Common Law cannot be
used to create offences
b/c of concerns related to
principles of legality, and
b/c criminal offences
should be clear, certain,
and should pre-exist the
act being prosecuted.
Section 9(a) No person
shall be convicted or
discharged under
s.730(guilty) of an offence at
CL. S8 NO CL OFFENCES
ALLOWED
Frey v Fedoruk Held the
peeping was not otherwise
criminal and not falling within
any category of offenses
defined by the Criminal Law
without more eg. assault. It is
up to Parliament, not the
courts, to make a course of
conduct criminal.
Defences: CL defences are
available under criminal law
and can still be created by
the courts.
The CL can deeply
influence the way that
statutory criminal offences
are interpreted. Section 8(3)
Every rule and principle of
CL that justifies or excuses
an act or a defends a charge
continues in force and
applies to CC offences.
Levis v Tetrault SCC
recognized the common law
defence of official induced
error of law.
R v Jobidon Fight outside
a bar, Jobidon beat
contender so badly he died.
Held The SCC held that
consent cannot be used as a
defence for assault which
may cause serious hurt or
non-trivial bodily harm.
Consent would be a valid
defence where the harm was
trivial or where it is part of a
socially valuable activity, such
as sports. minority (Sopinka)
held that the victim
Haggart could never have
consented to such an
beating.
POWER TO CREATE
CRIMINAL OFFENCES
Federal Government s.
91(27)
Jurisdiction to create
non-criminal offences
(regulatory offences) and
use jail to enforce these
offences. Only
government able to
create criminal offences
(true crimes)
The procedure during
criminal hearings, is
governed by Federal rules
and by the common law.
R v Malmo-Levine The
criminal law power, they say,
includes the protection of
vulnerable groups. Thus the
government is able to control
activities for the protection of
drug users and society. The
SCC rejected a constitutional
challenge of the
criminalization of marijuana.
Provincial Governments R v Gundy If accused does not INTERPRETING CRIMINAL PROVISIONS
s.92(14) challenge admissibility of Interpreting the criminal code is similar
Jurisdiction to create non- Breathalyzer results on the basis that to interpreting other statutes.
criminal offences (regulatory Charter rights were violated, the However one must be aware of the
offences) and use jail to enforce Crown is not required to establish the following considerations:
these offences. Provinces have officer had reasonable and probable Definitions The Criminal Code has
jurisdiction over the administration grounds to make the demand. definitions for many of the terms used, but
of justice within the province Reasonable and probable they are not always easy to locate.
s.92(14) grounds - objective and o Section 2 Criminal Code contains
Charter subjective test. Where definitions that apply through the code.
The Charter imposes limits on grounds depend upon a o Parts the code is divided into Parts - at
the jurisdiction of all governments fail, Crown must prove that the beginning of each Part there will be a
subject to s.1 reasonable officer reasonably believed that he definition section that applies solely to that
limitations clause and the was using an approved device. Part.
seldom-used s.33 THE CLASSIFICATION OF o Provision - Sometimes definitions are
notwithstanding clause. OFFENCES found in or around the relevant statutory
The Charter can be used by the Indictable Offences Generally provision to be interpreted.
courts to invalidate offences more serious offences. Usually carry Strict Construction Historically,
created by Parliament, and strike higher maximum penalties. criminal statutes were interpreted strictly
down rules of criminal procedure. Election For indictable offences, in favour of the liberty of the accused.
Uncommon though. the accused may choose to have a The accused would get the benefit of the
R v Heywood H convicted for trial by superior court judge and jury, doubt or ambiguity in matters of
sexual assault of children. This superior court judge alone or by interpretation. This principle continues to
conviction made him subject to provincial court judge. apply, but has been heavily modified by
section 179(1)(b), which Section 469 lists a series of the purposive interpretation.
prevented certain convicted offences that must be tried R v Pare See below purposive
individuals from loitering. He was by a judge and jury, so the interpretation.
caught loitering at a playground. accused is given no election. Purposive Interpretation Canadian
Held - The SCC found that Section 553 lists a number law makes liberal use of purposive
section 179(1)(b) for vagrancy of offences that will be tried interpretation, in which the language
was overbroad and thus violated in provincial court, so the that is used in the provision being
section 7 Charter and could not accused is given no election. construed is interpreted harmoniously
be saved under section 1. The Section 471 trial by jury is with the statute as a whole, with the
offence was struck down. compulsory for all indictable underlying purpose of the provision in
R v Oakes Oakes caught with offences, unless some other mind so as to best accomplish its
vials of hash oil as well as cash. Code provision creates an underlying purpose, always bearing in
Charged with trafficking. Section 8 exception to that requirement. mind that the limit on purposive
of the Narcotics Control Act Summary Offences Generally interpretation is that damage cannot be
provided for a shift in onus onto less serious. Mode of trial court done to the language employed.
the accused to prove that he of criminal jurisdiction. o R v Pare Pare challenged the
was not in possession for the S.768(2) have a 6 month provision of the first-degree murder law
purpose of trafficking. Held limitation from when the offence that states that murder is when a person
The reverse onus created by was committed. kills another while committing an
the presumption of possession Never greater than 18 month indecent assault. In Pares case,
for purposes of trafficking indecent assault concluded on a boy
term of imprisonment. Only
violated the presumption of before killing him. He claimed he did not
provincial jail.
innocence (s. 11(d)) and could Hybrid Offences the prosecutor fall under the language of the law. The
not be justified under s. 1. The has the right to elect whether to treat court held that before using strict
rule of criminal procedure was interpretation of the law, a purposive
the offence as indictable or summary.
struck down. approach is necessary. Under this approach,
Until the prosecutor elects,
the purpose of
The Charter can also be hybrid offences are treated as
the law when enacted was to include cases
used as an interpretive indictable offences.
In every statutory provision where there is a break between the assault
tool. Courts to permit and the murder, and as a result, the law
constitutional values to influence that creates an offence,
intended while
the way statutes are interpreted. Parliament classifies the offence.
The classification has committing to be a continuous sequence of
R v Labaye The Charter
implication for the penalties that events forming a single transaction. Pare =
changed the criminal concept of guilty.
indecency through a progression are possible and the procedure French/English Federal laws, like the
of cases described therein. Held that will be used (including the
Criminal Code are passed in both of
The Court approved of the harm- Classification of offences
affects: Canadas official languages.
only approach and wrote that
o Each version is equally authoritative.
harm or significant risk of harm o Jurisdiction of the courts over
the offence. o The Scope of police o Ambiguities in one language can be
is easier to prove than a
powers o Procedures for clarified by the other.
community standard of
R v J(D) - ??
decency. The Court went on to compelling appearance and interim
release The Charter can have an important
establish more guidelines as to
o Manner of proceedings in court influence on the way statutory
measure harm. The SCCs
provisions are interpreted b/c of the
decision upheld consensual group o Statute of limitations indictable
= none; summary = 6 months from presumption that statutes were
sex and swinging activities in a
club and alleged bawdyhouse as completion of offence. intended to be constitutionally valid.
o Sentencing indictable = max. o R v Labaye See above.
being consistent with personal
autonomy and liberty. imprisonment exceeds 2 yrs; o Canadian Foundation for Children &
summary = max. 6 months or fined the Law v Canada (The spanking
Rules of Practice (not
$2,000 or both (unless higher Case) The foundation argued against
examined)
section 43 of the CC (corrective force
The Charters largest impact on penalty prescribed by Parliament).
o Jail offender sentenced more against children if reasonable under the
criminal procedure has been in
circumstances), on the basis of vagueness
creating constitutional procedural than 2 years = federal penitentiary
(indictable); less than 2 years = because children under two cannot be
protections.
corrected, and children over 12 will only be
Section 482 Criminal Code provincial jail (indictable or
harmed by corrective force. The court held
Permits courts to create rules summary).
o Appeal Indictable = court of that the law was not vague or
of practice to govern
administrative mechanics of appeal; summary = superior court overbroad, because it delineated who
of the province. was allowed to use the force, why the
practice in criminal courts.
force should be used, and the use of
the word reasonable is
not vague, as it is an
essential element of
the law, and is also an
objective test of
conduct which is not
vague as such.
o Arbour J: However, while
vagueness does not
require that a law be
absolutely certain; no law
can meet that standard
However, while discretion
is inevitable, a law will be too
vague if the legislation has
given a plenary discretion to
do whatever seems best in a
wide set of circumstances
o Arbour J After a
comprehensive review of
existing s. 43, emphasizing
the number of acquittals
she decided that the
phrase reasonable under
the circumstances in s. 43
violated the childrens
security of the person
interest in s. 7 and that the
principle was not too vague
to be in accordance with
fundamental justice.
THE ELEMENTS OF A
CRIMINAL OR
REGULATORY OFFENCE
STEP 1 What is the
Question?
Who are you? Crown or
accused. Straighten out
facts and timeline.
STEP 2 Go to the Code
Elements of the Offence
Statutory origin (s. 9)
Language? Duty? Fault?
What does the Crown
need to prove?
o In order to obtain a
conviction for a criminal or
regulatory offence the crown
must always prove beyond a
reasonable doubt (BARD)
that the accused
committed the prohibited act
(R v Lifchus).
All elements of the offence
must be present at the same
time or there will be no crime
(R v Williams).
THE ACTUS REUS
3 COMPONENTS Of
ACTUS REUS
1) WHAT IS THE
ACT/OMISSION IDed
BY THE STATUTE, 2)
CAUSATION, 3)
VOLUNTARINESS
STEP 3 Is the offence an
act or omission?
Always start with was
there an act then go on to
was there an omission. If the
offence is an Act:
1) Read the Code and
find out if it is a
positive act or
omission 2) Once you
read the code, check
the section for
defining terms see s.
2 retain or deal with the goods.
definitions 3) Read the
section for what is
required for it to be an
act ie. s.348(1)(a)
offence of break and
enter with intent, Must willingness to do an act cannot consent. For the purpose of
break and enter a trigger a legal duty). possessionoffences; possession = control.
place as defined in Code CL Duty to Act Not guilty.
with mens rea. 4) Is it Majority created CL duty to ID R v Terrence Accused passenger in
possible to construe act of yourself to police when caught stolen car. Joyride with buddy
the accused, being kind of committing an offence (R. v. Moore - driving.Cannot be guilty for simply being in
act described in the M biked through red light, committed physical possession of the stolen
provision. traffic offence). goods.There is a necessary mens rea
R v DAngelo Public Failure to ID obstruct officer in element too.
swimming area includes a performance of duties. POSSESSION OF MATERIALS FOUND IN
swimming pool open to ***IF THERE IS A BREACH OF A RESIDENCE
members of a building complex. DUTY*** STEP 3A The Act of R v Pham Constructive possession
If the offence is an Omission: Possession: requires non-quiescent knowledgand a
Whether an offence can At times, part of the actus reus of measure of control. To constitute joint
occur by omission is a an offence has an inherent mental possession, there must beknowledge,
question of construction. element to it and the element of consent, and a measure of control on the
To be guilty by omission: possession. part of the persondeemed to be in
1) the offence must This illustrates that the divide possession.
contemplate guilt for between actus reus and mens rea is STEP 3B Consent (as an Element of
omissions not a solid one. For the purposes of Actus Reus)
2) the accused must be possession offences, unlawful Often the question of absence of consent
placed under a legal duty possession by the victim is an important actus reus
to act either by the requires = knowledge, consent and condition that must be present for
provision charging him or by the ability to exercise control. Section offences to occur.
some incorporated provision 4(3): Subjective test. Burden on the Crown. If
3) the omission in question CONSTRUCTIVE POSSESSION - (a) the Crown can prove that there was
must be a failure to fulfil A person has anything in consent, the Act is no longer unlawful
that legal duty possession when he has it in his renders an unlawful act lawful.
(i) You need to find a legal personal possession or R v Jobidon Fight outside a bar, J beat
duty to act recognized by knowingly: (i) has it in the contender so badly he died. Held The
criminal law (statute or CL) actual possession or custody SCC held that consent cannot be used
AND (The charge for the of another person, or as a defence for a criminal actsuch as
omission will likely come (ii) has it in any place, assault which may cause serious hurt
from 1st group. But Crown whether or not that place or non-trivial bodily harm.
will try to anchor the duty belongs to or is occupied by R v Cuerrier C had unprotected sex with
in CL, or CC (2nd group) him, for the use or benefit of 2 women and didnt disclose HIV status.
Some Criminal Code himself or of another person, Charged with aggravated assault. Held
Provisions criminalize the and Failure to disclose HIV
JOINT POSSESSION - (b) where one statusconstituted fraud and a
failure to act:
prosecutable crime (aggravated
Other CC provisions impose of two or more persons, with the
knowledge and consent of the rest, assault). Womensconsent to
a legal duty to act, and
unprotected sexual activity was invalid
criminalize breach of this has anything in his custody or
possession, it shall be deemed to be b/c obtained by fraud.
provision: Section 219
in the custody and possession of Required all criteria to prosecute on
(criminal negligence)
Section 180 (2) (common each and all of them. these grounds: (1) The accused
nuisance) Section 215 Section 2 Controlled Drugs and committed an act that a reasonable
(failure to provide the Substances Act Possession person would see asdishonest,
necessities of life) Section means (2) There was a harm, or a risk of
222 (manslaughter) w/in the meaning of harm, to the complainant as a
Section 215 (providing subsection 4(3) of the CC. result of that dishonesty,
necessities of life) MANUAL POSSESSION (3) The complainant would not have
Section 216 (undertaking R v York Y found stolen goods in consented but for the dishonesty
his warehouse and put them in his
to administer medical by theaccused.
truck to dispose of them. He was
assistance) Section 217 R v Ewanchuk E made sexual advances
(undertaking to do an act) charged with possession of stolen on an interviewee. She said no,but he
goods. ForCrown to prove
Section 217.1 continued, and she failed to object
possession, they must establish 1)
(organization liability) further. Argued implied consent.
Section 252(1) (legal duty manual or physical handing Held Held that there was no defence of
of the prohibited object, 2)
to stop at scene of implied consent to sexual
knowledge, and 3) control.
accident) assault.Actus Reus: 1) touching
Personal possession is
Statutory Duty to Act objective, 2) sexual nature of the
S.215 defines duty to provide established where an contact
accused person exercises
necessities to those under objective, 3) absence of consent
physical controlover a prohibited
their charge. CL broadly subjective. Look at complainants
object with full knowledge of its
interpreted under their subjective internal state of mind.
charge to include elderly and character, however briefthe physical Mens Rea: 1) intention to touch, 2)
contact may be, and where there is
ill parent (R. v. Peterson son knowing
some evidence to show theaccused
neglected old dependent of, or being reckless of or willfully blind
person took custody of the object
father). to, a lack of consent on the part of the
willingly with intent to deal with itin
o Test Would a reasonably person touched. Consent is subj & no
some prohibited manner.The
prudent person, in charge of defence of implied consent. Limits on
accused, having only become aware
another, reasonably foresee that honest but mistaken belief of consent
that thegoods were stolen, panicked
failure to provide necessaries of - silence, passivity or ambiguous
and drove them away from his
life would endanger health or life of conduct doesnt constitute consent.
premises. He wasnot guilty of this
person. STEP 4 If it was an Act/Omission, was it
offence although he failed to inform
An undertaking must be Voluntary or Willed?
the police. His conductwas
a binding commitment, Voluntariness is defined as the mental
inconsistent with any intention to
upon which reliance is requirement of the actus reus (R.
reasonably placed, for v.Parks) it is the voluntary movement of
CONSTRUCTIVE JOINT
legal duty to arise in s.217. your body.
POSSESSION
(R. v. Browne court found no There can be no actus reus unless the Act
R v Marshall Passing drugs
undertaking of legal duty. Mere described by the offence must
around in the car, no control over the
expression of words indicating a bevoluntary in the sense that it must
otherpeople. Passing joint close to
 be the willed act of the
accused. (R. v.King)
Involuntariness can occur
as a result of
automatism,
sleepwalking,intoxication,
OR, bc of external
situation where you had
no choice speeding
to the hospital.
Voluntariness
cases:Examples
associated with
mentaldisorderNot
associated with
mentaldisorder
Rabey argues non-
insaneautomatism
caused by
psychologicalblow from
mean letter (fails)
Parks sleepwalker kills
inlaws gets non-insane
automatism (todaywould
be insane)
Stone husband stabs 47
times swoosh effect Trial Courts
test for inane vs.Non-
insane auto
Lucki driving on slippery rd
inwrong lane no AR,
NG (courtconfuses
AR+MR)
Wolfe strikes with phone,
butreflexsive action (court
confusesAR+MR)
Ryan robbery to win lottery
case reflexive action not
involuntary ifyou
voluntarily create
dangeroussituation
Scope of the federal
criminal law power:
prohibited act with penal
consequences
(a) Not colourable
invasion of provincial
power.
Provincial Regulatory
Offences: Constitution Act
1867, s. 92 (15)
The imposition of
punishment by fine,
penalty, or imprisonment
for enforcing any law of the
province made in relation
to any matter coming
within any of the classes of
subjects enumerated in
this section.
-Property and Civil
Rights (92(13)) -
matters of a local and
private nature (92(15)).
Dominant Purpose Test:
Upheld Struck Down
highway traffic (OGrady v.
Sparling) -prostitution
(Westendorp) film
classification and
censorship - abortion
(Morgentaler)
compulsory drug treatment
(Schneider) -censorship
(Swtiman v. Enlbling)
1982, Charter of Rights and
Freedoms: large no. of
Charter cases are criminal
cases.
- *Federal govt can also
legislate REGULATORY
OFFENSES (as can
provinces)
BUT only feds can legislate accordance with the (s.9). Common law defences still
CRIMINAL OFFENSES under principles of fundamental allowed s.8(3).
s.91(27). justice. Use of Common Law in Statutory
Policing and Prosecutions Specific Legal Rights
Interpretation:
Jobidon p23 v. The Queen (1991 SCC)
What branches are responsible (s.8): unreasonable search s. 265(1)(a): Jobidon is charged with
for the administration of the and seizure assault after a fight in which the other
criminal code? S.8 to 10 protects those person was killed. Jobidon argues that
o Constitution Act, 1867 subject to investigation by they agreed to fight therefore other
o 91(27) Criminal Law, feds can the state party consented.
enforce any criminal law. (If you 8 unreasonable search Decision: common law legitimately
can pass it you can enforce it) and seizures served in this appeal to find certain
o 92(14) Administration of 9 arbitrarily detained or situations where people are not allowed
Justice. imprisoned to consent and that already existing
o Look at s.2 of the Criminal 10 for those who principles in the common law should be
Code, Feds can investigate all have been arrested considered if the Code does not
crimes, but in practice most are rights to counsel etc. expressly displaced the common law.
handled by the provinces. s. 11 to 14 To protect Consent in this context, it is not a good
o RCMP Federal agency often those who are tried and thing to allow people to voluntarily fight.
acting as a police force convicted of an offence Consent must be interpreted to mean
employed by provinces 11.e right not to be denied that consent will exist when trivial bodily
Corrections reasonable bail harm is intended and caused (i.e. in
Federal penitentiaries s. 91(28), 11.b tried within reasonable sporting events). Anything more serious
2 years or more Provincial time than this there is no real consent,
prisons 92(6), less than 2 years 11.d presumed innocent therefore Jobidon found guilty.
2 years or more rule, (Criminal until proven otherwise in a Dissent: Justice Sopinka dissents
Code, s. 743.1) fair trial argues that the Court has essentially
11.f right to a jury in certain created a common-law offence (offence
Superior Courts: Supreme circumstances created was the intentional application of
Court, Queens Bench and Court 11.h once acquitted, force with the consent of the victim) by
of Appeal, Federal Court accused has a right not to changing the meaning of s. 265(1)(a),
Trier-of-fact: person in a trial tried again for the same which they are not allowed to do under
who decides factual (as crime s.9 of the CC.
opposed to legal issues, thats s.12 everyone has the right Common Law Defenses
the judge) issues, this may be a not to be subjected to Amato defense advanced was
judge or jury. cruel and unusual entrapment, a defense the SCC had not
Serious crimes, eg murder, treatment or punishment previously recognized.
treason etc. tried in Superior
s.15 everyone equal under Decision: The SCC wants to give judges
courts the law
the flexibility to change with the
Provincial Courts If a law infringes on one of these
circumstances and change with the times.
No juries, judges appointed by rights, the onus is on the state
So the courts can recognize new common-
the province. to prove that under s.1 it is a
law defenses.
Offenses: all summary reasonable infringement
Doctrine of Strict Construction (DSC):
conviction offenses, provincial The Criminal Code
When the text of a statute can be
regulatory offenses, many Criminal Code contains wide
understood in more than one way, the
indictable offenses. ranging offences, depending on
approach which would afford the greatest
On indictable offences, the offence they are designed to do
benefit to the accused is adopted
defendant can choose prov/QB 1 of 3 things;
Goulis, Pare used a contemporary
Summary conviction offense 1) protect bodily integrity
approach to the doctrine of strict
can go to jail for up to 18 mo. (murder, assault, etc.)
construction. These are all examples of the
Indictable offense: punishment 2) protect property (theft,
court looking to what Parliament aimed at
set out in Criminal Code (usually fraud etc.)
doing with the legislation first, before going
not more than 5 years). 3) proclaim standards of
to strict construction. Plain meaning of
Appeals acceptable societal behaviour
statute considered first, if ambiguity
Either side can appeal. In (possession/sale of drugs)
persists then benefit given to accused
Canada you can appeal an
acquittal, but only on errors of Common Law Offences: Pare (issue of strict construction because
law etc Double jeopardy does Frey v. Fedoruk (this is not a while committing was contested). Even if
not attach because its an a murder is not premeditated it can still be
criminal case, one individual v. the 1st degree if it is committed while the
appeal, not a re-trial. other) One common law offence
accused is committing another listed crime
Summary conviction v. was breach of the peace. In this
in the CC (i.e. sexual assault).
indictable offenses: for case the breach was peeping.
Issue: In this case can the doctrine of strict
summary regardless of where Fedoruk in defense says he was construction be used to benefit the criminal
you were convicted, you appeal conducting a citizens arrest that because the murder was committed after the
to the superior court, and then defense hinges on whether or not sexual assault? 6
with leave to the court of appeal peeping was a crime. Fedoruk Decision: Upon considering statute, there is
and with leave again, to the argues that it was a common-law
no ambiguity, assault and murder seen as
offense (since breaching the Kings
SCC. With indictable, you go single transaction
peace is not in the criminal code).
automatically to the Court of Decision: SCC finds that they cant Non-retroactivity
Appeal and with leave to the find something criminal which had Charter ss. 11(g) & (i)
Principle that crimes cannot be
SCC. There is an automatic right not in the past been found to be
criminal in the case law, we cant created or punished retroactively.
to appeal to the SCC when in the create new common law crimes. Applies to both charge and
Court of Appeal there is a dissent The common-law method was thus punishment.
on a legal issue too uncertain. We put a high
importance on certainty.
Legal Rights in the Charter
1953 revision of the Oakes Test (see Orbanski SMp for good
General Legal Criminal Code in response in ex.) - used for assessing whether
Right (s.7): right to part to Frey v. Fedoruk that charter limit is reasonable and
life, liberty, and security abolished common-law offences justified
of the person, not to be EXCEPT for contempt of court (1) objective of the law must be
deprived thereof except in sufficiently important. Must show that
the law is of pressing
and substantial concern
(pretty easy)
(2) show
proportionality of the
effects of the law on the
right being infringed
(minor, severe?) and
balance it against the
positive effects of the law.
Are the means and the
ends in a reasonable
degree of proportionality
to each other?
o To establish
proportionality is
there a rational
connection? Does the
law impair the Charter
right as minimally as
possible? Is there
proportionality between violation of charter ss. 2/15
the good and bad effects
of the law?
S.7 is the Catch-all
everyone has the right
to life, liberty, and
security of the person and
the right not to be
deprived thereof except
in accordance with the
principles of fundamental (1)
justice. This section
mirrors s.1 in many ways
and courts have been
reluctant to find that a
violation of s. 7 is saved
under s. 1.
Vagueness and the
Charter (Nova Scotia legislature in the means used to
Pharm)
You can argue that a law objective. In the case of
is unconstitutionally
vague in three ways:
(1) It violates principles of overbreadth the means are too
fundamental justice
(Charter s. 7)
(2) Prescribed by law (2)
(s.1) you can argue
that the limitation is
not prescribed by law Heywood p27 Case if you
because it is so vague have been convicted of a
(3) Can also argue that it sexual offense you cant go to Result in this case was the
fails the minimal
impairment part of s.
1. An all-
encompassing
prohibition on certain being (1) overbroad on
things (i.e. Speech)
will catch too many
things and people
wont know what they affected ALL convicted of
can say.
APPLICATION: Extremely kids, (4) enforced without
difficult to demonstrate in notice to those affected
practice, courts go to
great lengths to find
certainty
Problems w/
VAGUENESS:
1. No FAIR NOTICE to
citizens absolute
certainty is not
required, there has to
be sufficient guidance, o Conservative Approach (i.e. (Nova Scotia Pharm)
common law and
societal standards are
considered. Ignorance is (1) For large complex societies to (1) It violates principles of fundamental
no excuse. function we need certain justice (Charter s. 7)
2. Give too much LAW shared values to govern (2) Prescribed by law (s.1) you can
ENFORCEMENT human norms otherwise we argue that the limitation is not
DISCRETION: We want to
get social disorder, prescribed by law because it is so
limit arbitrariness to avoid (2) To ensure that these values vague
abuses by law
are passed on we can be (3) Can also argue that it fails the
enforcement.
fairly heavy-handed through minimal impairment part of s. 1. An
Canadian Foundation for
paternalism, all-encompassing prohibition on certain
Children, Youth and the
(3) Societal integration things (i.e. Speech) will catch too many
Law v. Canada A.G.
conformity things and people wont know what
(2004) CFCYL p29
o Liberal Approach (i.e. Mills, they can say.
Case about reasonableness of
Feinberg): APPLICATION: Extremely difficult to
parents using force in child
(1) We need to have demonstrate in practice, courts go to
correction (CC s. 43) - shows
autonomy, that is the great lengths to find certainty
that courts will go to great
basic social contract, not Problems w/ VAGUENESS:
lengths to clarify whats not in a
conformity; 1. No FAIR NOTICE to citizens absolute
statute in plain language.
(2) Millean notion of harm, do certainty is not required, there has to be
Decision: upheld provision not
what you want as long as sufficient guidance, common law and
too vague or broad, serves as
it doesnt harm others (i.e. societal standards are considered.
guidance not direction. No
consensual crimes, or Ignorance is no excuse.
suicide should not be a 2. Give too much LAW ENFORCEMENT
D. Overbreadth
crime for example that is
Laws means are far
a paternalistic law).
DISCRETION: We want to limit arbitrariness
to avoid abuses by law enforcement.
more sweeping than its
(3) Exceptions Canadian Foundation for Children,
objective. Consider the
2. The Economic Approach: Youth and the Law v. Canada A.G.
means chosen by state in
(bentham, becker) ? (2004) CFCYL p29
relation to purposes.
1. We assume rationality of Case about reasonableness of parents
Overbreadth occurs when a
ppl in system using force in child correction (CC s. 43) -
state emplovs means that are
2. We assume that people shows that courts will go to great lengths to
far broader than necessarv
have all the info they clarify whats not in a statute in plain
for an obiective.
need language.
Overbreadth v.
3. People have concrete Decision: upheld provision not too vague
vagueness (Heywood
interests that dont or broad, serves as guidance not direction.
p27
change and can be No violation of charter ss. 2/15
** This is the foundation for the
assumed, we can D. Overbreadth
automatism defen ce
maximize utility according - Laws means are far more sweeping than
**Overbreadth and vagueness are
to preferences (which are its objective. Consider the means chosen by
related in that both are the result of
taken as a given) state in relation to purposes. Overbreadth
a lack of sufficient precision by a
4. People make decisions occurs when a state emplovs means that
based on the above are far broader than necessarv for an
accomplish an 7
perfect rationality with obiective.
perfect information with (1) Overbreadth v. vagueness
vagueness, the means are not
set preferences. (Heywood p27) Overbreadth and
clearly defined. In the case of
Charter Limits Jobidon v. The vagueness are related in that both are the
Queen result of a lack of sufficient precision by a
sweeping in relation to the
Issue: Is consent a defence to a legislature in the means used to accomplish
objective.
serious assault? Held: No an objective. In the case of vagueness, the
Application
Reasons: means are not clearly defined. In the case of
Heywood p27,
Fights are socially useless overbreadth the means are too sweeping in
CFCYL p29, Demers
Not in the public interest to relation to the objective.
allow this sort of thing (2) Application Heywood p27, CFCYL
p29, Demers
death of a young man on his Heywood p27 Case if you have been
public place with children for
engagement day convicted of a sexual offense you cant
an undetermined amount of
Argued for the sanctity of go to public place with children for an
time. Law was struck down for
human body should vitiate against undetermined amount of time. Law
the validity of consent to bodily was struck down for being (1)
geographical terms, (2)
Charter Limits Jobidon v. The overbroad on geographical terms, (2)
chronologically overbroad,
Queen chronologically overbroad, (3) too
(3) too broad in that it
Issue: Is consent a defence to a broad in that it affected ALL convicted
serious assault?Held: No of sexual assaults even if not on kids,
sexual assaults even if not on
Reasons: (4) enforced without notice to those
Fights are socially useless affected
Not in the public interest to Charter Limits Jobidon v. The Queen
Limits on Criminal Law
allow this sort of thing Issue: Is consent a defence to a serious
When should we regulate
Result in this case was the assault? Held: No
human behaviour with
death of a young man on his Reasons:
criminal sanction and
engagement day Fights are socially useless
when isnt it? And who
Argued for the sanctity of Not in the public interest to allow this
gets to decide?
human body should vitiate sort of thing
Theories of Criminal
against the validity of consent to Result in this case was the death of a
Law, 2 sets of theories:
bodily harm young man on his engagement day
1. The Moral
Vagueness and the Charter Argued for the sanctity of human body
Approaches:
should vitiate against the validity of
You can argue that a law is consent to bodily harm
Stephen, Devlin):
unconstitutionally vague in three v. Welch
ways:
 Ontario CA held that
consent would not be a
defence to a charge of
assault
Complainant claimed that
she did not consent to the
acts
But, court said that the
defendant could still be guilty
even if there had been
consent
Court explained that
hurting people is wrong
doesnt matter whether the
victim gave consent
Prostitution: (Prostitution
Reference)
Not illegal in Canada, but we
have criminalized almost
every other aspect of
prostitution besides the act
itself (i.e. communicating for
the purposes of, keeping a
common bawdy house etc)
and these have been found
to be constitutional
Reference Re ss. 193 and
195.1(1) of the Criminal
Code (1990) p62
Court upheld under the
Charter certain sections of
the Criminal Code that deal
with prostitution
Court Held:
- s. 195.1(1) (against
communicating in a public
place for the purposes of
engaging in prostitution)
did infringe freedom of
expression under s. 2(b) of
Charter, but that it was
justified under s. 1 it was
held to be a reasonable
limit
- Held that neither
(included s. 193 - against
operating a bawdy
house ) violated s. 7 of the
Charter although they
infringed liberty and
security of the person, they
did so in accordance with
the principles of
fundamental justice
Constitutional law experts,
such as Peter Hogg, speak
about the relationship
between the Supreme
Court of Canada (SCC) and
Parliament as a dialogue.
Parliament passes a law,
which might later be
challenged as being
contrary to the Canadian
Charter of Rights and
Freedoms (Charter).
