkenness does not aly in offences of +eneral intent, (owever it may aly in a
secific intent offence w(en L is so drunk (e lacks t(e caacity to form t(e secific intent
reHuired to commit t(e crime. <(e defence Crown must still rove mens rea of offence %AR,
$y! 415 L is resumed to (ave intended t(e ro$a$le conseHuences of (is actionsG 425 w(ere L
was so drunk as to raise dou$t a$out voluntary nature of (is conduct, Crown may esta$lis( t(e
necessary $lamewort(y mental state $y rovin+ voluntary selfIinduced into;ication.
a.! @c2ntyre &&.!
Removal of drunkenness defence does not make t(e se;ual assault one of a$solute lia$ility,
contrary to ss. ' and 114d5 of C(arter. 2t u(olds t(e rincile t(at t(e morally innocent s(ould
not $e convicted as it reco+niEes t(at Ls w(o (ave voluntarily consumed dru+s or alco(ol,
derivin+ t(emselves of selfIcontrol leadin+ to commission of a crime, are not morally innocent.
c.! Aeal dismissed.
R. v. %aviault, >1994? 3 +C4 $3 <at 889=
f.! Comlainant 4C5, artially aralysed #5IyearIold woman in a w(eelc(air, knew t(rou+( (is
wife. At (er reHuest came to (er (ome carryin+ a 03Iounce $ottle of $randy. C drank art of a
#2
+lass of $randy and t(en fell aslee. drank rest of $ottle. se;ually assaulted C $ut could not
remem$er incident. 9;ert witness testified t(at an individual wit( t(e $loodIalco(ol ratio (e
(yot(esiEed t(e would (ave (ad mi+(t suffer a $lackout, lose contact wit( reality, (ave no
awareness of (is actions and likely (ave no memory of t(em t(e ne;t day. <(e trial Fud+e
acHuitted L of se;ual assault on $asis of defence of selfIinduced into;ication resultin+ in a state
akin to automatism or insanity. CA overturned. aealed.
i.! 2s t(e defence of selfIinduced into;ication resultin+ in a state akin to automatism or insanity
availa$le as a defence to a +eneral intent offence of se;ual assaultK
r.! Cory &.!
<o state t(at mens rea of a +eneral intent offence cannot $e ne+ated $y drunkenness unFustifia$ly
offends ss. ' and 114d5 of t(e C(arter. @ens rea can $e inferred from roof t(at t(e assault was
committed $y t(e , $ut t(e mens rea of an intention to $ecome drunk cannot su$stitute for t(e
reHuisite mens rea of se;ual assault. 2n rare cases, into;ication can $e a defence in +eneral intent
offences if it demonstrated suc( e;treme into;ication t(at t(ere was an a$sence of awareness
akin to a state of insanity or automatism. <(e $urden of roof lies on t(e L. <(is reverse onus
violates of ss. ' and 114d5 of t(e C(arter $ut is Fustified under s. 1.
c.! #I-! L aeal allowed. 7ew trial ordered.
7"<9!
--.1. Reverses Daviault $y sayin+ voluntary into;ication is a marked dearture from +eneral
standard of reasona$le care t(erefore not availa$le as a defence to +eneral intent offences
involvin+ assault or interference wit( $odily inte+rity of a erson 4+eneral intent offences5G
R. v. Robinson, >199$? 1 +C4 $83 <at 904=
f.! L struck victim wit( rock and t(en fatally sta$$ed (im. was convicted of second de+ree
murder at trial $y Fury. %CCA allowed aeal on $asis of misdirection as to defence of
into;ication. Crown aealed.
i.! 8ow s(ould Furies $e instructed on t(e use of evidence of into;ication in murder cases
4secific intent offence5K
r.! Lamer C&C.!
%efore c(ar+in+ Fury, Fud+e must $e satisfied t(at effect of into;ication was suc( t(at it mi+(t
(ave imaired 1s foresi+(t of conseHuences sufficiently to raise a reasona$le dou$t. 2f so, Fud+e
must ask Fury to consider w(et(er evidence of into;ication, alon+ wit( all ot(er evidence, raised
a reasona$le dou$t as to w(et(er ossessed reHuisite secific intent for murder 4intent to kill or
cause +rave $odily (arm wit( foresi+(t t(at t(e likely conseHuence was deat(5. 2f, $ased on
evidence of into;ication, t(ere is a reasona$le dou$t t(at 4i5 t(e lacked t(e caacity to form t(e
reHuisite intent or 4ii5 t(e in fact lacked t(e reHuisite intent, is entitled to $e acHuitted.
c.! Aeal dismissed.
#-
$.$. 9ecessit5
Criminal law t(eory distin+uis(es $etween Fustifications and e;cuses.
1. A /FustificationN c(allen+es t(e wron+fulness of an action t(at tec(nically constitutes a
crime 4e.+. stealin+ a car and $reakin+ seed limits to rus( victim to (osital5. 6ociety
considers t(e Fustifia$le conduct alauda$le and not wort(y of unis(ment in t(e
circumstances.
2. An /e;cuseN concedes wron+fulness of action $ut asserts t(at circumstances under w(ic(
it is done are suc( t(at it ou+(t not $e attri$uted to t(e actor 4e.+. eretrator sufferin+
disease of t(e mind5. 6ociety considers t(e e;cusa$le conduct delora$le $ut not wort(y
of unis(ment in t(e circumstances.
&erka v. R., >1984? 2 +C4 233 <at 91$=
f.! L (ad -0 tons of ot on lar+e transort s(i and intended to transfer it off t(e coast of Alaska.
