Start with the Codethen move to the case law to interpret itdo Actthen Faultthen any defences

ISSUE Constitutionality of the Provision

If a measure violates the Charter, it is of no force and effect
N.B.: If two possible interpretations of the law, and one violates the Charter and the other does not, the
interpretation which is consistent with the Charter is to be preferred (ex. Spanking Case the dissent also
tried this in Heywood!
s. " of Charter # the right to life, libert$ and securit$ of the person and the right not to be deprived thereof
except in accordance with the principles of fundamental %ustice
&verbreadth' if a law is overbroad, it violates principles of fundamental %ustice
R. v. Heywood' (ot a provision restricting libert$ of sex offenders struck down as it was too broad
geographicall$ (covered an$ park!, application (covered too man$ offences! and duration (no appeal
process # applied to ever$one for life!.
)rbitrariness' if a law is arbitrar$, it violates principles of fundamental %ustice (and also can*t be saved
under s. +!
) law is arbitrar$ if it imposes a limit that bears no relation to or is inconsistent with ob%ective that lies
behind the legislation. ) ,&- of deference is given to legislature here. )rbitrariness claims failed in
Malmo-Levine (mari%uana! and Rodgriguez (assisted suicide!.
.agueness' if a law is too vague, it violates principles of fundamental %ustice (and also can*t be saved
under s. +!
) law is too vague if it provides an insufficient basis for legal debate # this is a high standard and it is
almost never met.
Spanking Case' /c,achlin C.0.C. interprets what ob%ectivel$ appear prett$ vague words to save the
legislation ()rbour 0. dissents1thinks Chief 0ustice is going wa$ too far.!
2arm 3rinciple
4otion that Criminal ,aw should onl$ concern itself with acts whereb$ people harm others.
R. v. Malmo-Levine (mari%uana case!' States harm principle not a principle of fundamental %ustice
R. v. Khouri R. v. Labaye (common bod$ houses case!' SCC does recogni5e harm has a role in criminal
law and thus articulates test for what is criminal indecenc$'
+! 4ature of the 2arm
i! 6oes it take place in public1interfere with libert$ of others7
ii! 6oes it predispose others to anti8social behavior7
iii! 6oes it ph$sical or ps$chologicall$ harm those involved7
9! 6egree of 2arm' harm or risk of harm must be of a degree that is incompatible with the functioning
of societ$
.icarious ,iabilit$
Idea of punishing someone for someone else*s wrongdoing. -his is bigger in torts than in criminal where
it is problematic to punish someone for another*s wrongdoing.
R. v. Burt' )ccused convicted of driving offence even though it wasn*t clear he was the driver # he gets
this struck down.
1
Start with the Codethen move to the case law to interpret itdo Actthen Faultthen any defences
s. ++(d! of Charter # -he :ight to ;e 3resumed Innocent
Steve Coughlan*s 6oubt /ountain shows burden of Crown to push all boxes to the top :everse &nus
pushes some boxes right to the top and )ccused has to push them back down # sometimes to ;&3 and
other ;):6
R. v. Oakes' :everse &nus for intent to traffick deemed unconstitutional
3resumption of Innocence' -his is fundamental and assumed
R. v. olmington' 0udge mischarged %ur$ b$ stating that )ccused must prove something was an accident
(Crown must disprove this!
&nus of Crown to prove guilt ;e$ond a :easonable 6oubt'
R. v. .!".#' In a sexual assault case, %udge mischarges %ur$ b$ sa$ing principal issue is whether the$
believe complainant or )ccused. SCC unanimousl$ agrees this was a mistake # %ur$ must believe
complainant be$ond a reasonable doubt. -hat said, Cor$ 0., for /a%orit$, upholds conviction, thinking
that, on the facts, %ur$ wasn*t actuall$ pre%udiced. Sopinka 0. dissents sa$ing this was the most
important rule in the game and it got infringed.
R. v. Li$%hus' SCC sa$s be$ond a reasonable doubt have a special legal meaning and it is mistake for
%udge to charge %ur$ to treat them ordinaril$.
R. v. &tarr' Iacobucci 0. sa$s be$ond a reasonable doubt is must closer to absolute certaint$ than
balance of probabilities
R. "owney' Important things to take out of this ()ccused charged with living off avails of prostitution!'
i! s. ++(d! infringed whenever possibilit$ )ccused might be convicted despite existence of reasonable
doubt
ii! Statutor$ provisions offend s. ++(d! if )ccused re<uired to disprove an element of offence or provide
an excuse
iii! .iolations of s. ++(d! can still be saved under s. +
3hilosophical Charter 6iscussions
=h$ increasing %ail time for offences doesn*t deter people from committing the offence'
+! Criminal would have to know the sentence has changed to what it now is
9! Criminal would have to believe the$ are going to be caught
>! Some people don*t reall$ care if the go to %ail or not
?! 3eople aren*t out there thinking it*s worth risking this crime for two $ears but not three
3urposes of punishing offenders according to Criminal Code'
+! 6enunciation
9! 6eterrence (to the offender and the communit$!
>! -o separate offenders from societ$ when necessar$
?! :ehabilitation
@! 3rovide reparations to victim or communit$
A! 3rovide sense of responsibilit$ and harm to victim1communit$
6ivision of 3owers
If a measure is ultra vires to legislature that passed it is of no force and effect. 3rovinces cannot define
crimes but onl$ offences
'irearms Re$eren%e' states gun registr$ this was valid under public safet$ under s. B+, did not offend
province*s propert$ and civil rights power
.alid Criminal law will need'
+! .alid Criminal ,aw 3urpose
9! 3rohibition
>! 3enalt$
2
Start with the Codethen move to the case law to interpret itdo Actthen Faultthen any defences
ISSUE Actus Reus
)ll criminal offences re<uire an act. Crown must prove that all elements in Code were committed.
(eale v. )oble' 2olmolka tries to get restrictions on her libert$ struck down citing she committed no act.
-his fails the$ were preventative measures # not punishment for a crime.
R. v. (horne' )ccused disobe$ed the riot act. SCC sa$s %ur$ needs to be told that whole act was
committed, including words for life in the riot act.
R. v. Lohnes' )ccused swears at neighbour from porchCSCC has to decide what a disturbance is for
causing a disturbance in a public place. )ccused ac<uitted.
3ossession &ffences # s. ? of the Code See also' 3ractice Dxam (I did this ver$ well!
)C- of possession will alwa$s re<uire some element of control over the thing, as well as consent to having
it (ties in with voluntariness! and knowledge of what it is (see fault!.
-hree t$pes of possession in Code (control also re<uired, despite not being explicitl$ stated!'
+! 3ersonal 3ossession
9! Constructive1)ttributive 3ossession' knowingl$ has it in the actual possession or custod$ of another
person &: has it in an$ place, whether or not that place belongs to him
>! 0oint 3ossession' situation where one or more than one person of a group possesses a thing, all
are held to possess it as long as that possession is with knowledge and consent of the rest
R. v. Marshall' )ccused charged with %oint possession of mari%uana in a car trip from .ancouver to )lberta.
SCC sa$s he did not consent to mari%uana being in car and thus not guilt$.
R. v. (erren%e' )ccused charged with %oint possession of a stolen car in which he was %o$riding. SCC
decides he needed to have control over it to be guilt$. ,eading SCC case # control necessary for all
possession offences.
R. v. *ham' )ccused is a cocaine dealer. &.C.). sa$s, given the circumstances, she can be guilt$ of
constructive possession of cocaine and have control over it, even if she wasn*t at her apartment when it
was brought in.
Consent
Certain crimes are onl$ crimes if the$ are without consent (ex. all assault provisions!. 6efence of consent
not a true defence (like self8defence! but lack of consent is an element of offence Crown must prove.
R. v. +obidon' )ccused beat up victim in consensual parking lot brawl # victim died. Charged with unlawful
act manslaughter but there can be no assault, and thus no unlawful act, if consent.
(onthier 0. sa$s consent can be vitiated on polic$ grounds' Consent is vitiated between adults
intentionally applyin force causin serious hurt or non!trivial bodily har" to each other in the
course of a fist fiht or brawl.# )ccused convicted.
2e cites that common law restrictions still stand, case law upholds common law limits and there are polic$
reasons and a lack of social utilit$ to have adults consensuall$ beat each other up. )lso does not go further
than he has to saving things such as surger$, stunts, sports and school$ard scraps.
Consent being vitiated # s. 9A@ of the Code sa$s consent is vitiated is obtained b$ force (a!, threat of
force (b!, fraud (c! or exercise of authorit$ (d!
R. v. Buldo% and Bird' )ccused doctors introducing his friend as a doctor to proceed with examination of
female patient. Eriend is not, actuall$, a doctor. -he$ are found not guilt$ of indecent assault # fraud did
not go to nature and <ualit$ of the act.
R. v. Currier' )ccused did not disclose to woman he had 2I. the$ had sex and she was infected. -he
words nature and <ualit$ of the act no longer appear in statute with respect to fraud so <uestion is what
to do. Court unanimousl$ finds fraud and convicts but splits on the reasons.