Often, after declaring the
challenged law to be
unconstitutional, the SCC
will delay the effect of this
declaration for several
months to give Parliament
the opportunity to address
the constitutional
deficiency, yet ensure there
is not a gap in Canadas
regulation of an important
activity. This process is
referred to by some create an offence that consider the values of promoting dignity and
constitutional scholars as the prohibits purchasing sexual services equality and protecting children and
dialogue theory. This is the or communicating in any place for that communities. Thus, the concern is whether
potential state of affairs for purpose; the new laws offend security of the person
some of Canadas prostitution and freedom of expression or whether they
create an offence that
laws in the Criminal Code. On will be upheld as constitutional (Blaze
occasion, after Parliament re- prohibits receiving a material benefit Carlson and Fines).
drafts and passes an amended that derived from the commission of So, there are constitutional experts who
law, there is yet another an offence referred to in paragraph believe that the new legislation will result in
challenge where the SCC is (a); further Charter challenges (Blaze Carlson
asked to determine the create an offence that and Fines). Will the dialogue continue?
constitutionality of the amended prohibits the advertisement of sexual - - Pornography
law. Often, the SCC upholds the services offered for sale and to R. v. Butler p68 (1992 SCC) Justified
amended law as constitutional. authorize the courts to order the infringement on certain types of porn
However, sometimes the SCC seizure of materials containing such (freedom of expression) Accused operated
will once again send Parliament advertisements and their removal shop selling porn material, charged with 77
back to the drawing board. This from the Internet; counts of violating s.163lCode.
process is referred to by some modernize the offence that (distribution is prohibited of materials
constitutional scholars as the prohibits the procurement of persons with explicit sex with violence, and
dialogue theory. This is the for the purpose of prostitution; explicit sex without violence but which
potential state of affairs for subjects people to treatment that is
create an offence that
some of Canadas prostitution degrading or dehumanizing) - S.163
prohibits communicating for the
laws in the Criminal Code. In violates freedom under s.2 (freedom of
purpose of selling sexual services
December 2013, in Canada expression) but could be upheld under
in a public place, or in any place open
(Attorney General) v. Bedford, s.llCharter: (1) Community standard of
to public view, that is or is next to a
2013 SCC 72, the Supreme tolerance - determine standard of
place where persons under the age of
Court of Canada held that the community (2) S.163 only refers to types
18 can reasonably be expected to be
provisions of the Criminal Code 1 & 2 of porn: risk of harm (3) Is the
present;
that dealt with keeping a bawdy legislative objective outweighed by
house (section 210), living off ensure consistency infringement of freedom? No, objective
the avails of prostitution between prostitution offences and the aimed at avoiding harm. Butler p68 Test
(section 212(1)(j)), and existing human trafficking offences; In determining if pornography is too
communicating in public with and explicit or graphic(obscene - where
respect to a proposed act of specify that, for the exploitation of sex is undue), the
prostitution (section 213(1(c)) purposes of certain offences, a following test was created:
were unconstitutional. weapon includes anything used, Community Standard of Tolerance
According to the SCC, these designed to be used or intended for Responds to the changing morals of the
provisions put the safety and use in binding or tying up a person nation. Does not ask people what they
lives of prostitutes at risk by against their will. would view, but what would they allow
preventing them from The enactment also makes others to see. (the most important step of
implementing safety measures consequential amendments to other the test)
such as hiring security guards Acts. Degradation - sex depicted in a
or screening potential clients. The Government also promised $20 degrading or dehumanizing manner,
The SCC concluded that these million to be aimed at getting which includes submission,
provisions offended the Charter prostitutes out of sex work (Blaze subordination and humiliation, will not
section 7 right to life, liberty and Carlson and Fine). The government generally be accepted. To depict sex in
security of the person, and were says the bill will protect and keep this way is against the principles of
no t in accordance with the communities safe by allowing dignity, and this kind of exploitation is
principles of fundamental justice. prostitutes to rent apartments, screen harmful, especially to women.
The SCCs declaration of invalidity clients, hire a receptionist or security Internal Necessities Does the
was suspended for one year. guard, and advertise their own sexual exploitation have a legitimate role
Having decided to redraft these services (Confused about changing in advancing a theme or plot in an
provisions, Parliament prostitution laws in Canada? Bill C-36 artistic, literary, intellectual or scientific
conducted online consultations. In Primer). work? If so, it may be justified. This kind
addition, Parliament looked at Blaze Carlson and Fine report that of sexual exploitation is not just dirt for
models for dealing with prostitution Evangelical and pro-family groups dirts sake, but has a purpose.
from other countries (e.g., in support the Bill, but sex workers and R. v. Sharpe p71 (2001 SCC) Justified
Nordic countries, buying sex is their legal advocates said the law provision prohibiting possession of child
illegal but selling it is not). Canada would be vulnerable to a porn BC trial judge ruled s.163.1(4)lCode
Justice introduced Bill C-36 constitutional challenge on many provision (forbidding possession of porn)
the Protection of Communities and fronts. also LILE SIS BOOK EMPORIUM
Exploited Persons Act on June 4, Because purchasing sex will be a - SCC found the provision constitutional: 1)
2014. Because purchasing sex will crime, there are concerns that sex Provision combats material that poses
be a crime, there are concerns that workers will be forced to negotiate risk of harm to kids. 2) Provision violated
sex workers will be forced to with prospective clients in hidden the freedom of expression but was
negotiate with prospective clients locations, which will expose them to justified under s. 11Charteras the
in hidden locations, which will safety concerns similar to those government
expose them to safety concerns caused by the former provisions. objective of protecting children from
similar to those caused by the Further, it will be illegal to advertise exploitation was proportional to the
former provisions.The House of sex services (of others) and one must violation.
Commons Justice Committee is decide whether the place one is Two exceptions (also apply to making
examining the proposed new law selling sex is occupied by young child porn):
in summer 2014. According to persons. This will continue to raise -a) does not prohibit possession of
the Legislative Summary prepared safety issues about where one can expressive material created through the
by the Library of Parliament: legally sell sex. However, the new efforts of a single person and held by
Bill C-36 amends the Criminal laws purposes have been written in that person alone, exclusively for his or
Code to, among other things, such a way that judges evaluating her own personal use, such as personal
their constitutionality would have to journals and drawings
-b) does not prohibit
possession of visual
recordings created by or
depicting that person, but
only where these
recordings do not depict
unlawful sexual activity, are
held only for private use,
and were created with the
consent of those persons
depicted The Harm
Principle
R. v. Malmo-Levine; R v
Caine (2003 SCC)
Justified infringement on use
of marijuana Issue of
criminalization of simple
possession of marijuana
contrary to principles of
fundamental justice, as to
whether it causes to harm to
others. Challenge to Narcotic
Control Act provision. SCC:
imprisonment for marijuana
possession does not violate
s.7 principle against gross
disproportionality: (1) Court:
harm principle is not a
strict legal principle since
many examples of
criminal laws do not
cause harm to others
(cannibalism, bestiality,
incest). (2) A claimed
charges based on s. 7l
Charter since it is his
chosen lifestyle. Court:
his lifestyle choice is not
protected by s. 7 since
harm is not insignificant
or trivial. (3) Court
acknowledges Parliament
entitlement to act under
crim power for reasons
other than avoidance of
harm to others, but is
subject to Charter rules
such as arbitrariness,
irrationality, gross
disproportionality. A used
the legality of alcohol and
tobacco as an example of
arbitrariness of the law.
Court: Parls choice to
limit one harmful
behavior more than
another is not arbitrary or
irrational of the law by
itself. Of note from Malmo
- -a principles of
fundamental justice must:
-a) be a legal principle
-b) about which there is
significant societal
consensus that it is
fundamental to the way in
which the legal system
ought fairly to operate, and
-c) it must be identified
with sufficient precision to
yield a manageable
standard against which to
measure deprivations of
life, liberty, or security of
person -the harm principle
is not a principle of
fundamental justice ex. of
princs - law cannot be
inordinately vague, overly (3)Oppressive conditions (2) Police should have held off investigation
broad, no retroactive application (4) Trickery (see below) they exploited opportunity to violate Ds
of law, only voluntary conduct Trickery rights.
should attract criminal liability 1) Courts may consider certain forms (3) Under s.24(2), evidence obtained in
(Ruzic), right to a fair trial, law of of trickery, such as the use of violation of Charter should be excluded as it
fabricated evidence, in determining would bring AOJID.
causation and mens rea (Cribbin),
whether the interrogation was (4) Purposive interpretation of 1O(b):
presumption of innocence oppressive and hence involuntary. designed to protect fairness to A with
(Wholesale Travel,) 2) Even where a court determines respect to incriminatinq themselves. R. v.
Police Powers Kent Roach on that a statement is voluntary, it may Oickle 2000 SCC - confession thrown
Parkers Theory, Criminal exclude it if it was obtained by trickery out
Control vs. Due Process so appalling as to shock the Failed polygraph (not admissible in court
Criminal Control p107: community. R. v. Spencer, 2007, anyways), admitted he set gfs car on fire
Efficiency - Assembly line SCC, SM p13 - confession after a 6 hour interview that he asked many
model: go through arrest, admissible, R tried to make deals w/ times to leave from, police played good
conviction, punishment as fast police who refused. However, police cop (2) Section 10 of the Charter:
as possible (current system allowed visit to gf conditional on COMPONENTS OF s. 10 of Charter
government. Procedural aspects giving confessions. no offer of Triggered by arrest or detention
leniency made to R w/ respect to gf, (Therens, Thomsen, Obranski, Elias),
are seen as obstacles; currently
only withholding visit to her until at Police have no legal power to demand
an obiective-oriented process) - least partial confession was made -
cooperation in interrogation. They can seek
Though concerned with limiting not strong enough inducement. fact it, but not demand it.
abuse of powers, criminal that R took bargaining role was (Obranski) If police have reasonable
control system wants to control significant. Affirmed use of Oickle grounds to believe that you are driving
outside of criminal process; if test: Do a contextual analysis to impaired by alcohol, they can demand s.
the polices conduct is see if will of subject has been 254(2) that you provide a breath sample. If
unreasonable, we should not overborne. Used above factors. quid you refuse, you can be charged with an
exclude evidence or give a stay pro quo is the most important offence of Refusing to Blow. s254(5)
Due Process: Fairness of trial consideration, but is not exclusive, *They cannot physically force you to do it,
and pre-trial when an inducement is alleged to but youll be charged if you dont. 10b rights
- Excludes evidence obtained have been offered by a person in must be given before blood
authority -regardless, it is the strength sample/breathalyzer sample can be taken
through unreasonable
of the inducement and his or her s.254(3) - note that this is not required if
methods; focuses on possible circumstances, that is to be youre too drunk to understand right to
remedies if police misbehave. considered in the overall contextual counsel (Mohl)
This system considers analysis into the voluntariness of the R. v. Therens 1985) Three types of
exclusionary rules (excluding accused statement-inducements detention outlined
tainted evidence) as it is become improper only when Facts: accused collides w/ tree, officer takes
believed that evidence that is standing alone or in combination to station to provide breath sample under
obtained through force is with other factors, they are strong 254(3) (not screening device), accused
unreliable. There is less trust enough to raise a reasonable doubt complies, over legal limit; at no time was
in the police and skepticism of about whether the will of the informed of right to counsel under 10(b).
their powers. subject has been overborne Issue: Was this a detention under s.10? If it
Questioning Suspects: Operating mind! (lowered Clarkson was a detention was 10(b) violated?
Most important tool police have. p113 requirement) (Whittle SCC Reasons: In its use of detention, s.10 is
1994) you can confess as long as directed to restraint of liberty other than
Allows police to gather evidence you basically understand what you
arrest in which a person may reasonably
and (hopefully) incriminating are saying and comprehend that require assistance of counsel but might be
statements from the accused. the evidence may be used against impeded from doing so but for the
Two standards, Confessions you. If you exercise poor judgment, constitutional guarantee. s.254(5) of Crim
Rule and s. 10 of the Charter that doesnt necessarily meant that Code: criminal liability under this section is
(1) Confessions Rule (common you didnt have this level of sufficient to make compliance involuntary.
law rule of evidence, you dont understanding. Schizophrenic heard Detention (besides physical threat) can be
need to invoke the Charter to use it voices to confess, wasnt fully rational effected if person submits in the deprivation
because its a common law rule) but had some understanding of the of liberty and believes that the choice to do
Boudreau, Clarkson consequences. otherwise doesnt exist.
Voluntary Confession Rule: Clarkson v. The Queen (1986 Finding: 10(b) violated, evidence of breath
evidentiary rule: Whenever a SCC) sample excluded under 24(2) b/c obtained
person makes a statement to Facts: Voluntary confession rule: as a result of flagrant and overt Charter
police or other persons in authority, exclusion of evidence because D was violation. Three Categories of Detention:
and Crown wants to submit it as drunk when she murdered her (1) Physical Compulsion
evidence, prosecution must show husband. Police instructed of her right (2) Legal Compulsion
that statement was submitted to counsel; meanwhile, A blabbed (3) Psychological compulsion - accused
voluntarily BRD, otherwise all about murder in their presence. reasonably believe no choice but to submit
evidence collected can not be Issues: Are the drunken confessions *NEED TO KNOW In Canada, when the
used. admissible? Is an involuntary police question someone with the intention
Rationales for rule confession admissible? (No) of furthering the investigation by gathering
1. Ensures the innocent are Decision: Accused had not voluntarily information, the court tends to find that the
not convicted waived right with full awareness of person is NOT detained under s.10. But,
2. Society places tremendous consequences. Appeal permitted; when the polices prime motive is to elicit
weight on self-incriminating evidence excluded, court restored self-incriminating evidence, then the person
evidence acquittal: WILL considered to be detained under s. 10.
3. Public underestimates how often (1) D could not waive her 1O(b) right R. v. Thomsen (1988) violation saved
people confess to crimes that they to counsel until she was sober under s. 1.
didnt commit enough to do so with full knowledge Issue: whether demand made by cop to
4. Disincentive towards police of the rights the procedure was accompany him to his car and provide
abuses ie torture etc. enacted to protect and the effect the breath sample (under 234(1) now 254(2))
Three things court will consider waiver will have on those rightsshe resulted in detention of appellant under s.10
in determining Voluntariness: did not know what was at stake. of Charter
(1)Operating mind - (Whittle) (1)a - waiver - must be clear and Reasons:
(2)Was there a threat or a promise unequivocal that the person is waiving See definitions of detention from Therens
(quid pro quo?) violence=always the safeguard with full knowledge p173:
exclude, offers to procure lenient
treatment = almost always exclude
- The request under 234(1))
to give roadside sample does
meet this criteria and
appellant was therefore
detained.
- Then found denial of right to
counsel implicit in wording of
234(1) (forthwith, roadside)
but this denial of 10(b) rights
justified under s.1 of Charter
(noting that counsel is
available at the more serious
Breathalyzer stagepolice
station).
NOTE: In R. v. Grant 1991
30 min delay was not
acceptable
In R. v. Bernshaw
immediate demand nor
required after immediate
alcohol consumption - 15 min
delay acceptable
2 categories to think about
that SC has read-in to s.10:
Informational Duties
(Brydges p123, Bartle)
10a - Police must tell you
ALL of the reasons you are
being arrested or detained. If
the nature of the investigation
changes while you are being
detained, they have to tell
you that as well.
10b have to tell you that
free duty counsel exists, and
give you the number
have to provide without
delay, unless imminent risk of
serious bodily harm
must ensure basic level of
linguistic understanding -
may need interpreter
R. v. Brydges p123 (1990)
The defendant said that he
couldnt afford a lawyer and
the SC found that his
statement was a request for a
lawyer that should have
triggered the police to help
him do that including telling
him about duty counsel or
Legal Aid in that jurisdiction.
Ratio: as part of information
given re: 10(b), detainees
should be informed of
existence of Legal Aid/duty
counsel/equivalent
**After this case Ontario set
up toll free number (24 hour),
Nova Scotia didnt
R v. Bartle (1994) - if there is
a list of lawyers on-call you
must inform the defendant of
that service as well and
about how you can access it.
Facts: Accused arrested for
drunk driving, informed of
right to counsel and
availability of legal aid but not
the free 1-800 number
Decision/Reasons: Court
held that 10(b) rights violated,
excluded Breathalyzer under
24(2)
Implementational Duties
(Manninen p119, Prosper
p125, Obranski and Elias
SM p21).
1. 1st component must hold
off when accused requests a
lawyer, (cant persistently
question (Manninen p119),
cant denigrate counsels integrity, Limit on s. 10(b) right of drivers in -Police didnt interrupt ongoing criminal
can plea bargain both cases was prescribed by law, enterprise, offence was brought on by their
2. 2nd (Prosper p125) must give scope of the police power to check conduct, would not have occurred otherwise.
accused a reasonable the sobriety of drivers at the -Length of time (6mo) show police had to go
opportunity to talk to a lawyer roadside is: a procedure cannot be beyond merely providing opportunity
(not indefinite). relevant factors - is reasonable... unless it can be -Most important factor here: informer
counsel available? urgency? performed at the site of the acting threateningly in woods; if police have
suspect must be diligent, however detention, with dispatch, with no to go this far they have gone beyond
3. BUT lawyer of choice is danger to the safety of the detainee providing reasonable opportunity.
also guaranteed, law is not clear and with minimal inconvenience to Finding: entrapment applies (accused met
what reasonability standard is here the detainee -necessarily calls for a burden of proof - BOP), allow appeal, set
4. Courts will consider factors such case-specific inquiry. Also, Limit on aside conviction, ordered new trial (?) and
as the time of day, and the right to counsel during questioning entered stay of proceedings
importance of carrying on the and compliance with s. 254(2) Entrapment TEST:
investigation immediately demand for roadside screening (a)The authorities provide a person w/ an
device sample is reasonable under opportunity to commit an offence w/out
Have to ask someone if they Oakes test. acting on a reasonable suspicion that this
want to talk to a lawyer. Must Oakes Test: justified limit because: person is already engaged in criminal
record the answer. (1) objective of reducing the effects of activity or pursuant to a bona fide inquiry;
If no , police can proceed impaired driving is a compelling state (sufficient connection between the past
If yes Implementational objective, (2) infringement on the right conduct of the accused and the provision of
Duties to counsel is rationally connected to an opportunity?)
R. v. Prosper p125 (1994 SCC) that objective, (3) minimal impairment (b) Although having such a reasonable
Violation of s. 1O(b) right: - scope of powers carefully limited suspicion or acting in the course of a bona
exclusion of evidence) and limitation on right to counsel fide inquiry, they go beyond providing an
Accused was arrested for impaired temporal, (4) Proportionality - opportunity and induce the commission of
driving, informed of legal aid and screening is short and minor an offence. (what the average non-
his 10(b) right, but after attempting inconvenience predisposed person would have done?)
to call 15 legal aid lawyers, he Administering the road-side -To determine whether police have gone
stated that he could not afford screening test, prior to consulting farther than providing opportunity, a
private counsel. Accused failed a a lawyer was held to be a justifiable number of factors useful to consider (10 on
breath test. - Evidence was breach of the Ds Charter s. 10b p139) More on Bona Fide Inquiry: R v.
inadmissible: taking of the breath rights. Barnes, SCC, 1991 p141, bona fide
sample infringed on rights. - Court: Ratio: Why can police get away with inquiry requires: -1) the officers conduct
not necessary to impose this? (1) Time is an important must be motivated by the genuine purpose
requirement to ensure all consideration accuracy of the of investigating and repressing criminal
detainees get legal counsel, as Breathalyzer, activity; and-2) the inquiry must be directed
(2) Objective of road safety not at a suitable area. BFI - Here, officer
10(b):
1) Does not impose positive efficient to stop people for long induced person outside of Granville mall,
periods of time (police should be out where officer reasonably believed drug
constitutional obligation of
enforcing the law, not waiting on sides offences were occuring. Conversely,
government
of roads for people to talk to lawyers) random virtue-testing only arises when a
2) Far-reaching implications; it
(3) and the road-side screening police officer presents a person with the
would mean in order to arrest,
every province must have a duty device number can only go to opportunity to commit an offence without a
suspicion NOT conviction for reasonable suspicion that: -a) the person is
counsel system. - Suggested
remedy: police should hold off until impaired. already engaged in the particular criminal
Entrapment: activity; or -b) the physical location with
person gets counsel, even if
Generally arises in investigation of which the person is associated is a place
benefit of presumption is lost.
R. v. Manninen p119 (1987 SCC) consensual crimes where the particular criminal activity is
Rationales (Mack p135, Posner) likely occurring
Exclusion of confession when
Moral - permits discrimination, police Amato p132 v. The Queen (1982) no
police used baiting question
can go too far, also Economic - waste entrapment asking to buy drugs is not in
Suspect detained for robbery;
itself entrapment
asked to see lawyer, but request of resources. Police cant be
Facts: Informer (persistently) asks Amato
was ignored. Suspect was tricked arbitrarily testing the virtue of random
(A) for coke, A sells him small amt. Informer
into admitting he had the weapon. people. central issue is not
disciplining police or prosecutorial persists for more, A sells him oz. -D
- Confession inadmissible:
conduct, but avoiding the improper introduced to undercover cop who asks
accused right to counsel was
(persistently) for coke, cop told D that he
denied. Nature of the questioning invocation by the State of the judicial
didnt screw around and that he needed
(two simple questions followed by process and its powers (Mack p135)
coke to answer to these ppl and if not,
baiting one) led to involuntary self-
these ppl would come see D. Next day, D
incrimination. Act of answering R. v. Mack (1988) Test for
Entrapment Appellant gets new sold cop 2 oz coke and charged and
some questions does not
convicted for trafficking
indicate that one has voluntarily trial
Reasons: Evidence falls short of evidence
waived ones right to counsel. Facts: Accused a former drug
required to establish entrapment; amounts
R v. Obranski, R v. Elias (2005 user w/ several convictions
to no more than persistent solicitation by
SCC) SMp21 police do not have -Repeatedly (over 6mo period) asked
by informer for drugs, repeatedly said informer/undercover officer.
to give s. 10(b) right during
no (only real estate now) -Informer importuned D, police simply had
roadside screening
-Informer took accused into woods w/ relationship w/ informerthis doesnt give
Facts: Obranski stopped after
rise to entrapment
seen running through a stop sign handgun, said one could get lost in
woods (accused thought this was a -Only where police tactics leave no room for
and swerving on the road. Elias
criminal intent can entrap. enter into
stopped in his vehicle at a random threat)
-Informer took accused to see a determination of guilt.
road-side stop. In both cases
Dissent: there was persistent importuning,
officers could smell alcohol when purchaser (undercover cop), showed
$50,000 police had no reason to suspect that
they approached the cars. Both
-Accused was arrested when accused was related to such activity.
were arrested and neither was
-This enterprise by police would in all
advised of right to retain a lawyer delivered 12oz of coke (bought on
circumstances be viewed by community as
prior to being tested or questioned. credit) to informer.
shocking; such conduct is contrary to proper
Both charged with impaired driving History: Trial: convicted (said more
probable that accused became principles of justice.
and driving over 80
Decision: SCC the police acted involved for profit rather than fear); Procedural Issues:
Appeal court: confirmed conviction; To be decided by trial judge, proper
lawfully when they stopped
remedy: stay of proceedings (Jewitt p131).
Reasons: Lawful police conduct now at SCC
wont always be outlined in statute.
 Guilt established first, then
look at entrapment;
If jury, judge decides
entrapment
BOP - Onus on accused to
prove on balance of
probabilities that entrapment
occurred.
An Economic Theory of the
Criminal Law (Richard A.
Posner) SM p27
police inducements that
merely affect the timing and
not the level of criminal
activity are socially
productive; those that
increase the crime level are a
waste of social resources
Search and Seizure: Hunter
p144, Collins, Buhay SM
p29
Pre-Charter case Entick
v. Carrington (hundreds of
years ago in Britain) where
police were searching for
evidence of sedition and
entered home without
consent and were sued for
trespass (plaintiff won). A
mans home is his castle.
Common law protected from
search and Seizure under
application of trespass laws
Section 8 challenges:
Number of different ways that
state action can be
challenged under s. 8 of
Charter. Set out in Collins
-In a s. 8 charter case, you
need:
-1) to prove state action (s.32
- applies to state or state
agents)
-2) need a search or seizure
-3) need it to be
unreasonable
-To show an unreasonable
search, you can do 1 of three
things:
First way to challenge
under s. 8 - can challenge
the law itself as being
unreasonable in allowing
searches and seizures. Law
applied generally, does it
violate s.8?
Hunter v. Southam
Competition Bureau
responsible for fair
competition. The CB (federal
agency) enforcing Combines
Act was suspicious that
Southam company was
engaged in unfair competition
and wanted to search offices
of Edmonton Journal to
establish this. Edmonton
Journal challenged the
search and took Hunter
(director of CB) to court.
Challenged the law allowing
the search under s.8 .
Decision:
- (1) a member of this
commission was NOT
independent of government
like a judge (impartial) and
also had an important role in
the investigation.
Independent body authorizing
searches is reqd
- (2) there was no requirement in grounds that she was about to commit C. We make it harder to investigate criminal
the statute that the search be a crime. Crown has to show that the matters because those usually involve less
based on reasonable and probable warrantless search was reasonable, powerful people who need more protection.
grounds. they must establish:
Ratio A reasonable search and (1)Reasonable grounds to believe Thomson Newspapers Ltd. v. Canada
seizures occurs if: that there was a narcotic in place; (Director of Investigations, Restrictive
-1) Prior Authorization where it is (2)Whether the manner of the search Trade Practices Commission) (1990) p148
feasible to obtain prior was reasonable. Seizure by the throat Finding: court held that the power of the
authorization, I would hold that was found to have been director of investigations to demand the
such authorization is a pre- unreasonable unless cop had production of documents under s.17 of
condition for a valid search and reasonable grounds to believe that Combines Investigation Act did not violate
seizure -2)Neutral Arbiter it is the person was a drug handler. s.8 of Charter though it did amount to
necessary for the person Sniffer Dogs - AM and Kang-Brown seizure under the section.
authorizing the search to be able Kang-Brown, SCC, 2008 - officer Reasons: To require warrant for any power
to assess the evidence as to tried to look into guys bag at bus of investigation would, in these
whether that standard has been depot, guy didnt want him to, sniffer circumstances, immunize perpetrators from
met, in an entirely neutral and dog alerted to drugs, arrest. All judges discovery/prosecution. Power to search/take
impartial manner; and agree its a search away documents is more intrusive than
-3) RPG where the states interest Lebel+3 = need RPG for sniffer dog mere power to order production of them.
is law enforcement and the search. Not auth at common law Dissent: Important to look past form of
individuals interest is his Binne+1 = need RS because of information gathering and look at the effect
expectation of privacy, reasonable minimal intrusion and high accuracy - the gathering has on the individual. Looked
and probable grounds, established no RS at criteria from Hunter
upon oath, to believe that an Deschamps+1=need RS because - Concluded that these requirements not
offence has been committed and minimally intrusive, RS in this case, satisfied, s.17 violates s.8
that there is evidence to be found consider totality of circumstances WHY DID THE COURT RULE
at the place of the search, Bastarache =need generalized susp, DIFFERENTLY THAN IN HUNTER?
constitutes the minimum standard, R. v. AM, SCC, 2008 - sniffer dog Difference in the search power in the cases,
consistent with s. 8 of the charter, search found drugs in backpack in because in this case they were just
for authorizing search and seizure. gym, students knew search would demanding documents, whereas in Hunter
Reasoning: s.8 acts as limitation happen they were actually taking documents during
on powers of search that the gov Lebel+3=no auth at common law, an intensive search
has; it is entrenched (not student entitled to privacy at school Others (R. v. M (M.R.) SM p45 Hunter
vulnerable to change by legislative Binne+1=no RS, exclude Standards Relaxed for schools
enactments); guarantees a Deschamps+1=RS, no SEP , no OEP R. v. M.(R.)(1998 SCC) SM
broad/general right. Bastarache=unreasonable search, p45Requirement for lawful search and
-Guarantee from unreasonable dont exclude, not- conscriptive seizure in school setting Search conducted
search/seizure only protects a EXCEPTIONS TO WARRANT by vice-principle (in RCMP presence) on
reasonable expectation; REQUIREMENT grounds that he was told by several students
assessment must be made State must demonstrate, when it that the appellant was selling drugs on
whether publics interest to be left conducts a search, that it was school property. - Search was reasonable:
alone must give way to govt in authorized by a neutral third party. modified standard should apply to searches
order to advance its goals, notably In Thompson Newspapers court of students on school property conducted by
law enforcement. found that it was NOT required to get teachers not acting as agents of the police,
Finding: the disputed statute does a warrant because a regulatory because orderly environment needed for
not embody the above seizure, no criminal sanctions and learning. Search was authorized by the
requirements, therefore it is sometimes its too hard to get a provisions of Nova Scotia Education Act. -
inconsistent w/ the Charter warrant based on the evidence. Vice-principal was not acting as an agent of
th
NOTE 4 REQUIREMENT (FROM Hunter p144 also a classic example the Police; search would have occurred w/o
BARRON): the neutral and of a regulatory search (NOT going RCMP. - Reasonable expectation of
impartial arbiter retains the after criminals) but because of the privacy was diminished, as a student in a
discretion to not authorize the fairly unrestricted nature of school, where teachers are responsible for
search investigative powers, court found that safe school environment - standard to be
2. Second way to challenge search violated s. 8. *This case is in applied to searches by school
under s.8 the action of the police opposition to Thompson Newspapers. authorities:
wasnt authorized by law (common Exception to the Hunter rule, a search of a
law or statute) in the first place. Onus is on crown to prove student by a teacher may not require a
warrantless search was reasonable
(Stillman p167)Entick v. warrant ahead of time 18
Carrington (Britain hundreds of and it will not create the presumption that
years ago) cant just go into Regulatory searches (Thomson the search is prima facie unreasonable.
Newspapers p148) Section in the
peoples houses to search for A warrant is not essential in order to
evidence because not authorized Combines Act requiring books and conduct a search of a student by a school
by law to do so. records as part of an investigation authority.
3. Third way to challenge under challenged. The regulation and - The standard should NOT be that a search
s. 8 argue that the law in this investigation of competition is a by school authorities is prima facie
regulatory law (federal, but not
case was applied unreasonably. unreasonable if no warrant is obtained.
Example of this case: criminal law). Courts found that the - Standard of care expected of schools is
Hunter Standards will be relaxed in sufficient to justify relaxed standard
R. v. Collins [1987] SCR 265
Facts: Police conducting the context of regulatory The school authority must have
surveillance of drug dealers who investigations, i.e. dont need prior reasonable grounds to believe that school
tended to swallow goods before authorization and reasonable and regulations have been breached and a
being caught by police. Woman probable grounds. search of the student would reveal this
B. Why would they do this? Too hard
about to swallow a balloon, the cop breach.
grabbed her by the throat to to get to get evidence in advance so School authority is in the best position to
we cant make it too hard for the state assess information given to them and relate
prevent it. The technique is
actually authorized by law (as valid to investigate, plus the people it to the situation existing in their school, and
incidental to arrest), as applied generally being investigated are
generally the law complies with wealthy companies and organizations decide whether reasonable grounds exist.
there seems to be some implicit - The basic principle that a reasonable
s.8, BUT as applied in this
search must be based on reasonable and
particular case it didnt. Decision: agreement to play by the rules state
needs to be able to investigate what probable grounds should still apply, but
Search was unreasonable.
they are doing, also because there is teachers are in a better position to
Reasons: Because in this case
less social stigma with regulatory determine if reasonable grounds exist.
the police didnt demonstrate
infractions. The following is a list of reasonable
reasonable and probable
grounds, but it is not exhaustive: info
received from a student
considered to be credible,
info from more then one
student, a teacher or
principals observations,
any combination, etc. The
compelling nature of the
information and the
credibility of these or other
sources must be assessed
by the school authority in
the context of the
circumstances existing at
the particular school.
The search must be
reasonable
Factors to consider to
determine if a search was
reasonable
1. Can it be inferred by the
relevant Education Act that
the school authority is
authorized to conduct
searches in appropriate
circumstances? In the school
environment such a statutory
authorization would be
reasonable.