<(e s(i encountered serious ro$lems and it was decided for t(e safety of t(e crew and s(i t(at
t(ey would seek refu+e on t(e Canadian s(oreline to make reairs. <(e s(i ran a+round.
Catain, fearin+ s(i would casiEe, ordered crew to unload car+o. were c(ar+ed wit(
imortin+ ot. 9;ert for said t(at decision $y Catain was essential for crew1s safety. &ury
acHuitted. CA ordered new trial. aealed.
i.! *(at constitutes t(e le+al defence of necessityK
r.! 7ecessity s(ould $e considered a le+al e;cuse to a wron+ful act. 7ecessity does not +o to
voluntariness of actus reus, $ecause actor (as conscious control of (is conduct. 8owever in
emer+ency circumstances t(e act may $e /normatively involuntaryN in t(at, +uided $y (uman
instincts of selfIreservation or altruism, t(e actor (as no ot(er via$le or reasona$le c(oiceG i.e.
t(e act is inevita$le and unavoida$le.
Limits on t(e ,efence of 7ecessity as 9;cuse!
1. Br+ent situations of clear and imminent eril w(ere atience is unreasona$leG
2. Comliance wit( t(e law is demonstra$ly imossi$leG t(ere is no le+al alternativeG
-. <(e decision to act does not inflict more (arm t(an (arm t(e actor seeks to avoid.
0. <(e morality or le+ality of t(e conduct at t(e time of t(e emer+ency is irrelevant.
8owever, if it was reasona$ly foreseea$le t(at t(e 1s actions would likely +ive rise to a
situation of imminent eril reHuirin+ t(e $reakin+ of t(e law, t(e situation s(ould not $e
considered an /emer+encyN and t(e defence of necessity s(ould not $e availa$le.
<(e onus of roof is on Crown to rove t(at an action was voluntary. Crown must disrove t(at
1s actions in t(e circumstances were /normatively involuntaryN w(en necessity is raised.
a.! ,ickson C&C.!
2n t(is case t(ere was adeHuate evidence to suort uttin+ t(e defence of necessity to t(e Fury.
<(e trial Fud+e instructed t(e Fury t(at to acHuit, t(ey must find facts w(ic( amount to /an ur+ent
situation of clear and imminent eril w(en comliance wit( t(e law is demonstra$ly imossi$le.N
<(e trial Fud+e1s c(ar+e adeHuately addressed t(e limits on t(e defence e;cet t(e Huestion of
reasona$le alternative to t(e actions taken. <(is was an error of law.
*ilson &.!
#0
7ecessity s(ould also $e considered a Fustification t(at does not reHuire an /emer+encyN in
certain circumstancesG e.+. w(ere t(ere are conflictin+ le+al duties D (owever necessity is no
Fustification for killin+. 47%! see B> conFoined twins case at 90# w(ere if doctors acted to
searate twins, one would surely die 4murder5, $ut if t(ey waited for an emer+ency t(ey would
likely $ot( die. &ud+es said t(at doctors (ave conflictin+ le+al duties and t(erefore doin+ t(e
oeration can $e Fustified $y necessity even t(ou+( t(ere is a killin+5
R. v. 7or$entaler, )molin$ and )cott <1985=, 48 C4 <3'= 1 <Ont. CA= <at 933=
cannot rely on t(e defence of necessity w(en c(oosin+ to rocure an a$ortion contrary to s.
251 of t(e CC. <(is is $ecause t(e 1s actions were not involuntary, t(ere was no evidence t(at
comliance wit( t(e law was demonstra$ly imossi$le.
R. v. !atimer <2001=, 39 C4 <5t!= 1 <+CC= <at 938=
f.! 1s dau+(ter was sastic Huadrile+ic. 6(e was comletely deendent. 6(e suffered 5I#
seiEures er day and it was $elieved s(e e;erienced a +reat deal of ain. 8owever (er condition
was not terminal and could $e treated wit( e;tensive sur+eries and medication. decided to
mercy kill (is dau+(ter $y mono;ide oisonin+. c(ar+ed wit( first de+ree murder. At trial
Fud+e did not allow defence of necessity. &ury convicted of second de+ree murder $ut
recommended arole after 1 year. <rial Fud+e instead allowed constitutional e;emtion and
imosed sentence of one year followed $y one year ro$ation. CA affirmed conviction $ut
imosed mandatory minimum sentence. aealed.

i.! Availa$ility of defence of necessity. Can it $e relied uon in mercy killin+ casesK
r.! <o rely on t(e defence of necessity! 415 t(e must $e in imminent eril or dan+er D it is
not enou+( t(at eril is foreseea$le or likely D it must $e on t(e ver+e of transirin+ and virtually
certain to occurG 425 t(e must (ave no reasona$le le+al alternative to t(e course of action (eJs(e
undertookG 4-5 t(ere must $e roortionality $etween t(e (arm inflicted and t(e (arm avoided D
t(at is, t(e (arm avoided must $e eit(er comara$le to, or clearly +reater t(an, t(e (arm inflicted.
"$iter! it is unlikely t(at killin+ 4(arm inflicted5 would $e roortionate to t(e (arm avoided.
ReHuirements 415 and 425 emloy a modified o$Fective test w(ic( involves an o$Fective
evaluation t(at takes into account t(e situation and c(aracteristics of t(e articular . <(e
must, at t(e time of t(e act, (onestly $elieve, on reasona$le +rounds, t(at (e faces a situation of
imminent eril t(at leaves no reasona$le le+al alternative oen. 2t is roer to take into account
circumstances t(at le+itimately affect 1s a$ility to evaluate t(e situation.