3
Start with the Codethen move to the case law to interpret itdo Actthen Faultthen any defences
Cor$ 0. sa$s nature and <ualit$ of the act still in s. 9A@(>!, if not explicitl$, along with identit$ fraud and
risk of harm (b$ which he convicts!. C&:F IS -2D /)0&:I-F.
,*2ereux86ubG 0. sa$s an$ kind of fraud could suffice to vitiate consent.
/c,achlin 0. sa$s nature and <ualit$ still the test but sa$s, in this da$ in age, 2I. falls in that.
Simultaneit$
,%tus reus and mens rea must overlap at some point in time.
R. v. illiams' )ccused infected girlfriend with 2I. at some point in +H8month relationship. 2e is ac<uitted
of aggravated assault as there is a reasonable doubt he onl$ found out he had 2I. after he had infected
her. (;innie 0. sa$s he could have been convicted of other offences, however, as consent still vitiated.!
&missions
&missions can onl$ give rise to criminal liabilit$ if )ccused failed to act when he had a legal dut$ to do so.
'agan v. Commissioner o$ Metro-olitan *oli%e' 6ufraimont*s favourite case # Euck $ou, $ou can wait.
Court doesn*t find legal dut$ to act rather finds a single act1calls car extension of his bod$.
Statutor$ duties to )ct
s. 9+@' /ust provide necessities of life to those under one*s care
s. 9+A' /edical professionals must take care in surger$
s. 9+"' /ust follow through with one*s undertakings when to do otherwise would be dangerous to life.
R. v. Browne' 6rug dealer sa$s he*ll take his partner to the hospital. 2e calls a cab instead of calling an
ambulance and charged with criminal negligence causing death after she dies. )bella 0.). sa$s to have
a conviction under s. 9+", undertaking must be made with binding commitment and reliance doesn*t
have to be there but usuall$ is (isn*t here # victim didn*t forgo an$thing!. )bella 0.). sa$s he did not
make such an undertaking (and even if he did, he followed through, if not in best wa$ possible # obiter.!
R. v. *eterson' )ccused is convicted on not providing necessities of life for his father, contrar$ to s. 9+@.
6eemed that dependenc$ of father, and control of son, gave rise to being under his care.
Common ,aw duties to act
R. v. Miller' )ccused accidentall$ starts a fire. Court decides he had a common law to do something to
put it out, such as at least calling firefighters # instead, he went to the next room and went to sleepIIII
R. v. Moore' )ccused ran a red light on a bike. 2e refused to stop and give name to police officer.
Charged with &bstruction of a 3olice &fficer.
Spence 0., writing for ma%orit$, sa$s he had a dut$ to stop and give his name # police officer*s dut$ to ask
for the name gives rise to )ccused*s dut$ to give it. Convicted.
6ickson 0. dissents # sa$s no dut$ to incriminate oneself unless in common law or statute, and that*s not
the case here.
R. v. Hayes' )ccused refused to remove helmet for police officer to allow him to check it for safet$
standards. /c/urtr$ C.0.&. ac<uits # he finds police didn*t do their dut$ to re<uire )ccused to give
helmet (he*s also clearl$ s$mpathetic to the 6ickson dissent in Moore.!
R. v. (hornton' )ccused gave 2I. positive blood # it happens to be caught but he*s still charged with
common nuisance. Juestion is whether he had a dut$ to disclose this status.
&.C.). sa$s FDS and convicts him using the neighbour principle from "onoghue v. &tevenson
(somewhat problematic to take tort concepts and toss them into criminal law.!
SCC doesn*t sa$ whether this can stand but rather finds a dut$ under s. 9+A.
.oluntariness
In the e$es of the criminal law, an involuntar$ act does not even constitute an act # ex. epileptic sei5ure,
reflex response, etc. KN.B.: )utomatism is a form of involuntariness but it dealt with differentl$.L
4
Start with the Codethen move to the case law to interpret itdo Actthen Faultthen any defences
R. v. Lu%ki' )ccused found not guilt$ after causing freak car accident. 6riving carefull$ but happen to skid #
deemed to be involuntar$.
R. v. ol$e' )ccused calling the police to kick victim out of hotel. .ictim taps him on the shoulder and
)ccused hits him with the phone. )ccused claims this is a reflex reaction and Court of )ppeal accepts this.
R. v. &waby' )ccused charged with constructive possession of a weapon in a car. Court decides that, if he
found out about gun*s presence while in the car, he*d have to have reasonable time to get out before he
could be considered to voluntaril$ have possession over it.
R. v. Ryan' )ccused (foolish $oung man! tries to rob store, thinking he*ll give mone$ to the poor. 2e gets
scared and claims he pulls the trigger in reflex, killing the attendant. Court re%ects his involuntariness
claim # sa$s it was all part of one voluntar$ act.
Kilbride v. Lake' )ccused charged with regulator$ offence of not displa$ing certificate of fitness for a car.
-he certificate flew off while the car was parked. 6eemed he could not be found guilt$ as it not being
displa$ed was not voluntar$.
)cting -hrough Innocent )gent
R. v. Mi%hael' )ccused gives poison to the woman looking after her son, claiming it is medicine. =oman*s
daughter gives it to bab$ and he dies. )ccused is convicted.
Causation
Certain crimes need to cause a certain result in order to be completed (manslaughter and criminal
negligence causing death most obvious examples.! =ord causing usuall$ is right in the Code provision.
Causation in Eact
If but8for the action of the )ccused, the result would have occurred, we have causation8in8fact.
Causation in ,aw
=e need a close enough legal relationship in order to impose criminal liabilit$.
&mithers v. R.' )ccused kicks victim in the stomach. 2is epiglottis malfunctions and he chokes to death
on his own vomit. -he odds of this happening in a $oung, sober, health$ man are infinitesimal. ;ut
)ccused still convicted of manslaughter # causation found for "anslauhter if unlawful act is a
contributin cause outside the de minimis rane# (de minimis rangeMtrifling!
-hin Skull :ule
Fou must take $our victim as $ou find them (malfunctioning epiglottis example of this!
R. v. Blaue' 0ehovah*s =itness refuses a blood transfusion (which would have saved her! and dies of
)ccused*s stabbing. )ccused still guilt$ of murder # ex. of thin skull rule.
R. v. Harbottle' Sa$s that to be convicted of first8degree murder under s. 9>+(@!, second illegal act must
be substantial and integral cause of death. -his different causation test applies onl$ to this section.
R. v. )ette' Sa$s outside the de minimis range not a useful term to explain to the %ur$ so replaces it with
significant contributing cause test. )rbour 0. sa$ the$ mean the same thing. (,*2ereux86ubG 0. doesn*t
bu$ this and neither do I but it*s the law.!
Intervening Causes
Statutes sa$, to a certain extent, what does not break the chain of causation'
s. 99@ # bad medical treatment
s. 99A # acceleration from other causes
s. 999(@!(c! # threat of violence to another to cause own death
It*s not exactl$ clear what does break the chain.
5
Start with the Codethen move to the case law to interpret itdo Actthen Faultthen any defences
R. v. &mith (main case in common law world # from ;ritain!' .ictim stabbed b$ )ccused with ba$onet.
2e was dropped twice on his wa$ to the hospital and received bad medical treatment which made
matters worse. 2e died. )ccused still convicted.
If, at the time of death, the original wound is still an operating cause and a substantial cause, then death
can properl$ be said to be the result of the wound, albeit that some other cause of death is also
operating onl$ if it can be said that the original wounding is merel$ the setting in which another cause
operates can it be said that the death does not result from the wound.
R. v. +ordan' ;ritish case where chain of causation NwasN broken but original wound had almost healed
and he died from an allergic reaction to another substance while in the hospital.
R. v. Binga-ore' )ustralian case where victim behaves idioticall$ after being assaulted, he leaves the
hospital despite being told it might cause death. 2e does, in fact, die. Chain of causation 4&- broken.
R. v. Menezes' ,eading case on street racing. .ictim and )ccused street racing together. .ictim dies.
6eemed that )ccused could have been responsible but chain of causation broken as a reasonable
doubt )ccused withdrew from the race before victim crashed.
ISSUE Mens Rea
-here can be no guilt$ act without a guilt$ mind. -he Crown must alwa$s prove the fault element for the
offence be$ond a reasonable doubt, in addition to proving the act element be$ond a reasonable doubt.
-here are distinctions to be drawn between'
8 Sub%ective mens rea )ccused intends to commit their actions and intends their natural conse<uences
8 &b%ective fault ) "ar$ed departure from the standard of a reasonable person
8 Strict ,iabilit$ ) special standard for regulator$ offences where )ccused assumed to have
intended conse<uences of their actions but can raise a defence of due diligence
8 )bsolute ,iabilit$ 4o fault re<uired
,evel of fault re<uires depends upon the offence. -rue criminal offences can onl$ fall in first two categories
R. v. Mulligan and R. v. Ortt sa$ that mens rea is a sub%ective test that the )ccused intends the natural
conse<uences of his or her actions to happen we can normall$ assume )ccused intends natural
conse<uences. In our law a person is presumed to have intended the natural conse<uences of his act
(Ortt!. -his is not about the particular values of the )ccused and them personall$ believing their action was
wrong.