2. The search itself must be
carried out in a reasonable
manner. It should be
conducted in a sensitive
manner and be minimally
intrusive.
3. To determine whether the
search was reasonable all
the circumstances will have
to be considered.
The standard from M.(R.) will
only be applied if agent
acting for school is not a
police officer
PENNEY argues that if you
are going to bring in the
police, then shouldnt the
Charter apply? The student
may now be facing criminal
charges and a criminal record
so it would seem to make
sense that the search should
be conducted in accordance
with the Charter.
REASONABLE
EXPECTATION OF
PRIVACY (REP)
General principles
(Hunter, Lebeau p150 &
Lofthouse, Buhay SM p29
(has TEST)
Electronic Surveillance
(Wong p152, Duarte p156)
Plain View Doctrine
(Buhay SM p29)
Sense-Enhancing
Technologies (Tessling
SM p35)
Search or seizure,
generally mean the same
thing because of the inclusive
word or in s.8. Requires a
reasonable expectation of
privacy.
REP test is a cost-benefit
analysis: benefits or privacy
(vis a vis the individual) vs.
benefits of surveillance (vis a
vis society).
When we say there was no
REP, we forgo our ability to
regulate law-enforcement in In the case of first degree Look at the statutory provision of the
certain kinds of searches. murder, under s.231(5) code offence. Is there express language of
If there IS a REP, then we have (crime of mens rea?
the ability to regulate law- domination), a jury must also If no, is the offence a true crime (in
enforcements search powers. consider the additional R v Criminal Code) or regulatory offence?
Depending on the case (i.e. R.v. Harbottle a o If it is a true crime, go to STEP 7A. The
M) the standards may be more lax substantial causation standard but mens rea is presumptively, any
(i.e. in the case of regulatory only after finding the accused guilty of subjective form of mens rea (Buzzanga).
principles) or more stringent (in the murder. Higher standard of o If it is a regulatory offence go to STEP 7C.
case of criminal investigations responsibility of imputable cause The mens rea is presumptively,
STEP 5 If the Act was is required to strict liability (Sault St. Marie).
Voluntary was there Causation? secure a first-degree murder If yes, the language governs. If the
Where the relevant offence conviction. Higher standard of offence expressly sets out the mens rea
prescribes a consequence responsibility for that offence, then the only tasks are:
that must occurbefore the of imputable cause is required to o (1) To ascertain the express words of
offence is complete.o Issue secure a first-degree murder mens reas
arises most frequently in conviction. o (2) To determined whether the express
st
manslaughter, murder, assault ***Harbottle apply only to 1 degree words of mens rea, if any, are so low or
causing bodilyharm, criminal murder, whereas Smithers all minimal; that they violate principles of
negligence causing death other cases of murder.*** fundamental justice in s.7 Charter?
where death occurs later on. The test for causation for homicide is
The mens rea expressed in an offence
Crown must prove that the whether the acts of the accused
applies to all elements of the actus reus ,
accused made a significant were a
unless the offence provides otherwise,
contribution to significant contributing cause to the
expressly or by (judicial) implication. (ie. The
theconsequences that death (R v Nette).
mens rea for theft is intentionally. Intention
occurred BARD (of the offence Both Menezes and Nette illustrate applies to all elements of the actus reus: (1)
they are being charged how must imputable causation
taking, (2) property (3) which is not your own
under). principles
(4) without the owners consent).
History of causation One- explain why blame can be assigned in
liner: criminal cases, in spite of
arguments STEP 7A
o The law has evolved in this area
from the traditional two-step that might, in civil cases, reduce or
test (factual, even eliminate civil liability. SUBJECTIVE MENS REA
legal), to Smithers a cause STEP 6 Was there an
Subjective mens rea - actual state of mind
beyond the diminimous range, intervening cause that broke the of the subject of the prosecuting (the
to todays chain of
accused).
standard from Nette a significant Causation?
cause. As the threshold for Is the original cause continuing to Presumption people usually intend the
causation increases, the Crowns operate? Or was the intervening natural consequences of their acts.
job gets more difficult (ie: cause so This holds, unless intention is
smithers was overwhelming that it made the initial communicated.
good for crown, nette is good for act part of the history of events The law assumes that the accused knew
defence). (Smith)? of the elements of the offence.
R v. Williams guy finds out he Nette was it a significant Unless, the defence of mistake of fact is
has AIDS no sufficient contribution? made out.
causation bc we Nette thin skull take your victim If a true crime is silent as to the mental
dont know if it was transmitted b4 as you find them state, and offence requires a consequence,
or after learning he was Menezes Drag racing, accused it is implied that intention or recklessness
infected. had backed off, deceased continued, in bringing out the consequence will suffice.
Significant cause is hard to prove crashed and died. Held not guilty of ELEMENT 1 If the offence is a true
BARD if there are multiple criminal negligence causing death, crime, there is a rebuttable
parties, guilty of dangerous driving. Kids presumption that the offence is a full
intervening acts, remoteness. decision to keep driving WAS mens rea offence.
Therefore, if causation is not intervening Subjectivity principle: Where the
proved, the cause. Deceased, independent agent, offence is a true criminal offence, the
accused cannot be convicted of an chose to maintain excessive speed, Crown must establish that the accused
offence that requires his act to death result of independent action. who committed the prohibited act did
produce a so intentionally or recklessly, or with wilful
prohibited consequence. Make sure that all elements of the act blindness toward them: Sault Ste
R v Menezes Causation is a are PROVEN BEYOND A Marie
two-stage analysis, requiring REASONABLE DOUBT! Thus, there is a presumption of subjective
factual Once you have established the Act, mens rea for true
causation and legal or imputable you must move on to the MENS crimes (Sault Ste. Marie)
causation. REA. NB: For subjective mens rea the prosecution
R v Nette N admitted to an STEP 7 Did the Accused have the must prove intention,
undercover officer that he had requisite Mens Rea? recklessness or wilful blindness beyond a
Mens Rea is the mental elements reasonable doubt. Conduct is
robbed and
killed a 95 year old widow. Held of the offence. Usually referred to as advertent: Intention, knowledge,
The SCC upheld the Smithers test subjective state of mind of the recklessness, wilfully
accused. ELEMENT 2 Presumption can be rebutted
for
causation in a criminal charge for However, there are now offences if the words or the
that have an objective mens rea (ie. context of the offence and statute seem to
manslaughter or murder.
negligence). indicate a mens rea other than the one
The test for causation for
second degree murder need not o Objective mens rea is determined presumed was intended.
according to what a reasonable
be However, the presumption can be displaced
expressed as a contributing person in
by evidence express or implied that the
cause of death, outside the de the position of the accused would legislature has adopted an objective test or
have known or foreseen.
minimis even absolute liability for some aspect of the
range. Instead it would be more Interpretation of a true crime will be offence.
preferable to use positive terms interpreted as requiring subjective
mens
such Criminal Code
as significant contributing rea, unless it is clear that Parliament Fault presumption on silent
cause to the death. wished to impose objective liability. section: subjective but we are
moving towards objective.
Look to the language of the
offence
Note the difference between
negligent conduct and
reckless
conduct.
Reckless: requires proof that
the
accused was subjectively
aware of
the prohibited risk and was
reckless
as to whether the
consequences
occurred.
Negligence: Is the failure to
act as a
reasonable person without
foreseeing
the possible consequences of
your
action.
Subjective Objective
Clear Language: Look for
words
such as intent, wilfully,
knowingly,
purposely, wilfully blind,
reckless
(without wanton), deliberately
Special Stigma - offence
Constitutionally requires
subjective mens rea: Look to
see if
it is murder (Martineu),
attempted
murder (logan), crimes
against
humanity (flinta), and theft
(obiter in
Martinueau)
Traditional subjective Fault
Offences: like sexual assault
and
assault offences, these are
offences
held subjective based on
tradition or
precedent (Darrach).
If these words/ offences are
found
then you are dealing with a
subjective fault requirement.
If you are dealing with
subjective you
must establish that the
accused had
a guilty mind; you must
establish
BARD that the accused acted
with:
the intent or purpose (not highest standard to lowest: put the property of those who
motive!)
to achieve the prohibited
result or
Was wilfully blind to result, blindness)
or
Was reckless to result
(lowest form of SF
***Motive is not a
requirement of MR.
Clear Language: Look for
words
such as ought, should have, intention required by the relevant then that makes the offence one of accuseds testimony that he had no
negligence, reasonably,
wanton and
reckless, good reason,
Silent: if the Code is silent
say in
the past there was a
presumption
that all Code offences had a Murray intended to hold the
subjective fault element. Stu/ Bernardo
Beaver case support this
presumption. SCC has never purposes of obstructing justice. He was the person committing the act
straight was therefore not guilty. seeking sexual gratification), but this is
out said this presumption has not determinative.
changed, however SCC decisions R v R(J.S.) R(J.S.) intended to Knowledge
such as Creighton exhibit a move shoot into a crowd, with intent to kill a It is unrealistic for the Crown to prove
towards a presumption of objective human being (albeit not the one
what the accused knows thus, it is
fault (gross negligence) for silent killed), opening the door to his
Code offences. Note, in our presumed that the accused knows the
possible murder conviction during his
discussion of statutory conditions of the actus reus exist.
upcoming trial, depending on how the
interpretation, the Goulis case Unless the accused presents a mistake
evidence comes out.
established that any vagueness in Subjective Mens Rea with of act defence.
a In sexual offence context, the mistake
Objective Features
statute is to be interpreted in of fact defence is heavily limited for
Some criminal offences use
favour policy reasons, see below.
of the accused. Therefore if any standards to define criminal conduct
R v Ewanchuk E made sexual advances
ambiguity arises, based on (ie. some assault are sexual, others
on an interviewee. She said no, but he
Goulis, we should adopt are not).
If accused to have subjective continued, and she failed to object
subjective fault at a minimum
further. It was argued that this
(note: this is not what the SCC has appreciation that relevant criminal
standard has been met prior constituted implied consent. Held
been doing). Wilson thinks the
starting point should be SF with conviction would allow content of The SCC held that there was no defence
OF offence to vary by offender; not of implied consent to sexual assault.
only in exceptional circumstances sensible. o Ie. The accused can Actus Reus: 1) touching objective, 2)
on commit fraud if he intends the sexual nature of the contact objective, 3)
clear statutory indication of relevant transaction, even if he absence of consent subjective. Look at
parliament. doesnt appreciate that a transaction complainants subjective internal state of
it is sometimes useful in defences of that nature is dishonest. o If it mind. Mens Rea:
were otherwise objective dishonest 1) intention to touch, 2) knowing of, or being
duress, necessity, self defence people would be held to lower reckless of or wilfully blind to, a lack of
Objective fault Does the conduct standards that the rest of us. consent on the part of the person touched.
of No consent exists when complainant fears
R v Theroux The accused was
the accused go beyond a failure to convicted of fraud for accepting physical violence subjective approach.
act reasonably and does it take on deposits from investors in a building
a Limits on honest but mistaken belief of
project having told them that he had consent - silence,
character of a marked [and purchased deposit insurance when in passivity, lapse of time, or ambiguous
substantial] departure from the fact he had not. The court considered conduct doesnt constitute
reasonable person? (Tutton) the mens rea of fraud under s. 380. consent.
Criminal negligence = marked and Held - The mens rea of fraud is
substantial departure (R. v. J.F.) established by proof of subjective Wilful Blindness
All other objective fault crimes = knowledge of the prohibited act, and Wilful blindness is related to, but distinct
marked departure modified from recklessness.
subjective knowledge that the Subjective state of mind requires the
objective test (Beatty) prohibited act could have as a accused to personally foresee the risk of a
If the language in the statute consequence the deprivation of fact but then wilfully avoids confirmation
indicates it an objective mens rea another. Conduct and knowledge
go to STEP 7B. so as to be able to deny knowledge.
established = accused guilty; whether
ELEMENT 3 Where the intended prohibited consequences or Wilful blindness fits best when used
presumption of full mens rea not. Trier of fact can infer as a substitute for knowledge. o
applies, that mens rea will be intent/knowledge from accuseds Courts and Parliament have habit of
satisfied by proof that the accused actions. There is no requirement thatusing wilful blindness
the accused subjectively appreciate
committed the offence either interchangeably with recklessness.
the dishonesty of his acts.
intentionally, recklessly, or through (See s.273.2 it is not a defence that
wilful blindness (but does not that the accused believed that
That an act of deceit which is
include committing the crime complainant consented to the activity
negligently). made carelessly without any that forms the subjectmatter of the
expectation of consequence, as for
charge, where (a) the accuseds belief
If you are dealing with subjectve example, an innocent prank or a arose from the accuseds (ii)
mens rea, you must establish statement mad in debate which is recklessness or wilful blindness). o
that the accused had a guilty not intended to be acted upon, This leads to confusion the two
mind. You must establish BARD, would not amount to fraud because concepts are not the same, cannot be
that the accused acted with:
the accused would have no equated.
Levels of fault from knowledge that the prank would
Generally the accused must know that
the conditions, which are set out in the
R v Chase The accused was offence, exist before the offence can occur.
Intent/Purpose
charged with sexual assault with The mens rea of wilful blindness can be
Knowledge (goes to wilful
his 15 yearold neighbour, he substituted for full knowledge.
Recklessness Criminal grabbed her breast. Held The act
Negligence of sexual assault should be looked R v Currie A guy approached Currie and
Note: Recklessness is the at objectively, if the act appears to offered him $5 to cash a cheque for him.
The cheque had a signature of endorsement
default in statutes that are not be sexual, then it is sexual assault.
on the back [it was forged by the dude who
clear. As long as the circumstances of gave him the cheque]. Currie took it to the
Intention, ulterior Mens Rea - The the assault objectively infringe the bank, cashed it and gave the cash to the
accused must have the very sexual integrity of the complainant, dude. Trial judge accepted as evidence the
provision. sexual assault. The sexual part of suspicion that the cheque did not belong to
the sexual assault is the actus reus the dude. He was charged and convicted
R v Vandergraff V intended to
throw the object, but not to make not mens rea. Factors to be with unlawfully and knowingly uttering a
forged document on the basis that he was
contact with the victim. His considered - Part of the body
wilfully blind as to the forged nature of the
assault was not intended and he touched, the nature of the conduct ,
was not guilty. R v Murray the situation in which it occurred, endorsement. Did accused know that the
endorsement on the cheque was forged?
the words and gestures, all other
Held - No. Appeal allowed. Doctrine of
tapes, but not for the circumstances (including threats),
Wilful Blindness: Wilful blindness requires
and intent may also be relevant (i.e.
that accused himself
deliberately failed to inquire
into his suspicions. The fact
that a person OUGHT to
have or SHOULD have
inquired does not constitute
knowledge or wilful
blindness. Wilful blindness
requires actual suspicion. R
v Duong Accused charged
with accessory after the fact
to murder. He allowed an
individual wanted for murder
to stay at his apartment. He
heard about the killing
through the media and the
killer told him he was in
trouble for murder. Held
Knowledge that the accused
may have committed some
general crime is not sufficient.
The crown will meet its
burden if the accused had
actual knowledge of the
offence committed or actual
suspicion + with conscious
decision not to make inquiries
to confirm suspicion. Here
the accused just thought
there was some sort of
connection. Wilful blindness
is sufficient for the knowledge
requirement in s. 23
accessory after the fact.
Note: Where the accused
chooses to make no
inquiries, speculation about
what the accused would have
learned is irrelevant to the
determination of the
blameworthiness of that
accuseds state of mind.
R v Vinokurov V was in
possession of stolen goods
and denied knowing they
were stolen. Does
recklessness suffice for
knowledge? Held No. The
offence in question requires
proof that the accused
knows that property had
been obtained from the
commission of an indictable
offence.
Wilful blindness is imputed
knowledge, whereas
recklessness is
something less. Where a
statute requires actual
knowledge, wilful
blindness will suffice because
it is the equivalent of
actual
knowledge, whereas
recklessness is not and is
insufficient.
Recklessness
Recklessness = subjective
state of mind. Requires the
accused to continue to act, in
spite of actually and
personally foreseeing the risk
that their actions will bring
about the prohibited
consequences. o Contrast
Negligence which applies if a
reasonable person would
have foreseen risk (even if
accused does not personally
see the risk)
Recklessness is a
subjective mens rea with
objective features - exists only does it take on a character of a than merely trivial or transitory and usually
where objectively unjustifiable to marked (and substantial) departure involves an act of deliberate violence.
take risk accused understood he from the reasonable person? STEP 7C
was taking. The fact that the (Tutton). REGULATORY OFFENCES
accused may have felt the risk to R v Creighton Drug user doing drugs Regulatory offences can be full mens rea
be justifiable would be no answer.
with victim. Injected cocaine into offences (absolute liability), which are true
Recklessness applies where victims arm with her consent. She crimes. However, for a regulatory offence to
provision creates a consequence stopped breathing and died. C be interpreted as such there needs to be a
doesnt require some more charged with unlawful act clear indication that mens rea is required.
limited kind of mens rea. manslaughter offence. Held - Proof of ELEMENT 1 If it is a regulatory offence,
R v Theroux See above. offence - objective foreseeability of there is a rebuttable presumption that you
risk of bodily harm - which is neither are dealing with objective fault. The starting
R v Buzzanga and Durocher Two trivial nor transitory. point is strict liability (Sault Ste. Marie).
francophone men charged with 1) is the actus reus They are presumed to be strict liability
wilfully promoting hatred against established - requires negligence offences o offences that can be committed
an identifiable group. The accused constitute marked departure (test) by simple, non-penal negligence, with the
published an anti-francophone from standards of a reasonable accused bearing the burden of proving an
brochure in an attempt to provoke person in all the circumstances of the absence of negligence to avoid conviction.
a backlash against case. 2) is the mens rea is ELEMENT 2 Is the presumption rebutted?
antifrancophones. Elements of the established - standard = reasonable Strict liability the accused may raise
offence: The person must, by (1) person in the circumstances of the defence. Up to the accused to show that
communication of statements, (2) accused. Inference may be negated he/she was duly diligent. Burden of proof
wilfully (3) promote hatred against by evidence raising reasonable doubt lies with the accused. This is presuming
(4) an identifiable group. Held as to the incapacity to appreciate the culpability not innocence.
Wilful in this subsection means risk. Personal factors = not relevant (i) Does the wording in the provision
with the intention of promoting (thin skull rule). R v Beatty exclude a defence of due diligence?
hatred and does not include Accused charged with dangerous (s.84.1 HTA)
recklessness. Wilfully intending operation of motor vehicle causing (ii) Does the wording lend to an absolute
to bring about the proscribed death truck crossed solid highway liability offence by expressly excluding
consequences; not wilfully doing line, collided w oncoming car, killing the possibility of innocence? (R v
the act. all. Held SCC mens rea of criminal Chapin)
Generally, wilfully connotes an negligence bases offences - modified (iii) Look at the nature of the penalty (if there
intention to bring about a objective test = marked departure is threat of imprisonment, even default
proscribed consequence. from civil norm. A mere departure of a on fine, it cannot be absolute liability)
STEP 7B reasonably prudent person = (SSM/Reference re Motor Vehicle)
OBJECTIVE MENS REA AND threshold for civil negligence; (iv) Look at the intention of Parliament and
TRUE CRIMES NOT penal negligence. Mere the content of the rest of the statute.
Objective Mens Rea (fault) departure/marked departure Were they silent about DD on one
standard not concerned with distinction = question of degree. The section and not other? If so, maybe they
the accuseds thinking at the actus reus requires proof BARD that, intent Absolute Liability offence.
time, but rather evaluating their objectively, the accused was (v) Look to the wording of the statute
conduct. Criminal negligence = operating the vehicle in a manner (reckless, wilfully, intent, knowledge) (R
objective fault = reasonable dangerous to the public. Regard had v Chapin) Strict Liability
person. to nature, condition, and use of ELEMENT 3 If it is a strict liability
Murder Convictions place car was operated and amount offence, then the burden shifts to the
No objective fault for murder - of traffic at time. Momentary lapse of accused to prove on a balance of
convictions must be based on attention, insufficient to found criminal probabilities:
subjective mens rea in the form of culpability. That he acted with reasonable care or due
full-scale intention (constitutional Predicated Offences diligence?
requirement). Exception to penal negligence That the act was a mistake of fact?
R v Martineau The SCC held requirement - predicated offences. Do not argue ignorance of the law (s. 81
that liability for murder cannot be They are aggravated forms of of Provincial Offences Act says not a
based on any mens rea less than offences that apply when serious Absolute Liability
subjective foresight of death. B/c of consequences result, and that include ELEMENT 4 If the presumption was
the stigma and punishment for a within their elements another rebutted the accused has no defence and
murder conviction, the principles of complete but lesser offence, a the Crown must only prove that act BARD
fundamental justice requires this. predicate offence. (including causal link and voluntariness).
Thus, constructive murder in For predicated offences the Some regulatory offences operate as
s.230 and objective liability consequences need not be brought absolute liability offences that will be
in s.229 = about by penal negligence. It is committed whenever the relevant actus reus
unconstitutional. enough if the accused commits the is proved, provided this is clearly what the
Principle = The punishment for underlying or predicated offence, and legislators intended when establishing the
murder carries with it the greatest that the aggravated consequence that offence.
punishment and stigma in society has been thereby cause was Subjective Fault
and should be reserved for those objectively foreseeable. ELEMENT 5 - The burden rest on the Crown
who intended to cause death or Unlawful act causing harm, to prove BARD that the accused had intent
bodily harm that was likely to unlawful act causing death, (see subjective analysis).
cause death. aggravated assault. In each case the Cases:
Penal Negligence - Marked unlawful act is interpreted to require The Emergence of Strict Liability
Departure Test objective foresight of harm R v R v Sault Ste. Marie Charged with
For crimes using objective fault DeSousa Fight broke out at a party, discharging materials into creek and
as the mens rea, penal accused threw bottle at wall and impairing water quality. Independent
negligence (a more restricted form broken glass flew into victims arm. contractor hired to dispose of waste, put it in
of negligence) is generally Held - The unlawful act must also be landfill next to creek. City said not
required. objectively dangerous - likely to injure responsible b/c contractor built landfill. Issue
Objective fault Does the another person. Reasonable person = was fault requirement. Held Strict liability.
conduct of the accused go beyond realise act would subject person to Accused entitled to a new trial. The court in
a failure to act reasonably and risk of bodily harm. Bodily harm -more considering provincial pollution legislation
held that there are 3
categories of offences
created by statute
distinguished as follows:
(1) full mens rea offences
requiring proof by the
prosecution of a positive
state of mind such as
intent, knowledge or
recklessness (True
criminal offences)
(2) strict liability offences in
which there is no
necessity for the
prosecution to prove
mens rea but which leave
it open to the accused to
avoid liability by providing
that he took all
reasonable care; and
a. Public welfare
offences are prima
facie in the second
category unless the
statute includes the
words such as
wilfully evidencing
an intent that he
offence be placed in
the first category.
(3) offences of absolute
liability where it is not
open to the accused to
exculpate himself by
showing that he was
free of fault.
a. Offences in the
third category
would be those in
respect of which the
legislature has
made it clear that
guilt would follow
proof merely of the
proscribed act.
Constitutional
Considerati
ons
R v Chapin Duck hunting &
charged with baiting area.
Held - Court said not
reasonable to make her
check whole area for bait.
First, determined if regulatory
offence. If yes, presume strict
liability, unless wording says
something else (ie. wilfully,
intentionally, etc) or if high
penalty (ie. jail time). Charter
standards.
Reference re Section 94(2) of
the Motor Vehicle Act (B.C.)
Driving
while license suspended =
absolute liability offence &
penalty = mandatory prison
time. Held Not saved here.
No record of law offending s.
7 and being saved under s.1
to date. Offence with
possibility of jail time cannot
be absolute liability under s. 7
of Charter, it offends the
principles of fundamental
justice. Possible for someone
without fault, to be thrown in
jail, offends s. 7. The accused
opportunity to defend by
demonstrating that they were
without fault - exercised due
diligence, operated under an To abet includes encouraging, There is no liability for being a passive
honest/reasonable mistake of fact. instigating, promoting or spectator of an offence: Dunlop & Sylvester
R v Cancoil Thermal Factory procuring the crime What constitutes a passive presence:
removed guard on machinery b/c to be committed: Greyeyes SCC Presence at the commission of an offence
interfered with clearing scrap. 1997 can be evidence of aiding and abetting if
Employee loses tip of finger by MENS REA: in mens rea is accompanied by other factors, such as prior
accident. Violates safety legislation implied because each offence knowledge of the principal offenders
that requires employers to provide must have a intention to commit the offence or
guard from moving parts. Original mens rea requirement attendance for the purpose of
guard would have prevented. Issue o There must be intent or encouragement:
was fault requirement regulatory recklessness: Beaver Dunlop & Sylvester
and strict liability b/c includes Common Purpose Rule R v Dunlop and Sylvester - Group attack,
possible jail time. Good example of Section 21(2) - Where two or more rape, identified the accused, accepted he
vulnerability justification. Held persons form a common intention to: had only gone to bring beer and only stayed
Absolute liability offence, but if so, (i) carry out an unlawful purpose; for a few minutes. Held - Mere presence at
it would offend s. 7. Should and the event or passive acquiescence is not
interpret in a way that does not (ii) to assist each other therein and enough to find someone guilty as aider and
violate the charter. The court any one of them, in carrying out abetter.
considered officially induced error the common purpose, COUNSELING
as a defence to a provincial (ii) commits an offence, each of them
An accused can be convicted of
offence. It was held that the who knew or ought to have known
counselling offences, whether or not the
defence is available as a defence that the commission of the
offences counselled are actually committed.
to a regulatory offence where the offence would be a probable
Counseling = encourage before the act.
accused reasonably relied upon consequence of carrying out the
Distinguish abetting and counselling
the erroneous legal opinion or common purpose is a party to that
Abetting = psychological
advice of an official who is offence.
encouragement/support at scene of offence
responsible for the administration E.g. common purpose to rob a
or enforcement of the particular bank but not commit murder. If Counseling = not at scene of offence but
law. Retrial. murder occurs then other person will encourages before the illegal act
Levis (City) v Tetreault An not be liable as outside the common takes place
accused must demonstrate the purpose. Mens Rea Test for s21(2) Section 22 (1) - Where:
objective reasonableness of the liable if they knew or ought to have (i) a person counsels another person to be a
advice given and the reliance on known commission of the offence was party to an offence; and (ii) that other person
the advice. The issue must be a probable consequence TEST: is afterwards a party to that offence, the
considered from the perspective of ought to have known can assess person who counselled is a party to that
a reasonable person in a situation fault based on an objective standard offence, notwithstanding that the offence
similar to that of the accused. SCC regardless of mens rea for principal was committed in a way different from that
recognized the common law offence. which was counselled.
defence of official induced error of The Extended Counselling Rule
law. Ie person ought to have know an (2) Every one:
EXTENSIONS OF CRIMINAL unintended result was likely. (i) who counsels another person to be a
LIABILITY party to an offence is a party to every
It is not only the person who Exception for offences for which offence that the other commits in
actually performs the actus reus subjective mens rea is consequence of the counselling that the
(the principal offender) who can constitutionally required Words person who counselled knew or ought to
be convicted of the offence. or ought to have known are have known was likely to be committed in
AIDING, ABETTING constitutionally inoperative e.g. consequence of the counselling.
Those who aid (physically murder, attempted murder: Logan, NB: exception for offences which
support) or abet (encourage) the SCC 1990. constitutionally require subjective mens rea
accused to commit the offence can as ought to have known is unconstitutional
R v Logan - Accused helped plan a
be convicted. i.e. murder , attempted murder (have to
robbery (but wasnt there) - someone
Persons who aid and abet an show actual intention)
was shot and almost killed. The
offence can be convicted of (3) Counselling, defined to include procure,
offences they did not intended to accused is charged (as a party) with solicit or incite.
aid or abet provided that offence attempted murder for the robbery and Mens Rea for Counselling
is a foreseeable outcome of the injuring of the store cashier. Appealed
on the issue of mens rea for Mens rea requirement is intention or
offence they did intend to aid or recklessness. Hamilton (selling ways of
abet. attempted murder - the
constitutionality of objective standard doing credit card fraud over the internet) 6-3
Section 21(1) Every one is a majority held that recklessness was
party to an imposed in s. 21(2) common
interest doctrine. Held - Parliament sufficient as he was aware of the risk that
offence who someone may use his programs for fraud
(a) Actually commits it; allowed to have different fault levels
even though his intention was not to
(b) Does or omits to do anything for principals and parties, but if counsel.
for the purpose of aiding any offence has constitutionally required R v Hamilton - Sent out teaser email
person to commit it; or To minimum fault level, then cant be
advertising machine to generate credit card
aid under s. 21(1)(b) means to convicted as party w/o meeting that
minimum. numbers; charged w/counselling fraud. Trial
assist or help the actor e.g.
judge acquitted b/c motivation monetary
drive person to offence:
Two step process: figure out if there is rather than malicious, but didnt discuss
Greyeyes omits = things
mens rea so new trial. Dissent said
that make it easier to commit a constitutionally required minimum
the offence. E.g. leaving a and, if not then s.21(2) is fine and if recklessness not enough for mens rea. Held
yes, then make sure that minimum - Mens rea required for counselling -
back door open to make is
easier to get into premises met too. recklessness or wilful blindness. Actus reus
= actively encouraging crime (if its socially
MENS REA: In (b) mens rea is 1) Attempted murder requires
expressed as for the purpose harmful to do it, then its just as socially
subjective mens rea. harmful to counsel someone else to do it).
of o for the purpose of 2) S. 21(2) is unconstitutional with
means with intent to as per Mens rea = intending offence to be
respect to the objective part, committed or knowing it will likely be
Hibbert 1995 o Therefore can when it is tied to a crime that
apply to the commercial aider committed (can be intent or recklessness,
constitutionally requires maybe wilful blindness).
e.g. if gun seller knows you are
subjective Counselling offence that is NOT committed:
going to use gun to commit a
mens rea (murder, attempted murder, Section 464 Except where otherwise
crime he will be liable as he
war crimes, crimes with expressly provided by law, the following
sold to accused with intent to
stigma infer subjective mens rea; provisions apply in respect of persons who
aid in a crime
therefore no ought). counsel other person to commit offences,
(c) Abets any person in
committing it. Passive Spectator namely:
(a)every one who counsels
another person to commit
an indictable
offence is, if the offence is not
committed, guilty of an
indictable offence
and liable to the same
punishment to which a
person who attempts to
commit that offence is liable,
and
(b) every one who counsels
another person to commit
an offence
punishable on summary
conviction is, if the offence is
not committed, guilty of an
offence punishable on
summary conviction.
ATTEMPTS
Not all crimes need to be
completed before an offence
arises.
Section 24 (1) Every one
who, having an intent to
commit an offence, does or
omits to do anything for the
purpose of carrying out the
intention is guilty of an
attempt to commit the offence
whether or not it was possible
under the circumstances to
commit the offence; (2) The
question whether an act or
omission by a person who
has an intent to commit an
offence is or is not mere
preparation to commit the
offence, and too remote to
constitute an attempt to
commit the offence, is a
question of law.
The Discrete Offence of
Counselling
Section 463 Attempts,
accessories.
Persons who attempt to
commit or are accessories
after the fact to the
commission of offences:
(a) If indictable offence
carrying liability to life, and
convicted, liable to 14 years.
(b) If indictable offence
carrying liability to 14 years
or less, and convicted, liable
to maximum penalty for
completed offence.
/(d) If summary offence and
convicted, liability to full
penalty for summary
conviction offence.
The offence of conspiracy in
which the agreement to
commit a crime is a crime
Section 465 (1) In respect
of conspiracy:
(a) Conspires to commit
murder or cause another to
commit murder, guilty of
indictable offence, liable to
life imprisonment.
(b) Conspires to prosecute
person for offence they did
not commit, guilty of
indictable offence and liable:
(i) If offence carries liability
for life or term not exceeding
14 years, liable for 10 years.