ReHuirement 4-5 emloys a urely o$Fective test since evaluatin+ t(e +ravity of t(e act is
a matter of community standards infused wit( constitutional considerations.
a.! <(e Court 4)er Curiam5!
1. 2t is not reasona$le for t(e to ar+ue t(at (is dau+(ter was in imminent erilG acute
sufferin+ can constitute imminent eril, $ut in t(is case t(e on+oin+ ain of (is dau+(ter
$rou+(t on $y (er condition does not constitute an emer+ency as s(e (as e;erienced
#5
ain all (er life. Also t(e roosed sur+ery, and indeed (er condition, did not ose an
imminent t(reat to (er life.
2. (ad reasona$le le+al alternative to stru++le on $y (elin+ dau+(ter live in minimal ain
$y allowin+ a feedin+ tu$e, sur+ery and c(an+e in medication 4all reFected $y 5.
-. 2t is oen Huestion as to w(et(er roortionality reHuirement could $e met in (omicide
situation. Assumin+ it could, t(e (arm avoided would (ave to $e comara$le in +ravity to
deat( 4t(e (arm inflicted5. 2n t(is case t(e (arm inflicted 4deat(5 +reatly outwei+(s t(e
(arm avoided 4more serious ain from oeration5.
c.! Aeal dismissed. <(ere is no air of reality to t(e defence of necessity Fustifyin+ t(at it $e
c(ar+ed to t(e Fury in t(is case.
$.:. ;uress
R. v. Carker '*o. 2(, >19$:? +C4 114 <at 948=
f.! L admitted to dama+in+ lum$in+ fi;tures in (is cell $ut t(at (e committed t(e offence under
duress. <(e or+aniEers of a distur$ance in t(e Fail t(reatened L wit( deat( and +rievous $odily
(arm if (e did not commit t(e act. L was convicted of misc(ief. CA overturned. Crown aealed.
i.! *(at is reHuired for successfully raise t(e s. 1' defence of duressK
r.! <o rely on t(e defence of duress, t(e L must rovide evidence t(at (e would face /immediateN
deat( or +rievous $odily (arm if (e did not commit t(e offence.
a.! Ritc(ie &.!
*(ile t(e t(reats to L were immediate in t(at t(ey were continuous until L committed t(e act,
t(ey were not t(reats of /immediateN deat( or +rievous $odily (arm, since $ot( t(e L and t(ose
utterin+ t(e t(reats were locked in t(eir cells.
c.! Aeal allowed and conviction restored.
R. v. &a@uette, >19::? 2 +C4 189 <at 950=
f.! L was t(reatened wit( deat( if (e did not drive C and 6 to Ls old lace of work so t(ey could
ro$ it. ,urin+ ro$$ery 6 killed a $ystander. After t(e ro$$ery $ot( C and 6 tried to +et into L1s
##
) a r t y ) r i n c i a l
C J L , u r e s s , e f e n c e C C s . 1 '
9 ; c l u d e d " f f e n c e K
[ e s 7 o
7 o , u r e s s , e f e n c e
R u * i c
car $ut were not successful. L was arrested and c(ar+ed wit( $ein+ a arty to murder. L was
acHuitted at trial on +rounds of duress. CA overturned. L aealed.

i.! 2s t(e defence of duress under s. 1' of CC availa$le to a erson c(ar+ed not wit( committin+
an offence $ut of $ein+ a arty to an offence under s. 21425 of t(e CCK
r.! @artland &.!
6. 1' does not rovide rotection of duress defence for e;cluded offences 4e.+. murder
and ro$$ery D offences involvin+ violence to ot(ers5. 2t only alies to /a erson w(o commits a
crimeN 4rincial5 and t(erefore does not aly to /a erson w(o is arty to an offenceN under s.
21425 of t(e CC. 8owever CJL defences are availa$le Rs. 84-5 of CC allows t(e continuance of
CJL defences so lon+ as t(ey are not inconsistent wit( CCS t(erefore CJL defence of duress is
availa$le to a erson w(o is c(ar+ed wit( $ein+ a arty to an offence under s. 21425.
,uress vitiates intent 4mens rea5 $ecause a erson w(ose actions are dictated $y fear of
deat( or +rievous $odily inFury cannot $e said to (ave formed a +enuine common intention to
carry out an unlawful urose wit( t(e erson w(o (as t(reatened (im 4overturned in Hi$$ert5
c.! Aeal allowed.
R. v. +ibbert, >1995? 2 +C4 9:3 <at 955=
f.! said % t(reatened to s(oot (im if (e didn1t come wit( (im to C1s lace of residence and
arran+e for C to come to t(e lo$$y. did so and C was s(ot 0 times $y %. $elieved (e (ad no
oortunity to run away or warn C wit(out $ein+ s(ot. c(ar+ed wit( attemted murder as a
arty under s. 214154$5 4Oaidin+ and a$ettin+15. &ury acHuitted on attemted murder $y convicted
on a++ravated assault. aealed.
i.! ,oes t(e CJL defence of duress ne+ate t(e mens rea of a c(ar+ed as a arty to an offence
under ss. 214154$5 4aidin+ and a$ettin+5K
r.! <(e mens rea for /aidin+ and a$ettin+N under s. 214154$5 of t(e CC is not One+ated1 $y
duress. <(e CJL defence of duress is availa$le to t(ose c(ar+ed wit( $ein+ a arty to an offence
under s. 21425 of t(e CC, (owever t(is defence rovides an e;cuse and does not ne+ate mens rea.