Eault for :egulator$ &ffences
Beaver v. R.' )ccused caught possessing heroin. Sa$s he thought it was sugar of milk. SCC sa$s )ccused
must sub%ectivel$ know he was possessing heroin to be guilt$ %udge removed this defence so new trial
ordered. %ll dru offences re&uire sub'ective mens rea
R. v. City o$ &ault &te. Marie' -he cit$ is allegedl$ polluting the river. SCC states (eulatory offences are
default strict liability offences unless the leislature indicates otherwise.
R. v. holesale (ravel' Court decides that misleading advertising is a strict liabilit$, public welfare offence.
Cor$ 0. explains some differences between true crimes and regulator$ offences'
+! Crimes abhorrent in themselves while regulating offences not inherentl$ wrong but would cause
problems if left unregulated
9! Crimes concerned with moral fault whereas regulator$ more concerned about protecting public interest
>! Crimes punish past acts whereas regulator$ offences are to prevent future harm
?! Crimes more morall$ culpable than regulator$ offences
R. v. Cha-in' )ccused offended the duck hunting provisions but she was ac<uitted because the standard of
due diligence was set ver$ low
6
Start with the Codethen move to the case law to interpret itdo Actthen Faultthen any defences
BC Motor .ehi%les ,%t Re$eren%e' -he provision was struck down because it made imprisonment a
punishment for an absolute liabilit$ offence. )avin i"prison"ent as a punish"ent for an absolute
liability offences offends s. * of the Charter
R. v. Can%oil (hemal Cor-.' -he compan$ takes a hand guard off a machine and the victim cuts off part of
his fingers. -he compan$ tries to get the provision struck down because imprisonment was possible and it
appeared to be an absolute liabilit$ offence but court interprets it as strict liabilit$ offence
R. v. holesale (ravel (again!' Court narrowl$ upholds that strict liabilit$ for regulator$ offences can be
saved under s. + despite violating s. ++(d!. 6issent, led b$ ,amer, wanted to have the )ccused %ust have to
raise a reasonable doubt that the$ acted dul$ diligent.
R. v. (rans-ort Robert, R. v. illiam Cameron (ru%king' &ntario gov*t imposes absolute liabilit$ for fl$ing
truck wheels. 4o imprisonment but +E(, high fines. -his is held to violate neither s. " nor s. ++(d!
L/vis v. (/treault' )ccused didn*t get his licence sent to him and didn*t follow up, letting his old one expire.
-his is not due diligence according to SCC. Court confirms due diligence is the standard for regulator$
offences what due diligence is will var$ b$ offence.
R. v. Beau%ham-' )ccused charged with careless driving despite checking his mirrors regularl$ while
backing up into a street filled with parked cars, a car hits him. &.C.). ac<uits him # sa$s standard is one of
reasonableness1not perfection.
Sub%ective Eault for Crimes
:easons there ma$ be a sub%ective fault re<uirement'
+! Charter re<uires it (there is a small list of offences in this categor$!
9! Code explicitl$ states it (words like willfull$ or with intent!
>! Common law assumes it in absence of express wording to the contrar$
/urder # s. 99B(a! of the Code
Culpable 2omicide is murder if the )ccused'
i! Intends to cause the death of another human being &:
ii! Intends to inflict grievous bodil$ harm that he knows is likel$ to result in death and is reckless whether
death ensues or not
N.B.: Intent does not mean desire
&im-son v. R.' -est for murder is not an ought to have known test but what the )ccused 6I6 know
R v 0delenbos1 -rial %udge gives length$ explanation of the word likel$ for s. 99B(a!(ii! # deemed this
was an error of law # %ur$ should treat these words normall$ (unlike reasonable doubt!
R. v. .illan%ourt' ,amer 0. strikes down s. 99B(c! of the Code (constructive murder provision! as violating
s. " of the Charter. It could result in conviction for murder when death is not ob%ectivel$ foreseeable,
much less sub%ectivel$. 2eld that s. " re<uires ob%ective foreseeabilit$ of death for a murder conviction.
/cInt$re 0. dissents # think this is a semantics debate as it never comes up when the )ccused is
innocent.
R. v. Martineau' ,amer, now C.0.C., strikes down all constructive murder provisions as violating s. " of
the Charter # I conclude that it is a principle of fundamental %ustice that a conviction for murder cannot
rest on an$thing less than proof be$ond a reasonable doubt of sub%ective foresight of death.
Says principle of funda"ental 'ustice that there is a proportionality between act and fault.
,*2ereux86ubG 0. dissents # thinks parliament should be given deference here. (I agree with her.!
6ifference between first degree murder and second degree murder # s. 9>+ of the Code
R. v. &mith' Charged with first degree murder under s. 9>+(9! # the planned and deliberate provision.
Juestionable result ()ccused was staring at victim for minutes before deciding to kill him but he onl$ got
second8degree! but excellent statement of the law'
7
Start with the Codethen move to the case law to interpret itdo Actthen Faultthen any defences
3lannedM)rranged beforehand (others sa$ result of scheme or design previousl$ formulated or
designed b$ the )ccused
6eliberateMconsidered and not impulsive
R. v. )ygaard and &%himmens' )ccused beat victim over head with a baseball bat. Juestion is whether
the$ can return a verdict for first8degree b$ combining s. 99B(a!(ii! and s. 9>+(9! # answer is FDS.
R. v. Collins' )ccused charged with first degree murder of police officer under s. 9>+(?! # court decides
knowledge of being a police officer is necessar$ for conviction.
R. v. *ar/' )ccused charged with first degree murder while committing one of serious offences under s.
9>+(@!. -he court sa$s while committing means part of a single transaction.
R. v. ,rkell' )ccused commits murder during sexual assault and tries to get s. 9>+(@! struck down #
sa$ing the offences listed in it are arbitrar$. SCC does not accept this argument # sa$s the$ are all
serious offences and parliament entitled to deference.
Crimes for =hich Sub%ective Eault is a Constitutional :e<uirement
/urder, )ttempted /urder, =ar Crimes, Crimes )gainst 2umanit$, )ccessor$ ,iabilit$ to offences
re<uiring sub%ective fault.
Obiter in .illan%ourt and Martineau also suggest that theft falls in here.
/otive
/otive is usuall$ not part of an offence. /otive and intent are distinct in the criminal law # ex. /anson*s
spider h$pothetical. 4onetheless, motive ma$ be considered as evidence.
Lewis v. R,' 4o need to instruct %ur$ on motive if it is not clearl$ part of case of either Crown or defence
cases
R. v. Mathe' /an, probabl$ drunk, starts to rob a bank, stops halfwa$ through and claims it*s a %oke.
Charged with attempted robber$. % 'o$e offence is not an offence (see case of R. v. Kerr where ver$
drunk man steals a large ashtra$ and puts in on his front lawn.!
N.B.: 6ufraimont thinks that motive and intent seem to be messed up in these %oke cases.
3urpose
R. v. Hibbert (see duress for facts!' SCC sa$s that purpose, in the Criminal law, is e<uivalent to intent
intent # not desire. If it was e<uivalent to desire, absurd results would arise like /anson*s spider
h$pothetical.
R. v. Kerr' )ccused is an inmate who is threatened b$ the victim, another inmate, so he carries around a
shank and the next da$, when the victim tries to get him, he stabs him to death with the shank. 2e
gets off on the murder charge under self8defence but he*s also charged with possessing a weapon for
purpose contrar$ to the public peace. SCC has to decide how to find purpose contrar$ to the public
peace. Court splits on how to do this (concurs A8+ for ac<uittal, though!'
;astarache 0. (with /a%or 0.! Sa$s we ask' Eirst, what is accused*s sub%ective purpose7 Second, is it
ob%ectivel$ contrar$ to the public peace7 Einds this )ccused intended to
carr$ around for protection in a wa$ that was ob%ectivel$ not contrar$ to
public peace. -b'ective!sub'ective
,e;el 0. (with )rbour 0.! Sa$s this should be sub'ective # and finds this does violate public peace.
;O- he finds a valid defence of necessit$.
Eish 0. (with 6eshamps 0.! N)ppearsN to agree with ;astarache but his reasons primaril$ rest on Court
of )ppeal overstepping %urisdictional to overturn original ac<uittal.
;innie 0. =ants to convict# points out this gu$ carried his shank around ever$da$
and had several of them for the purpose of violentl$ resolving disputes
C&4C,OSI&4 of this mess' test for purpose uncertain but it*s probabl$ ;atarache.

Start with the Codethen move to the case law to interpret itdo Actthen Faultthen any defences
Intention1Pnowledge
-hese words indicate full, sub%ective mens rea. Some crimes (where words like willfull$, intentionall$,
with knowledge appear in the statute!, willful blindness and recklessness will not suffice.
R. v. Buzzanga and "uro%her' )ccused take out ad sa$ing awful things about the Erench, thinking it will
created s$mpath$ for the Erench in their efforts to build a school in Southern &ntario. Charged with
willful promotion of hatred. -his case gives us the leading definition of Intention # one who foresees
that a conse<uence is certain or substantiall$ certain to result from an act which he does in order to
achieve some other purpose, intends that purpose.