(ii) If offence carries liability
for less than 14 years, liable
for 5 years.
Other indictable offences, liable R v Dery Police overheard the Section 16 of the Criminal Code modifies
for fully indictable penalty. accused attempting to conspire to the common law defence of insanity.
(d) Conspires to commit summary commit To have access to this defence, the
offence, liable for full summary possession of stolen liquor. Held - accused must establish that he has a
penalty. Attempting to conspire to commit an mental disorder as defined by the case law
There is liability for attempting to offence is not a crime in Canada. This
and that it affected him in one or both of the
commit an offence. case exposes the limits of
Section 660 Where the piggybacking ways described in section 16(1).
completed commission of an incomplete forms of liability. Section 16 (1) No person is criminally
offence charged is not proved, but Attempting to conspire to commit a responsible for an act committed or an
the evidence establishes an substantive offence is not a crime in omission made while suffering from a mental
attempt to commit the offence, the Canadian law. disorder that rendered the person incapable
accused may be convicted of the CORPORATE AND ASSOCIATION of appreciating the nature and quality of the
attempt. LIABILITY act or omission or of knowing that it was
Mens Rea for Attempts Corporations are liable for the acts wrong .
R v Ancio Husband went to of their agents for strict and absolute (2) Every person is presumed not to suffer
estranged wifes boyfriends place liability offences. from a mental disorder, until proved on a
with gun, they struggled and gun These offences turn on actus reus balance of probabilities.
went off (not clear if accident). alone no need to use any legal
(3) The burden of proof, that accused
Issue was mens rea for attempted devices to ascribe mens rea to the
murder. Held The level of intent corporation. The Criminal Code suffered mental disorder and should be
should the same as for attempted corporate liability provisions do not exempt from criminal responsibility, is on the
murder or murder. Mens rea of apply to regulatory offences. party raising the issue.
attempt = mens rea of fully crime. For true crimes the Criminal Code Definition of Mental Disorder
Mens rea for attempted murder sets out standards for corporate and R v Cooper The accused strangled
requires proof of the specific intent association liability. someone to death. The accused argues that
to kill. No lesser mens rea will Section 22.1 In respect of an he blacked out for the last part of the
suffice. The Crown must prove offence that strangulation and at the time did not have
intent to commit the offence in requires the the necessary mens rea (for murder offence
question (mens rea) and that some prosecution to mens rea is knowing that the victim is likely
steps had been taken towards the prove negligence, an organization is
to die). Held Mens rea at the beginning
commission of the offence going party to the offence if,
o the act carries throughout the whole
beyond mere acts of preparation (a) acting within the scope of their
(actus reus). act. The term disease of the mind = any
authority,
Mere Preparation vs. Attempt illness, disorder or abnormal condition
(i) one of its representatives is a party
R v Deustch The accused was which impairs the human mind and its
to the once, or
charged with attempting to procure (ii) Two or more of its representatives functioning, excluding, however, self-
women to have sex with another engage in conduct, whereby the act induced states caused by alcohol or drugs,
person [now s.212(1)(a)]. He or omission, such that, if it had been as well as transitory mental states such as
placed an ad in the newspaper and the conduct of only one hysteria or concussion. Personality
interviewed the women explaining representative, that representative disorders may constitute disease of the
that it would be their job to haves would have been a party to the mind. This case provides a definition of
sex with clients. Held - No offence; and (b) the senior officer who mental disorder, although it has been
satisfactory general criteria can be is responsible for the aspect of the
modified by R v Park.
formulated to determine the organizations activities that is
difference between mere R v Parks - Husband kills in laws in
relevant to the offence departs or sleep. Held - Multi-factor
preparation and an attempt. The the senior officers, collectively, depart
distinction between preparation policy test
markedly from the standard of care,
and attempt is essentially a in the circumstances, could The court said there is no single
qualitative one, involving the reasonably be expected to prevent a
test. We will look at and consider
relationship between the nature representative of the organization
and quality of the act in question from being a party to the offence. everything to determine if there is a
and the nature of the complete Mental Disorder. SCC acknowledged
offence, Last stage test: if theres Applies to objective fault or that there were two distinct approaches
nothing else you can do to carry negligence offences where an to the disease of the mind inquiry: (i)
out the prohibited consequence, association is charged. the continuing danger and (ii) internal
thats got to be enough to Section 22.2 In respect of an cause theories. Concluded: that both
constitute an attempt. offence that requires the prosecution theories stemmed from a common
It is a question of law for the to prove fault other than negligence concern for public safety and that both
judge to decide if the actions of an organization is a party to the approaches are merely analytical aids
the accused were beyond mere offence if, with the intent at least in in deciding which defence should be
preparation: 24(2) part to benefit the organization, one of
available as a matter of policy.
The court has accepted a Multi- its senior officers, (a) acting within the
factor Approach : There is no scope of their authority, is a party to Appreciates
single determinative test. The court the offence; R v Cooper The word appreciates
should consider everything and requires beyond mere knowledge of the
determine if there has been an (b) having the mental state required to physical quality of the act and requires a
attempt (judgment call on the be a party to the offence and acting capacity to apprehend the nature of the act
facts). Factors to take into account: within the scope of their authority, and its consequences.
time, location and acts under the directs the work of other Wrong
control of the accused remaining to representatives of the organization so R v Oommen O had paranoid delusion
be accomplished: Deutsch Also that they do not act or make omission that a killing is necessary in selfdefence b/c
consider if it was the accused last specified in the offence, or knowing he thought someone was after him and he
step or if he was on the job or in that a representative of the
organization is or is about to be a kill them. Held - Issue not whether the
proximity to the location and
party to the offence, does not take all accused had a general capacity to know
completion of the offence; has
there been a substantial step from reasonable measures to stop them right from wrong, but rather the ability to
the commencement of the act. from being a party to the offence. know that a particular act was wrong in the
Attempting to Conspire to Applies to subjective mens rea circumstances and hence to make a rational
Commit offences charged against an choice of whether to do it or not . Accused
Substantive association. not criminally responsible when delusional
Offence SELECT CRIMINAL DEFENCES and perceives a wrong act as right or
MENTAL DISORDER justifiable, and b/c of the disordered
condition of his mind he is unable to
rationally evaluate his
actions. Unnecessary to
show that, if the delusions
were true, a specific defence
such as self-defence would
also apply.
Sociopathic or
Psychopathi
c Offenders
R v Kjeldsen Personality
disorders or psychopathic
personalities capable of
constituting disease of the
mind. However, the defence
of insanity is not made out
where the accused has the
necessary understanding of
the nature, character and
consequences of the act, but
merely lacks appropriate
feelings for the victim or lacks
feeling of remorse or guilt for
what he has done, even
though such lack of feeling
stems from disease of the
mind.
VOLUNTARY ACTS
NEGATIVING
THE ACTUS
REUS AND
AUTOMATISM
Automatism is divided into
two categories:
o (1) insane (or mental
disorder) automatism If
this defence applies, the
court is really applying
mental disorder defence b/c
the accused person who is
automatistic because of a
disease of the mind cannot
appreciate the nature and
quality of his act or have the
capacity to understand that
the act is wrong. If not
criminally responsible,
committed to institution. o (2)
non-insane (non-mental
disorder) automatism If
this defence applies, a
complete acquittal is
appropriate.
Definition
A state of impaired
consciousness (not
unconsciousness) where an
individual has no voluntary
control over their action.
Voluntariness is the key
element of automatistic
behavior since a defence of
automatism amounts to a
denial of the voluntariness
component of the actus reus :
Stone Automatism operates
where there appears to be
some disconnect between
the actions of the accused
and his conscious will. The
accuseds physical motions
were not culpable where they
are not voluntary or thought-
directed or conscious.
To satisfy actus reus
requirement, acts have to be
willed (voluntary).
Voluntariness
R v Swaby S charged with (1) Evidentiary burden Trial drunk and did not realized what he had done
operating a motor vehicle judge to determine if until it was over. Sexual assault is a general
while having knowledge that evidence intent offence can accused raise
another occupant is in convincing for automatism intoxication as a defence? Held - The SCC
held by a 4-3 majority that the
possession of an illegal firearm. defence (great deal of
general/specific distinction is upheld. Sexual
S stopped car, passenger bolted. persuasiveness) before the jury assault is a general intent crime for which
He found out of gun after arrest. can hear it; intoxication due to voluntary consumption is
Held trial judge erred in jury (2) Trial judge decide accuseds not a defence; voluntary drunkenness may
direction. Court held, without condition mental disorder or be a substitute for fault element in crimes of
voluntariness there was no actus non-mental disorder automatism; general intent. The evidence of intoxication
reus to be punished. If accused (3) Burden on accused to prove can only go to the Trier of fact in general
only acquired knowledge at the involuntariness b/c of intent offences if there is evidence that the
automatism (BOP); intoxication is so extreme that it is akin to
point when the passenger was
automatism. HELD: that the accused was
exiting the vehicle then an acquittal (4) Expert evidence must confirm morally at fault as he voluntarily got drunk
should be entered. involuntariness; and is therefore responsible for his actions
Non-Insane Automatism (5) Judge to consider whether as a result of that decision. The accused is
Defence condition satisfied the legal not morally innocent and is, indeed,
R v Parks While sleepwalking, test criminally blameworthy.
drove across town and attacked in- for disease of the mind Jury instructions on intoxication and
laws (killed mother, injured father). consider (i) internal cause, (ii) intent
Hed been under stress and wasnt continuing danger; R v Robinson Robinson killed a man but
claimed to have acted w/o intent
sleeping well. Issue was distinction (6) Involuntariness caused by
b/c he was intoxicated. After having been
between insane and non-insane any less severe shock or
instructed on provocation, selfdefence
automatism b/c asleep the whole mere and intoxication, the jury found him guilty of
time. Held sleepwalking not a stress is presumed to be second-degree
disease of the mind, it is a form of triggered by a factor internal murder. The instructions to the jury as to the
non-insane automatism. Since to the defence of intoxication were
succeed with defence entitled accused and thus a disease of the erroneous. Held - Rule: before the trial judge
accused to acquittal. Automatism mind; puts forward
goes to actus reus (voluntariness). (7) Jury decides if non-insane intoxication to the jury, he or she must be
satisfied that the effect
The SCC acknowledged that there automatism applies. Succeeds only
of the intoxication was such that the effect
were two distinct approaches if proven on BOP thats shifting might have impaired
the burden on the defence.
to the the accused foresight of consequences
Unless there is a clear external cause
disease of the mind inquiry: (i) the (trigger equivalent to a sufficient to raise a
continuing danger and (ii) shock) as per the evidence, a claim reasonable doubt. Once this is done, then
internal of automatism will be the issue for the jury is
cause theories. Internal cause categorised as a mental disorder whether the Crown has satisfied beyond a
(contra Rabey) and not related under s.16. reasonable doubt that the accused has the
to a mental Persuasive Burden requisite intent. Proof of capacity to have the
mens rea is not constitutional. It needs to be
disease. His poor sleep hygiene R v Fontaine Paranoid, on drugs,
about whether you had the actual mens rea
was a result of a stressful time shot and killed someone. Trial judge for the offence. Just because someone had
said no basis for automatism despite
of life, the capacity to form the intent does not
expert testimony of disease of the
and with the right changes the mind, so new trial. Held Trial judge mean that they actually did form that intent.
automatistic episode would erred. In determining whether an This is especially true if its an essential
never happen accused has met the evidential element of the offence. THEREFORE, issue
again. Reaffirms that jury decides burden necessary to leave the issue when determining intoxication is intent, not
whether suffering condition @ with the jury, the trial judge must capacity.
time of assume the truth of the evidence that EXTREME INTOXICATION
tends to support the defence and Extreme intoxication is distinct from the
act @ judge decides whether
leave questions of reliability, credibility simple intoxication defence. Where
condition is a disease of the extreme intoxication applies, it can operates
and weight to be determined by the
mind (not as a defence to any offence, whether
jury. Automatism should generally be
bound to follow psychiatrists). put to jury where asserted and theres specific intent or general intent.
Internal/external cause, some corroborating evidence. The The theory behind the defence is that a
distinction jury decides whether persuasive person can become intoxicated enough that
insignificant b/c both negate the burden discharged. his mind may cease to operate sufficiently to
MR. The real matter is: is the Some of the excessive language of make conscious choices relating to his
automatism related to a disease of Stone was qualified by the Court. actions.
SIMPLE INTOXICATION Parliaments response to Daviault
the mind or not?
eradicate defence in sexua l
The result of this decision was Intoxication NOT a justification or offence and violence cases
excuse for criminal conduct.
controversial enough that the SCC Section 33.1 (1) It is not a defence to an
The law of simple intoxication
took procedural steps to cut the operates as way of limiting cases offence referred to in subsection (3) that the
defence back in R v Stone (it is not where the judge or jury can factor accused, by reason of self-induced
clearly an external cause, then it intoxication into mens rea intoxication, lacked the general intent or the
will be considered mental disorder determinations. voluntariness required to commit the
as under s.16, unless evidence to General Intent It is assumed offence, where the accused departed
the contrary). that the accused was not intoxicated, markedly from the standard of care as
described in ss(2). NB: legislation
R v Stone Argument with wife. even if he was, when determining if
the accused had the relevant mens maintains specific/general intent distinction.
She attacked him with verbal Cant use evidence of intoxication for
rea. Specific Intent - The defence
insults. He blacked out, lost general intent offences when intoxication is
applies if intoxication prevents
consciousness. He woke up and formation of the specific intent self induced. Can only use evidence if
she was stabbed 47 times. required by the relevant offence. intoxication for specific intent offences.
Claimed non-insane automatism. Common Law Rule - NB: Intoxication must have been self-
Trial judge said mental General/Specific induced for s33.1 to have effect. (2) A
disorder Intent person departs markedly from the standard
automatism. Held No. Guilty. R v Bernard The accused was on of reasonable care generally recognized in
Canadian society and is thereby criminally at
The SCC decided to clarify the law, trial for sexual assault causing bodily
harm. Accused forced complainant to fault where the person, while in a state of
by these points: self-induced intoxication that renders the
have sex which he did b/c he was too
person unaware of, or
incapable of consciously
controlling, their behaviour,
voluntarily or involuntarily
interferes or threatens to
interfere with the bodily
integrity of another person.
(3) Section applies to an
offence that includes as an
element an assault or any
other interference or threat of
interference by a person with
the bodily integrity of another
person.
Extreme Intoxication
Defence to General Intent
Offence R v Daviault
Chronic alcoholic raped a
woman in a wheelchair, was
seriously hammered. Didnt
remember until he woke up
naked in his bed. The
extreme intoxication defence
was created in this case
under the influence of the
Charter. Can a state of
drunkenness be so extreme
that is constitutes a basis for
defending a crime which
requires general intent? Held
The SCC recognized that if
extreme intoxication were to
occur the Charter would
require an acquittal since
voluntariness is a principle of
fundamental justice and the
relevant mens rea would be
absent. Thus, self-induced
intoxication can be a defence
to a general intent offence,
including sexual assault.
Extreme drunkenness
inducing a state akin to
insanity or automatism is a
defence to a general intent
offence. However, the burden
is on the accused to prove
the defence on a balance of
probabilities and the
accuseds testimony would
have to be supported by
expert evidence.
Note: B/c of the enactment of
s.33.1 , this ratio only applies
to certain general intent
offences, and no longer
sexual assault.
DEFENCE OF THE
PERSON
Four statutory defences of
self-defence.
Apply where the accused is
being unlawfully assaulted, or
reasonably believes he is
about to be unlawfully
assaulted, but each of the
four separate offences has its
own additional requirements
that must be satisfied.
Self-defence against
Unprovoked
Assault
Section 34(1) Every one who
is unlawfully assaulted
without having provoked the
assault is justified in repelling
force by force if:
the force he uses is not
intended to cause death or
grievous bodily harm and is
no more than is necessary to
enable him to defend himself.
** Applies whether or not
death or grievous bodily harm
is caused** Section 34(2)
Every one who is unlawfully
assaulted and who causes death provocation by blows, words or NECESSITY
or grievous bodily harm in repelling gestures. The defence of necessity permits the
the assault is justified if: Preventing Assault conduct of the accused to be excused where
(a) he causes it under reasonable Section 37(1) Every one is justified in its elements are met. The defence is heavily
apprehension of death or grievous using force to defend himself or any circumscribed. R v Latimer Euthanized
bodily harm from the violence with one under his protection from assault, daughter, who had cerebral palsy; claimed
which the assault was originally if he uses no more force than is defence of necessity. Held - There are three
made or with which the assailant necessary to prevent the assault or elements to the defence of necessity:
pursues his purposes; and (b) he repetition of it. (1) imminent peril or danger Ongoing pain
believes, on reasonable grounds, (2) Nothing in this section shall be did not constitute emergency.
that he cannot otherwise preserve deemed to justify the wilful infliction of (2) the absence of a reasonable legal
himself from death or grievous any hurt or mischief that is excessive, alternative He could have struggled on.
bodily harm. having regard to the nature of the (3) proportionality between the harm inflicted
**Applies whether or not the assault that the force used was and the harm to be avoided
accused provoked the assault intended to prevent. Harm inflicted (death) was immeasurably
being ** Operates as a general defence more serious than the pain resulting from
defended against and intends to that is broad Tracys operation which Mr. Latimer sought
cause death or grievous bodily enough to subsume to avoid. The first two elements must be
harm** the other defences. Courts tend not to evaluated on a modified objective standard
R v Pintar Courts should use it if any of the other that involves an objective evaluation that
consider which self-defence provisions apply ** takes into account the situation and
provisions apply and only instruct Subjective and Objective characteristics of the particular accused
on those. Where a wider defence Components Air of Reality person. The proportionality requirements
is available, instruct on that one. TEST must be assessed on an objective standard.
Section 34(2) is broader in scope R v Cinous Accused shot There must be an Air of Reality - The
than 34(1). Section 34(2) applies confederates, who he believed evidentiary burden lies on accused and
even if accused provoked assault intended to kill him . Held - A single air judge can withdraw defence from jury if no
and cases involving (intentional) of reality test applies to all defences . air of reality.
death or GBH. No proportionate The question remains whether there DURESS
force requirement. S. 34(2) is (1) evidence (2) upon which a The defence of duress is available under
question - whether the accused properly instructed jury acting the Code and at common law.
reasonably believed that he could reasonably could acquit if it believed Statute - Compulsion by threats
not otherwise preserve himself the evidence to be true. Section 17 A person who commits an
from death or GBH. Available for No special test for sexual offences. In offence under compulsion by threats
murder charges whether intended applying test, trial judge considers of immediate death or bodily harm from a
to kill or cause GBH or not; totality of the evidence, assuming person who is present when the
generally use s.34(2) for murder. evidence from the accused is true. offence is committed
Self-defence in Case of For the defence to succeed under o [immediate & present held to be
Aggression section 34 there must be: (1) the unconstitutional]
Section 35 Every one who has existence of an unlawful assault; (2) a is excused for committing the offence if
without justification assaulted reasonable apprehension of a risk of the person believes that the threats will be
another but death or GBH; and (3) a reasonable carried out and if the person is not a party
did not commence the assault with belief that it is not possible to to a conspiracy or association whereby the
intent to cause death or preserve oneself from harm except by person is subject to compulsion o [not part
grievous bodily killing the adversary. of the group that makes you do act i.e. if part
harm, or has without justification Each element has both a subjective of mafia and mafia makes you do something
provoked an assault on himself and objective component. The you cannot claim the defence]
by accuseds perception of the situation but this section does not apply where the
another, may justify the use of is the subjective. With respect to each offence committed is: high treason or
force subsequent to the of the three elements, the approach is treason, murder, piracy, attempted murder,
assault if first to inquire about the subjective sexual assault, sexual assault with a
(a) he uses the force perceptions of the accused, and then weapon, threats to a third party or causing
(i) under reasonable apprehension to ask whether those perceptions bodily harm, aggravated sexual assault,
of death or grievous bodily harm were objectively reasonable in the forcible abduction, hostage taking, robbery,
from the violence of the person circumstances. Here, there was no air assault with a weapon or causing bodily
whom he has assaulted or of reality to the defence - No evidence harm, aggravated assault, unlawfully
provoked, and (ii) in the belief, on that the accused reasonably believed causing bodily harm, arson or an offence
reasonable grounds, that it is that his own safety and survival under sections 280 to 283 (abduction and
necessary in order to preserve depend on killing the victim at the detention of young persons.
himself form death or GBH; moment. Elements:
(b) he did not, at any time before Battered Women Context (1) Immediacy Requirement immediate
the necessity of preserving himself R v Lavallee Abusive partner. One threat of death/bodily harm (2) Presence
from death or grievous bodily harm night, he threatened her and she shot Requirement person threatening you must
arose, endeavour to cause death him as he was leaving room. Held be there (3) Belief Requirement the
or grievous bodily harm; and he Imminent requirement in s. 34(2) accused must believe that the threat will be
declined further conflict and quitted assumed assault must be in progress. carried out (subjective)
or retreated from it as far as it was However, in battered women context (4) Compulsion Requirement - Not a party to
feasible to do so before the the issue is whether she reasonably conspire or associate (5) Exclusions some
necessity of preserving himself apprehended death or GBH, on the offences excluded This section identifies a
from death or grievous bodily harm occasion in question, from a threat by limited defence, but the CL and Charter
arose. the deceased to kill the accused at have been used to extend its application.
** Applies where the accused some later time. Expert evidence may Common Law
provoked the assault, but this be used in battered women context R v Hibbert - The accused gets his friend to
defence show reasonable apprehension. come down to the lobby, where
has lost much of its relevance Modified objective standard: the another person shoots him. He did it out of
given that section 34(2), which standard is what the accused fear for his own life. At his trial for
is less reasonably perceived, given her attempted murder, the accused relied on the
restrictive than section 35, can be situation and experience. defence of duress. His argues
used where assaults are Evidence of BWS relevant to that he did not have the mens rea for this
provoked. The concept of determining (Lavallee): offence. He did not intend to aid
provocation is defined for the (i) Whether the apprehension was and abet. He also does not have the mens
purposes of reasonable rea because he did not form a
self-defence in section 36 ** (ii) Whether there were reasonable common unlawful purpose to kill his friend.
Provocation grounds for a belief in the Held - CL defence of duress
Section 36 Provocation includes, necessity of available to a party to an offence such as
for the purposes of ss. 34 and 35, killing: learned helplessness murder or robbery. CL defence of
duress similar to the defence
of necessity - can only be
invoked
where there is no legal way
out of the situation of
duress the
accused faces. Defence
unavailable if safe avenue of
escape was available to the
accused. Existence of safe
avenue of escape = objective
standard. What you have to
show is that compliance with
the law is demonstrably
impossible.
Modified objective test: if
reasonable person in same
circumstances would have
thought there was another
way out, then defence does
not apply. In considering
reasonable person - personal
circumstances of the accused
are relevant should be
considered.
Common law defence of
duress:
1) Imminent, not immediate
threat.
2) No safe avenue of escape
(Hibbert)
3) Proportionality same as
seen in the defence of
necessity (Laitmer)
Charter Standard of Moral
Involuntarin
ess
R v Ruzic A woman was
given heroin and was told to
take it to Canada and
threatened that if she did not
then they kill her mother who
was in Belgrade. She is
caught and charged with
importing drugs. She pleads
duress defence.
She challenged the
constitutionality of s.17
under s.7 of the Charter.
Held -
An accused principle offender
may rely upon the CL
defence of duress (see
Hibbert). Moral
involuntariness is a
principle of fundamental
justice
protected by section 7 of the
Charter. Cant convict
someone whos
behaviour is morally
involuntary and the
technical requirements
(immediacy and present
requirements) are
inconsistent with this
principle of moral
voluntariness. There can be
situations where you have a
threat of future harm made by
someone who is not present
when you commit the
offence, which can still lead
to behaviour that is morally
involuntary.
Thus, the SCC found that the
immediate and presence
requirements of s.17 violate
s.7. Struck down as
unconstitutional.
Duress Statute vs.
Common
Law
Statute applies only to
principals (a person who
commits an offence); CL applies Refusal by a justice does not attorney general. Private prosecutions
to secondary parties. prevent the informant from seeking a now tend to occur only when the attorney
Statute threat could be against summons or warrant from a different general or her agent has refused to lay
3rd party, doesnt have to be justice based on the information. charges.
against actual person under The Charging Document A private prosecutor may appear
duress; CL no restrictions to When an accused is tried by a personally or be represented by counsel.
person who commits offence. provincial court judge that information In all cases, indictable or summary, the
Statute subjective test; CL is the relevant document. Whereas attorney general may intervene in a private
objective test when the accused is not tired by a prosecution for the purposes of assuming
THE CRIMINAL CHARGE provincial court judge, an indictment the carriage of the prosecution or for the
LAYING THE CHARGE is prepared (Section 566(1)). purposes of entering a stay of proceedings.
The time when an information is Section 577 Criminal Code allows o With respect to indictable offences, this
laid before a justice is the point at for direct indictments, which permit power is recognized expressly in section
which some person passes from the prosecutor to prefer an indictment 579 of the Criminal Code. o Section 579.1
being a suspect to being an when the accused has not been given Criminal Code- gives power to the Attorney
accused. The focus from this the opportunity to request a General of Canada with respect to private
point on is to prove the guilt of the preliminary inquiry, the preliminary prosecutions concerning federal offences
person. inquiry has been commenced but not outside the Criminal Code in which no
The process of laying the charge concluded, or the accused was provincial attorney general has intervened.
consists of both a ministerial and a discharged following the preliminary o With respect to summary conviction
judicial function. inquiry. offences, the definition of prosecutor refers
Section 504 Criminal Code The This power also applies where a to instances in which the attorney general
justice will receive the information. committal for trial has been quashed, has not intervened. o It is arguable that
Indictable offences are charged or where a trial judge has specifically express provision is not necessary because
when an information is sworn, declined to order an accused to stand the power of the attorney general to
received and approved by a trial on a charge not laid but disclosed intervene is well established at common law.
judicial officer in accordance with in the evidence at the preliminary trial. The Criminal Code includes procedural
this section. This section states As it is a special power, in effect steps that must be observed at the
some elementary requirements overriding procedures the accused commencement of a private prosecution. o
that must be met before a justice would otherwise be entitled to benefit Section 507.1 requires that any information
may receive and consider from, a Crown prosecutor can only laid under section 504 by a private informant
information. prefer a direct indictment with the must be referred to a judge of the provincial
An information must be in writing personal consent in writing of the court. There are several provisions of the
and under oath, and it must allege Attorney General. Code that allow for a privately laid
the commission of an offence by Jurisdiction information to be received and, if endorsed,
an identifiable person. Almost all criminal cases in Canada to lead to the issuance of an order for the
It must also contain allegations are public prosecutions conducted by respondent to be bound over. o Section
that affirm the territorial jurisdiction agents of the attorney general. 810.
of the justice before whom it is laid. However, anyone may commence Territorial Jurisdiction
The informant must declare in a prosecution by laying an As a general rule, a person can only be
the information that he has Public Prosecutions held liable under Canadian criminal law for
reasonable grounds to believe that The attorney general is the an offence that he commits within Canadian
an offence has been committed. principal law officer of the Crown, territorial limits. Section 6(2) Criminal Code
Part XXVII Criminal Code which means that he or she is the The principle of limitation is based upon
Procedure for offences prosecuted chief barrister and solicitor for the the historical rationale that a violation of the
by summary conviction, the same government. Prosecutions are criminal law is a violation of the sovereigns
as section 504. almost never conducted personally by peace. Accordingly, the scope of the criminal
Section 506 Criminal Code the attorney general, but by persons law is normally coextensive with the
Provides that the information may who are legally authorized to act in territorial sovereignty of the state.
be laid in the manner set out in Section 2 Criminal Code specifies This general principle is subject to
Form 2. It is prudent that the that the attorney general may be exceptions. o For example, an offence
information is laid in this manner. represented by his deputy. committed abroad but has a real and
Section 507 Criminal Code the prosecutor in section 2 includes substantial connection to Canada, it falls
judge has the ability to take counsel appearing for the attorney within the class of offences committed in
discretionary and judicial action. general with regard to indictable Canada (Libman v The Queen). o There are
Private prosecution = The offences. provisions which explicitly create exceptions
informant is not a peace officer or With regard to summary conviction giving Canadian courts jurisdiction over
an agent of the attorney general. o matters, the definition of prosecutor in offences committed outside Canadian
The Code provides that the section 785 allows prosecution by the territorial limits. These provisions reflect
attorney general may intervene in attorney general, counsel appearing obligation or agreements contracted by
any private prosecution that has for him, or an agent. In some Canada in treaties with other states.
been commenced, either to circumstances, a summary conviction As a generalisation it is safe to say that
assume carriage of it or to stop it prosecution may also be conducted the Charter is unlikely to have much
by means of a stay of proceedings by a peace officer. influence on investigative techniques
(sections 579.01 and 579.1). Parliament occasionally imposes a employed abroad. o The Charter was found
Section 507 Criminal Code Once requirement that the attorney general to apply in R v Cook, where two Canadian
the information has been received consent to the prosecution of some police officers went tot the US and
under section 504, the justice who offences. This requirement is found in interrogated an accused after having given
receives the information must section 2 of the Code, or in the him a s.10(b) warning that was clearly
consider the substance of the provision that creates the offence, deficient. (HOWEVER) o The SCC
informants allegations. and it is a condition that must be met concluded in R v Harpe that the approach to
The justice must decide whether before a prosecution may be extraterritorial application of Charter in Cook
to endorse it. commenced consent usually Not all offences are committed in a single
The Code does not state required in relation to offences that place. As a result, there can be jurisdiction in
explicitly the standard that the are highly sensitive to the public, or more than one country, more than one
justice must apply in this decision, consideration of the public interest is province or territory, or more than one
but it is clear that the justice must required. judicial district within a province or territory.
personally consider and agree that Private Prosecutions o A prosecution may be conducted in any
there are reasonable grounds to Any person may commence a province or territory in which an element of
believe that an offence was criminal prosecution by swearing an the alleged offence occurred thus allowing
committed by the person being information before a competent for concurrent jurisdiction; so long as some
charged (R v Jeffrey). judicial authority. part of the actus reus of the offence
If the justice is satisfied, they will A private prosecutor is any occurred in that district. o For example, R v
sign the information. Thus, the prosecutor under the Code who is not Bigelow, the court noted that offences could
charge is formally laid and an agent of the attorney general. have elements that mean they were
prosecution begins. They prosecute in the place of the committed in more than one province. The
commission of the overt act
of boarding a plane with the
child in Ontario, that this act
was part of a pre-planned
scheme, and that the mother
was deprived of her custody
rights in Ontario because of
this act, was sufficient to give
Ontario courts jurisdiction.
The Code provides that
people alleged to have
committed an offence have
fled the jurisdiction, may be
transferred to the judicial
district in which the offence is
alleged to have been
committed (section 543).
A court may accept a guilty
plea from an accused of an
offence committed in another
jurisdiction and impose
sentence, provided the
attorney general consent
(section 478(3)).
A trial that is scheduled
within the judicial district of
the alleged offence may be
moved to another district
within the same province. o
Section 599 provides that a
change of venue may be
ordered if it is expedient to
the ends of justice. o The
accused or the prosecutor
must show cause as to why a
change is necessary ie. if
the jury is not impartial, or the
applicant can identify a
cogent reasons to suggest
that the trial would be unfair
or prejudicial to either party if
it continued where it began.
THE SIGNIFICANCE OF
THE CHARGE
A trial is not an inquiry into
whether the accused
committee some criminal
offence. It is to determine
whether the Crown
prosecutor can prove the
specific allegation that has
been made, beyond a
reasonable doubt. The
accused is in jeopardy of
conviction only for the offence
charged, and for any offences
that are included in the
criminal charge.