2n order to rely on CJL defence of duress it is reHuired t(at t(ere 415 $e a t(reat t(at raises
immediate eril and 425 $e no reasona$le /le+al way outN of t(e situation, or no /safe avenue of
escaeN for t(e 4rincile of /normative involuntarinessN5. <o determine t(is t(e court must
aly a modified o$Fective test! was t(ere any reasona$le action to rovide a /le+al way outN for
t(e L, takin+ into consideration t(e articular circumstances of t(e , includin+ (is a$ility to
erceive t(e e;istence of alternative courses of action.
a.! Lamer C&C.!
Creighton was concerned wit( alyin+ criminal ne+li+ence to t(e in(erently (aEardous
activities t(at a erson voluntarily en+a+es isG e;cuse of duress is redicated on view t(at
conduct of L is /normatively involuntaryN D t(erefore L1s ercetions of surroundin+ facts are
relevant to determination of w(et(er (is conduct was reasona$le, and t(erefore e;cusa$le, under
t(e circumstances.
#'
R. v. Ru=ic, 2001 +CC 24 <at 9$1=
f.! L was c(ar+ed wit( imortin+ 2 kilos of (eroin. L claimed t(at s(e was actin+ under duress.
6(e conceded t(at (er claim of duress did not meet t(e immediacy and resence reHuirement of
s. 1'. L c(allen+ed s. 1' under s. ' of t(e C(arter and raised CJL defence of duress. L acHuitted
at trial. Crown aeal dismissed. Crown aealed.
i.! ,o t(e immediacy and resence reHuirements of s. 1' defence of duress violate s. ' of t(e
C(arterK Can one w(o commits an offence 4/rincialN5 rely on t(e CJL defence of duressK
r.! Le%el &.!
)(ysical voluntariness 4$e(aviour t(at is t(e roduct of a free will and controlled $ody,
un(indered $y e;ternal constraints5 is an essential comonent of criminal lia$ility and is a
rincile of fundamental Fustice under s. '. @oral involuntariness s(ould also $e a rincile of
fundamental FusticeG it would $e unFust to enaliEe a erson w(o acted in a morally involuntary
fas(ion $ecause (is acts cannot realistically $e attri$uted to (im, as (is will was constrained $y
some e;ternal force 4e.+. t(reats, survival5. @oral involuntariness does not, (owever, ne+ate t(e
actus reus or t(e mens rea of an offence.
6. 1' includes t(reats to t(ird arties so lon+ as t(e t(reat is made to t(e L. 6. 1' reHuires
t(e t(reatener to $e resent and caa$le of immediately followin+ t(rou+( on t(e t(reat
4/immediacy and resenceN reHuirement5. <(erefore s. 1' unFustifia$ly $reac(es s. ' of C(arter
$ecause it allows individuals w(o acted morally involuntarily to $e declared criminally lia$le.
<(e reHuirements of immediacy and resence in s. 1' are unconstitutional.
c.! Crown aeal dismissed.
$.8. +elf ;efence
R. v. &intar <199$=, 2 C4 <5t!= 151 <Ont. CA= <at 9:2=
f.! R $lamed for $reaku of (is marria+e and t(reatened to kill . R and = were over(eard
lannin+ an attack on . <(ey went to 1s lace. told R to leave $ut (e refused, sayin+ (e was
t(ere to /finis( t(is offN and (e took a swin+ at . knocked R onto front orc(. R screamed t(at
(e killed 1s do+ and t(at (e was ne;t. came out wit( (is rifle (eld across (is c(est. = and R
came toward , and R said (e would kill and mem$ers of (is family. R +ra$$ed +un, stru++le
ensued and s(ot and killed $ot( R and =. convicted of manslau+(ter. aealed.
i.! *(at are le+al rinciles surroundin+ Fury c(ar+e on selfIdefenceK
r.! @oldaver &A.!
A narrow selfIdefence rovision s(ould not $e ut to a Fury w(ere t(ere is an air of reality in t(e
evidence for a wider selfIdefence rovision 4unless evidence lends air of reality to factual
underinnin+s of rovision and fills a +a in wider rovision5. %ot( ss. -0415 and 425 offer selfI
defence as defence to c(ar+e of (omicide. &ustification under s. -0425 is wider in scoe t(at s.
-0415. &ud+e s(ould call on council to Fustify instruction on narrower rovision.
#8
R. v. Cad,allader, >19$$? 1 CCC 380 <+as7 E@= <at 9:5=
f.! Fat(er of 4t(en 105 (ad t(reatened to kill (im on numerous occasions. "ne day (eard (is
fat(er come into t(e (ouse mutterin+ /21m +oin+ to kill t(at =od ,amned little $astard.N 8e
(eard fat(er load a s(ot+un and come u t(e stairs. 8e (e +ra$$ed (is +un and turned to see (is
fat(er aimin+ at (im. 8e fired t(ree s(ots at (is fat(er w(o fell down t(e stairs. said t(at (e
fat(er was still movin+ and (e feared t(at (e would s(oot (im, so (e s(ot (is fat(er two more
times D t(e last s(ot was from - inc(es away. convicted of delinHuency. aealed.
i.! *(at amount of force is allowed to raise selfIdefenceK
r.! <o esta$lis( selfIdefence t(ere s(ould $e evidence D 4a5 t(at t(e facts amount to selfIdefence,
and 4$5 t(at t(e mode of defence used was Fustifia$le under t(e circumstances. <(e test as to t(e
e;tend of Fustification is w(et(er t(e used more force t(an (e on reasona$le +rounds $elieved
necessary 4su$Fective test5.
a.! 6irois &.!