-his can mean either'
a! ;ringing about the conse<uence is the conscious purpose of the act (I want to break the window
with the sledgehammer! &:
b! Pnowing the purpose will result in the conse<uence (I want to kill the spider, knowing it will break
the window!
:ecklessness
-his is normall$ sufficient to give rise to full criminal liabilit$1e<uivalent to mens rea unless statute sa$s
otherwise. -his is the sub%ective knowledge of the likelihood of the prohibited conse<uences flowing
(not substantiall$ certain # that*s intention.! :ecklessness is seeing the risk and taking the chance.
R. v. (h/rou2' )ccused thought victims* deposits were safe even though he knew there was no
insurance. Charged with fraud when mone$ is lost. ,%tus reus is onl$ putting at risk so he probabl$ had
full, sub%ective mens rea. ;ut even if he didn*t, he was certainl$ reckless
=illful ;lindness
4ot knowing $ou are committing the act because $ou do not want to know $ou are committing the act #
preference to remain ignorant. It is considered tantamount to knowledge.
R. v. &ansregret (facts upon rape!' /cInt$re 0. gives definition of willful blindness' =illful blindness
arises when someone who is aware of need for some in<uir$ fails to make the in<uir$ the$ would prefer
to remain ignorant.
R. v. Blondin' )ccused importing hash in a scuba tank. 2e knew something illegal was in there but didn*t
know what it was. -his is willful blindness.
R. v. Currie' )ccused uttered a forged che<ue after he was paid Q@ b$ a stranger to do so. -here is a
reasonable doubt he was %ust a ver$ stupid and didn*t know an$thing was wrong. %ccused "ust $now
so"ethin is wron.have suspicion to be willfully blind
R. v. "uong' )ccused knew his friend was in trouble with the police with respect to a murder but didn*t
ask him about it # instead let him hide. SCC decides willful blindness is sufficient to be an accessor$
after the fact to murder.
&b%ective Eault for Crimes
Criminal 4egligence # ss. 99R8999 of the Code (Criminal 4egligence causing 6eath, Criminal
4egligence Causing ;odil$ 2arm and codification of Criminal 4egligence causing 6eath as a form of
manslaughter # Criminal 4egligence sim-li%iter is not an offence!
R. v. O34rady' Said Criminal 4egligence was a form of recklessness but this is no longer good law # now
considered to be of ob%ective fault
R. v. Rogers' )ccused is an /6 who had lost licence. 2e told parents that child should be given a leaf$
green diet with no protein (other doctors think this is horrible advice.! Child dies. 6octor did not think this
would1could happen but found guilt$ of criminal negligence causing death due to ob%ective fault standard.
!
Start with the Codethen move to the case law to interpret itdo Actthen Faultthen any defences
R. v. (utton and (utton' )ccused are members of a religious sect who believe in faith healing. -he$ think
their son has been cured of diabetes so the$ stop giving him insulin after doctors told them not to. ;o$
dies. SCC orders new trial on procedural grounds but splits >8> on the appropriate fault element'
8 =ilson 0. sa$s common law presumption for sub%ective fault must be kept and some level of
recklessness of willful blindness should be re<uired (-uttons still might be guilt$ under recklessness!
8 /cInt$re 0. sa$s this is an ob%ective test # "ar$ed departure fro" standard of care of reasonable
person.ross nelience#
R. v. aite' ) few $ears after (utton. )ccused had been drinking and decides to drive as close as
possible to a ha$ride without hitting them. 2e does hit them and kills four people. -rial %udge ac<uits.
SCC splits into same ob%ective and sub%ective wings and /cInt$re repeats views, sa$s new trial needed.
=ilson*s view still ver$ low' a minimal sub%ective standard (trial %udge had set the standard too high!.
5)CL0,R H,( (H0 L, 6& 6) (H6& ,R0,
6angerous 6riving Causing 6eath # another crime of ob%ective fault
R. v. ,nderson' )ccused was speeding while drunk and ran a red light and killed somebod$. -rial %udge
(incredibl$! decides this is not a marked departure from the standard of reasonable person, which SCC
sa$s is his prerogative. -hat someone died doesn*t affect /arked 6eparture -est # /ar$ed
0eparture 1est# is based on %ccused2s behavior.not conse&uences of it.
R. v. Hundal' )ccused runs a red light in his dump trunk and kills someone. Cor$ 0. explains
appropriateness of having an ob%ective test for dangerous driving! though we do have to consider the
circumstances in which the driving took place. -wo part test'
+. .iewed ob%ectivel$, was the )ccused behaving in a markedl$ different behavior from the norm7
9. )re there polic$ reasons wh$ we should not impose liabilit$7
-aking into )ccount 3ersonal Eactors when )ssessing &b%ective Eault
R. v. Creighton' )ccused in%ected drugs into victim*s arm. She started convulsions and he left. Charged
with manslaughter.
/c,achlin 0. sa$s one ob%ective standard for all for ob%ective crimes, sub%ect to incapacit$. 6oes not
want to consider wealth, race, age, cultural background, etc. She is critical of ,amer C.0.C. who wants
to take into account so man$ personal factors that she sa$s it*s totall$ dependent on individual accused.
7e are all8 ri%h and -oor8 wise and na9ve8 held to the minimum standards o$ %ondu%t -res%ribed by the
%riminal law: K/c,achlin 0. and ,amer C.0.C. each write for ? ,aEorest 0. agrees with /c,achlin 0. here
making her the ma%orit$.L
Crimes ;ased on 3redicate &ffences
-hese are crimes where )ccused must commit one unlawful act and that act brings about an even worse
prohibited conse<uence (classic example is manslaughter!. 4otable because fault and act re<uirements
don*t have to match up perfectl$.
R. v. "e &ousa' )ccused threw a bottle at a wall during a bar brawl and it in%ured someone. Charged
with unlawfull$ causing bodil$ harm. -he act re<uirement is' +! Causing ;odil$ 2arm 9! Onlawfull$
(committing another offence # not necessaril$ criminal offence!. -he fault re<uirement for this offence is'
+! the fault re<uirement of the predicate offence (can*t be absolute liabilit$ offence due to possibilit$ of
imprisonment! 9! 3redicate offence must be ob%ectivel$ dangerous (court makes this up due to word
unlawfull$ in the statute!. 4& C&4S-I-O-I&4), :DJOI:D/D4- -2)- )C- D,D/D4- )46 E)O,-
D,D/D4- /I::&: DS)C-,F.
R. v. Creighton' Eault re<uirement for manslaughter' +! -he Eault Dlement of the 3redicate &ffence 9!
)dditional fault re<uirement for /anslaughter # &b%ectivel$ Eoreseeabilit$ of the :isk of ;odil$ 2arm
which is neither trivial nor transitor$ in the context of a dangerous act. /c,achlin 0. carries the da$ over
,amer C.0.C. as to whether or not death has to be ob%ectivel$ foreseeable.
4ot perfect s$mmetr$ between act and fault as virtuall$ no difference between ob%ective foreseeabilit$ of
death and of bodil$ harm # also thin skull people floating around.
R. v. Krushel' )ccused was stalking the victim. )ct re<uires' +! doing certain prohibited behavior 9!
victim being harassed >! victim being reasonabl$ fearful
1"
Start with the Codethen move to the case law to interpret itdo Actthen Faultthen any defences
Eault re<uires knowledge or recklessness or willful blindness to harassment and doing the prohibited
behavior but nothing to do with the fear. )gain, not perfect s$mmetr$ between act and fault.

ISSUE (ape and Se3ual %ssault
-he issue of controvers$ here is almost alwa$s whether there was consent as opposed to whether the
sexual activit$ took place
:ape1Introduction to /istaken ;elief in Consent
If the )ccused honestl$ thought there was consent, then it negates the mens rea and he is entitled to an
ac<uittal. 2owever, it must have an air of realit$ before a %ur$ can consider it.
R. v. *a--a;ohn' .ictim runs out of house screaming and naked three hours after )ccused and victim
drunkenl$ came home together. 4o air of realit$ to mistaken belief in consent as circumstances sa$ there
either was or was not consent # nonetheless, this defence exists and belief does not have to be reasonable
R. v. *lummer' /istaken belief in consent real issue. )ccused thought she was consenting # even though
she was terrori5ed, he didn*t know it.
R. v. Morgan' Infamous Dnglish case where man brings home buddies, all drunk, and tells them to have sex
with his wife and if she said no, that would be a sham # /;IC considered to have air of realit$
R. v. &ansregret' )ccused broke into girlfriend*s house, threatened her and confined her. -o calm him
down, she agrees to have sex with him. Convicted of breaking8and8entering and unlawful confinement but
ac<uitted of rape at trial. SCC upholds C of ) conviction, citing wilful blindness to fact that the consent got
exerted b$ threats. /anson thinks this is a misunderstanding of what is willful blindness both )ccused
and victim seem to disagree with this assessment. (Case where Court determined to convict.!