R v G.R. The court has
stressed the importance
charging documents (by
information or indictment)
holding that it is fundamental
to a fair trial that an accused
know the charge or charges
he or she must meet.
THE VALIDITIY OF THE
CHARGE
Joinder and Severance of
Charges
Rules surrounding
indictment was CL, now
Code.
An indictment (Form 4) can
contain any number of
counts (each count
covers a single
transaction).
Possible to hold trial on
one or more indictments
simultaneously
accused must consent or
trial judge believed it is in
the interest of justice.
The charges are then
jointly charged into a single
indictment. o Restrictions Any R v Hanna Accused charged with Insufficient Charges
charge cannot be joined with theft of gravel of NSPC. Only Often the requirement in s. 581 that a
murder (s. 589) exception, if evidence of ownership showed gravel count must contain sufficient detail to give
offence arises out of the same owned by Power Corp. Held no the accused reasonable information and to
transaction or accused consent to
possibility that the accused could fail identify the transaction. Test The
the joinder.
Section 591(3) criteria to join to identify the event that gave rise to indictment must lift the charge from the
counts. Judge can order an the charged. Vezina accused general to the particular (R v Brodie).
indictment to be severed in order charged with fraud, information An accused must be reasonably informed
to send some counts or some co- specified Bank of Montreal victim. of the charge (Cote). Meaning of
accused to a separate trial. Crown unable to prove Bank suffered insufficiency an error egregious enough
Onus on the accused, on BOP, to loss. Held Information would have that the charge must be quashed (Moore).
show separate trials should be been valid without specifying victim. An information will not be held to be a
held (R v Cross). Thus, Crowns inability to prove was nullity if the information specifies the time,
Application to sever may occur mere surplusage. (NO NEED TO place, victim and the offence. Even if the not
later in trial, however some
PROVE BMO FACED LOSSES, precisely stated (ie. exact time).
prejudice must arise that was not STILL FRAUD)
R v B.(G.) No 2 - The date of the offence
present at the beginning (R v
If a detail is to be considered is not generally an essential element of the
D.A.C.).
surplsuage depends whether the offence of sexual assault. It is a crim no
Joinder and Severance of accuseds defence will be prejudiced matter when it is committed.
Accused Saunders one accused took A count can be struck down on the basis
Can sever multiple accused form stand, testified had conspired to that it does not disclose an offence known to
the same indictment and hold import narcotics, but not in this law (Regina v Fremeau).
separate trials. particular heroin instance. Held Not Duplicitous Charges
General Rule accused who are holding the Crown to proof of the
A duplicitous count is one that charges the
alleged to have committed a crime particular narcotic alleged would have
accused with committing two different
together should be tried together. been prejudicial; Vezina The
offences, and its objectionable because the
Section 591(3) Judge has
accused wouldnt conduct defence ambiguity prevents the accused from
discretion to sever trials where differently had Bank as victim knowing the case to meet.
required in interest of justice. allegation not been made. No Essentially, the accused is given too much
The Court did not to grant prejudice, thus Crown doesnt have to information. This is a distinct rule from s.
separate trials in circumstances prove that fact. 581(1), which limits a count to a single
b/c there was not sufficient Remedies for a Defective Charge factual situation; duplicity rule limits it to a
evidence that the co-accused
Potential Remedies single legal issue. Sault Ste. Marie Held
would actually have given
What to do when a charge is - the section had created one offence,
evidence useful to the applicant
alleged not to be sufficient b/c it does polluting, which could be committed in a
even if he were made compellable not comply with the necessary
number of ways. The accused would have
(Agawa). The fact that some requirements. Error in indictments, no doubt about the case to meet, and so no
evidence will be admissible against can: o Be so flawed that it is an objection should be taken to the charge.
one accused but not others is also absolute nullity a trial judge has no R v Fischer Charge did not differentiate
relevant, but not sufficient to jurisdiction to hear the matter, charge between general theft section and theft by a
require severance. must be quashed. (The Crown can lay person required to account suggested the
Content of Charges
new information and not violate accused was guilty of both; not duplicitous.
Two interrelated rules dealing
Double Jeopordy rule). o The charge Conspiracy cases a single count
with indictments:
might be flawed, but not a nullity charging an accused with more than one
(1) Section 581(3) A count
trial judge may amend the charge conspiracy = duplicitous.
shall contain sufficient detail of the (grant adjournment to remedy If a charge is duplicitous, it is not fatally
circumstances of the alleged prejudice). o Charge contains an flaws. Section 590(2)(b) allows an
offence to give the accused error, which can be made smaller by s accused to apply to have a count that is
reasonable information with 601 which govern amendments to double or multifarious either amended or
respect to the act or omission to be defective counts. divided into two or more counts, an
proved against him and identify the These provisions do not completely
application that is to be granted where the
transaction referred to but
remove the possibility of a charge ends of justice require it.
otherwise the absence or
being quashed (Moore Preference Only trial judge has jurisdiction to divide a
insufficiency of details does not
is amendment over quashing. But a count when it embarrasses (the accused)
vitiate the count. technical error here led to acquittal). in his defence (Broad criteria gives trial
(2) The Surplusage Rule It is Crown may not be able to amend at judge great discretion). An appeal court is
open to a court to find that detail all (R v Tremblay The accused not to interfere with the trial judges
actually provided in a count is called expert witnesses to show that discretion unless the judge acted unjudicially
surplusage (additional and acts in a bawdy house were not or the decision resulted in an injustice
unnecessary detail), and the fact indecent. After the Crown applied to
(Litchfield). Lilly real estate broker
need not be proven, despite being amend deleting the words practice of
charged with theft. The accused had two
alleged.
indecency. SCC held trial judge separate defences to the single charge.
R v N.C. Accused charged
correctly refused, would have caused The count should have been divided
with trafficking cocaine. Substance irreparable prejudice). Crown may when this became apparent at trial;
in fact was baby powder and be require to provide particulars when especially b/c jury trial.
aspirin. Would be an offence still count is flawed (s. 587). Accused THE ADVERSARIAL PROCEEDING
under NCA. Held accused cannot use particulars as a way of A trial is the opportunity for the Crown
charged with trafficking cocaine, limiting the options available to the prosecutor to prove the specific allegations
thus Crown obliged to prove
Crown (R v Thatcher Crown thought made in the charge (information or
substance was cocaine. Failure = accused either killed wife personally
indictment) beyond a reasonable doubt.
R v Saunders Multiple
or hired someone). The key characteristics of the Canadian
accuseds charged with conspiracy A charge is defective when it
criminal trial is therefore the specific
to import heroin. Held Charge departs from the golden rule - that the allegation.
would have stood, if it did not accused is entitled to be reasonably This is done during a trial.
specify heroin; but Crown had to informed of the transaction alleged Pleas
prove conspiracy related to that against him, thus giving him the Section 606 Sets out the pleas
narcotic. possibility of a full defence and a fair available to an accused charged with an
trial. offence (guilty, not guilty, special pleas or
autrefois acquit (formally
aquitted), autrefois convict
(Double Jep), and pardon).
Special pleas = amount to
claim that the matter has
already been dealt with.
Guilty = an admission by
the accused of performing
the physical actions, that
make up to offence,
accompanied by the mental
state. Waive trial. Not
Guilty = demands the Crown
proves all elements of the
offence and disproves the
existence of any defences.
An accused can later
withdraw a guilty plea if there
are valid grounds for being
permitted to do so. This
could lead to a plea being set
aside. Section 650
requires an accused to be
present in court during the
whole trial, and present for a
plea.
Section 800 permits an
accused charged with a
summary conviction offence
to appear by counsel.
Pleas entered by
counsel to indictable
offences, are binding on
accused who was present
at the time (R v Dietrich).
Order of Trial
Trial procedures set out
in Parts XIX, XX, and
XXVII. o Trial proceeds
continuously unless
adjournment granted. o
Accused to be present - can
be excused by judge. o
Judge can ask questions
during trial, may raise bias.
Juries can ask limited
questions.
Opening Statements
Crown presents case first
with opening statement to
jury explain theory and
evidence to be called. o
Crown not obliged to call all
witnesses announced; jury
may make adverse
inferences. o Normally the
defence is not entitled to
make an opening address to
the jury immediately following
the Crowns opening
remarks. o Trial judge at
discretion to allow this.
Defence wont have to wait
until end of Crowns case.
Presentation of the
Crown Case o Following
opening statement Crown
counsel is required to present
evidence providing the
charges against the accused.
o Evidence taken under
oath, accused entitled to
X-Exam witnesss
evidence. o An accused
can concede various parts of
the Crowns case. o Crown
has discretion in how it
presents its case. o Crown
not required to call every witness reopen its case at trial judges common sense, everyday use. The jury
however, trial judge may call discretion. o Some authorities should be instructed that a reasonable doubt
courts witnesses. Defence can suggest that it is possible to apply to is a doubt based on reason and common
then X. o Section 652 allows a admit new evidence not only after sense which must be logically based on the
jury to have a view in order to argument, but indeed sometime after evidence and it must not be based on
see any place person or thing. o a verdict has been reached. sympathy or prejudice and must not be
Section 545 allows a trial Addresses to the Jury o Closing imaginary or frivolous. Proof establishing a
judge to imprison a witness who Arguments By Counsel Section probability of guilt is not sufficient to
refuses to testify for periods of 651 says if the defence has not establish guilt beyond a reasonable doubt.
up to 8 days at a time. called evidence, then the Crown Credibility and BARD
Presentation of the Defence argues first, but if the defence has R v Dinardo When a case turns largely on
Case o Application for a Direct called evidence, then it argues first. o determinations of credibility, the sufficiency
Verdict an accused may apply CharGing the Jury Section 650.1 of the reasons should be considered in light
for a DV prior to defence permits a judge to confer with Crown of the deference afforded to trial judges on
presenting its evidence. o Power and the defence with regards to what credibility findings. Deficiencies will rarely
arises at CL direct verdict = no matters should be explained to the merit intervention on appeal. However, a
case to meet, accused is not jury. The purpose of charging the jury failure to sufficiently articulate how credibility
guilty , acquitted. o Where the is to decant and simplify the case, concerns were resolved may constitute
Crown fails to providence evidence leaving the jury with a sufficient reversible error. Where the defence rests on
on an essential element of the understanding of the facts as they the overall lack of credibility and reliability of
offence, the trial judge can direct relate to relevant legal issues. o Trial the complainants testimony, it is incumbent
the acquittal of the accused. o judge has considerable discretion upon the trial judge to explain, how these
Direct verdict can be granted on regarding the content and form of difficulties were resolved to reach a verdict
charge laid, but the trial will charge. o The judges charge should beyond a reasonable doubt.
continue to decide whether the be fair, dispassionate, and should be Jury and BARD
accused is guilty of an included the last thing said to the jury before R v J.H.S Appeal from sexual assault
offences (R v Titus acquitted they commence their deliberations. o conviction. The accused, who denied all
on 1st degree murder, but trial A charge should review the facts, allegations of impropriety, was tried before a
continued to see if guilty of 2nd prosecutors/accuseds theories of the judge and jury. The complainant and the
degree). o Defence case, and the defences which arise accused were the principal witnesses. The
Presentation of Evidence for the jury. Trial judge charge on all trial judge charged the jury on the credibility
Accused that doesnt succeed or defences that arise on the facts, of the witnesses and specifically instructed
make direct verdict, entitled to call whether accuses raised them or not. the jury that the trial was not a choice
evidence. o Defence to exercise Particular issues in case (ie. use of between two competing versions of the
discretion on how to present case. criminal record, circumstantial events. The jury convicted. Held - The
o Accused is a competent evidence, ID evidence, alibi reading the charge as a whole, the
witness at trial, but not evidence). o Instructions should instruction to this jury satisfied the ultimate
compellable. Failure to testify cover the procedural aspects of the test formulated by Cory J. in W. (D.) as
cannot be made the subject of jury deliberations (ie. hung jury). o being whether the jury could not have been
comment by the judge or Judge may offer opinions on matters under any misapprehension as to the correct
prosecutor (CEA s.4(6)). of fact in instructions. o After charge, burden and standard of proof to apply. The
(Evidence Act) judge consults with counsel SCC was satisfied that the trial judge
Reopening the Crowns Case opportunity to object to charge. o Re- reminded the jury that they must consider all
o After defence presents evidence, charging the Jury Where a judge of the evidence when determining
trial moves to closing arguments. re-charges following submissions reasonable doubt and that they should not
o Splitting the case (leading some from counsel, same criteria apply as decide whether something happened
of the Crowns evidence after the original charge. o A re-charge simply by comparing one version of events
accuseds case has been may rectify an error in the original with another, or choosing one of them.
presented), not allowed. o Crown charge thus, whole charge is Other Burdens
may be able to reopen its case satisfactory. o May be required to re- While the Crown prosecutor must prove
depends on whether the accused charge after deliberations begin b/c guilt beyond a reasonable doubt at the end
wil l be prejudiced in making a jury has sent questions to judge this of the case, there are other burdens of proof
defence. o Decision at trial judges is significant. o Jury asking about that operate during the criminal process: o
discretion in the interest of issue in case instructions must be Evidential burdens that some rules of
justice. o Generally this is new repeated, correct and comprehensive. law impose in order for a party who wishes a
evidence unforseen by the o An error in a re-charge following a matter to be placed in issue to succeed in
Crown and in the interest of question for the jury cannot be saved having that matter placed in issue. o The
justice. o R v Sylvester under original charge, b/c the fact that accused must at times satisfy an evidential
Officer received phone called after the question was asked shows the burden in order to have a matter placed in
closing arguments. Caller claimed jury didnt adequately understand the issue. o There are numerous rules of
they lied on the stand. Crown original charge. The Presumption of evidence called presumptions that operate
permitted to reopen, present this Innocence and the Ultimate Standard to assign burdens of proof on the accused.
evidence. Defence allowed to of Proof At a Canadian trial, the A presumption is a rule of law that
cross and make further accused is presumed to be innocent, directs judges and jury to assume that a
submissions. Rebuttal Evidence a right guaranteed by section 11(d) of fact is true (known as the presumed
o Rebuttal evidence must concern the Charter. fact) in any case where the Crown
matters that the Crown is This means that ultimately, at the proves that another fact is true (known
reasonably surprised to find in end of the whole case, the Crown as the basic fact), unless the accused
issue. (R vBiddle) o If the test for must prove the guilt of the accused can rebut the presumed fact according to
meeting rebuttal evidence is met, beyond a reasonable doubt. This is the assigned standard of proof. Those
then it cannot be said that the the Crowns ultimate burden in both a presumptions known as mandatory
accused did not know the case to criminal or regulatory prosecution. presumptions can be rebutted by the
meet. o Section 650(3) applies Proof Beyond A Reasonable Doubt accused simply raising a reasonable
where the Crown has led rebuttal R v Lifchus Proof beyond doubt about whether the presumed fact
evidence, permitting the accused reasonable doubt does not require follows from the basic fact. Where a
to make full answer and defence. proof of a case to an absolute mandatory presumption is rebutted, the
Reopening the Defence Case o certainty. The reasonable doubt test presumed fact falls back into issue
Open to the defence to apply to should never be put in terms of notwithstanding the presumption, and
must be proved by the Crown
in the ordinary way, without
the assistance of the
presumption. Other
presumptions operate as
reverse onus provisions,
deeming the presumed fact
to exist where the Crown
proves the basic fact
unless the accused
disproves the presumed
fact on the balance of
probabilities. A
presumption can be easily
recognized as a
mandatory presumption
because the legal rule
raising the presumption
will use the term evidence
to the contrary to describe
the burden of rebuttal.
A presumption will be
interpreted as a mandatory
presumption where it fails to
set out the required standard
of rebuttal because of
section 25 (1) of the
Interpretation Act.
Many presumptions
operate in alcohol driving
prosecutions and are used to
determine whether the
accused has more than a
legal amount of alcohol in his
blood while driving or having
care or control of a motor
vehicle. o For example,
section 258(1)(a) a
reverse onus provision,
ss. 258(1)(c), (d.1), and (g)
all mandatory
presumptions.
Presumptions are prima
facie contrary to the Charter
and must be saved under s.1.
R v Arcuri The meaning of
prima facie case. The test for
committal is the same
whether the evidence is
direct or circumstantial.
Where there is direct
evidence as to each element
of the offence, the accused
must be committed to stand
trial; even if the accused
adduces exculpatory
evidence. If the Crowns case
consists of circumstantial
evidence, the judge must
engage in a limited weighing
of the evidence because
there is an inferential gap
between the evidence and
the matter to be established.
The judge must determine
whether the evidence is
reasonably capable of
supporting the inferences that
the Crown asks the jury to
draw.
R v Cinous If the accused
wants to have a defence
considered, the accused
must show that the defence
has an air of reality to it. If
the accused succeeds the
judge must consider the
defence, and in a jury trial
must direct the jury on the law that be or that the judge may be of the A publication ban should be ordered
applies to that defence. See view that any other conclusion would when (a) serious risk to the proper
Defence of Person. be perverse. The trial judge may give administration of justice is required b/c
R v Fontaine same as above an opinion on the matter but never a reasonably alterative measures will not
for Defence of automatism. R v direction. prevent the risk and (b) the salutary
Oakes The onus of proving that aR v Hamilton In this case, the effects of the ban outweigh the
limit on a right or freedom judge assumed the combined role of deleterious effects on the rights and
guaranteed by the Charter is advocate, witness and judge. This interests of the parties and the public,
reasonable and demonstrably fundamentally changed the nature of including the right to free expression, the
justified in a free and democratic the proceedings and contributed to right of the accused to a fair and public
society rests upon the party errors in principle reflected in the trial, and the efficacy of the
seeking to uphold the limitation. sentence imposed. A trial judge does administration of justice. Onus on
While the standard of proof under not have to remain passive during the person seeking ban.
this section 1 is the civil standard, sentencing phase of the criminal Contempt of Court o CL power of
this test must be applied rigorously process. Trial judges can, and finding people in contempt of court is
and where evidence is required in sometimes do, assume an active role expressly preserved by s.9 o Appeal
order to prove the constituent in the course of a sentencing procedures from contempt of court s. 10.
elements of a section 1 inquiry, proceeding. In a criminal trial, it is o Contempt of court (1) contempt
and this will generally be the case, generally left to the parties to choose committed in the face of the court; (2)
it should be cogent and persuasive the issues, stake out their positions, contempt not committed in the face of
and made clear to the court the and decide what evidence to present the court. o Superior courts have
consequences of imposing or not in support of those positions. The trial jurisdiction over both; inferior courts
imposing a limit. The court will also judges role is to listen, clarify where only (1). o Contempt can cover different
need to know what alternative necessary, and ultimately evaluate behaviours insolence to the court,
measures for implementing the the merits of the competing cases refusal to answer questions while under
objective were available to the presented by the parties. oath. o Applied to accused, counsel or
legislators when they made their Powers of the Court witness. o A judge can respond to
decisions. It may be however that Control over the Court Process contemptuous behaviour either (1) through
there will be cases where certain o Trial judge significant discretion on the ordinary procedures, which give the
elements of the analysis under how to run trials curtail X-Exam, accused the usual procedural guarantees
section 1 are obvious or self- prevent irrelevant or harassing of a criminal trial; (2) through a more
evident. questions, and ask questions of summary procedure (only used where
R v Boucher The standard of witnesses. o Test Whether a urgent and imperative to act
proof that must be met to rebut the reasonably minded person who had immediately). o Procedure - (1) person is
presumption of identity and been present throughout the trial put on notice to show cause as to why
accuracy is reasonable doubt. The would consider that the accused had she should not be found in contempt of
defence has no burden of proof. not had a fair trial. o Section 485 court; (2) adjournment should be given
The Neutral Impartial Trier preserves the courts jurisdiction over for person to obtain counsel; (3) Found in
A neutral, impartial Trier of law an accused despite a failure to contempt allowed to make
makes the legal decisions, comply with any of the Codes representations as to sentence. o Failure
whereas a neutral impartial Trier of provisions concerning adjournments to follow process = error of law.
fact makes factual findings at the or remands. o Judge has discretion Mistrials o Judge has authority to
end of the trial. Most criminal around circumstances in which declare a mistrial at virtually any point in the
trials conducted by judge alone - evidence will be heard. o Judge may proceedings. o Inappropriate publicity,
judge performs the role of both the exclude some or all members of the errors during jury selection, improper
Triers. public from the trial this violates comments by Crown during opening
In a Jury tria l: judge = Trier of section 2(b) Charter freedom of statement/closing submissions, or
law; jury = Trier of fact. o Judge press, but may be saved s a inadmissible evidence accidently given to
makes all legal and procedural reasonable limit. o Section 486.1 jury all can lead to mistrial (remedy of last
decisions during the trial, and gives a judge power in the manner in resort). o Other remedies adjournment,
directs the jury, by training them in which some witnesses are allowed to reopening the case, clearly instructing the
the law that applies. Jury then testify. o Trial judge may express jury that they are to ignore the submission or
makes the factual decision and opinions on the facts but must information they ought not have heard. o
renders the holding. not create a reasonable The general principle is that a mistrial is
Sentence is a question of law apprehension of bias. declared if the Crowns jury address is so
sentencing done by judge and not Publication Bans o In improper that it deprives the accused of the
jury. o The jury should not be told exceptional circumstances a trial right to a fair trial. o Accused or Crown
of the possible sentence for fear judge may order publication ban. o can apply for mistrial in jury or judge
that his will inspire sympathetic Only in certain circumstances b/c they alone case. o Section 653 a trial judge
rather than a legal verdict. conflict with the open court principle. may declare a mistrial if satisfied that a jury
A neutral, impartial judge does o Section 486.4- A judge may ban is unable to agree on a verdict. o A new trial
not mean he is passive. the publication of any information that can be held following a mistrial, and the
Nevertheless, the essence of the would identify the complainant or a accused cannot plead autrefois acquit or
adversarial system is that the witness in a trial for a variety of listed autrefois convict because of mistrial.
parties initiate the proof that is sexual offences. o Section 486.5 The Role of the Prosecutor
brought forward, not the judge. bans publication on identity of victim The prosecutor is an advocate, but also a
R v Gunning The air of reality or witnesses. o Section 276.3 quasi-judicial officer. o This means that the
test applies to affirmative defences prevents reporting of information prosecutor cannot act solely as an advocate,
such as self-defence, but it is regarding an application to admit but must make decisions in the interest of
never the function of the trial judge evidence of previous sexual activity. justice and the larger public interest,
in a jury trial to assess the o Section 648 prevents the including the interests of the accused.
evidence and make a publication of evidence from a trial The prosecutor has many discretionary
determination that the Crown has while jurors are separated before decisions that can be made and should act
proven one or more of the beginning deliberations. o CL as a minister of justice.
essential elements of the offence power of judge to grant publication R v Cook There is no duty of the Crown to
and direct the jury accordingly. It bans Dagenais/Mentuck TEST call particular witnesses including the
does not matter how obvious the for publication bans: complainant. References in case law to the
judge may believe the answer to Crown calling all witnesses who are
essential to the narrative
refers only to the burden of
proof in that where the
narrative of the case is not
adequately set forth, the
elements of the offence might
not be properly proven and
the Crown risks losing the
case. There is no duty on the
Crown to call particular
witnesses including the
complainant. In the rare case
where the tactical
disadvantage to the defence
calling a potentially hostile
witness would be manifestly
unfair, the trial judge is
entitled to consider this factor
in determining whether to call
the witness him or herself.R
v Proulx A prosecutor may
apply to the court for a
probation order in addition to
any punishment that may be
imposed for that offence. The
offender is required to
appear, and the prosecutor is
required to be heard before
the court makes the order to
change the sentence (s.
732.2).? Krieger v Law
Society of Alberta This
case describes the scope of
judicial review generally of
the exercise of powers of the
Attorney General. In
summary, within the course of
prosecutorial discretion, the
courts cannot interfere except
in circumstances of flagrant
impropriety. Prosecutorial
discretion refers to decisions
regarding the nature and
extent of the prosecution and
the Attorney Generals
participation in it. Decisions
that govern a Crown
prosecutors tactics or
conduct before the court, do
not fall within the scope of
prosecutorial discretion and
are governed by the inherent
jurisdiction of the court to
control its own processes
once the Attorney General
has elected to enter into that
forum.
The Role of the
Defence
The defence counsel is an
officer of the court, and
therefore must be respectful
and honest with the court and
must not attempt to mislead
the court as to the state of
the law.
Subject to this and the
rules of law and ethics, the
defence counsel is obliged
to act solely in the interest of
the accused, advising the
accused on the implications
of, and propriety, of pleasing
guilty, securing advantage of
all procedural and
constitutional protections
available to the accused that
are not properly waived; and
if the accused pleads not guilty, used to commit an offence; or premises without a warrant, to stop cars
preparing the case fully, (iv) property relating to a randomly to check for impaired drivers,
challenging the sufficiency of criminal organization. o set up road blocks, etc. o Stenning Test
prosecutorial evidence, and Individual police applied; officer may have been a trespasser, he
advancing all defences that investigative powers i) use was in execution of his duty b/c he was
investigating, and thus, the accused was guilty of
properly arise. a tracking device to monitor
assaulting an officer in the execution of duty (in
GETTING TO THE TRIAL: THE the location of a person or
his home). DEFAULT CL POWERS O SECTION
CRIMINAL object, (ii) install number 24(2) CHARTER ALLOWS FOR THE EXCLUSION
INVESTIGATIONPOLICE recorders on a telephone, (iii) OF EVIDENCE BASED ON BREACH OF CHARTER
POWERS obtain blood samples, (iv) RIGHT. IF NO CHARTER VIOLATION IS FOUND,
Police officers are obtain handprints, THE PRE-CHARTER POSITION ON EVIDENCE
independent of the Crown fingerprints, footprints, or APPLIES NO BASIS TO EXCLUDE RELEVANT
prosecutor. Independence impressions of teeth, (iv) EVIDENCE (SO LONG AS IT WAS RELIABLE,
important - permits prosecutor install a wiretap device.. MEANS BY WHICH IT WAS OBTAINED DID NOT
to act as quasi-judicial officer, Etc. o Section 487.01 peace MATTER). IF CERTAIN ACTIVITIES WILL NOT
and act as an investigator. officer can apply for a warrant to use any CONSTITUTE A CHARTER BREACH, POLICE ARE
Police often seek legal advice device or investigative technique or AUTHORIZED TO ENGAGE IN THOSE
PARTICULAR ACTIVITIES DESPITE THE ABSENCE
from Crown - wording of search procedure or do anything that would be an
OF ANY STATUTORY POWER. IF NO EXPLICIT
warrants, etc. Powers of police unreasonable search and seizure if it were STATUTORY POWER EXISTS, AND NO PRE-
constrained by law (derived not done under a warrant. o Other statutes EXISTING OR ANCILLARY CL POWER WILL BE
from statute, CL or implications create investigative techniques ie. INVOKED, THE EVIDENCE WILL BE ADMITTED
from either) in the interest of Ontario Coroners Act (take JUST AS THOUGH THE POLICE WERE ACTING
securing liberty. samples of bodily fluids in death WITH AUTHORITY.
Police powers limited by investigations), Customs Act Consent
Charter - section 8 (search of people crossing the Principle - Police need no statutory or CL
(unreasonable search and border), Firearms Act (inspectors authority to obtain evidence by making a request
seizure); section 9 (arbitrary without a warrant allowed to of a suspect.
detention). o Courts balance of enter premises to search for There is no statutory or CL authority allowing the
police investigations and law prohibited firearms on police to compel lineups, however, consent of a
suspect is a perfectly adequate source of authority
enforcement. The law of evidence reasonable grounds).
from the police perspective.
supports limits on police powers. o Common law powers Limits on accused consent exist ie.
Unconstitutional search or Historical CL Powers CL DNA sample provided for one offence, but used
arbitrary detention - powers include power of police to for other purposes violates guarantees about
evidence obtained as a search incident to an arrest or to enter unreasonable search and seizure. However, if
result DNA warrants are only a private dwelling in hot pursuit accused provides DNA samples without attaching
available in the case of designated of a person fleeing arrest. limits, no privacy, full consent.
offences predominantly sexual Search incident to an arrest Mere compliance is not sufficient to show that
offences and offences causing Cloutier v Langlois - power for police the accused is actually consenting.
death of bodily harm may be officers to search a person who has Consent, even if given initially, can be revoked
excluded from already been arrested to seize (R v Thomas policed entered house, but
consideration. possessions, guard safety of consent revoked before owner of the house
assaulted police officer. Thus, police officer was
General Police Powers police/accused, prevent escape/provide
not acting in the execution of duty and the
Statute evidence against prisoner. accused was acquitted).
Primary source for police powers is To do more than a frisk Powers of Search and Seizure
the Code. Powers for police to search, police must have Barron v Canada The SCC said that the
directly enforce the law o Section reasonable and probable decision to grant or withhold the warrant requires
494-528 allow police officers grounds to believe that a the balancing of two interests o (i) that of
(and others) to arrest an accused strip search is necessary in the individual to be free of
or compel an accuseds the particular circumstances intrusions of the state and o (ii)
appearance in court via a of the arrest should be that of the state to intrude on the
summons or appearance conducted at police station, privacy of the individual for the
notice. o Section 25-33 unless pressing reason purposes of law enforcement.
powers allowing the use of force to otherwise (R v Golden). The states statutory ability to intrude on an
execute powers authorized by law, to Arrest in private dwelling individual to become greater in recent years.
prevent the commission of some police have the CL power to arrest within a Search
offences, or to prevent a breach of the private dwelling without permission of Search defined with a purposive approach,
peace. entry (Eccles v Bourque). Hot based on the goal of s. 8 Charter. Intent of
Powers aimed at pursuit case, right extends beyond section is to protect individuals from
investigating crime search indictable offences to provincial offences unjustified state intrusions upon their
warrants and wiretaps o (R v Macooh). privacy. Thus, a state investigative technique is
Section 487 general search Warrantless entry into a dwelling to or is not a search depending on whether it
warrant provision, allowing a justice to arrest would be prima facie unreasonable infringes on a persons reasonable expectation of
issue a warrant authorizing the search and would prima facie violate the Charter privacy.
of a building, receptacle or place and (R v Feeney). Seizure measured based on whether the
the seizure of evidence found there. o Ancillary Powers Doctrine accuseds reasonable expectation of privacy was
Justice must be satisfied that that (WATERFIELD TEST) o It is always infringed.
There is a distinction between evidence that is
search will produce evidence with possible for new CL police powers to be
seized and evidence that is merely found.
respect to the commission of an created. o TEST whether police act was Stillman the accused had not abandoned a
offence. o Warrant may be lawful due to a CL power (Waterfield): tissue, since he was in custody for many days and
issued on reasonable (1) Does the conduct fall within the could not possibly avoid creating bodily samples
grounds that a search will general scope of any duty imposed by at some point.
find (i) something in statute or recognized by CL Nguyen police officer offered an accused a
respect of which an offence (2) does the conduct, albeit piece of gum while transporting him from
has been committed; (ii) (although) within the general scope of detention to court. He knew he would discard the
such a duty, involve an unjustifiable use of gum before entering the courtroom. Held
the whereabouts of a
powers associated with the duty o Test has seizure and s. 8 violation.
person believed to have been used to support police powers to Search with a Warrant
committed an offence; (iii) protect foreign dignitaries, to enter
property intended to be
 Searching Places -
Section 487 This section
allows the issuance of a warrant
for the search of a building,
receptacle or place if satisfied
on oath of reasonable grounds
that evidence falling into one of
the 4 categories will be found. o
(i) anything on or in
respect o which an
offence has been
committed; o (ii) anything
that will provide evidence
regarding an offence or
the location of a person
suspect of committing an
offence; o (iii) anything
reasonably believed to be
intended to be used to
commit an offence for
which the person could be
arrested without warrant;
o (iv) offence related to
property.
The warrant must be issued by
a justice (Hunter v
Southam). The warrant is
issued to a particular person who
is responsible for how the search
is carried out (R v strachan).