8ere it was s(own t(at did not want to kill (is fat(er $ut under t(e circumstances (e $elieved
t(at if (e did not act as (e did (is fat(er would (ave killed (im. "ne must only use as muc( force
as reasona$ly necessary, (owever if one $elieves (e is in mortal dan+er (e is entitled to use suc(
force as to ut (is assailant out of action .
c.! L aeal allowed. Conviction Huas(ed.
R. v. Bo$ue <19:$=, 30 CCC <2'= 403 <Ont. CA= <at 9:9=
f.! was drinkin+ wit( @. <(ey +ot into an ar+ument and @ (it (er wit( an iron. 6(e +ra$$ed it
from (im and (it (im, cuttin+ (is (ead. 6(e said t(at (e t(en +ra$$ed a knife and t(reatened to
kill (er, $ut (e fell $ack onto t(e $ed and s(e +ra$$ed t(e knife. 6(e t(en said t(at (e wouldn1t
kill (er $ut t(at s(e would kill (im and sta$$ed (im. was convicted of manslau+(ter.
i.! *(at are t(e le+al tests for selfIdefence under s. -0415 and 425K
r.! 8owland &A.!
6. -0415 D deals wit( situation w(ere reels an unrovoked assault, $ut does not intend
to cause deat( or +rievous $odily (arm. <(e force used must $e no more t(an necessary for selfI
reservation.
6. -0425 D deals wit( situation w(ere reels an unrovoked assault, $ut does intend to
cause deat( or +rievous $odily (arm. <(ere is no reHuirement t(at reellin+ force $e
roortionate to t(e unlawful assault. must act under reasona$le are(ension of deat( or
+rievous $odily (arm 4o$Fective test5G must also $elieve on reasona$le and ro$a$le +rounds
t(at (e could not ot(erwise reserve (imself 4modified o$Fective test D i.e. was 1s $elief
comara$le to t(at of a reasona$le erson in 1s situation5.
R. v. %ee$an <19:9=, 49 CCC <2'= 41: <Alta. CA= <at 985=
#9
r.! 8arradence &A.!
A erson need not first try to retreat $efore emloyin+ force to rotect (imself. <(e failure to
retreat is only to $e considered wit( ot(er factors to determine w(et(er went fart(er t(an (e
was Fustified.
R. v. !avallee, >1990? 1 +C4 852 <at 98$=
f.! was $attered woman in CJL relations(i. "ne ni+(t (e $eat (er, +ave (er a loaded +un and
said somet(in+ to t(e effect of /eit(er you s(oot me or 21ll +et you.N 6(e s(ot (im in t(e $ack of
t(e (ead as (e left (er room. su$mitted a syc(olo+ical reort on $attered women1s syndrome
as evidence +oin+ toward selfIdefence.
i.! 2s it in(erently unreasona$le to are(end deat( or +rievous $odily (arm unless and until t(e
(ysical assault is actually in ro+ress Runder s. -0425SK Can t(ere $e an e;cetion for t(e cases
of $attered wivesK
r.! 2t is ossi$le for a $attered woman to reasona$ly $elieve t(at s(e faces deat( or +rievous
$odily (arm rior to t(e actual assault takin+ lace. 2t is ossi$le for a $attered woman to $elieve
on reasona$le and ro$a$le +rounds t(at s(e could not ot(erwise reserve (erself e;cet $y
usin+ let(al force even if an assault (as not yet occurred.
a.! *ilson &.!
<(ere is evidence t(at a $attered woman (as a (ei+(tened sensitivity to t(e violence of
t(eir artner D t(at t(ey can anticiate t(e nature and e;tent 4$ut not t(e onset5 of t(e
violence, and t(at t(ey can determine w(et(er t(e ne;t $out of violence would $e life
t(reatenin+. 2n suc( a conte;t a t(reat from a $atterer may si+nal let(al force in t(e near
future, raisin+ a /reasona$leN are(ension of deat( or +rievous $odily (arm.
=enerally seakin+, women will always $e overowered $y men in (andItoI(and com$atG
t(erefore t(e reHuirement t(at a $attered woman wait until t(e (ysical assault is
underway $efore (er are(ensions of deat( or +rievous $odily (arm can $e validated at
law would $e tantamount to sentencin+ (er to murder $y installment D all t(at is +ained is
t(e risk t(at t(e woman (erself would $e killed.
ReHuirement t(at $elieve on /reasona$le +roundsN t(at it is not ot(erwise ossi$le to
reserve (erself from deat( or +rievous $odily (arm is reFudicial to $attered women D
one cannot simly say t(at t(e women ou+(t to (ave Fust left rat(er t(an kill D t(ere are
stron+ syc(olo+ical reasons t(at $attered women remain 4feelin+ traed and (ellessG
feelin+ needed w(en $atterer aolo+iEes and seeks for+iveness5. Also t(ere is no
reHuirement of retreat, t(erefore t(e fact t(at a woman stays is not relevant to t(e defence.
c.! Aeal allowed. Conviction Huas(ed.