R. v. Bulmer' 3rostitute brought to apartment b$ one gu$s where three gu$s are there and all have sex with
her. Court sa$s more than %ust mere assertion of mistaken belief in consent is re<uired to go to %ur$.
R. v. Livermore' )ccused sa$s he thought victim was consenting to sex after she touched his leg and penis.
She sa$s she was scared but admits he wasn*t violent. 4o air of realit$ to mistakaen belief in consent
according to SCC.
Code 3rovisions on :ape1Sexual )ssault
s. 9">(+! voluntar$ agreement for purpose of ss. 9"+, 9"9,9">
s. 9A@(>! points out when consent is vitiated
ss. 9"A19"" rape shield provisions
s. 9"@ eliminates doctrine of recent complaint
s. 9"? eliminates special re<uirements of corroboration for rape complainants
/oving from :ape to Sexual )ssault
R. v. Chase' ,eading case on what sexual assault means (as opposed to rape!. )ccused touched a +@8
$ear old girl*s breast. 2eld to be a sexual assault1doesn*t matter that genitilia wasn*t touched # looked to s.
9A@ for definition of assault. Sexuall$ adds circumstances of a sexual nature such that the sexual
integrit$ of the victim is violated to the assault # this is an ob%ective test in light of the circumstances
:ape Shield ,aws # ss. 9"A, 9""
:ape trials often turned into trials of the victim as defence attorne$ would <uestion the victim of her past
sexual conduct. -his re8inforced the -win /$ths' +! if victim had consented on past occasions, therefore
more likel$ to have consented this time 9! ,ess believable than someone of chaste character
-hus, parliament enacted :ape Shield ,aws, severel$ limiting the right of defence attorne$s to ask
<uestions to victims about their past sexual behavior.
11
Start with the Codethen move to the case law to interpret itdo Actthen Faultthen any defences
R. v. &eaboyer' /c,achlin 0. strikes down s. 9"A. She thinks evidence could be admitted if it has probative
value on issue in the case and its pre%udice effects don*t outweigh its probative effects. (/an$ think her
ideas are actuall$ more protective #no distinction between )ccused and others.!
-hus, 3arliament enacted new rape shield similar to /c,achlin*s reasons
R. v. "arra%h' -he )ccused tried to use arguments from &eaboyer to strike down new rape shield laws #
this is unsuccessful.
)ctions of 3arliament to ,imit )pplication of /istaken ;elief in Consent
s. 9A@(?! # applies to mistaken belief in consent as it applies to an$ assault
s. 9">.9 # limits where mistaken belief in consent is available in sexual assault. 6efence is not available
when'
(a!(i! )rose due to self8induced intoxication
(a!(ii! )rose from recklessness or willful blindness (alread$ in case law but here it*s codified!
(b! =here )ccused didn*t take reasonable steps in circumstances known to the )ccused at the time to
ascertain whether the complainant was consenting.
N.B.: s. 9">.9(b! imposes a legal dut$ to show steps were taken and the word reasonable looks like an
ob%ective standard
R. v. 0wan%huk (.D:F I/3&:-)4-!' )ccused gives victim a massage and keeps touching her more
sexuall$ (at which points she sa$s no! he stops and then goes again and goes further. )s he is practicall$
on top of her, she leaves. )ccused is ac<uitted at trial and Court of )ppeal, which talk about implied
consent. SCC imposes conviction for the first time (ver$ ver$ ver$ rare!.
/a%or 0. sa$s man$ important things on law of sexual assault in Canada'
8 4o such thing as implied consent when victim not actuall$ consenting.
8 &ne cannot think that silence or no means $es amounts to consent.
8 Mens rea can be negated b$ issue of mistaken belief in consent but this must be expressed b$ victim
b$ words or conduct. 4ot enough to sa$ I thought she was consenting because she didn*t sa$ no.
8 &nce complainant has said no, accused has to be ver$ war$ of proceding with sexual conduct. 4ot
permissible to have )ccused engage in further sexual conduct to Ttest the waters.*
)ppl$ing to the facts, this woman said Tno* on several occasions. Consent could not be Timplied* in face of
her Tnos* and accused could not raise and Tair of realit$* to mistaken belief.
,*2ereux86ubG 0. also wrote her concurrence in which she blasts /cClung 0.).
R. v. Corne;o' )ccused came over in the middle of the night h knew victim was not interested in him. .ictim
is ver$ drunk. 2e sa$s that her shifting of the pelvis while asleep gave an air of realit$ to /;IC. Court
re%ects this.
)lso, defence of /;IC barred b$ statute as he didn*t take reasonable steps. 6efence said he did take
reasonable steps but this doesn*t fl$ # can*t sexuall$ assault to see whether the$*re consenting (a la
0wan%huk!.
ISSUE /ista$e
/istake of Eact
If, on the )ccused*s reading of the facts, he is not guilt$ of an$ offence, then the mens rea is negated and
he is entitled to an ac<uittal. Pappajohn re"ains the leadin case on this front.
+. =here there is a sub%ective mens rea re<uirement the mistake need merel$ be honestl$ held with
reasonableness onl$ relevant to assessment of credibilit$.
9. =here the fault element re<uires ob%ective negligence, the mistake must be both honest and
reasonable.
>. =here there is a due diligence defence, the mistake must be both honest and reasonable, with an onus
of proof on the accused in the case of regulator$ offences.
?. 4ot a defence for absolute liabilit$ offences.
12
Start with the Codethen move to the case law to interpret itdo Actthen Faultthen any defences
R. v. Hess R. v. )guyen' )ccused charged with statutor$ rape when the$ thought the victim was of age
(both victims lied.! Onder Code provisions, mistake of fact not a defence. )ccused challenge the
constitutionalit$ of this. -he$ win # violation of s. ".
=hat 2appens when the )ccused makes a mistake over whi%h offence the$ are committing7
R. v. (olson' Sa$s that )ccused entitled to ac<uittal onl$ if, on their reading of the facts, not guilt$ of an$
offence.
R. v. Ladue' )ccused charged with indecentl$ interfering with a dead bod$. Sa$s he was so drunk that
he did not know she was dead. ;ut this defence is re%ected because if that were the case, he would
have been raping her.
R. v. Kundeus' 6rug dealer in .ancouver sells ,S6 thinking it is mescaline. SCC allows conviction for
trafficking in ,S6 as he knew he was trafficking in illicit substances (same area of offence!
/istake of ,aw
-his is generall$ not a defence (though there are two exceptions! # s. +B of the Code sa$s ignorance of the
law b$ one who commits an offence is not an excuse for committing that offence.
R. v. 0so-' )ccused said he did not know having anal sex was an offence (this is +H>A!, citing cultural
difference. -his defence is re%ected.
R. v. Cam-bell and Mlyar%huk' )ccused was a stripped who engaged in a go8go dance after a %udge had
ruled such a dance did not constitute an offence. -hat ruling is overturned on appeal. -his stripper is
convicted as %udge %ust happened to erroneousl$ state the law (but )ccused granted a discharge an$wa$!
R. v. *rue R. v. Baril' ;C ,aw means automatic suspension of license after Code driving offence. )ccused
didn*t know this and hadn*t got notice 8 charged with driving while suspended. Is this a mistake of law or
mistake of fact7 Could be argued either wa$ but court decides mistake of law.
N.B.: In certain cases, mistake of law can negate mens rea # ex. willful obstruction of a police officer if $ou
don*t think the officer has the authorit$ to do what the$*re asking $ou to do.
Colour of :ight # Statutor$ Dxception for 3ropert$ &ffences (s. >998ish!
3ropert$ offences re<uire that the )ccused actuall$ know the$ do not have the right to the propert$ (such
a belief is called colour of right! this is a defence because without colour of right appears in the Code
provisions concerning propert$ offences.
R. v. "orosh' )ccused stole a trailer which the )ccused legitimatel$ thought he entitled to # this gets him
a new trial
R. v. "rainville' 3riest protests with aboriginals. Charged with mischief. 2is civil disobedience argument
is thrown out (not a defence! and so is his colour of right claim as the court decides he onl$ felt the$
had a moral # not legal # right to be there.
&fficiall$ Induced Drror of ,aw
L/vis v. (etreault' ,e;el 0. confirms that this doctrine exists it is a common law defence.
-he appropriate remed$ is a sta$ # not an ac<uittal. Six elements'
+! )ccused made error of law or mixed law and fact
9! )ccused considered legal conse<uences of action
>! )dvice obtained came from appropriate official
?! )dvice was reasonable (can*t be on its face absurd!
@! )dvice was erroneous
A! :el$ing on advice when committing act
&n the facts of this case ()ccused charged with driving with an expired licence!, man$ of these fail.
13
Start with the Codethen move to the case law to interpret itdo Actthen Faultthen any defences
ISSUE Incapacity
Incapacit$ renders the )ccused incapable of being criminall$ responsible. 6on*t worr$ about )ge # take
Children*s ,aw with ;ala in third $ear.
/ental 6isorder1Insanit$
8 s. +A of Code sa$s no one shall be convicted on an offence if the$ suffered from a mental disorder that
rendered them incapable of appreciating the nature and <ualit$ of the act or knowing that it was wrong.