Place includes the area for trial violation/remedy
surrounding a building thus, a
search of the area without a
warrant is prima facie
unreasonable (Hunter).
Warrants are issued on
an ex parte basis.
Section 448 - a warrant
shall be executed by day unless
reasonable grounds for executing
it by night are provided to the
issuing justice, and the warrant
itself authorizes its execution by
night.
Search of the Person
DNA warrants
Section 487.04 487.091
- The basic requirements for a
DNA warrant necessitate that a
provincial court judge be
satisfied by information on oath
that a bodily substance
connected with an offence has
been found, that a person was a
party to the offence, and that
DNA analysis of the substance
will provide evidence about
whether the bodily substance
was from that person.
(S.487.04).
The judge is required to believe
that issuing the warrant is in the
best interest of the administration
of justice.
Section 487.05(2)
requires the judge to have regard
to all the relevant matters interests. o Individua ls person has search truly incidental to that arrest? Was
nature of offence, circumstances
of its commission, qualified
person available to take sample.
Section 487.07(1) - Peace
officer taking sample is required
to inform the suspects of the
content of the warrant, the
procedure for taking sample, and
authorization to use force.
Where an accused is convicted
of a primary offence (sexual
assault or homicide), the court
shall order a DNA sample to be
taken for the DNA databank. For
secondary designated offences,
the court may order if it is in the
best interest of the administration
of justice.
Impression Warrant allows a Reasonable expectation of rather for proceeding without a warrant. o
peace officer to obtain handprint, privacy includes (1) personal Absent exigent circumstances, there is a
footprint, tooth impression, or other privacy (ie. requirement of prior authorization by a judicial
body part. stripsearched); officer as a precondition to a valid seizure for the
Other statutory search Warrant (2) Territorial privacy (searches criminal law purposes (Colarusso). o
Provisions of places contingent on place being Exigent circumstances in search and
Generally these provisions share the searched ie. home more privacy than seizure context is an imminent danger of the
basis characteristics of section 487 car); (3) Informational privacy. loss, removal, destruction or disappearance of the
warrant can only be issued if a justice (Tessling FLIR territorial evidence if the search or seizure is delayed
is satisfied by information on oath that privacy not informational. Not (Grant).
there are reasonable grounds to invaded. Gives reading on heat. Consent warrantless search will be
authorize investigation. Some Information alone, meaningless). authorized if the suspect consents to the search.
warrants are for purely investigative (1) Framework for minimum o Consent valid? Extent of consent? o
purposes, others are for tracking Charter standards are set out in R Acquiescence and compliance
devices, etc. v Collins. Once it has been signal only a failure to object; they
Reviewing Warrants there is determined that an individual has a dont constitute consent (R v
no provision for appeal from the reasonable expectation of privacy, the Wills). o For consent to be a valid waiver of the
issuance of a warrant (Knox issue becomes whether the search accuseds s.8 right, the accused must have at
Contracting v Canada). itself is reasonable. (i) Is the search least sufficient available information to make the
Can challenge the process used to authorized by law? preference meaningful (R v Borden). The
issue a warrant by: Certiorari Police derive authority from statute, CL police must disclose any specific use they intend
review the process by which the and consent . The Code and other at the time they take the sample (Arp provided
warrant was issued. This process does statutes allow warrantless searches in hair samples).
not result in either the return of the certain circumstances. (i) Is the law itself reasonable?
items seized or their exclusion as CL search incident to arrest, allows Where a statutory warrantless search power
evidence (R v Zevallos). Quashing warrantless searches. exists, courts tend to read down the power in a
the warrant, renders the search Ancillary Power Doctrine allow way that makes it coincide with constitutional
warrantless, thus prima facie creation of new, CL, warrantless powers. minimum standards.
unreasonable and violates s. 8. It is Parliaments role, not the courts, to If the power in question is a CL one, asking
Challenge of warrants best left determine what new search powers are whether the search is authorized by law
necessary (Wong). require the court to decide the extent of the CL
dealt w together. Central Statute CDSA (Controlled power. (i) Was the manner in which the
issue in reviewing warrants is Drugs and Substances Act) search was carried out reasonable?
whether the requirements for and Code. o Section 11 CDSA Search power may exist, but the
its issuance under the Code allows a peace officer to obtain a warrant manner in which it was conducted may
have been met Q: Whether to search a place for a controlled be unreasonable.
there was evidence upon substance, for anything in which a Manner = physical way search carried
which the issuing judge could controlled substance is concealed, for out.
have decided to issue the offence related property, or for evidence in Collins accused searched for drugs, officer
warrant. Evidence used to respect of an offence under the CDSA. o grabbed her by the throat. Held Search power
justify the warrant may be Section 11(5) CDSA a peace officer existed, but search unreasonably carried out.
removed then the Q is if the is entitled to search any person found in Section 487.01 General Warrant
remaining evidence could the place, if the officer has reasonable Provision. Creates warrants to use any device
have still justified the warrant. grounds to believe that the person has the or investigative technique or procedure or do any
Reviewing courts can quash controlled substance or thing set out in the thing described in the warrant that would, if not
a warrant based on either the warrant. o Section 11(7) CDSA authorized, constitute unreasonable search and
inadequacy of the material permits an officer to conduct a warrantless seizure. May be done on the grounds that an
remaining after some search when the grounds for a warrant offence will be committed (s.487.01(1)(a)).
information is excised, or exist but exigent circumstances make it Section 487.01(1) no other statutory
based on behaviour of the impracticable to obtain a warrant. o provision can authorize the procedure in question.
police that intentionally misled Section 487 Code - does not permit Intention behind provision is to show that there
or otherwise subverted the search of the person. CL Search of the are no limits on the techniques that can be
process of prior authorization. person often authorized on warrantless, authorized.
Warrant quashed = search CL, basis Search incident to arrest do not It is intended to provide warrants to perform
conducted on warrantless require the police to have reasonable investigative techniques that are not covered by
basis. grounds for the search. It simply flows other criminal code provisions.
Searches without Warrants from that fact that the accused had been This section is aimed at avoiding loss of
(1) A warrantless search is prima arrested (Debot). o The Ontario Court of evidence in cases of video surveillance and other
facie unreasonable under s. 8 Appeal has decided that searches of a cases.
(Hunter v Southam) home incident to arrest are not allowed, Requirements: o The warrant can only be
An accuseds reasonable expectation other than in exceptional circumstances issued by a judge or justice, not by a justice of the
of privacy is an important consideration (R v Golub). o The actual purpose peace (R v S.A.B). The judge can attach
in deciding how reasonable a search or motivating the search is a central issue conditional to ensure that any search or seizure
seizure has been. Reasonable (Caslake). The power to search incident authorized by the warrant is reasonable in the
expectation of privacy requires to arrest depends essentially on 3 circumstances (s. 487.01(3)). The judge
balancing state and individuals questions was the arrest lawful? Was the must be satisfied that it is in the best
interests of the administration of justice to
greater privacy interest when the the search conducted in a reasonable issue the warrant (s. 487.01(1)(b)).
search involves a body cavity manner? (Stillman). o The police must Power of Detention
(Simmons) as opposed to the trunk be able to point to reasonable grounds to Section 10 Charter gives various
of ones car (Wise). o State a believe that a strip search, rather than a rights on arrest or detention, including
person should reasonably expect less usual pat-down, is required in the right to counsel.
privacy while crossing an international particular circumstances (Golden). o Detention can include situations
border (Lewis) or when placing items Search during an investigative detention where police have an actual legal power
in a school locker where officials are CL power to search during an investigative to compel a person to remain, but also
require to provide a safe environment, detention (R v Mann). situations of psychological detention,
maintain order and discipline (M(M.R.)). There must be independent reasonable no such power exists, but the person
Edwards no charter grounds specifically justifying the search. complied with the police demands
protection for privileged o The search must be conducted in a nonetheless (R v Thomsen).
guests in an apartment, reasonable manner (Collins). The Statute the ability to make
lacking the ability to regulate search must be limited to a pat-down, breathalyser demands, random routine
access to it by others. unless it gives reasonable grounds to traffic stops, custom searches
Belnavis a passenger in a car believe that a more intrusive search is =legislatively created detentions. CL
has no reasonable expectation of necessary. o Exigent Courts can create new CL police powers
privacy. Circumstances - are not the using the Waterfield Test . o Dedman
justification for the search itself, but used CL power to authorize random stops
of cars. o Mann used CL
powers to create police power of
investigative detention short of
arrest and to permit a police
roadblock.
Investigative Detention A
person can be briefly detained for
questioning if the detaining
officer has some articulable
cause for detention (R v
Simpson).
There is no general power of
detention for investigative
purposes (Mann). o Police
cannot detain a person b/c they
are suspicious in some general
way they must be suspicious of
a particular person b/c of some
suspected connection to a
particular crime already know to
them. Police Roadblocks
The court approved the
actions of the police setting
up a roadblock (Clayton). o
The Majority applied the
Waterfield Test. They
basically said that police have
power to do anything that is
reasonable.
R v Grant - The Court
created a number of factors to
consider when determining
whether a person had been
detained for the purpose of
sections 9 and 10 of the
Charter. The Court also created a
new test for determining whether
evidence obtained by a
Charter breach should
be excluded under
section 24(2) of the
Charter, replacing the
Collins Test. (1) The
majority found that
detention refers to a
suspension of an
individuals liberty
interest by a
significant physical or
psychological
restraint.
Psychological
detention is
established either
where the individual
has a legal obligation
to comply with the
restrictive request or
demand, or a
reasonable person
would conclude by
reason of the state
conduct that they had
no choice but to
comply.
(2) In cases where
there is no physical
restraint or legal
obligation, it may not
be clear whether a
person has been
detained. To
determine whether
the reasonable person
in the individuals
circumstances would
conclude the state
had deprived them of
the liberty of choice,
the court may
consider, inter alia ,
the following factors:
(a) The circumstances
giving rise to the
encounter as would
reasonably be
perceived by the absolutely, subject release conditions, or interest to issue a warrant. o Section 513 -
individual: whether the held custody pending the trial). the peace officer to whom a warrant is directed
police were providing Gaining Jurisdiction Over The must be within the territorial jurisdiction of the
general assistance; Accused person who issued it. Section 703 A warrant
maintaining general order; Central Question Whether the issued by any court other than a justice or a
making general inquiries regarding accused is properly before the court. provincial court judge can automatically be
a particular occurrence; or, singling o Accused w/n territorial limits of the executed anywhere in Canada. o Section
out the individual for focused courts jurisdiction or the accused has 703(2) A warrant from a justice or provincial
investigation. (b) The nature of otherwise been lawfully ordered to court judge can be executed anywhere in the
the police conduct, appear before that court (s. 470). province in which it is issued. Section 511
including the language Section 485 excuses most errors Arrest warrants do not expire, but simply
used; the use of physical relating to the appearance of the remain in force until executed. o Section
contact; the place where the accused. Jurisdiction over an offence 29 - requires an officer executing a warrant
interaction occurred; the presence is not lost simply b/c a judge fails to to have it where it is feasible to do so, and to
of others; and the duration of the comply w any of the Code provisions provide it where requested. Anyone who
encounter. respecting adjourments or remains. arrests, with or without warrant, to give
The particular characteristics or Section 485(1.1) jurisdiction over notice to the arrested person of (a) the
circumstances of the an accused is not lost b/c of process or warrant under which he
individual where relevant, nonappearance. Section 485(2) The makes the arrest, or (b) the reason for the
including age; physical courts have broad authority to issue arrest.
stature; minority status; level process, such as a bench warrant for Arrest without a warrant: o Section
of sophistication. arrest, that allows jurisdiction over the 494 (1) creates arrest powers available to
The majority went on to find person to be regained in the event that it is anyone (2) creates special arrest powers relating
that Mr. Grant was lost. to property owners. (1) Anyone may arrest a
psychologically detained when Courts have no jurisdiction - person whom he finds committing an indictable
he was told to keep his hands persons under the age of 12 offence. Or anyone may perform an arrest when
in front of him and when the (s. 13 presumed to be incapable she believes, on reasonable grounds. That some
other officers moved into of a crime), persons immune from person has committed a criminal offence and is
position to prevent him from prosecution b/c of policy (ie. diplomats, escaping and being freshly pursued by some
walking forward. Therefore, he Crown). other person with authority to arrest. (2) Anyone
was arbitrarily detained, and Time limits: o Indictable offences who owns or is in lawful possession of property
denied his right to counsel. Generally not barred by a period of can arrest, not only for indictable offences, but
Power to Break the Law limitation or prescription. o Summary also for any criminal offence they find being
Section 25.1-25.4 permit offences Barred six months committed on or in relation to their property. o
designated police officers to break the following the completion of Section 2 property = real or personal
law. The sections talk about such an the offence. property. o Section 495 (1) creates
officer being justified in doing Section 11(g) Charter criminal arrest powers available only to
particular things. All these provisions offences do not have peace officers. (1)(a) and (b)
do is protect particular officers from retrospective application, cannot allow a peace officer to arrest in
criminal liability in particular situations. charge conduct that was not an any situation but 2 (i) where the
offence when it occurred. In a officer did not find the accused
An officer designated by a federal or situation where a person committing the offence, the
provincial minister, is justified in commits an offence and, before offence is only a summary
committing an act or omission that he or she is sentenced, a new conviction one, or no arrest
would otherwise constitute an offence law alters the fine or term of warrant has been issued, or (ii)
if the following two conditions are met: imprisonment that applies, that where the officer believes that a
TEST o (1) the officer is person must be sentenced under summary conviction offence is
investigating an offence or whichever law is the more lenient about to be committed.
criminal activity. o (2) (s. 11(i)). o Exception R v Finta Section 495(1)(a) permits a peace officer to
Permitted to break the law if, SCC said partial exception for war arrest anyone who has committed an indictable
in their judgement, that is a crimes allegedly committed in Europe offence or who, on reasonable grounds, he
reasonable choice. during WWII. believes has committed or is about to commit an
This power is intended for Section 11(b) Charter indictable offence.
officers performing undercover guarantees the right to trial within a Section 495(1)(b) permits a peace
work, or for other officers on reasonable time. o Unreasonable delay officer to arrest anyone he finds
an emergency basis. causes charter violation remedy = stay of committing a criminal offence.
Section 25.1(11) limits on proceedings (effect- no jurisdiction to Section 495(1) permits a peace
the ability of designated proceed). officer to arrest a person if he reasonably
officer to break the law: (a) Unreasonable delay has 2 believes that a warrant exists for the
intentional or criminal possible causes: o (1) May be persons arrest. Section 495(2) o
negligence causing death or attributable to one of the Applies for relatively less serious offences.
bodily harm to another person parties, or conceivably the (a) (c) applies to indictable
o (b) the wilful attempt in any court, but if the responsible offences in the absolute
manner to obstruct, pervert or party is the accused there jurisdiction of a provincial court
defeat the course of justice, or will be no remedy under s. 24 judge, hybrid offences and to
o conduct that would violate of the Charter. o (2) summary conviction offences. o
the sexual integrity of an Institutional delay, that is (d) officers may arrest b/c she
individual. attributable to the absence believes on reasonable grounds that an
GETTING TO THE TRIAL: of adequate resources for the arrest is the only way to (i)
CONTROL OVER THE administration of justice in a establish the identity of the
ACCUSED timely manner. person, (ii) secure or preserve
SECURING JURISDICTION OVER The Arrest evidence of or relating to the
THE ACCUSED AND INTERIM An arrest consists of words offence; or (iii) prevent the
RELEASE The police and non-police of arrest accompanied either by continuation or repetition of the
have specified powers to arrest touching of the person with a view to offence or the commission of another
individuals. Arrest (taking detention, or by the person submitting to offence. o (e) arrest b/c it is evident to
physical control over the subject) is to the arrest (R v Whitefield). the officer that an appearance notice will not
be used as a last resort - when other The word arrest need not actually be be sufficient.
measures available for ensuring the used, provided the accused can be Section 495 (3) an officer under s.
good conduct and attendance before reasonably supposed to have understood 495(1) is deemed to be in the
the criminal justice process are not that she was under arrest (R v Latimer). execution of duty notwithstanding s.
practical or desirable. o These are the Arrest with a warrant: o Section 495(2) ought to use an appearance
appearance notice, the promise to 507 A summons, rather than a notice (not required and leaves arrest
appear, and the summons. Arrested warrant, must be issued unless the possibility open). Section 25(1)
individual - must be released or given a evidence discloses reasonable grounds Anyone making a lawful arrest, is
bail hearing (decides whether released to believe that it is necessary in the public justified in using as much force as
necessary to do so, provided
she is acting on reasonable
grounds. Section 26 An
officer is criminally responsible
for using excessive force.
Rights on Arrest o Section
503 requires that an arrested
person be taken in front of a
justice of the peace to consider
the issue of release within 24
hours. o It depends on a case-
by-case basis, but release within
24 hours might still be
unreasonable delay (R v W.
(E.)). o Section 10 (a)
Charter an accused is to be
informed promptly of the reasons
for the arrest or detention. o
Section 10 (b) Charter
Guarantees the right to retain
and instruct counsel without
delay and to be informed of that
right. o Charter rights are
subject to the reasonable limits
clause in section 1 subject to
such reasonable limits
prescribed by law as can be
demonstrably justified in a free
and democratic society. o
Section 10(b) obligations:
Informationa l an accused must
be informed of the right to retain
and instruct counsel w/o delay.
Normally done through a
standard caution: that is
distributed to police officers,
which they read to the accused.
Special circumstances require
police to ensure the accused
understands ie. language
difficulties, mental disability, etc.
(Evans). Implementationa
l - (i) Where an
arrested person has
indicted a wish to
speak to counsel, the
police must provide
that person with a
reasonable
opportunity to do so;
(ii) when an arrested
person has requested
counsel the police
must hold off from
questioning or
otherwise seeking to
elicit evidence from
that person until she
has had a reasonable
opportunity to contact
counsel.
Implementational duties
differ from informational
ones in 3 separate but
related ways:
(i) they do not arise for every
accused only arise when an
accused has actually indicated a
wish to speak to counsel, (ii) they
can be waived requires an
accused to have full knowledge
of the right giving up; arrested
person can expressly/implied
decline to contact counsel.
(iii) they can be lost through a
lack of reasonable diligence if
an arrested person is not being
reasonably diligent in exercising
his rights police are not obliged
to hold off their investigation (R
v Tremblay). Not an
implementational duty a
person who has been arrested
and has already spoken with
counsel may then be questioned
by police. The person is not
required to answer questions, but that or less. o The officer in charge is The Bail Hearing
does not mean police cannot ask them able to release by issuing an The Code creates what is usually referred
(R v Singh). appearance notice, intent to to as a ladder approach to bail. The
Compelling Appearance compel by way of summons, accused is presumed to be entitled to
Without Arrest promise to appear, or
release and the Crown must justify each
The Code provides: recognizance. Section 507 -
o powers to police to Before the first appearance, an increasing step of intrusiveness.
require an accused to information must be laid before a Bail hearing:
attend court through some justice. If the justice is not Section 515 the justice shall order that
type of written demand, or satisfied that there are reasonable the accused is released on an undertaking
to arrest the person: grounds to believe an offence has without conditions, unless the Crown shows
preference is given to not been committed, he will cancel any cause as to why something more restrictive
arresting. o if possible, form or process that has been is justified.
appearance should be previously issued by a peace Section 515 (1) - There are only 3
sought without arrest and officer, and will direct notice be
grounds on which continued detention of an
detention. o That where a given to the person who had been
person is released, issued such process. If the justice accused may be ordered. The first two are
preference should be given endorses the information, he either relatively uncontroversial: o (a) the
to the means of compelling confirms the form of process detention is necessary to ensure the
appearance that is least already issued or cancels it and accuseds attendance in court; or o (b)
onerous, especially as issues a summons or warrant for the detention is necessary for the
regards the imposition of a arrest. Section 505 following an protection or safety of the public o on
money debt as a form of accuseds arrest and release, a any other just cause being shown and,
security. Compelling charge is to be laid as soon as without limiting the generality of the
appearance pre-charge practicable thereafter and in any
foregoing, where detention is necessary
Ways to compel a person to attend event before the time stated, for
court before an information is laid, and appearing in court in whatever in order to maintain confidence in the
is actually charged: o Arrest without documentation has been issued to the administration of justice, having regard to all the
warrant (s. 495(1)). o accused with her release. circumstances, including the apparent strength of
Appearance notice, a Compelling Appearance Post- the prosecutions case, the gravity of the nature of
promise to appear, or a Charge - Review by the justice the offence, the circumstances surrounding its
recognizance. Section occurs before police interaction commission and the potential for a length term of
495(2) Prefers less intrusive with the accused. imprisonment. Section 515 (2) Sets out
means. In the case of less serious The justice will issue the range of restrictions on liberty, short of
offences, an officer should not process in the form of either
detention, that can be imposed on an accused as
necessarily use arrest powers. o summons or an arrest
Section 495(2) Less serious warrant. Summons is a conditions of release. They are: o (a) an
offences are (a) indictable offences document issued by the court undertaking with conditions o (b) a
listed in s. 553 (those in the commanding the accused named recognizance without sureties and
absolute jurisdiction of a provincial therein to attend court at a without deposit that is, the accused
court judge); (b) hybrid offences; specified time and place. It is in promises to pay a sum of money if she
summary conviction offences. o Form 6, and specified the date to does not appear as required; o a
Section 496 For s. 495(2) appear in court, a date to appear recognizance with sureties that is, a
offences, an officer should issue an for fingerprinting and the 3rd party also agrees to owe
appearance notice, unless there is consequences of non appearance
good reason to arrest. (s. 509(1),(4)&(5)). It is to be
the debt if the accused
Section 495 (2) (e) & (d) served in person, or left with an adult does not appear o (d) a
Good reason to arrest is limited to at the persons last known address (s. recognizance without sureties but with
the possibilities that the person will not 509(2)). Arrest warrant same a deposit for money or other valuable
show up in court unless arrested or details as summons but adds a command security this condition can only be
that there is a need to: o (i) establish to peace officers within local jurisdiction to imposed with the consent of the
the identity of the person, o (ii) secure arrest the person charged and to bring her prosecutor, and; o (e) a recognizance
or preserve evidence of or relating to to court. with or without sureties and with a
the offence, or o (iii) prevent the The judge has discretion to choose deposit of money or other valuable
continuation or repetition of the offence summons or arrest warrant. Section
or the commission of another offence. 507(4) directs a justice to issue a
security if the accused is not ordinarily
Section 145 Failure to appear summons unless there are
resident in the province within 200 kms
under an appearance notice is an offence reasonable grounds to believe that a of the place in which he is in custody.
and an arrest warrant can be issued under warrant is necessary in the public Section 515(3) - A justice cannot make an
s. 508. Section 497(1) Even interest. order under any of paragraphs (b) to (e)
if a person has been arrested, an unless the prosecutor shows cause as to why an
officer can release that person with Section 507(1)(b) a judge will order under the immediately preceding paragraph
the intention to compel her decide to issue a warrant in order to would be inadequate. (LADDER APPROACH)
appearance by means of a compel the accused to attend before Section 515(4) (4.3) provide the
summons or an appearance him or some other justice for the various types of conditions that may, or may not,
notice. same territorial division. be imposed when an order for release is made
Section 497(1.1)(a)(iv) a under s. 515(2).
Section 507(6) The Code allows
peace officer might also decide not R v Hall The Court held that the portion of
to release the accused after arrest the justice who issues an arrest section 515(10) permitting detention on any
in order to ensure the safety and warrant to endorse it for the specific other just cause being shown was
security of any victim of or witness purpose of authorizing the officer in unconstitutional as it gave too much discretion to
to the offence. charge of a station or lock-up to the judge to deny bail without just cause. The
In the event that a person is release an accused, pending her Court however upheld the portion of section
arrested without warrant and appearance in court. Section 499 515(10), which allows the denial of bail to
taking into custody by the arresting the officer in charge is then maintain confidence in the administration of
peace officer, he will be brought authorized to release the accused. justice as it was a valid and just reason to deny
before the officer in charge or bail. The standard is based on the view that the
Section 503 if a person is
another peace officer. reasonable member of the community would be
Section 498 Officer in charge arrested and the police decide not to satisified that the denial of bail would be
can also decide to release the release under any of the various
necessary to maintain confidence in the system.
arrested person and is directed to powers to do so, the person must be (Ie. The test of vagueness) HOLDING: A.
prefer this course. Offences for brought before a justice without JUST CAUSE will exist if the denial of bail can
release summary conviction, reasonable delay, and in any case occur in a narrow set of circumstances and if the
hybrid, s. 553 offences, or any within 24 hours. denial is necessary to promote the proper
other offence punishable by functioning of the bail system. b. The need to
imprisonment for a term for 5 years maintain confidence in the administration of
criminal justice is a value which
falls within the ambit of
just cause in S. 11E.
DECISIONS ON BAIL HAVE THE
REAL CAPACITY TO AFFECT THE
CONFIDENCE IN THE AOJ AND
IN THE BAIL SYSTEM ITSELF.
Exceptions:
Section 515(6) The
onus is reversed for a
number of offences. The
justice is directed to order that
the accused shall be detained
unless the accused shows cause
not to do so. Accused not an
ordinary resident in Canada. o
Offence was alleged to be
committed while the accused was
already out on bail o Offence was
a criminal organisation,
terrorism, or national security
offence o Offence related to
failing to attend court as ordered
by some previous process o The
offence was punishable by life
imprisonment under the CDSA.
Section 515(11) For
section 469 offences, ie
murder, a justice has no
authority to release the
accused and must order
her detained to be dealt
with according to law.
The accused in
accordance with s. 522,
will be taken before a
judge of the superior
court. There is a reverse
onus in this hearing, with
the accused in being
requires to justify release
(s. 522(2)). If the accused
is ordered to be released,
any of the ordinary
conditions of release can be
imposed.
Section 520 & 521 A
decision made by a justice
concerning release or
detention may be reviewed
by a judge upon
application of the accused
or the prosecutor.
Section 525 Where
interim release has
been denied an accused
person in custody is entitled to
an automatic review if the
trial has not commenced with a
specific time frame.
Section 523 A
preliminary inquiry
judge or trial judge can
vacate any previous
order (whether for detention or
release) and substitute a different
order where cause to do so is
shown.
Section 518 Sets out the
principles of evidence
at bail hearings, which
allows the justice to
receive and base his
decision on evidence
considered credible or
trustworthy by him in
the circumstances of
each case. However, a
bail hearing cannot be
used to interrogate or
examine the accused
about the offence
itself.
Section 524 - An
accused who has or
is about tho violate
some condition of where there would be irreparable Innocence at stake Test: o The
release can be arrested prejudice to the integrity of the accused must establish the
with or without warrant. justice system if the prosecution threshold:
GETTING READY FOR TRIAL continued. Held both tests met, The information he seeks from the solicitor-client
DISCLOSURE stay issued. communication is not available from any other
A right of the accused and obligation o La police officer taped recorded source; and He is otherwise unable to raise a
on the Crown = full disclosure of interview with complainant in reasonable doubt. If this has been
investigation (information gathered by sexual assault case, prior to charges satisfied, the judge should
police during investigation). Except laid. Complainant = 13. Tape proceed to the Innocence at stake
what is clearly irrelevant or privileged. lost. Held Test: o (1) The accused seeking
section 536 Disclosure Accused s. 7 right not production of the solicitor-client
occurs before the accused violated. Court found, communication has to
elects mode of trial for despite police best efforts, demonstrate an evidentiary basis
indictable offences. evidence will sometimes be to conclude that a communication
Accused may seek relevant third lost. Where the Crown can show that exists that could raise reasonable
party records applications evidence was not lost due to unacceptable doubt as to his guilt. o (2) If such
brought depend on negligence, the duty to disclose is not an evidentiary basis exists, the
whether charge is sexual beached. It will be possible for the trial judge should examine the
offence or some other accuseds right to full answer communication to determine
offence. Issues of proper and defence whether, in fact, it is likely to raise
disclosure - assigned trial to be breached only when a reasonable doubt as to the guilt
judge resolves them. R v accused can establish actual of the accused.
Stinchcombe The SCC changed prejudice. (1) Counselling Records Such as
the state of affairs of disclosure. They Dixon failure to disclose did not psychiatric, medical, or other
concluded that an accused person has become apparent until after the trial. Held counselling records regarding a
a right, under s. 7 Charter, to the right to disclosure is but one complainant.
disclosure of the Crowns case. They component of the right to make full answer Issue usually with production (the
stated that the Crown must and defence. Although the right handing over of documents in a 3rd
disclose all relevant to disclosure may be parties hands) not disclosure (handing
information to the violated, the right to over documents in the hands of the Crown).
accused, whether make full answer and defence OConnor Accused charged with sexual
inculpatory or exculpatory, may not be impaired as a assault. Disclosure of complainants medical,
subject to Crowns result of the counselling and school records. SCC set out
privilege or irrelevant violation. procedure to be applied for disclosure of 3rd party
information. Relevant o Taillefer The court changed the documents: o (1) The accused must
information must be approach in Carosella to a three- persuade the judge to examine
disclosed, regardless if part test the records personally. Consider :
Crown intends on (1) Was the accuseds right to disclosure accuseds right to make full
introducing it into breached? (2) If so, did that breach answer and defence, weigh 3rd
evidence, before election violate the accuseds right to make full parties privacy interests, Accused
or plea. Statements of answer and defence? must satisfy the trial judge that
persons who provide (3) If so, what remedy should be granted? there is a reasonable possibility
information must be Privileged Information that he information is logically
disclosed. Michaud v Quebec Obligation probative to an issue at trial or
1) Creation of Right The Crown to disclose is not absolute. the competence of a witness to
has a duty to disclose evidence to the The Crown may justify non- testify. o (2) Having looked at
accused. Must disclose all material it disclosure in circumstances the records, the judge is required
proposes to use at trial and especially where the public interest in to decide whether to release it or
all evidence which may assist the nondisclosure outweighs the some portions of it to the accused.
accused even if the Crown does not accuseds interest in Factors (i) the extent to which
propose to adduce it. (R v disclosure. the record is necessary for the
Stinchcombe). (1) Informer Privilege accused to make full answer and
2) Structure of Right The material to CL Rule - The identity of police defence; (ii) the probative value of
be disclosed includes all witness informers is entitled to the highest level of the record in question; (iii) the
statements, whether the Crown intends protection to protect individuals and nature and extent of the reasonable
to call the witness or not, and notes or investigative method (Bisaillon v expectation of privacy vested in that
will say statements where no actual Keable). record; (iv) whether production of that
statements exist (R v Stinchcombe). o Innocence at stake exception record would be premised upon any
The obligation to disclose is a If evidence establishes a basis for this discriminatory belief or bias, and (v) the potential
continuing one, the Crown must exception, identifying information will be prejudice to the complainants dignity, privacy or
disclose any additional revealed. Ie. the informer is a material security of the person would be occasioned by
information it receives. o witness to the crime, acted as an agent production of the record in question.
Defence has a continuing provocateur, or planted the material found STATUTORY RULE
obligation to seek under a search warrant (R v Leipert). o In response Parliament enacted ss.
disclosure. It is not Only if the accused can establish 278.1 to 278.91 rules for production
entitled to assume that it some basis to conclude that of records in the hands of 3rd parties
has received all relevant without disclosure the practically replaced OConnor standards.
information (Dixon). 1) accuseds innocence is at o Applies prima facie to all 3rd party
Remedy for Breach The Crowns stake, should the trial judge records, including records already in the
discretion with regards to disclosure consider disclosure. hands of the Crown.
can be reviewed by the trial judge if The Crown has the choice of staying Section 278.5(2) the judge must balance
defence counsel disagrees with the proceedings rather than making disclosure (R the salutary and deleterious effects of producing
way in which it has been exercised (R v Solosky). the record for the judges own inspection.
v Stinchcombe). o Non- (1) Solicitor-Client Privilege Section 278.5(1) Accused to show that
disclosure may result in CL Rule It is a principle of fundamental the records likely relevant, and the production is
remedy of new trial, stay of justice (R v McClure). Accused may necessary in the interest of justice. Decision
proceedings. o Carosella infringe anothers solicitor client privilege based on 5 factors in OConnor Section
accused charged with gross indecency. in order to make full answer and defence. 278.1 Only records of the type listed in which
Complainant visited rape crisis centre. McClure Just with informer there is also a reasonable expectation
Accused applied for production of privilege, the obligation to of privacy will be governed by the
notes. They has been destroyed. disclose arises only when the scheme.