R. v. &etel, >1994? 1 +C4 3 <at 995=
f.! R and 9 were dru+ traffickers. was mot(er of 91s +irlfriend. 9 moved into (ouse and
conducted dru+ traffickin+. tried to +et 9 to leave 49 $eat 1s dau+(ter and t(reatened 5 $ut
failed. 9 came to (ome wit( cocaine and a +un. 8e told (er to (ide weaon and wei+( dru+s,
su++estin+ t(at (e would kill and (er dau+(ter. 6(ortly after dau+(ter arrived wit( R.
'3
consumed small amount of dru+s, +ot +un and s(ot 9. R lun+ed at and s(e s(ot (im. 9
survived $ut R died. admitted t(at s(e s(ot $ot( 9 and R and wanted t(em dead. convicted
of second de+ree murder. CA ordered new trial. Crown aealed.
i.! *(et(er trial Fud+e erred in differentiatin+ t(e t(reats made on t(e evenin+ of incident from
revious t(reats and relatin+ latter only to w(et(er t(ere (ad $een an assault.
r.! Lamer C&C.!
2n cases w(ere s. -0425 selfIdefence is raised, Fury must ask /did t(e reasona$ly $elieve, in t(e
circumstances, t(at s(e was $ein+ unlawfully assaulted.N Are(ended dan+er need not $e
imminentG imminence is only one of t(e factors w(ic( Fury s(ould wei+( in determinin+ w(et(er
(ad reasona$le are(ension of dan+er of deat( and reasona$le $elief t(at s(e could not
e;tricate (erself ot(erwise t(an $y killin+ t(e attacker. <(reats made rior to t(e day of t(e
alle+ed attack can (el t(e Fury decide 415 w(et(er t(reats were made immediately $efore
killed attackerG 425 w(et(er (ad a reasona$le are(ension of risk of deat( or +rievous $odily
(arm and reasona$le $elief in t(e need to use deadly force.
c.! Aeal dismissed. 7ew trial ordered.
R. v. 7alott, >1998? 1 +C4 123 <at 999=
f.! and deceased lived as CJL souses for 23 years. ,eceased a$used (ysically, se;ually,
syc(olo+ically and emotionally. <(ey went to medical center to +et rescrition dru+s for
deceased1s ille+al dru+ trade I s(ot and killed (im. 6(e t(en went to deceased1s +irlfriend1s
(ouse and s(ot and sta$$ed (er. At trial $rou+(t e;ert evidence to s(ow s(e suffered from
$attered woman syndrome to suort selfIdefence. convicted of second de+ree murder and
attemted murder. CA affirmed. aealed.
r.! L18eureu;I,u$e &.!
<o $e consistent wit( +avallee, in a Fury trial of a woman accused of murderin+ (er
a$user, and w(ere t(e reasona$leness of (er $elief is at issue, Fud+e and Fury s(ould $e made to
areciate t(at a $attered woman1s e;eriences are 415 $ot( individualiEed and s(ared wit( ot(er
women in conte;t of a society and le+al system t(at (ave (istorically undervalued women1s
e;eriencesG 425 +enerally outside common understandin+ of avera+e Fud+eJFuror and t(at t(ey
s(ould seek to understand evidence $ein+ resented to overcome myt(s and stereotyes.
+avallee reHuires t(at t(e ersectives of women must now eHually inform t(e
/o$FectiveN standard of t(e reasona$le erson D it does not reHuire t(at t(e su$Fective ercetions
of $attered women $e inte+rated into t(e /o$FectiveN test of selfIdefence under s. -0425. <(e
/reasona$le womanN under s. -0425 s(ould not $e t(e /reasona$le $attered woman.N
R. v. &a,liuk <2001=, 40 C4 <5t!= 28 <@CCA=
f.! and ) 4deceased5 +ot into an ar+ument over a rostitute. ) s(owed t(at (e (ad a +un and
fled. +ot a +un and returned. ) made a movement $e(ind (is $ack. took out (is +un $ecause
(e t(ou+(t ) was +oin+ for (is +un. said t(e +un went off and ) was killed. said (e did not
intend to s(oot ). was convicted of second de+ree murder. aealed.
'1
i.! ,id t(e trial Fud+e err in failin+ to leave s. -0415 self defence wit( FuryK
r.! %ot( ss. -0415 and 425 may aly w(ere , in reellin+ an attack, did not intend to cause deat(
or +rievous $odily (arm. *(at differentiates t(e sections is w(et(er t(e reasona$ly
are(ended t(at t(e attack was likely to cause (is own deat( or +rievous $odily (arm. 2f t(e
reasona$ly are(ended (is own deat( or +rievous $odily (arm t(en (e is entitled to t(e more
favoura$le rovisions of s. -0425. 2f t(e does not reasona$ly $elieve t(at (e is under t(reat of
deat( or +rievous $odily (arm (e may rely on s. -0415, $ut only if (e did not intend to cause
deat( or +rievous $odily (arm.
a.! Ryan &A.!
2n t(e case at $ar t(e testified t(at (e feared t(e deceased was +oin+ to kill (im and t(at (e
resonded $y ullin+ out t(e +un. 8is defence fell wit(in s. -0425 and not s. -0415.
c.! Aeal dismissed.
$.9. Pro/ocation
2-2. rovocation is artial defence to murder c(ar+e t(at reduces conviction to manslau+(ter.
R. v. Cameron <1992=, 12 C4 <4t!= 39$ <Ont. CA= <at 102:=
f.! L convicted of second de+ree murder. L ar+ued t(at t(ere can $e no distinction $etween a
statutory rovision t(at imoses o$Fective lia$ility for murder and a statutory rovision w(ic(
limits t(e availa$ility of a defence to murder 4rovocation5 to an o$Fective criterion.
i.! ,oes defence of rovocation under s. 2-2 of CC contravene ss. ' and 114d5 of t(e C(arter in
t(at it is remised in art on an o$Fective standardK
a.! ,o(erty &A.!