8 -his used to be called insanit$ # now it*s called mental disorder
8 ,egal and ps$chiatric opinions on this issue don*t have to be # and often are not # the same
8 3roper verdict, if proven, is not guilt$ b$ reason of mental disorder (s. A"9(>?! of the Code!. R. v. &wain
said automatic detention in mental institution violated Charter but it*s still the usual result. -hough it*s also
possible to get a conditional discharge or an absolute discharge.
8 &ften )ccused do not want this verdict because the$ could be in a ps$chiatric hospital indefinitel$. -hus,
to prevent in%ustice, Crown can bring forward evidence of insanit$ but onl$ after conviction.
8 3eople are assumed to be sane (s. +A(9!! onus to prove insanit$ burden of part$ that brings it up. -his
violates s. ++(d! but is saved under s. + because it is ver$ hard to prove be$ond a reasonable doubt that
somewhat is sane.
R. v. Coo-er (decided under insanit$ but still leading case on mental disorder!' )ccused with histor$ of
mental disorder strangles female friend to death.
SCC sa$s that insanit$ must render accused incapable of appreciating the nature1<ualit$ of violent act or
knowing that it is wrong.
,egal <uestion # does the accused suffer from disease of the mind in the legal sense7 # this is for %udge.
Eactual <uestion # was the accused suffering from it at relevant time7 # this is for %ur$.
SCC affirms that disease of the mind means something different in legal light than medical light.
R. v. K;eldsen' 3s$copath$ a disease of the mind but lack of emotional appreciation for conse<uences of act
does not absolve from liabilit$ (P%eldsen knew what he was doing and that it was wrong # he %ust didn*t
care.!
R. v. ,bbey' )ccused thought he*d get awa$ with smuggling cocaine. Eailing to appreciate penal
conse<uences of act does not fall into insanit$.
R. v. Chaulk' ,amer C.0.C. knowing it*s wrong means wrong in some sort of ultimate moral sense, not
according to the law.
R. v. Oommen' /an killed a female friend for no apparent reason. 3s$chotic and he believed she has a
contract on his life out to kill him. SCC affirms overturning of conviction in light of evidence that )ccused
lacked capacit$
)utomatism
-his negates the voluntariness, and thus both a%tus reus and mens rea
R. v. Rabey' )ccused hits girl who had re%ected him over the head with a rock and strangles her. Juestion
is whether, if automatism, this is sane or insane7 SCC decides onl$ mental disorder automatism available
in these circumstances as normal person would not have reacted this wa$ # internal source.
R. v. *arks' )ccused drives from Scarborough to Dtobicoke, kills mother8in8law and in%ures father8in8law.
2e gets off # sa$s he was sleepwalking. Sleepwalking not a disease of the mind # he goes free (though
,amer C.0.C, wanted to put a peace order on him, ,aEorest, Sopinka and /c,achlin said no!.
R. v. &tone' /an stabs his wife man$ times after she allegedl$ told him horrible things and he allegedl$ felt
whooshing sensation. ;astarache 0. sa$s this could onl$ have been disease of the mind automatism
even though no evidence he had one (convicted on manslaughter!. 1hey reverse the onus here
Steps for )ppl$ing an )utomatism 6efence'
+. Should )utomatism defence be put to the %ur$7 /ust establish an air of realit$
a. )ccused must assert involuntariness
14
Start with the Codethen move to the case law to interpret itdo Actthen Faultthen any defences
b. )ccused has to call expert evidence from ps$chiatrists or ps$chologists to suggest )ccused acting in
involuntar$ manner.
c. )ccused has to have to convince trial %udge that there is evidence upon which a properl$ instructed
%ur$ could find involuntariness (air of realit$!
9. 2ave to decide whether it*s sane automatism or mental disorder automatism.
a. /ental conditions involving diseases of the mind a <uestion of the law for the %udge.
b. Juestion of mixed fact and law whether what )ccused suffers from is a disease of the mind.
c. =hether )ccused actuall$ suffered from the condition is a disease of the mind is matter of fact.
In order to decide whether automatism stems from disease of the mind, should stem from a holistic
approach. =e have'
i! Internal Cause vs. Dxternal Cause' 2elpful unless it*s impossible to classif$ as either internal or
external (see *arks # sleepwalking external!
ii! :ecurring 6anger' If likel$ to recur, a mental disorder )lso helpful where it is a continuing danger.
=here no continuing danger, not necessaril$.
iii! &ther polic$ concerns' Concerns about faking the defence1floodgates.
R. v. 'ontaine' :efines &tone # )ccused killed man after smoking a lot of mari%uana. 6efence tr$ing to
prove insane automatism. ;astarache*s factors from Stone overruled # trial %udge %ust has to ask if there is
evidence that if believed could result in believing a properl$ instructed %ur$ could find an ac<uittal. 6eemed
an air of realit$ existed.
Intoxication
s. >> of the Code codifies a lot of this
-raditional opinion is that there are specific intent offences (eg. murder! and general intent offences (eg.
manslaughter! traditionall$, intoxication never a defence to general intent offences but could be a defence
to specific intent offence because it would render the )ccused incapable of the specific intent.
R. v. Bernard' )ccused charged with sexual assault causing bodil$ harm. 2e sa$s he was ver$ drunk and
when he reali5ed what he was doing he stopped. -ries to appeal finding of trial %udge that this could not be
considered. SCC upholds conviction (@89! but for different reasons'
8 /cInt$re 0. sa$s intoxication should never be a defence to general intent offences if the )ccused is so
drunk he*s not capable of forming an$ intent, then the fault lies in getting so drunk
8 =ilson 0. sa$s intoxication should not be a defence in circumstances like this but would be if )ccused was
so extremel$ drunk incapable of forming an$ intent.
8 6ickson C.0.C. wants to get rid of distinction between specific and general intent offences and alwa$s
consider effects of intoxication on the )ccused*s intent.
8 ,aEorest 0. seems to agree with 6ickson in principle but sa$s no miscarriage of %ustice in this case
R. v. "aviault' )ccused (AB8$ear old longtime alcoholic! drank seven or eight beers and then a bottle of
whiske$. 2e rapes a A@8$ear wheelchair bound woman. Sa$s he was so extraordinaril$ drunk (this would
cause death or a coma in a normal person! he was incapable of forming an$ intent (akin to automatism.!
Cor$ 0. picks up the =ilson compromise from Bernard and sa$s, as a constitutional re<uirement under ss. "
and ++(d!, such a defence must be allowed. BU1 he reverses the onus.
-hree t$pes of intoxication #
+! /ild intoxication never a defence
9! )dvanced intoxication a defence for specific intent offences
>! Dxtreme intoxication akin to automatism a total defence butC
;ill C8"9' Seeks to reverse effect of "aviault # debatable whether this is constitutional7
15
Start with the Codethen move to the case law to interpret itdo Actthen Faultthen any defences
ISSUE 4ustifications and E3cuses
-hese kick in once all the elements of the offence have been proven
)ir of :ealit$
0ustifications and excuses must have an air of realit$ before being put to %ur$. -his is a matter of law for the
trial %udge and if the %udge gets it wrong, it*s an error of law grounds for appeal.
R. v. Cinous' States test for )ir of :ealit$' evidence on the record upon which a properl$ instructed %ur$,
acting reasonabl$, could ac<uit.
Eactors to Consider with )ir of :ealit$C
8 Consider totalit$ of the evidence, and assume that the relevant evidence is true # is there evidence that, if
believed, could persuade the %ur$7
8 Can be found in evidence of an$one # from Crown or defence or cross8examination or examination8in8
chief
8 0udge should not decide substantive merits of case # %ust whether there is an evidentiar$ foundation
R. v. 'ontaine' distinguishes ordinar$ defences which )ccused must put in pla$ and then Crown must
disprove be$ond reasonable doubt (necessit$, duress, self8defence, etc.! and reverse onus defences
()ccused must prove on balance of probabilities!
4ecessit$'
-his is a Common ,aw defence # common law defences continue to exist b$ virtue of s. H(>! of the Code. It
has to deal with emergencies. It must be disproved b$ Crown once raised on the facts.
*erka v. R' )ccused were drug smugglers going to )laska and there ship was in trouble so the$ landed on
.ancouver Island. Charged with importing mari%uana. 3lead necessit$.
6ickson 0. states three8part test for necessit$'
+! Urent and i""inent peril' /ust wait until after possibilit$ of rescue ship coming or storm passing.
/odified &b%ective -est for this stage
9! No reasonable leal alternative' =as there a legal wa$ out7 If there was, no necessit$. 6ickson 0.
sa$s this cannot be overstated and he thinks that this is where trial erred # didn*t properl$ explain.
/odified &b%ective -est for this stage
>! Proportionality' 2arm inflicted b$ breaking the law cannot be outweighed b$ harm b$ other end.
3urel$ &b%ective -est for this stage
-here was an air of realit$ here (though %udge didn*t explain U9 ver$ well and a retrial was needed!. 6oesn*t
matter the$ were engaged in illegal activit$ though it would have been a problem if it would have been
foreseeable that the$ would have got themselves into this situation.