Accused has a Charter right to accuseds innocence is at PRELIMINARY INQUIRIES
disclosure; non-disclosure = breach. A stake. At the preliminary inquiry, the judge
stay should only be granted if must determine whether the Crown has presented
(i) prejudice to the accused a prima facie case
cannot be remedies; or (ii)
 If so, accused is
committed to stand
trial and the
prosecutor will be
called upon to draft an
indictment, which will
replace the original
information as the new
charging document.
If the Crown does not
establish a prima facie
case, the accused is
discharged and the
prosecution on the
charge that has been
laid ends. A
discharge at the
preliminary inquiry is
not an acquittal. The
prosecution can relay
the charge and try
again, but will not do
so unless important
new evidence is
uncovered.
Section 577 - The
Attorney General also has
the authority to lay direct
indictment, which gives
jurisdiction to a court to try
the accused. The direct
indictment can be used to re-
institute a prosecution after a
preliminary inquiry discharge, or
to bypass a preliminary inquiry
altogether by indicating the
accused directly to trial.
Before an accused is tried on
an indictable offence, a
preliminary inquiry may be
conducted by a justice, at the
request of the prosecution or the
accused, unless the offence is
within the absolute jurisdiction of
the provincial court judge.
This can be overridden if the
AG elects to proceed by way of
direct indictment, (s. 577),
which effectively puts the
indictment immediately before
the court of trial.
The function of the
preliminary inquiry is to
afford the parties an
opportunity upon request
to test the evidence of
specific witnesses on
specific issues in
preparation for trial.
Jurisdiction
There is no inherent
jurisdiction. The only
powers that may be
exercised by the judge are
those that are explicitly
granted in the Code or that
are necessarily implicit in
those provisions.
Section 537(1)(i)
provides that a judge at
the preliminary inquiry
may regulate the course
of the inquiry in any way
that appears to be
desirable and not
inconsistent with any
other provision of the
Code. A judge at a
preliminary inquiry has no
power to grant any
remedy other than those
contemplated by the
Code.
The SCC has held that
the judge cannot grant a
remedy under the
Charter, including remedies waives the preliminary A judge has no jurisdiction at the
for delay, non-disclosure, or inquiry and thus no issues preliminary inquiry to order the
the production of evidence arises b/c the provincial court prosecution to call a witness and
obtained in violation of a judge has jurisdiction over all cannot himself call a witness.
constitutional right. of the offences charged. (1) Address to Accused
(1) Commencement If she elects trial by judge alone, Section 541(2) - At the close of the
Section 536 an accused who or judge and jury, the preliminary prosecution evidence, the Code requires the justice to
is charged with an indictable inquiry will proceed on the address an accused who is not represented by
offence within the absolute electable offences and the others counsel. Allowing them to say something addressing
jurisdiction of a provincial would have to be separately charges, but what they say can be held against them
court judge shall be remanded charged in another information. at trial.
to appear before such a judge (1) Presence of the Accused (1) Defence Evidence
for trial within the territorial The accused is entitled to be Section 541 The defence is entitled to
jurisdiction in which the offence present that the preliminary adduce evidence on behalf of the accused,
was allegedly committed. inquiry. Section 537(1)(j.1) including testimony by the accused, but is not
The possibility of having a judge has discretion to excuse the obliged to call witnesses.
preliminary inquiry in respect accused from all or part of the The preliminary inquiry provides an
of an indictable offence will inquiry. opportunity for the defence to acquire further
depend on (i) the classification Section 537 (1)(j) and (k) discovery of the case as a whole. Section
of the offence; and (ii) the accused may appear by an 715 If evidence was taken on oath at
election of the accused as to a electronic connection. the preliminary inquiry in the presence of the
mode of trial. Section 544 if the accused accused, and the witness either refuses to testify
(1) Scope absconds during the preliminary or is dead, insane, too ill to travel, or absent from
Section 535 directs the justice inquiry, the accused is deemed to Canada, then the evidence can be introduced at
of the judge to inquire into the have waived the right to be trial.
charge of any indictable offence present. The justice may continue R v Hawkins a witness testified at the
or any other indictable offence the inquiry to its conclusion or if preliminary inquiry, but then married the accused, thus
in respect of the same an arrest warrant has been issued, incompetent to testify at trial. She was not refusing to
transaction disclosed by the adjourn it. testify; thus s. 715 did not apply allowing her
evidence taken in accordance Counsel for the accused is entitled evidence to be led at trial.
with Part XVIII. The scope of to act for the absconding publication Bans
the preliminary inquiry is not accused, and may still call Section 537(1)(h) and 486 judge has
limited to the offences as witnesses. discretion to exclude the public from court.
charged in the information. o If the accused has absconded, the Section 539 a publication ban is imposed
It can extend to any indictable justice is entitled to draw adverse by order of the justice before any evidence is
offence disclosed by the inferences. taken it is discretionary if sought by the
evidence, provided it arises (1) Constitutional Issues prosecution and mandatory if sought by the
from the same transaction Mills - The SCC decided that a accused.
(narrative of conduct that may court conducting a preliminary Section 539(2) if the accused is not
comprise several acts and inquiry is not a court of represented by counsel, the Code obliges the
may disclose several competent jurisdiction judge to inform him of the right to seek a
offences). Section 541 under the charter. Thus, if publication ban.
Expressly allows the accused to call an accused seeks to apply for Committal
evidence and this can include a constitutional remedy Section 548 - DIRECTS THE JUSTICE OR
exculpatory evidence on a under section 24 or 52, they JUDGE AT THE PRELIMINARY INQUIRY TO
matter of defence. The only forum for such a motion COMMIT THE ACCUSED FOR TRIAL ON ANY
preliminary inquiry has also is the court of trial. INDICTABLE OFFENCE IF THE EVIDENCE IN
been used as an opportunity SUPPORT OF THAT CHARGE IS SUFFICIENT. IF
to lay an evidentiary ALSO REQUIRES that the accused be discharged
foundation for an issue that Evidence in respect of any charge on which the evidence
can only be decided at trial. (1) Admissibility is not sufficient. Shephard The SCC
Section 601 judge given Section 540 Evidence at the stated that the test of sufficiency at the
broad powers to amend preliminary inquiry is taken under preliminary inquiry, as for a directed
the charges in the oath and recorded. verdict and for committal in
information at preliminary Prosecution witnesses are heard extradition matters, is whether a
inquiry. first and may be x-examined by the reasonable jury, properly instructed,
Challenges to quash the accused or counsel. could find the charge proved beyond
information at the Evidence tendered at the reasonable doubt.corY j in WD o Test if
preliminary inquiry will preliminary inquiry must comply sufficiency at preliminary inquiry is
succeed only in cases with the principles and rules of concerned with the completeness of the
where there is a radical admissibility that apply at trial. prosecution evidence on the elements of the
jurisdictional defect that Section 540(7) A justice acting offence. Direct evidence on all
lies beyond the power of under this Part may receive as elements = accused committed.
amendment in s.601. evidence any information that The judge should discharge the
(1) MULTIPLE ACCUSED AND would not otherwise be admissible accused if no reasonable trier of fact
MULTIPLE COUNTS but that the justice considers could find the accused guilty on the
If multiple accused are credible or trustworthy in the evidence adduced by the prosecution.
charged in a single circumstances of the case, If the accused is discharged at the
information, each is entitled including a statement that is made preliminary inquiry, there is no
to make a request for a by a witness in writing or acquittal and thus the accused cannot
preliminary inquiry, as is the otherwise recorded. claim protection against double
prosecution. Section 567 (1) Cross-examination of jeopardy if the prosecution should
Empowers a judge not to Prosecution Witnesses subsequently proceed against him on
record the election of an The accused is permitted to x- the same charge or related charges,
accused if it would necessarily examine a prosecution witness either by means of fresh information or
lead to severance of the on any matter that could lead to direct indictment.
accused. The judge at THE the conclusion that the Review
PRELIMINARY INQUIRY prosecution evidence is - DECISION TO COMMIT OR DISCHARGE AT A
CANNOT INQUIRE INTO insufficient and in a manner that PRELIMINARY INQUIRY CAN ONLY BE REVIEWED
SUMMARY-CONVICTION might be useful in a subsequent ON THE BASIS OF AN ACTION FOR CERTIORARI.
OFFENCES AND INDICTABLE trial. Section 537(1.1) - The It is open to the Crown to seek
OFFENCES WITH THE justice has the express power to certiorari in the case of discharge.
ABSOLUTE JURISDICTION OF immediately stop any part of it that Section 577 THE CROWN HAS A SIMPLER
THE PROVINCIAL COURT. is in the opinion of the justice, OPTION OF PREFERRING A DIRECT INDICTMENT
If the accused elects trial abusive, too repetitive or otherwise DESPITE THE DISCHARGE, SO MORE
in provincial court, she inappropriate. FREQUENTLY CERTIORARI APPLICATIONS
INVOLVE AN ACCUSED SEEKING
REVIEW OF A DECISION TO
COMMIT. CERTIORARI IS
ONLY GRANTED IF THE JUDGE
HAS FALLEN INTO
JURISDICTIONAL ERROR. O
ERRONEOUSLY EXCLUDING
EVIDENCE, UNLIKELY A
JURISDICTIONAL ERROR
UNLESS RISES TO LEVEL OF
DENIAL OF NATURAL JUSTICE
(Dubois).
IF TRIAL JUDGE FAILS TO
COMPLY WITH A MANDATORY
PROVISION OF THE CODE IT IS A
JURISDICTIONAL ERROR.
Section 548 requires a
judge to commit the accused for
trial if there is sufficient
evidence. It also requires a
preliminary inquiry judge to
discharge the accused if on
the whole of the evidence no
sufficient case is made out.
Sazant the ACCUSED HAD
BEEN DISCHARGED AT THE
PRELIMINARY INQUIRY ON A
CHARGE OF SEXUAL ASSAULT.
PRELIMINARY INQUIRY JUDGE
SAID THAT THERE WAS
ABSOLUTELY NO EVIDENCE OF
NON-CONSENT. COMPLAINANT
HAD TESTIFIED HE DID NOT
WANT TO PARTAKE IN THE
SEXUAL ACTIVITY. HELD - THE
JUDGE HAD MADE A
JURISDICTIONAL ERROR.
R v Arcuri - Supreme
Court of Canada
reviewed the test for
committal for trial on a
preliminary inquiry
and discussed the
questions to be asked
by a preliminary
inquiry judge. The
Court ruled that
although the test for
preliminary inquiry is
the same whether the
evidence is direct or
circumstantial, the
nature of the judges
task varies according
to the type of evidence
advanced by the Crown.
The judge must therefore weigh
the evidence, in the sense of
assessing whether it is
reasonably capable of
supporting the inferences that
the Crown asks the jury to draw.
This weighing, however, is
limited. The judge does not ask
whether she herself would
conclude that the accused is
guilty. Nor does the judge draw
factual inferences or assess
credibility. The judge asks only
whether the evidence, if believed,
could reasonably support an
inference of guilt.
THE JURY TRIAL
If a jury trial is to be held, a trial
judge is assigned, and a jury
is selected.
Selecting Mode of Trial
Section 504 anyone can
lay an information alleging
the commission of an
offence in front of a justice
of the peace.
Section 788 - this is the
document under which a
summary conviction trial will
take place.
Section 507 the justice of the citizen. DISQUALIFICATION PRE-TRIAL MOTIONS
peace decides whether to issue a BASED ON 2 JUSTIFICATIONS In either judge alone or jury trials, there will
summons or a warrant, where a case (i) the potential juror would face a conflict often be preliminary legal issues to be resolved
for doing so is made out to require the in serving on a jury, or (ii) what the juror before the trial gets going ordinarily dealt with by
accused to attend court. does in everyday life is more important the assigned trial judge.
Section 505 If person arrested than, or for some other reason justifies a In a jury trial, it is often
without a warrant, an obligation exists general exemption from, serving on jury convenient to assign the judge
to present whatever process was duty. and to dispose of these matters
issued to a justice of the peace. SELECTING JURORS : O before a jury is selected, or if the
Section 508 imposes an SECTION 629 the accused or the motions can be resolved
obligation on the justice to prosecutor can challenge the jury array, expeditiously, select the jury and
perform a screening but it is only based on partiality, require it to leave the courtroom
process similar to that in s. fraud or wilful misconduct on until the motions are completed.
507. the part of the sheriff or (1) Timing and Means
If the accused was arrested, he or she other officer by whom the Section 645(5) trial judge, in a jury trial,
will (under s. 503) be taken in front panel was returned. o before the jury has been selected, is authorized to
of a justice of the peace who will decide Criminal trial must commence deal with any matter that would be dealt with in the
whether to hold or release the accused. with 12 jurors. o Section 644 (1) absence of the jury.
Section 515 the bail hearing allows a judge to discharge a juror based Some pre-trial motions are
will be conducted in accordance with on illness or other reasonable charge, and specifically permitted in the Code
these procedures. a juror previously selected might seek to Ie. application for change of venue (s. 599), for
arraignment the be excused under this section. o particulars (s. 587), for exclusion of the public
accuseds initial Section 644(1.1) provided the jury from trial or a publication ban (s. 486), or to
appearance in court to has not begun to hear evidence, a jury can severe counts (s. 591(3)). Section 625.1
answer the charge. choose a replacement juror. o Section Parties and the court can see
If the offence is hybrid, 644 (2) directs that the jury remains whether an agreement can be
the Crown should elect properly constituted, unless the judge reached that will expedite the
whether to proceed by orders otherwise, provided the number of trial. Ie. if the voluntariness of
indictment or summary jurors is not reduced below 10. statements will be admitted.
conviction at this stage. Exemptions o Section 632 allows (1) Particular Pre-Trial Motions
If the matter is summary a trial judge to excuse jurors based on any Charge of Venue:
conviction, automatically of the three grounds (1)personal o At CL, trials are to be held in the area in which
or by election, the accused interest in the matter to be the offence occurred. Section 599 it is
enters a plea and will be tried; (2)relationship with possible to apply to change the venue in which the
tried on the information in judge, prosecutor, accused, trail will be held. Either the defence or
Form 2. Section 471 - If the counsel for the accused, or a the Crown can apply for a change
matter is indictable, trial must be by prospective witness; and of venue on the grounds that (a)
judge and jury unless some other part (3)personal hardship or other it appears expedient to the ends
of the code specifies otherwise. reasonable cause. o Section of justice; or (b) a competent
Section 469 gives a superior court 633 the judge can stand authority has directed that a jury
of criminal jurisdiction the ability to try jurors aside. They are only is not to be summoned at the time
an offence. recalled for possible appointed in a territorial division
Section 468 gives a court of selection if the array is where the trial would otherwise by
criminal jurisdiction the ability to try exhausted without a law be held. o Change venue id pre-
any offence other than those listed in s. complete jury. Challenges trial publicity has made it too
469. for Cause o Section 638 difficult for the accused to obtain
Section 558 an accused can grounds which a juror may be challenged a fair trial. Prejudice must not be
elect not to have a jury, except for the for cause. Both Crown and accused are capable of being cured by
offences listed in s.469. entitled to an unlimited number of safeguards in jury selection,
Section 473 an accused can challenges for cause. instructions from the trial judge to
elect not to have a jury even for the Some grounds are factual ie. jury, or by the rules of evidence.
offences listed in s. 469 with the jurors is an alien. Some grounds are Fitness to Stand Trial: Pre-trial motion
consent of the AG. based on physical incapacity to perform to determine if the accuse is fit TO STAND TRIAL
Section 536(2) the accused is juror duties i.e language barrier. o IE. SUFFERS FROM MENTAL DISORDER. O PART
asked to elect a mode of trial. Section 638 (1) (f) can challenge on XX.1 FITNESS PROVISIONS FOCUS ON THE
Section 553 if the offence is basis that a juror is not indifferent ACCUSEDS MENTAL STATE AT THE TIME OF
listed as in the absolute jurisdiction of between the Queen and the accused. TRIAL, AND WHETHER IT IS FAIR TO PROCEED.
a magistrate, then the accused does (1) Counsel has to satisfy the trial judge o Section 672.22 Everyone is presumed to
not elect and is tried in a provincial that the challenge for cause should be be fit to stand trial. requirements:
court. Section 565(1) if the permitted counsel must tell the trial (1) Section 2 Unfit to stand trial
accused refuses to elect, the trial will judge the basis for the challenge. (2) The requires that accused suffered from a mental
be by judge and jury. challenge itself. Counsel is permitted to disorder.
Section 598 if the accused elects ask questions of the jurors to determine (2) Accused is unable to account to
trial by judge and jury, but then fails to whether the juror will in fact be able to act conduct a defence at any stage of the proceedings
appear, then the later trial will not be in impartially. o An unsuccessful challenge before a verdict is rendered or to instruct counsel,
front of a judge and jury unless the for cause does not prevent a peremptory and, in particular, unable on account of mental
accused shows a legitimate excuse. challenge from being used (Cloutier). disorder to (a) understand the nature
Section 579 the Crown may Peremptory Challenges o Section 634 of the proceedings, (b)
stay proceedings with the Peremptory challenges allow the accused understand the possible
ability to recommence or the Crown to dismiss a potential juror consequences of the proceedings,
within 1 year. w/o explanation. o Each party has 20 communicate with counsel. o A
Jury Selection peremptory challenges in cases of high party arguing that the accused is
Section 471 every indictable treason or 1 s t degree murder, 12 for other unfit has the burden of proof on a
offence shall be tried by a judge and offences carrying 5 years or more, and 4 in balance of probabilities (section
jury except where otherwise expressly all other cases. o If a trial on more than 1 672.23(2) and 672.22). If the above
provided by law. Section 92(14) charge, the number of peremptory requirements are met, reasonable
Constitution Act provinces given challenges is for the most serious grounds are made out that the
jurisdiction over the administration of offence charged. o Section accused is unfit to stand trial.
justice in the province. 634 - More than 1 accused, each accused Once this is made out, then the
Section 626 jurors must be receives the proscribed number, Crown actual question of fitness is
qualified in accordance with the laws in receives that same number as all the decided.
the province. No person can be accused combined. o Accuseds use of Charter Motions o Section 11(b)
disqualified from jury service based on the challenges = unconstrained. o Crown guarantees any person charged
sex. Generally, a juror is required to must exercise challenges in conformity with an offence has the right to
be the age of majority in the province, a with Charter principles and values. be tried within a reasonable
resident of the province and a Canadian time. o Morin TEST for s. 11(b) claim.
Some delay is inevitable. The
question is, at what point does
the delay become unreasonable?
4 considerations must be
weighed:
(1) the length of the
delay
(2) waiver of time
periods
(3) the reasons for the
delay, including
inherent time
requirements of the
case,
actions of the accused
actions of the Crown
limits on institutional
resources, and
other reasons for delay
(4) prejudice to the
accused
o Askov 6 8 months from
committal to trial.
o Morin affirmed above.
Added delay in provincial courts
should be 8 10 months.
Accused can
strengthen s. 11(b)
claim by showing
infringements of a
liberty or fair trial
interests as well. o
Absent of proof of
serious prejudice, s.
11(b) claims have
become less likely to
be granted. Abuse of
Process Requires that
the proceedings are
oppressive or
vexatious and that
they violate the
fundamental principles
of justice under the
communitys sense of
fair play and decency
(R v Keyowski). o At CL, the
issue was societys interest in a
fair process, and whether
proceedings had become so
unfair that they were contrary to
the interests of justice (R v
Power). o CL and s. 7 have
been merged, b/c abuse of
process claims can be decided
based on whether they violate the
accused right to a fair trial (R v
OConnor). o Stay of
Proceedings o OConnor -
If the abuse of process has
caused prejudice to the accused
or threatened integrity of the
justice system, for a STAY to be
appropriate, TEST :
(1) the prejudice caused
by the abuse in question
will be manifested
perpetuated or
aggravated through the
conduct of the trial, or by
its outcome; and
(2) no other remedy is
reasonably capable of
removing that prejudice.
o A stay is intended to
prevent the perpetuation
of a wrong that will
otherwise continue to
affect
the parties and the
community (Regan).
o If any doubt exists
about whether a stay
should be granted, the
Court has created
a third criterion A consider one anothers views Error of law based on insufficient reasons (1)
balancing between the (Sims). the appeal court must ask whether the reasons are
interests of the accused Provided no improper pressure, inadequate; (2) it must be determined whether that
served by irrelevant considerations are imposed and inadequacy prevents appellate review.
granting a stay, and the the right to disagree is clear, the trial judge If both stages of the test are met then a new trial
interest of society in can urge the jury to find agreement (R v should be ordered (Gagnon).
having a final decision on Littlejohn) Duty to give reasons applies to acquittals.
the merits (Regan). THIRD Improper exhortation may lead to a new Acquittal = reasonable doubt (vs. conviction =
CRITERIA FOR STAY trial. BARD). RD can arise b/c an inadequate foundation
TEST ABOVE Rendering a Verdict for guilt has been laid. Thus, takes less reasons to
THE TRIAL VERDICT Once jury deliberations are finished, the be adequate in the case of acquittal (R v Walker).
JURY TRIALS jury foreman announces its verdict in DOUBLE JEOPARDY AND ISSUE ESTOPPEL
Where there has been a jury court. Where a verdict has been rendered, the accused
trial, the judge will charge Juries may be polled (every juror asked cannot be tried again for the same offence or for
the jury on the relevant law, individually about the verdict) usually an offence based on the same factual allegations
and the jury will retire to done when there is doubt that unanimity he has been acquitted or convicted of.
deliberate, returning with a exists (R v Laforet). Once jury has Under the doctrine of issue estoppel the Crown
general verdict (ie. a verdict been discharged by the trial judge, neither is prevented from attempting in future
delivered without reasons). If judge nor jury has authority to act. proceedings from re-litigating factual issues that
there is a conviction, the judge R v Head foreman announced have already been decided against the Crown.
will conduct a sentencing verdict, not guilty. Jury Section 11(h) Charter Any person charged with
hearing and impose a discharged. Accused acquitted. an offence has the right if finally acquitted of the
sentence. Foreman indicated later that the offence, not to be tried again, and if finally found
Jury Sequestration jury could have found the guilty and punished for the offence, not to be tried
Section 647 & 748 Following accused guilty of an included or punished for it again. R V Mahalingan
the jury charge and offence (never said). Held Trial Issue estoppel does not prevent the Crown from
re-charge, a trial judge can judge was functus officio, no leading evidence on any issue raised in a previous
allow the jury to separate rather than longer had jurisdiction to inquire trial resulting in an acquittal. It does preclude the
commence deliberations immediately, into matter or correct error. Crown from adducing evidence that is
and in this even a publication ban is Acquittal stood. inconsistent with determinations of issues which
imposed. Once the jury begins R v Burke Jurys verdict guilty, court were finally resolved in the accuseds favour at a
its deliberations it is thought foreman said not guilty. previous trial, on the basis of either a positive
sequestered (isolated in a way Held If jury required to reconsider factual finding or reasonable doubt. The accused
to keep from it any potential verdict, functus officio rule applies. TEST: bears the onus in establishing that the issue has
sources of information). The If no reconsideration, trial judge to decide been conclusively decided in his or her favour.
verdict CONVICTION OR if reasonable apprehension of bias. If no,
ACQUITTAL MUST BE UNANIMOUS. judge can correct error. If yes, judge must
While sequestered- the jury may send allow verdict recorded to stand or declare
non-administrative inquiries to the mistrial (to prevent miscarriage of justice).
judge. The judge is to (a) read the Thus, judge residual jurisdiction when
communication in open court in the there has been an irregularity. Mistrial
presence of all parties; (b) give counsel declared, new trial ordered.
an opportunity to make submissions in Jury Secrecy
open court prior to dealing with the Section 649 It is an offence for
question; answer the question for the anyone present in the jury room to
jury in open court in the presence of all disclose any information about
parties (R v Fontaine). o Ie. the jurys deliberations, other than in
request copy of the Code, transcripts of connection with an investigation of
wiretaps, judges instructions, rehear obstruction of justice under s. 139(2). o
evidence, clarification of the legal At CL, also prevent anyone who overhears,
issues. even accidentally, the jurys deliberations
A trial judge has discretion and is not from disclosing the information.
obliged to answer every request from R v Pan Extrinsic matter = some
the jury precisely as asked. 3rd party has contact with jury or gave
A trial judge should information to a juror. Intrinsic matter
consult on how to respond, = the effect the contact or information had
and propose alternatives on jury deliberations. CL rule and s.
or ask the jury to 649, jury secrecy rule, only prevent
deliberate further to intrinsic matters from being
decide more specifically disclosed.
what their concern is; not Mercier could leave evidence that the
simply refuse s. D(8)(b) Crown prosecutor has erased words from
(R v Ostrowski). Basic rule the blackboard in the jury room (extrinsic
no additional matter). Evidence concerning effect this
information/evidence that had on jurys reasoning, intrinsic, not
did not come out at trial admissible.
can be given to the jury JUDICIAL VERDICTS
once they have begun Where there has been a judge alone trial,
deliberating, and it might the judge will render the verdict. The
be necessary to tell the jury that judge is obliged to give
there was no evidence led on the point reasons for decision. If the
in question (R v Templeman). accused is convicted, the
exhorting the Jury judge will conduct a
Section 653 - IF THE JURY IS sentencing hearing.
UNABLE TO REACH UNANIMITY, THEN Sheppard there is no general duty
A TRIAL JUDGE MAY DISCHARGE THE for a trial judge to give reasons, however,
JURY AND ORDER A NEW TRIAL. in many circumstances the failure to do so,
If the jury is in a deadlock, or do so adequately, will be an error of law
the first step is to call them in and giving rise to a ground of appeal. Held
exhort them to reach a verdict. Trial judge delivered boiler plate reasons
The exhortation is to that indicated, in a single sentence that he
focus on the process of had considered the testimony and burden
deliberation itself, and the Crown. These reasons were insufficient
encourage the jury for the accused, or an appeal court, to
members to listen to and know the basis for the conviction. Thus
conviction overturned.
R. v. Litchfield
Practice -- Collateral
attack - non-suit -
Sexual assault by
practising male
physician on
female patients --
Counts severed
and divided by
judge in chambers
before indictment
preferred before
trial judge -- Three
trials to be held
depending on Criminal law - Whether any of
whether assault
dealt with genitals,
breasts or other
areas of body --
Trial judge refusing
to admit evidence Prior to trial, respondent
between counts --
Application for
non-suit granted --
Whether this Court
had jurisdiction to
review pre-trial
severance order --
If so, whether
pre-trial severance
order should be set
aside -- Whether
any of the evidence
excluded at trial
should have been
admitted --
Whether non-suit
should have been
granted --Criminal
Code, R.S.C., 1985,
c. C- 46 , ss. 265(1) (
a), (2) , (3) (c), 590(3
) , 591(3) (a), (4) , 64
5(5) , 676(1) (a), 686
(4) (a), (b)
(i), 693(1) (b).
Jurisdiction --
Appellate courts --
Pre-trial severance
of counts of sexual
assault -- Three
trials to be held
depending on
whether assault
dealt with genitals,
breasts or other
areas of body --
Trial judge refusing
to admit evidence
between counts --
Application for
non-suit granted --
Whether this Court
had jurisdiction to
review pre-trial
severance order --
If so, whether
pre-trial severance
order should be set
aside -- Whether
any of the evidence
excluded at trial
should have been
admitted --
Whether non-suit
should have been
granted.
Evidence In a trial by judge
Application for non-suit alone, the Crown first
granted -- Whether this proceeded on those counts
Court had jurisdiction to relating to vaginal
review pre-trial examinations. The trial
severance order -- If so, judge refused the Crown's
whether pre-trial motion to hold a voir dire to
severance order should determine the admissibility
be set aside -- Whether of the evidence relating to
any of the evidence the severed counts and
excluded at trial should ruled that the Crown could
have been admitted -- proceed by calling all of the
Whether non-suit should evidence relating to the
have been granted. severed counts, subject to
a subsequent ruling on
the evidence excluded at admissibility. The Crown
trial should have been called all of the evidence
admitted -- Whether relating to the severed
non-suit should have counts, as well as the
been granted. evidence of the
complainants in the trial
applied for an order that going to the counts before
each count be tried the court and the evidence
separately or of two medical experts.
alternatively that the The trial judge, on a voir
counts be severed by dire, refused to admit the
complainant. The judge evidence of several other
hearing the motion (not women of similar assaults
the trial judge) ordered by the respondent. He also
that three different trials refused to admit the
be held depending on testimony of the
the part of the respondent's ranking
complainant's body medical officer as to
involved in the assault -- counselling the respondent
genitalia, breasts or had received from her after
other matters. The complaints were lodged
counts therefore were against him while he
not only severed but practised in the military.
also divided such that The trial judge
separate trials were to subsequently ruled all the
be held for events that evidence relating to the
occurred within one visit severed counts
to the respondent's inadmissible as irrelevant
office by the same or, even if relevant, too
complainant. prejudicial. THE
RESPONDENT
SUCCESSFULLY
BROUGHT A MOTION FOR
A NON-SUIT AT THE
CLOSE OF THE CROWN'S
CASE AND WAS
ACQUITTED. THE COURT
OF APPEAL DISMISSED
THE CROWN'S APPEAL.
AT ISSUE HERE WERE:
(1) WHETHER THIS COURT
HAD JURISDICTION TO
REVIEW A PRE-TRIAL
SEVERANCE ORDER, AND
(2) IF SO, WHETHER THE
PRE-TRIAL SEVERANCE
ORDER SHOULD BE SET
ASIDE; (3) WHETHER ANY
OF THE EVIDENCE
EXCLUDED AT TRIAL
SHOULD HAVE BEEN
ADMITTED; AND
(4) WHETHER A NON-SUIT
SHOULD HAVE BEEN
GRANTED.
Held: The appeal should be
allowed.
SENTENCING
GENERAL PRINCIPLES OF
SENTENCING
For the most part, the general principles
of sentencing have been codified in the
Criminal Code.
Section 718 Purpose. The
fundamental purpose of
sentencing is to contribute, along
with crime prevention initiatives,
to respect for the law and the
maintenance of a just, peaceful
and safe society by imposing just
sanctions that have one or more of the
following objectives:
(a) to denounce unlawful conduct;
(b) to deter the offender and other
persons from committing offences;
to separate offenders from society,
where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm
done to victims or to the community;
and (f) to promote a sense of
responsibility in offenders, and
acknowledgment of the harm done to victims
and to the community.
Section 718.01 Offences against children.
When a court imposes a sentence for an offence
that involved the abuse of a persons under the age
of 18 years, it shall give primary consideration to
the objects of denunciation and deterrence of
such conduct.
Section 718.1 Fundamental principle. A
sentence must be proportionate to the gravity of
the offence and the degree of responsibility of the
offender.