,efence of rovocation does not detract from mens rea reHuired to esta$lis( murder, $ut rat(er
offers an e;cuse t(at esta$lis(es murder as manslau+(ter. <(e Fury must first find +uilty of
intentional murder D t(en consider rovocation to reduce lia$ility even w(en fault e;ists. Crown
carries onus of ne+atin+ rovocation %AR,. 6. 2-2 is consistent wit( C(arter.
c.! Aeal dismissed.
R. v. +ill, >198$? 1 +C4 313 <at 1010=
f.! Crown ar+ued t(at L 4a+e 1#5 was +ay lover of ) 4deceased5 and t(at L sta$$ed ) to deat(. L
conceded t(at (e sta$$ed ), $ut ar+ued t(at it was in to une;ected and unwanted (omose;ual
advance, an assault and t(reats of deat(. L c(ar+ed wit( first de+ree murder $ut convicted of
second de+ree murder. CA set aside conviction and ordered new trial. Crown aealed.
i.! *(et(er trial Fud+e erred in law in failin+ to instruct Fury t(at if t(ey found a wron+ful act or
insult t(ey s(ould consider w(et(er it was sufficient to derive an ordinary erson /of t(e a+e
and se; of t(e N of (is ower of selfIcontrol 4+oin+ to defence of rovocation5.
'2
r.! ,ickson C&C.!
*it( re+ards to s. 2-2 rovocation, t(ree Huestions must $e answered!
415 *ould and ordinary erson $e derived of selfIcontrol $y t(e act or insultK 4o$Fective
test5. "rdinary erson (as a normal temerament and level of selfIcontrol 4does not
include e;cita$le, a++ressive or drunk erson5. 2t also take account of 1s a+e, se; or race
4immuta$le c(aracteristics5 w(ere t(is is relevant to t(e nature of t(e alle+ed rovocation.
425 ,id in fact act wit(out selfIcontrol in resonse to t(e /rovocativeN actsK 4su$Fective D
determined $y trier of fact5. @ay consider L mental state and syc(olo+ical temerament.
4-5 *as 1s resonse sudden and $efore t(ere was time for (is assion to coolK 4su$Fective D
determined $y trier of fact5
c.! L aeal allowed. Conviction restored.
R. v. 1"ibert, >199$? 1 +C4 3: <at 1022=
f.! L was tryin+ to ersuade (is wife to +o somew(ere to talk w(en victim 4wife1s lover5 came
out of $uildin+ and $e+an to lead (er away. L +ot rifle from car and victim aroac(ed L. L told
victim to stay $ack $ut (e i+nored (im. L testified t(at (e closed (is eyes and tried to retreat
inwards and +un disc(ar+ed. L convicted of second de+ree murder. CA u(eld conviction.
i.! ,id CA err in concludin+ t(at t(ere was insufficient evidence uon w(ic( a reasona$le Fury
actin+ Fudicially and roerly instructed could find t(at t(ere (ad $een rovocationK
r.! A trial Fud+e must, w(en leavin+ defence of rovocation wit( t(e Fury, instruct t(e Fury
t(at t(e L (as no onus to esta$lis( rovocation $ut rat(er t(e onus rests uon t(e Crown to
disrove it %AR,.
<(e wron+ful act or insult must $e one w(ic( could, in li+(t of t(e ast (istory of t(e
relations(i $etween t(e L and deceased, derive an ordinary erson, of t(e same a+e and
+ender, and s(arin+ wit( t(e L suc( ot(er factors as would +ive t(e act or insult in Huestion a
secial si+nificance, of t(e ower of selfIcontrol. 46i+nificantly $roadens /o$Fective testN5.
a.! Cory &. 4-I2 slit5!
2n t(is case, under t(e circumstance, an ordinary erson w(o was a married man, faced wit(
$reakIu of (is marria+e, would (ave $een rovoked $y t(e actions of t(e deceased. <(erefore
t(ere was evidence to satisfy o$Fective element of defence of rovocation. <(ere was sufficient
evidence t(at L was actually rovoked $y deceased actions and words. <(erefore rovocation
was roerly ut to t(e Fury.
,idn1t do somet(in+ 4$rin+ out rifle5 to incite deceased to aroac( , contrary to s. 2-24-5K
R/or $y doin+ anyt(in+ t(at t(e accused incited (im to do in order to rovide t(e accused wit( an
e;cuse for causin+ deat( or $odily (arm to any (uman $ein+.NS
R. v. *ealy <198$=, 54 C4 <3'= 158 <Ont. CA= <at 1028=
f.! L and +irlfriend met deceased and (is friends at a $ar. <(ey were drinkin+. ,eceased danced
wit( L1s +irlfriend and told L t(at (is +irlfriend /(ad nice tits and t(at (e was +oin+ to fuck (er.N
L and deceased $e+an fi+(tin+. L testified t(at (e ulled out knife to scare deceased, $ut ended
'-
u sta$$in+ and killin+ (im. L fled. 8e testified t(at (e did not intend to kill deceased and was
sorry for w(at (e did. L c(ar+ed wit( first de+ree murder.
i.! Can a Fury consider failed defences of rovocation, selfIdefence and into;ication, alon+ wit(
ot(er circumstances, w(en determinin+ w(et(er (ad reHuisite intent for murder 4even t(ou+(
rovocation does not +o toward intent under s. 2-25K
r.! Cory &A.!