R. v. Latimer' Eor this defence to be put to %ur$, all three elements must have air of realit$ # ,atimer didn*t
have an$ of themI 4or does it matter that this was his onl$ potential wa$ to get ac<uitted.
6uress
-his is found in s. +" of the Code. /ust be disproven b$ Crown once raised on the facts. It is a .D:F
limited defence and there are five traditional re<uirements'
+. -hreat of death or bodil$ harm to either )ccused or a third part$ # can*t be a threat to an animal or
propert$
9. Immediac$ # 2as to do it right awa$
>. 3resence # -hreatener must be around
?. ;elief # )ccused must believe threats will be carried out
@. Dxclusion of certain offences
N.B.: -his test got changed in the case law post8Charter
R. v. Carker' )ccused threatened in a prison riot # this was not a successful defence as immediac$ and
presence re<uirements lacking.
16
Start with the Codethen move to the case law to interpret itdo Actthen Faultthen any defences
R. v. *a<uette' )ccused literall$ with gun to his head was forced to drive robbers to bank, who kill
someone. -his would be a cut8and8dr$ case of duress but murder is excluded under s. +". SCC decides
that s. +" onl$ applies to principals so the$ go to common law defence of duress, which is wider, for parties.
&nl$ need no safe avenue of escape and threat of death or bodil$ harm
R. v. Hibbert' )nother part$ to an attempted murder # )ccused afraid of principal and wouldn*t have come
with principal to attempted murder on his own. Court sa$s duress does not negate mens rea of )ccused
(even for a part$! but goes to moral involuntariness.
R. v. Ruzi%' )ccepted that )ccused was under duress and told to import heroin to Canada # no effective
police force in ;elgrade and coercer threatened to harm her mother. She can*t fit into the s. +" duress as
no immediac$ or presence. So she argues it*s unconstitutional and court accepts this.
Court sa$s it*s a principle of fundamental %ustice that acts be morall$ voluntar$, similar to being ph$sicall$
voluntar$. Strike out the immediciar$ and presence re<uirements from s. +", instead as no safe avenue or
escape
2&= -& )33,F 6O:DSSC
+! Is it a part$ or a principal
9! If a part$, go to common law defence'
a. no safe avenue of escape
b. threat of death or bodil$ harm
>! If a principal, go to s. +"
a. -hreat of ;odil$ 2arm
b. ;elief
c. Dxclusion of certain offences (this ma$ be unconstitutional!
d. 4o safe avenue of escape (added in Ruzi%!
N.B.: Immediac$ and 3resence tossed out in Ruzi%
6efence of 3erson'
Eound in ss. >?8>" of the Code # must be disproved b$ Crown once raised on facts
s. 34(1) s. 34(2)
Assault of D D unlawfully assaulted by X | D unlawfully assaulted X
Ds Response causes No requirement that force causes articular result | !auses death or "rie#ous bodily harm
Provocation D did not ro#o$e | No requirement of who ro#o$ed assalt
Ds state of mind D didn%t intend to cause death or "rie#ous bodily harm | &nder reasonable arehension of death or "rie#ous
bodily harm from X%s assault' may ha#e intended to
cause death or "rie#ous bodily harm
Degree of Force Justified D used no more force than necessary to defend self | (elie#es) on reasonable "rounds) that couldn%t
otherwise reser#e self
s. >?(+! Can appl$ if death or grievous bodil$ harm applies but it can*t be intentional
s. >?(9! )pplies onl$ if it results
s. >@ 6eals with situations where )ccused starts a fight but later withdraws but person who )ccused
started altercation with tries to come after )ccused
s. >A 6efines provocation because a lot of them have to d with whether assault provoked to begin
with # provocation b$ words, blows or gestures
s. >" 6eals with defensive use of force to prevent an assault to oneself or another person under one*s
protection # can*t use excessive force under this provision
R. v. *intar' -hinks s. >?(9! the wider provision and generall$ speaking onl$ necessar$ to put it to %ur$C
sub%ective element in test
R. v. Bogue' 6runk common8law husband comes at )ccused with knife sa$ing he*s going to kill her. 2e
falls. She then stabs him to death. /anslaughter conviction overturned as no proportionalit$ re<uirement in
s. >?(9! # don*t need to measure the nicet$ of the blow # ),S& states that a mistaken belief in self8
defence can ground self8defence claim.
17
Start with the Codethen move to the case law to interpret itdo Actthen Faultthen any defences
R. v. "eegan' 6eals with issue of opportunit$ to retreat # deemed this is not re<uired though opportunit$
ma$ be considered in deciding whether the degree of force used was %ustified
R. v. Kong' ,eading case on self8defence in Canada but all SCC did was adopt dissenting %udgment from
)lberta Court of )ppeal. =hat is clear is that proportionalit$ re<uirement under s. >?(+! is not purel$
ob%ective, but modified ob%ective (whether it was necessar$ from someone in the )ccused*s position!
R. v. Lavalee' ;attered woman case # )ccused shot partner him in the back of the head while he was
leaving the room. Juestion is whether, considering histor$, circumstances and perceptions of battered
women, was her belief that she couldn*t otherwise defend herself reasonable7 )nswer is FDS. Case
important for discussion about imminence (not strictl$ re<uired! and reasonableness (of belief couldn*t
otherwise defend self.!
R. v. *etel' )ccused shot daughter*s bo$friend (D! and his friend (:!, killing : # <uestion of whether the
threats before that night were relevant. ,amer C.0.C. sa$s that the$ are relevant to the )ccused*s state of
mind and he reads Lavalee as limiting the imminence re<uirement.
R. v. Mallott' 2ere, )ccused kills her abusive husband and tries to kill his girlfriend. Convicted of both
murder and attempted murder but ,*2ereux86ubG and /c,achlin make some interesting obiter statements
# experience of battered woman is both shared and individual
R. v. Cinous' SCC decides no air of realit$ to self8defence as )ccused was convinced he was going to be
shot as gas station despite no overt threats. Juestion of what we expect of people but we can let them take
law into own hands. )lso seen inC
Subwa$ .igilante' &nl$ convicted him of dangerous possession of a weapon.
6efence of 3ropert$
Seen in ss. >H8?9 of the Code. /ust be disproved b$ Crown once raised on facts but much more limited
than defence of person (obviousl$!. 4ever %ustifies murder unless situation turns into self8defence.
R. v. Ba2ter' 6efence of propert$ can be no more than necessar$ # not %ustified to shoot a mere
trespasser
R. v. 4unning' )ccused shoots uninvited guest to a house part$ who he*d asked to leave # claims he firing
was an accident and he wasn*t guilt$ of careless use of a firearm (predicate offence for manslaughter!
because he was defending propert$.
Interpretation of s. ?+(+! #four elements'
+! 3ossession # accused ((unning! would have to be in possession of a dwelling house Kthis could also
appl$ to someone acting under lawful authorit$ of possessorL
9! 3eaceable # possession that is not seriousl$ challenged b$ others
>! -respasser (victim was clearl$ trespassing!
?! :easonable Eorce # force used to e%ect trespasser must be reasonable in all the circumstances # this is
Charron 0.*s paraphrasing of using no more force than necessar$
)ll things considered, SCC finds air of realit$ to defence of propert$ and orders retrial
3rovocation
:educes murder to manslaughter #ss. 9>9(+!, 9>9(9!, 9>9(>! of the Code. /ust be disproved b$ Crown
once raised on the facts.
R. v. Hill' ,eading case on provocation # )ccused stabbed his big brother to death after he made a sexual
advance to him. -hree8part test for provocation'
+! =ould an ordinar$ person be deprived of self8control b$ the act or insult7 -his is an ob%ective <uestion
9! =as the )ccused provoked # act in response b$ those provocative acts7 -his is a sub%ective <uestion
>! =as the response sudden and before time to allow passion to cool7 -his is also a sub%ective <uestion so
real <uestion is if )ccused was still in the heat of passion.
1
Start with the Codethen move to the case law to interpret itdo Actthen Faultthen any defences
Case states %ur$ can consider sex and age of person # no such thing as a sexless or ageless ordinar$
person. ;ut no error here as no need to charge %ur$ on this. )ccused guilt$ of second8degree murder.
R. v. (hibert' /an kills wife*s lover outside an apartment building while lover is taunting him. Cor$ 0. sa$s
we can take into account relationship between deceased and )ccused # Cor$ 0. orders new trial for failing
to point out that Crown had to disprove provocation.
R. v. )ahar' Sikh man kills estranged wife # ;C C) sa$s we can take his culture (again, no need to
explicitl$ charge the %ur$ on this! into account but he*s still guilt$ in these circumstances she didn*t do
an$thing on night in <uestion that she hadn*t done man$ times before.
R. v. *arent' )nother t$pical case where )ccused killed estranged wife after she told him I told $ou I was
going to wipe $ou out completel$ # %ur$ convicted of manslaughter but problem was with %udge suggesting
that anger could reduce murder to manslaughter # anger not a stand alone defence and thus new trial
needed.
R. v. Cameron' )rgument that ob%ective standard into provocation defence amounts to an ob%ective
standard for murder and thus is unconstitutional. Court re%ects this argument as having an defence with an
ob%ective element not the same thing as having offence with ob%ective element.
Cumulative Dffects of Intent
6eals when no individual defence is clear8cut or sufficient but man$ are raised on the facts. -his might
reduce murder to manslaughter only in Ontario.
R. v. )ealy' )ccused was a little drunk, somewhat scared and somewhat provoked but none of these on
their own would bring murder to manslaughter # Cor$ 0) sa$s all of this should have been taken together
Dntrapment
Dntrapment a 6octrine # not a defence. -his entitles the )ccused to a sta$ # not an ac<uittal # after all
other elements are proven (though it*s often the onl$ issue!. )ccused must prove on balance of
probabilities.
R. v. Ma%k (leading case on Dntrapment!' 3olice send an informant who persisted the )ccused for months
to get involved in drug smuggling.
SCC set out man$ rules concerning entrapment. Sa$ this is a matter of law for trial %udge onl$ in clearest
of cases. Can be'
+! :andom .irtue -esting (making in<uir$ on reasonable suspicion that the )ccused is alread$ engaged in
criminal conduct or in course of bona $ide in<uir$! &:
9! (oing being in<uir$ to inducing commission of offence (factors for this seen on page B""!.
-his is an ob%ective test 8 police8centred, not concerned about )ccused*s moral blameworthiness
In this case, police went wa$ be$ond acting on suspicion to inducing the offence.
R. v. Barnes' Oncover cop stops two gu$s on a hunch in the (ranville /all area of .ancouver. She
convinces one of them, the )ccused, to sell her mari%uana. /a%orit$ decides that stopping an$one in area
((ranville /all in .ancouver! where crime going on counts as a bona $ide in<uir$ so long as area not too
large and can be defined with precision. -hus, no entrapment.
ISSUE Parties to a Cri"e
)iding and )betting
s. 9+(+! speaks about liabilit$ for offences. -he person who actuall$ commits the offence is technicall$ a
part$ but is usuall$ called the principal. Eurthermore, aiders and abettors are parties to the offence and
liable to be convicted of them. )iders and abettors are technicall$ separate but usuall$ dealt with together.
N.B.: -o abet means to encourage
"unlo- and &ylvester v. R. (leading case on aiding and abetting!' )ccused were members of a motorc$cle
gang who had a part$ at a dump. /embers of the gang gang8raped a woman. .ictim sa$s )ccused were
among the rapists. -he$ admit to being there but sa$ the$ %ust brought beer, saw people having sex with
1!
Start with the Codethen move to the case law to interpret itdo Actthen Faultthen any defences
the women and left. -rial %udge tells %ur$ the$ could find them guilt$ as principals (if the$ believe the
woman! or as aiders and abettors (on their stor$!.
6ickson 0. sa$s it was wrong for trial %udge to leave aiding and abetting with %ur$. 2e gives examples of
when aiding and abetting is appropriate to leave with %ur$ (keeping out police, encouraging principle, luring
victim, etc.! but "ere presence at the scene of the cri"e is not enouh. )lso no dut$ to intervene to
stop the offence, as that would impose criminal liabilit$ for omissions.
Mens rea re<uirement that )ccused must understand what is being committed and have intention to help or
encourage the principal.
R. v. &olagd%o' )ccused watching a gang rape with his pants down. Still not enough to be aiding and
abetting.
R. v. Kulba%ki' )ccused was in the passenger seat of his car while his girlfriend was driving dangerousl$.
2e is found guilt$ as an aider and abettor as he had a right to control the car and the driver.
N.B.: -his was decided before "unlo- and &ylvester both are lines of authorit$. 6istinguishing factor is
)ccused having control of the car. In "unlo- and &ylvester, the$ had no control of the dump.
R. v. Lauren%elle' )ccused reali5ed her common8law husband and his friend kidnapped a man and were
holding him at their house. 6idn*t do an$thing else (tried to make victim more comfortable! but remained in
the house and didn*t report kidnapping. Not guilt$ as an aider or abettor as she didn*t have sole control of
the house and couldn*t order principals to leave.
Common Intention
s. 9+(9! sa$s someone who forms a common intention with another to commit an offence is also guilt$ of
that offence, once it is committed. -his includes liabilit$ for )ccused for conse<uences of the crime that the
)ccused knew or ought to have known would happen.
R. v. Logan' -$pical common intention case. )ccused committed a robber$ with someone else. -hat
someone else shot somebod$. )ccused charged with attempted murder under the common intention
provision. )ccused sa$s s. 9+(9! is unconstitutional as it imposes an ought to know re<uirement for
attempted murder.
,amer C.0.C. does not declare section unconstitutional but declares inoperative the words Tor ought to have
known* when considering under s. 9+(9! whether a person is a part$ to an offence where it is constitutionall$
re<uire to have sub%ective fault )ccused thus has to know as opposed to ought to have known
Counselling
s. 99 forbids counselling to a committed offence s. ?A? forbids counselling to an offence which is not
committed. ;oth give rise to criminal liabilit$ and the counsellor receives same punishment as principal.
R. v. Hamilton' )ccused was selling fake credit card numbers over the internet. Charged with counselling
fraud. Eish 0. la$s out counselling offence'
8 a%tus reus' deliberate encouragement or active inducement of the commission of a criminal offence.
8 mens rea' intent to have offence committed, or being reckless to the fact that it is more likel$ it will be
committed.
2ere, Eish 0. orders new trial, sa$ing trial %udge confused motive and intent. Charron 0. dissents # she
thinks recklessness not enough for mens rea of counselling fraud sa$s we don*t want to criminali5e speech
ver$ broadl$ and this )ccused is ver$ naVve and did not think credit card numbers could ever be used.
)ccessor$ )fter the Eact
s. 9> of the Code sa$s an$one who receives, comforts of assists Kperson the$ know has committed an
offenceL for purpose of enabling that person to escape is liable to be found guilt$ of the offence.
R. v. "uong' ,eading case for this # sa$s willful blindness tantamount to knowledge and is sufficient for
liabilit$, even for murder.
R. v. &halaan' )ccused allegedl$ was an accessor$ after the fact to the murder of her husband. She is
convicted even though principal found not guilt$ in his trial. States that someone ma$ be convicted of being
an accessor$ after the fact even if the alleged principal has been found not guilt$.
2"
Start with the Codethen move to the case law to interpret itdo Actthen Faultthen any defences
ISSUE %tte"pts
s. 9? of Code # )ccused has to attempt the offence but not complete it. Eurthermore, )ccused must go
be$ond mere preparation and attempt (where this line is to be drawn is a matter of law and is not at all
clear!
s. ?A> sa$s penalt$ for attempt less than actual offence s. 9>? is a special provision for attempted murder
R. v. ,n%io' ,eading case on what is the mens rea for attempted murder. )ccused went to wife*s bo$friend*s
house with a sawed8off shotgun. (un discharged (unclear how! but bo$friend not hurt.
/cInt$re 0. sa$s that mens rea is more important in attempts than a%tus reus (usuall$ other wa$ around! #
a%tus reus needs to be a step towards commission of offence be$ond mere preparation a%tus reus does
not have to be a crime or even an unlawful act.
Mens rea for murder "ust be atte"pt to $ill and there*s a reasonable doubt here that that is not the case.
4&-D' -his is a lesser standard than for murder, where mens rea can be in reckless beating.
R. v. &orrell and Bondett' 6ufraimont*s second favourite case # worst robbers of all8time. :easonable
doubt as to intent so trial %udge entitled to ac<uit but if that was not the case, what the$ did went be$ond
mere preparation.
R. v. "euts%h1 )ccused tells potential secretaries the$ will have to have sex with clients if necessar$. 2e
tells them the$ will be compensated for it but does not offer them a %ob. Charged with attempt to procure
person to have illicit sexual intercourse. SCC sa$s this goes be$ond mere preparation and thus he*s guilt$.
SCC sa$s no firm test between attempt and preparation but we look to proximit$ and it being an actual step
in the commission of the offence (ex. offering people mone$ to have sex!. Can have an attempt even if
there might be a timelag (ex. killing someone slowl$ through poison! can still have an attempt even if there
might be a timelag between end of offence and beginning
5nited &tates v. "ynar' )ccused willing to launder dirt$ mone$ but the mone$ was actuall$ from the E;I
(sting operation! and thus, had he laundered it, it wouldn*t have been a crime. Court points out three
different t$pes of impossible attempts'
+. Eactual Impossibilit$' ex. tr$ing to pickpocket and the pocket is empt$
9. ,egal Impossibilit$' ex. malevolentl$ tr$ing to steal an umbrella and the umbrella is mine
>. )ttempting to commit an imaginar$ crime' ex. importing sugar into Canada thinking it is an offence
SCC sa$s no difference of note between the first two. Dither wa$, )ccused attempted to commit a crime but
circumstance made it impossible. -hus, this )ccused is guilt$. (Stuart thinks this is wrong.!
,ast one is not an offence, though, as there is nothing to charge with attempting to do.
21