,efences t(at don1t ot(erwise succeed wit( t(e Fury 4e.+. rovocation, selfIdefence, into;ication5
can $e used $y t(e Fury, in com$ination, to determine w(et(er intent for murder (as $een met. A
court (as a duty to instruct Fury to consider all of t(ese factors w(en deli$eratin+ on w(et(er t(e
reHuisite intent for murder is resent.
:. Parties to a Crime
21415. @akes eHually cula$le t(e erson w(o actually commits t(e offence and any erson w(o
aids or a$ets 4encoura+es5 in committin+ t(e offence.
21425. @akes eHually cula$le t(e erson w(o actually commits t(e offence and any erson w(o
forms an intention in common to carry out an unlawful urose and knows or ou+(t to (ave
known t(an carryin+ out t(e unlawful urose would lead to t(e commission of t(e offence.
%unlo9 and )ylvester v. R., >19:9? 2 +C4 881 <at 104:=
f.! Comlainant %R was 1# years old. 6(e and A@ went to $ar to drink. <(ey were Foined $y two
$iker +an+ mem$ers 8, ,o and L,. <(ey left to +o to a secluded site wit( 8 and ,o. 0 men from
+an+ arrived, +ra$$ed %R, t(rew (er to t(e +round, tore off (er clot(es and (eld (er down 4s(e
was also t(reatened wit( a knife5. %R testified t(at 18 men (ad se; wit( (er, includin+ t(e Ls. ,
and 6 testified t(at t(ey $rou+(t $eer to t(e site, saw a woman (avin+ se; wit( a +an+ mem$er
and t(en left. 2n addition to c(ar+in+ Fury to determine w(et(er , and 6 (ad se; wit( %R %AR,,
Fud+e also c(ar+ed Fury on s. 21415 and 425 4aidin+ and a$ettin+, and formin+ common intention
to carry out unlawful urose5. aealed conviction of rae on +round t(at t(ere was
insufficient evidence for t(e Fud+e to c(ar+e t(e Fury on s. 21415 and 425.
i.! *as t(ere sufficient evidence to c(ar+e t(e Fury on s. 21415 and 425 4aidin+ and a$ettin+, and
formin+ common intention to carry out unlawful urose5K
r.! Bnder s. 21415 4aidin+ and a$ettin+5, mere resence at scene of crime is not sufficient to
+round cula$ility. )resence can $e evidence of aidin+ and a$ettin+ if accomanied $y /ot(er
factorsN 4a5 rior knowled+e of t(e rincial offender1s intention to commit t(e offence or 4$5
attendance for t(e urose of wilfully facilitatin+ or encoura+in+ t(e offence. 2f /ot(er factorsN
are not resent, a erson is not +uilty for $ein+ resent at t(e scene of a crime and doin+ not(in+
to revent it Rno omission lia$ility under s. 21415S.
a.! ,ickson &.!
<(ere was no evidence t(at Ls formed common intention wit( raists, or aided or a$etted in rae.
'0
,ue to t(e Fud+e1s error in c(ar+in+ t(e Fury, we do not know w(et(er t(e Fury convicted Ls
$ecause t(ey (ad se; wit( %R, or $y reason of ss. 21415 and 425.
c.! Aeal allowed. AcHuittals entered.
R. v. !o$an, >1990? 2 +C4 :31 <at 10$8=
f.! $oasted of $ein+ involved in lannin+ ro$$eries $ut did not articiate. ,urin+ one ro$$ery
a erson was s(ot and severely inFured. <rial Fud+e instructed Fury t(at t(ere could $e a
conviction under s. 21425 if Crown esta$lis(ed %AR, t(at knew or ou+(t to (ave known t(at
someone would ro$a$ly s(oot wit( intention of killin+. convicted of attemted murder. CA
allowed aeal and su$stituted conviction for ro$$ery. Crown aealed.
i.! Can w(o (els lan a ro$$ery 4$ut does not articiate5 w(ere someone is s(ot $e convicted
wit( attemted murder under s. 21425 4formin+ common intention to carry out unlawful urose5
if Crown roves %AR, t(at knew or ou+(t to (ave known t(at someone would ro$a$ly s(oot
to kill durin+ t(e ro$$eryK
r.! Lamer C&C.!
<o determine w(et(er a arty to an offence (ad t(e reHuisite mens rea to $e convicted
under s. 21425 one must follow twoIste test! 415 is t(ere a minimum mens rea reHuired as a
rincile of fundamental Fustice $efore one can $e convicted as a rincial for t(e offenceK 425 2f
t(ere is a reHuired minimum mens rea, t(en t(at minimum mens rea is constitutionally reHuired
to convict a arty to t(at offence.
"ffence of attemted murder reHuires a constitutional minimum mens rea 4su$Fective
intent to kill5. <(erefore to $e convicted as a arty to attemted murder under s. 21425 t(e arty
reHuires a constitutional minimum of mens rea 4su$Fective intent to kill5. Relyin+ on o$Fective
intent to kill under s. 21425 4/or ou+(t to (ave knownN5 unFustifia$ly violates s. '.
c.! Aeal dismissed. 6. 21425 s(ould not include /or ou+(t to (ave knownN w(en one is c(ar+ed
as a arty to attemted murder.
'5

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Criminal 2003-2004 Outline: Professor Trotter

CRIMINAL 2003-2004 OUTLINE: PROFESSOR TROTTER...........................................1

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