Section 718.2 Other sentencing principles. A
court that imposes a sentence shall also take into
consideration the following principles:
(a) a sentence should be increased
or reduced to account for any
relevant aggravating or mitigating
circumstances relating to the offence or the
offender, and, without limiting the generality of the
foregoing, (i) evidence that the
offence was motivated by bias,
prejudice or hate based on race,
national or ethnic origin,
language, colour, religion, sex,
age, mental or physical disability,
sexual orientation, or any other
similar factor, (ii) evidence that the
offender, in committing the
offence, abused the offenders
spouse or common-law partner,
(ii.1) evidence that the offender, in
committing the offence, abused a person under
the age of eighteen years, (iii) evidence that the
offender, in committing the offence, abused a
position of trust or authority in relation to the
victim, (iv) evidence that the offence was
committed for the benefit of, at the direction of or
in association with a criminal organization, or (v)
evidence that the offence was a terrorism offence
shall be deemed to be aggravating circumstances;
(b) a sentence should be similar to sentences
imposed on similar offenders for similar offences
committed in similar circumstances;
(CONSISTENCY) where consecutive sentences
are imposed, the combined sentence should not
be unduly long or harsh;
(d) an offender should not be deprived of liberty, if
less restrictive sanctions may be appropriate in
the circumstances; and (e) all available sanctions
other than imprisonment that are reasonable in the
circumstances should be considered for all
offenders, with particular attention to the
circumstances of aboriginal offenders.
Section 718.3 Degree of Punishment
(1) Where an enactment prescribes
different degrees or kinds of punishment
in respect of an offence, the punishment
to be imposed is, subject to the limitations
prescribed in the enactment, in the
discretion of the court that convicts a person
who commits the offence.
Discretion respecting punishment
(2) Where an enactment prescribes a
punishment in respect of an offence, the
punishment to be imposed is, subject to the
limitations prescribed in the enactment, in
the discretion of the court that convicts a
person who commits the offence, but no
punishment is a minimum punishment
unless it is declared to be a minimum
punishment.
(3) Where an accused is convicted of an
offence punishable with both fine and
imprisonment and a term of
imprisonment in default of
payment of the fine is not
specified in the enactment
that prescribes the
punishment to be imposed,
the imprisonment that may
be imposed in default of
payment shall not exceed
the term of imprisonment
that is prescribed in
respect of the offence.
Cumulative punishments
(4) The court or youth justice
court that sentences an
accused may direct that the
terms of imprisonment that
are imposed by the court or
the youth justice court or that
result from the operation of
subsection 734(4) or
743.5(1) or (2) shall be
served consecutively,
when (a) the accused
is sentenced while
under sentence for an
offence, and a term of
imprisonment,
whether in default of
payment of a fine or
otherwise, is imposed;
(b) the accused is found
guilty or convicted of an
offence punishable with
both a fine and
imprisonment and both
are imposed;
the accused is found
guilty or convicted of
more than one offence,
and
(i) more than one fine is
imposed,
(ii) terms of imprisonment
for the respective
offences are imposed, or
(iii) a term of
imprisonment is imposed
in respect of one offence
and a fine is
imposed in respect of
another offence; or
(d) subsection
743.5(1) or (2)
applies.
Section 719
Commencement of
sentence.
(1) A sentence
commences when it is
imposed, except where a
relevant enactment
otherwise provides.
(2) Any time during which
a convicted person is
unlawfully at large or is
lawfully at large on
interim release granted
pursuant to any provision
of this Act does not count
as part of any term of
imprisonment imposed on
the person.
(3) In determining the
sentence to be imposed
on a person convicted of
an offence, a court may
take into account any
time spent in custody by
the person as result of
the offence.
(4) Notwithstanding (1), a
term of imprisonment,
whether imposed by a trial
court or the court appealed
to, commences or shall be
deem dot be resumed, as the Retribution bears little relation to (b) subject to subsection 119(2) of the
case may be, on the day on vengeance Youth Criminal Justice Act, the history
which the convicted person is Retribution should also be of previous dispositions under the
arrested and taken into custody conceptually distinguished from Young Offenders Act, chapter Y-1 of the
under the sentence. its legitimate sibling, Revised Statutes of Canada, 1985, the
(5) Notwithstanding (1), where the denunciation Retribution requires history of previous sentences under
sentence that is imposed is a fine with that a judicial sentence properly the Youth Criminal Justice Act, and of
a term of imprisonment in default of reflect the moral blameworthiness of previous findings of guilt under this Act and
payment, no time prior to the day of the particular offender The objective any other Act of Parliament;
execution of the warrant of committal of denunciation mandates that a the history of any alternative measures
counts as a part of the term of sentence should also communicate used to deal with the offender, and the
imprisonment. societys condemnation of that offenders response to those measures; and
(6) An application for leave to appeal is particular offenders conduct (d) any matter required, by any regulation
an appeal for the purposes of this Retribution must be considered in made under subsection (2), to be included in
section conjunction with the other legitimate the report.
R v C.A.M. Facts - The objectives of sentencing. Idem
accused pleaded guilty to R v Priest The primary objectives (4) The report must also contain
numerous counts of sexual in sentencing a first offender are information on any other matter required
assault, incest and assault individual deterrence and by the court, after hearing argument from
with a weapon, in addition to rehabilitation. The sentence should the prosecutor and the offender, to be
other lesser offences, arising constitute the minimum necessary included in the report, subject to any
from a largely uncontested intervention that is adequate in the contrary regulation made under subsection
pattern of sexual, physical and particular circumstances. Community- (2).
emotional abuse inflicted upon based dispositions must be Copy of report
his children over a number of considered and more serious forms of (5) The clerk of the court shall provide a
years. None of the offences punishment should be imposed only copy of the report, as soon as practicable
committed carried a penalty of life when necessary. Furthermore, a trial after filing, to the offender or counsel for the
imprisonment. The trial judge, judge should have either a pre- offender, as directed by the court, and to the
remarking that the egregiousness sentence report or a very clear prosecutor.
of the offences, sentenced the statement with respect to the Section 722 Victim impact statement.
accused to a cumulative accuseds background and (1) For the purpose of determining the
sentence of 25 years circumstances, before imposing a sentence to be imposed on an offender
imprisonment, with individual sentence of imprisonment on the first or whether the offender should be
sentences running both offender. discharged pursuant to section 730 in
consecutively and concurrently. R v Boucher In cases involving respect of any offence, the court shall
The CA reduced the sentence to violence, arising out of an existing or consider any statement that may have
18 years and 8 months. Issue - failed domestic or romantic been prepared in accordance with
Did the CA err in holding that relationship, the main sentencing subsection (2) of a victim of the offence
retribution is not a legitimate objectives are denunciation and describing the harm done to, or loss suffered
principle of sentencing? Held - deterrence. Further, sentences by, the victim arising from the commission of
Yes ; the appeal was allowed imposed must promote a sense of the offence.
and the sentence of 25 years responsibility in offenders and an Procedure for victim impact
restored. Lamer CJC: The BC acknowledgement of the harm done, statement
Court of Appeal erred in applying not only to the immediate victim, but (2) A statement referred to in subsection
as a principle of sentencing that also to the community at large. In (1) must be
fixed-term sentences under the cases like this, the likelihood of (a) prepared in writing in the form and in
Criminal Code ought to be capped enduring psychological trauma to the accordance with the
at 20 years, absent special victim from the irrational, controlling procedures established by a program
circumstances and obsessive nature of the designated for that purpose by
For many of the lesser crimes misconduct is significant. the lieutenant governor in council of the
presently before our courts, a single or Procedure province in which the court is
cumulative sentence beyond 20 years Section 720 Sentencing exercising its jurisdiction; and
would undoubtedly be grossly Proceedings. (1) A court shall, as (b) filed with the court.
excessive, and probably cruel and soon as practicable after an Presentation of statement
unusual offender has been found guilty, (2.1) The court shall, on the request of a
In other circumstances, such a stern conduct proceedings to determine victim, permit the victim to read a statement
sentence would be both fitting and the appropriate sentence to be prepared and filed in accordance with
appropriate imposed. Section 721 Report by subsection (2), or to present the statement
The ultimate protection against probation officer. (1) Subject to in any other manner that the court considers
excessive criminal punishment lies regulations made under subsection appropriate.
within a sentencing judges overriding (2), where an accused, other than an Evidence concerning victim admissible
duty to fashion a just and organization, pleads guilty to or is (3) Whether or not a statement has been
appropriate punishment which is found guilty of an offence, a probation prepared and filed in accordance with
proportional to the overall officer shall, if required to do so by a subsection (2), the court may consider any
culpability of the offender court, prepare and file with the court a other evidence concerning any victim of the
A sentencing judge should generally report in writing relating to the offence for the purpose of determining the
refrain from imposing a fixed-term accused for the purpose of assisting sentence to be imposed on the offender or
sentence which so greatly exceeds an the court in imposing a sentence or in whether the offender should be discharged
offenders expected remaining life determining whether the accused under section 730.
span that the traditional goals of should be discharged under section Definition of victim
sentencing have all but 730. (4) For the purposes of this section and
depleted their Provincial regulations section 722.2, victim , in relation to an
functional value (2) The lieutenant governor in council offence, (a) means a person to whom
Retribution is an accepted, and of a province may make regulations harm was done or who suffered physical
indeed important, principle of respecting the types of offences for or emotional loss as a result of the
sentencing in our criminal law which a court may require a report, commission of the offence; and (b) where
It represents the hallowed and respecting the content and form the person described in paragraph (a) is
principle that criminal of the report. dead, ill or otherwise incapable of
punishment, in Content of report making a statement referred to in
addition to advancing utilitarian (3) Unless otherwise specified by the subsection (1), includes the spouse or
considerations related to court, the report must, wherever common-law partner or any relative of
deterrence and rehabilitation, possible, contain information on the that person, anyone who has in law or
should also be imposed to following matters: fact the custody of that person or is
sanction (a) the offenders age, maturity, responsible for the care or support of that
the moral culpability of the character, behaviour, attitude and person or any dependant of that person.
offender willingness to make amends;
Section 723 Submissions
on facts (1) Before
determining the sentence,
a court shall give the
prosecutor and the
offender an opportunity to
make submissions with
respect to any facts relevant
to the sentence to be
imposed.
Submission of evidence
(2) The court shall hear any
relevant evidence
presented by the
prosecutor or the
offender.
Production of evidence
(3) The court may, on its own
motion, after hearing
argument from the prosecutor
and the offender, require the
production of evidence that
would assist it in determining
the appropriate sentence.
Compel appearance
(4) Where it is necessary in
the interests of justice, the
court may, after consulting
the parties, compel the
appearance of any person
who is a compellable witness
to assist the court in
determining the appropriate
sentence.
Hearsay evidence
(5) Hearsay evidence is
admissible at
sentencing
proceedings, but the
court
may, if the court
considers it to be in
the interests of
justice, compel a
person
to testify where the
person
(a) has personal
knowledge of the
matter;
(b) is reasonably
available; and
is a compellable
witness.
Section 724 Information
accepted. (1) In determining
a sentence, a court may
accept as proved any
information disclosed at the
trial or at the sentencing
proceedings and any facts
agreed on by the prosecutor
and the offender.
Jury
(2) Where the court is
composed of a judge and
jury, the court (a) shall accept
as proven all facts, express
or implied, that are essential
to the jurys verdict of guilty;
and (b) may find any other
relevant fact that was
disclosed by evidence at the
trial to be proven, or hear
evidence presented by either
party with respect to that fact.
Disputed facts
(3) Where there is a dispute
with respect to any fact that
is relevant to the
determination of a sentence,
(a) the court shall request
that evidence be adduced as
to the existence of the fact
unless the court is satisfied
that sufficient evidence was than 2 years. (1) Except where reduced and the unexpired portions of the
adduced at the trial; otherwise provided, a person remaining term or terms on the day on which
(b) the party wishing to rely on a who is sentenced to that person was transferred under this
relevant fact, including a fact imprisonment for (a) life, (b) a section amounted to less than two years,
contained in a presentence report,
term of two years or more, or (c) that person shall serve that term or terms in
has the burden of proving it;
either party may cross-examine two or more terms of less than accordance with subsection (3). (6) For the
any witness called by the other two years each that are to be purposes of subsection (3), penitentiary
party; served one after the other and does not, until a day to be fixed by order of
(d) subject to paragraph (e), the that, in the aggregate, amount to the Governor in Council, include the
court must be satisfied on a two years or more, shall be facility mentioned in subsection 15(2)
balance of probabilities of the sentenced to imprisonment in a of the Corrections and Conditional
existence of the disputed fact penitentiary. Release Act . Section 745 Sentence
before relying on it in determining Subsequent term less than two of life imprisonment. Subject to section
the sentence; and (e) the
years 745.1, the sentence to be pronounced
prosecutor must establish, by
proof beyond a reasonable doubt, (2) Where a person who is sentenced against a person who is to be sentenced to
the existence of any aggravating to imprisonment in a penitentiary is, imprisonment for life shall be (a) in respect
fact or any previous conviction by before the expiration of that sentence, of a person who has been convicted of
the offender. sentenced to imprisonment for a term high treason or first degree murder, that
R v Bremner The appellant of less than two years, the person the person be sentenced to
received 18 months incarceration shall serve that term in a penitentiary, imprisonment for life without eligibility
on 4 counts of indecent assault but if the previous sentence of for parole until the person has served
committed in the late 1960s and imprisonment in a penitentiary is set twenty-five years of the sentence;
early 70s. The appellant was an
aside, that person shall serve that (b) in respect of a person who has been
officer in a quasi-naval
organization and the victims were term in accordance with subsection convicted of second degree murder
sea cadets between 13-16 years (3). where that person has previously been
old. The court of appeal changed Imprisonment for term less than convicted of culpable homicide that is
the incarceration to a conditional two years murder, however described in this Act,
sentence. Fairness in the (3) A person who is sentenced to that that person be sentenced to
sentencing process was adversely imprisonment and who is not required imprisonment for life without eligibility
affected by the admission of to be sentenced as provided in for parole until the person has served
victim impact statements subsection (1) or (2) shall, unless a twenty-five years of the sentence;
containing inappropriate
special prison is prescribed by law, be (b.1) in respect of a person who has been
material including
recommendations as to the sentenced to imprisonment in a prison convicted of second degree murder where
length of sentence, statements or other place of confinement, other that person has previously been convicted of
sought to achieve personal than a penitentiary, within the an offence under section 4 or 6 of the
revenge and the use of province in which the person is Crimes Against Humanity and War
psychiatric diagnostic terms in convicted, in which the sentence of Crimes Act that had as its basis an
reference to the accused. R v imprisonment may be lawfully intentional killing, whether or not it
Cromwell Plea bargain and joint executed. was planned and deliberate, that that
submission. A judge who is Long-term supervision person be sentenced to imprisonment
considering rejecting a joint
(3.1) Despite subsection (3), an for life without eligibility for parole until
recommendation should so advise
counsel and provide them with an offender who is subject to long-term the person has served twenty-five years
opportunity to justify the supervision under Part XXIV and is of the sentence;
recommended sentence. sentenced for another offence in respect of a person who has been
Incarceration during the period of the convicted of second degree murder, that the
Section 732 Making of supervision shall be sentenced to person be sentenced to imprisonment for life
probation order. (1) Where a imprisonment in a penitentiary. without eligibility for parole until the person
person is convicted of an Sentence to penitentiary of has served at least ten years of the
person serving sentence sentence or such greater number of years,
offence, a court may, having
regard to the age and character elsewhere (4) Where a person is not being more than twenty-five years, as
of the offender, the nature of the sentenced to imprisonment in a has been substituted therefor pursuant to
offence and the circumstances penitentiary while the person is section 745.4; and (d) in respect of a
surrounding its commission, (a) lawfully imprisoned in a place person who has been convicted of any other
if no minimum punishment is other than a penitentiary, that offence, that the person be sentenced to
prescribed by law, suspend the person shall, except where imprisonment for life with normal eligibility
passing of sentence and direct otherwise provided, be sent for parole.
that the offender be released on immediately to the penitentiary, Section 718.3(4) - Cumulative
the conditions prescribed in a and shall serve in the punishments. The court or youth justice
probation order; or (b) in penitentiary the unexpired portion of court that sentences an accused may direct
addition to fining or sentencing the term of imprisonment that that that the terms of imprisonment that are
the offender to imprisonment for person was serving when sentenced imposed by the court or the youth justice
a term not exceeding two years , to the penitentiary as well as the term court or that result from the operation of
direct that the offender comply of imprisonment for which that person subsection 734(4) or 743.5(1) or (2) shall
with the conditions prescribed was sentenced to the penitentiary. be served consecutively, when (a) the
in a probation order. Transfer to penitentiary accused is sentenced while under sentence
Idem (5) Where, at any time, a person who for an offence, and a term of imprisonment,
is imprisoned in a prison or place of whether in default of payment of a fine or
(2) A court may also make a
probation order where it confinement other than a penitentiary otherwise, is imposed;
discharges an accused under is subject to two or more terms of (b) the accused is found guilty or convicted
subsection 730(1). imprisonment, each of which is for of an offence punishable with both a fine
Section 743 Imprisonment with less than two years, that are to be and imprisonment and both are imposed;
no other provision. Every one who served one after the other, and the the accused is found guilty or
is convicted of an indictable aggregate of the unexpired portions of convicted of more than one offence,
offence for which no punishment is those terms at that time amounts to and
specially provided is liable to two years or more, the person shall (i) more than one fine is imposed,
be transferred to a penitentiary to (ii) terms of imprisonment for the respective
imprisonment for a term not
exceeding 5 years. Section 743.1 serve those terms, but if any one or offences are imposed, or (iii) a term of
Imprisonment for life or more more of such terms is set aside or imprisonment is imposed in respect of one
offence and a fine is imposed
in respect of another offence;
or (d) subsection 743.5(1)
or (2) applies.
Conditional Sentences of
Imprisonment
Section 742 Definitions. In
sections 742.1 to 742.7,
change, in relation to
optional conditions, includes
deletions and additions;
optional conditions means
the conditions referred to in
subsection 742.3(2);
supervisor means a person
designated by the Attorney
General, either by name or
by title of office, as a
supervisor for the purposes
of sections 742.1 to
742.7.
Section 742.1 Imposing
of a Conditional Sentence.
If a person is convicted of an
offence, other than a serious
personal injury offence as
defined in section 752, a
terrorism offence or a criminal
organization offence
prosecuted by way of
indictment for which the
maximum term of
imprisonment is ten years or
more or an offence
punishable by a minimum
term of imprisonment, and
the court imposes a sentence
of imprisonment of less than
two years and is satisfied that
the service of the sentence in
the community would not
endanger the safety of the
community and would be
consistent with the
fundamental purpose and
principles of sentencing set
out in sections 718 to
718.2, the court may, for the
purpose of supervising the
offenders behaviour in the
community, order that the
offender serve the sentence
in the community, subject to
the offenders compliance
with the conditions imposed
under section 742.3.
Section 742.3
Compulsory Conditions of
Conditional Sentence
Order. (1) The court shall
prescribe, as conditions of a
conditional sentence order,
that the offender do all of the
following:
(a) keep the peace and be of
good behaviour;
(b) appear before the court
when required to do so
by the court;
report to a supervisor
(i) within two working days, or
such longer period as the
court directs, after the making
of the conditional sentence
order, and (ii) thereafter,
when required by the
supervisor and in the manner
directed by the supervisor;
(d) remain within the jurisdiction of offence, with any modifications of the supervisor, which report must include,
the court unless written permission that the circumstances require, where appropriate, signed statements of
to go outside that jurisdiction is and subsection 495(2) does not witnesses.
obtained from the court or the apply; Admission of report on notice of intent
supervisor; and (e) notify the court despite paragraph (a), if an (5) The report is admissible in evidence if
or the supervisor in advance of any allegation of breach of condition is the party intending to produce it has,
change of name or address, and made, the proceeding is before the hearing, given the offender
promptly notify the court or the commenced by reasonable notice and a copy of the
supervisor of any change of (i)the issuance of a warrant report.
employment or occupation. for the arrest of the offender Requiring attendance of supervisor or
Optional conditions of for the alleged breach, witness
conditional sentence (ii) the arrest (8) The offender may, with leave of
order without warrant of the the court, require the attendance, for cross-
(2) The court may prescribe, as offender for the alleged examination, of the supervisor or of any
additional conditions of a breach, or witness whose signed statement is included
conditional sentence order, that the (iii) the compelling of the offenders in the report.
offender do one or more of the appearance in accordance with Powers of court
following: paragraph (d); (9) Where the court is satisfied, on
(a) abstain from (d) if the offender is already a balance of probabilities, that the
(i) the consumption of alcohol or detained or before a court, the offenders offender has without reasonable excuse,
other intoxicating substances, appearance may be compelled under the the proof of which lies on the offender,
or (ii) the consumption of drugs provisions referred to in paragraph (a); breached a condition of the conditional
except in accordance with a (e) if an offender is arrested for the sentence order, the court may reverse
medical prescription; alleged breach, the peace officer who onus
(b) abstain from owning, makes the arrest, the officer in charge or a (a) take no action;
possessing or carrying a judge or justice may release the offender (b) change the optional conditions;
weapon; and the offenders appearance may be suspend the conditional sentence
provide for the support or care of compelled under the provisions referred to order and direct
dependants; in paragraph (a); and (i) that the offender serve in custody
(d) perform up to 240 hours of (f) any judge of a superior court of a portion of the unexpired sentence, and
community service over a criminal jurisdiction or of a court of (ii) that the conditional sentence
period not exceeding eighteen criminal jurisdiction or any justice of the order resume on the offenders release from
months; peace may issue a warrant to arrest no custody, either with or without changes to
(e) attend a treatment program matter which court, judge or justice the optional conditions; or
approved by the province; and (f) sentenced the offender, and the provisions (d) terminate the conditional sentence
comply with such other reasonable that apply to the issuance of telewarrants order and direct that the offender be
conditions as the court considers apply, with any modifications that the committed to custody until the expiration of
desirable, subject to any circumstances require, as if a breach of the sentence.
regulations made under subsection condition were an indictable offence. Warrant or arrest suspension of running
738(2), for securing the good Interim release of conditional sentence
conduct of the offender and for (2) For the purpose of the order
preventing a repetition by the application of section 515, the release from (10) The running of a
offender of the same offence or the custody of an offender who is detained on conditional sentence order
commission of other offences. the basis of an alleged breach of a imposed on an offender is
Obligations of court condition of a conditional sentence order suspended during the period that
(3) A court that makes an order shall be governed by subsection 515(6). ends with the determination of
under this section shall (a) cause a Hearing whether a breach of condition had
copy of the order to be given to the (3) The hearing of an allegation of occurred and begins with the
offender; a breach of condition shall be commenced earliest of
(b) explain the substance of within thirty days, or as soon thereafter as (a) the issuance of a warrant for the arrest
subsection (1) and sections is practicable, after of the offender for the alleged breach,
742.4 and (a) the offenders arrest; or (b) the arrest without warrant of the
742.6 to the offender; (b) the compelling of the offender for the alleged breach, and
cause an explanation to offenders appearance in accordance with (c) the compelling of the offenders
be given to the offender of the paragraph (1)(d). Place appearance in accordance with paragraph (1)(d).
procedure for applying under (3.1) The allegation may be heard by any Conditions continue
section 742.4 for a change to the court having jurisdiction to hear that (11) If the offender is not detained in
optional conditions; and allegation in the place where the breach is custody during any period referred to in
(d) take reasonable alleged to have been committed or the subsection (10), the conditions of the order
measures to ensure that the offender is found, arrested or in custody. continue to apply, with any changes made
offender understands to them under section 742.4, and any
the order and the explanations. Attorney Generals consent subsequent breach of those conditions may be
For greater certainty (3.2) If the place where the offender is dealt with in accordance with this section.
(4) For greater certainty, a found, arrested or in custody is Detention under s. 515(6)
failure to comply with outside the province in which the breach is (12) A conditional sentence order referred
subsection (3) does not affect alleged to have been committed, to in subsection (10) starts running again on the
the validity of the order. no proceedings in respect of that breach making of an order to detain the offender in
Section 742.6 Procedure shall be instituted in that place custody under subsection 515(6) and,
on breach of condition. (1) For without unless section 742.7 applies, continues
the purpose (a) the consent of the Attorney running while the offender is detained under the
of proceedings under this General of the province in which the order.
section, breach is alleged to have been committed; Earned remission does not apply
(a) the provisions of Parts or (13) Section 6 of the Prisons
XVI and XVIII with respect to (b) the consent of the Attorney and Reformatories Act does not
compelling the appearance of General of Canada, if the proceedings that apply to the period of detention in
an accused before a justice led to the issuance of the conditional custody under subsection 515(6).
apply, with any modifications sentence order were instituted by or on Unreasonable delay in execution
that the circumstances require, behalf of the Attorney General of Canada. (14) Despite subsection (10), if there was
and any reference in those Adjournment unreasonable delay in the execution of a warrant,
Parts to committing an offence (3.3) A judge may, at any time during a the court may, at any time, order that any period
shall be read as a reference to hearing of an allegation of breach of between the issuance and execution of the
breaching a condition of a condition, adjourn the hearing for a warrant that it considers appropriate in the
conditional sentence order; reasonable period. interests of justice is deemed to be time served
(b) the powers of arrest for Report of supervisor under the conditional sentence order unless
breach of a condition are those (4) An allegation of a breach of condition the period has been so deemed under
that apply to an indictable must be supported by a written report subsection (15).
 Allegation dismissed or custody, the custodial period The offender must be convicted endanger the safety of the community by
reasonable excuse ordered shall, unless the court of an offence that is not punishable by serving a conditional sentence, such a
(15) If the allegation is considers that it would not be in a minimum term of imprisonment sentence would not be in conformity with the
withdrawn or dismissed the interests of justice, be served The court must impose a term of objectives of s. 718.
or the offender is found to consecutively to any other period imprisonment of less than two
have had a reasonable of imprisonment that the offender years Probation and Community Service
excuse for the breach, is serving when that order is made. The safety of the community would
the sum of the followingMultiple sentences not be endangered by the offender Section 731 Making of probation order. (1)
periods is deemed to be (3) If an offender is serving both a serving the sentence in the Where a person is convicted
time served under the custodial period referred to in community of an offence, a court may, having regard to
conditional sentence subsection 4. A conditional sentence the age and character of the
order: (2) and any other period of would be consistent with the offender, the nature of the offence and the
(a) any period for which imprisonment, the periods shall, for fundamental purpose and principles circumstances surrounding its
the running of the the purpose of section 743.1 and of sentencing set out in ss. 718 to commission,
conditional sentence section 139 of the Corrections and 718.2. (a) if no minimum punishment is
order was Conditional Release Act, be The requirement in s. 742.1(a) that prescribed by law, suspend the passing of
suspended; and deemed to constitute one sentence the judge impose a sentence of sentence and direct that the offender be
(b) if subsection (12) of imprisonment. imprisonment of less than two years released on the conditions prescribed in a
applies, a period Conditional sentence order resumes does not require the judge to probation order; or
equal to one half of(4) The running of any period of the firstimpose a sentence of (b) in addition to fining or sentencing
the period that the conditional sentence order that is imprisonment of a fixed duration the offender to imprisonment for a term not
conditional sentence to be served in the community before considering exceeding two years, direct that the offender
order runs while the resumes upon the release of the whether that sentence can be served comply with the conditions prescribed in a
offender is detained offender from prison on parole, on in the community probation order.
under an order statutory release, on earned Instead, a purposive interpretation
referred to in that remission, or at the expiration of of s. 742.1(a) should be adopted Idem
subsection. the sentence. In a preliminary determination, the
Powers of court reverseR v Proulx Note: the range of sentencing judge should reject (2) A court may also make a probation order
onus offences eligible conditional apenitentiary term and probationary where it discharges an accused under
(16) If a court is sentences has been altered since measures as inappropriate subsection 730(1).
satisfied, on a balance of this case was decided, yet the o Having determined that the Section 732.1 Definitions. (1) In this
probabilities, that the principles continue to apply. Facts - appropriate range of sentence is a section and section 732.2, change, in
offender has without The accused entered guilty pleas term of imprisonment of less than two relation to optional conditions, includes
reasonable excuse, the to one count of dangerous driving years, the judge should deletions and additions;
proof of which lies on the causing death and one count of then consider whether it is optional conditions means the conditions
offender, breached a dangerous driving causing bodily appropriate for the offender to serve referred to in subsection (3) or (3.1).
condition of the harm. He was sentenced to 18 his or her sentence in the community
conditional sentence months of incarceration, to be In making this determination on Compulsory conditions of probation
order, the court may, in served concurrently on both whether the accused would endanger order
exceptional cases and in the charges. The sentencing judge the community , the judge should
interests of justice, order that concluded that a conditional (2)
consider the risk posed by the specific The court shall prescribe, as conditions of a
some or all of the period of sentence pursuant to s. 742.1 of offender and take into consideration probation order, that the offender do all of
suspension referred to in the Code, would not be two factors the following:
subsection (10) is deemed to appropriate because it would be Two factors should be taken into ) keep the peace and be of good behaviour;
be time served under the inconsistent with the objectives of account ) appear before the court when required to do
conditional sentence order. denunciation and general The risk of the offender re- so by the court; and
Considerations deterrence. The Court of Appeal offending ) notify the court or the probation officer in
(17) In exercising its allowed the appeal and substituted 2. The gravity of the advance of any change of name or address,
discretion under subsection a conditional custodial sentence damage that could ensue in the and promptly notify the court or the
(16), a court shall consider for the jail term. Issue - Did the trial event of re-offence A conditional probation officer of any change of
(a) the circumstances judge err in not imposing a sentence can provide significant employment or occupation.
and seriousness of the conditional sentence? Held - No; denunciation and deterrence Optional conditions of probation order
breach; appeal allowed. SCC considered The more serious the offence, the
(b) whether not the principles to be applied under longer and more onerous the (3) The court may prescribe, as additional
making the order would section 742.1. conditional sentence should be conditions of a probation order, that the
cause the offender undue Lamer CJC: Where a combination of both punitive offender do one or more of the following:
hardship based on the The new types of sanctions and restorative objectives may be (a) report to a probation officer
offenders individual introduced in the 1996 achieved, a conditional sentence will (i) within two working days, or such
circumstances; and amendments were enacted likely be more appropriate than longer period as the court directs, after the making
(c) the period for both to reduce reliance on incarceration Where objectives such of the probation order, and
which the offender was incarceration as a sanction as denunciation and deterrence are (ii) thereafter, when required by the
subject to conditions while and to increase the use of particularly pressing, incarceration will probation officer and in the manner directed by
the running of the conditional principles of restorative justice generally be the preferable sanction the probation officer;
sentence order was in sentencing A conditional A conditional sentence may be (b) remain within the jurisdiction of the
suspended and whether the sentence should be imposed even where there are court unless written permission to go outside that
offender complied with those distinguished from aggravating circumstances, although jurisdiction is obtained from the court or the
conditions during that period. probationary measures the need for denunciation and probation officer;
Section 742.7 If the Probation is primarily a deterrence will increase in these (c) abstain from
person imprisoned for new rehabilitative sentencing tool. circumstances No party is under a (i) the consumption of alcohol or other
offence. (1) If an offender Parliament intended burden of proof to establish that a intoxicating substances, or
who is subject to a conditional sentences to conditional sentence is either (ii) the consumption of drugs except in
conditional sentence include both punitive and appropriate or inappropriate in the accordance with a medical prescription;
order is imprisoned as arehabilitative aspects circumstances Sentencing judges (d) abstain from owning, possessing or
result of a sentence o Therefore, conditional have a wide discretion in the choice of carrying a weapon;
imposed for another sentences should generally the appropriate sentence and are (e) provide for the support or care of
offence, whenever include punitive conditions entitled to considerable deference dependants;
committed, the running of that are restrictive of the from appellate courts A court of (f) perform up to 240 hours of community
the conditional sentence offenders liberty appeal should only intervene to vary a service over a period not exceeding eighteen
order is suspended during o Conditions such as house sentence imposed at trial if the months;
the period of arrest should be the norm, not sentence is demonstrably unfit In this (g) if the offender agrees, and subject to
imprisonment for that the exception case the sentencing judge considered the program directors acceptance of the offender,
other offence. Section 742.1 of the Code lists that a term of imprisonment of 18 participate actively in a treatment program
Breach of condition four criteria that a court must months was appropriate and declined approved by the province;
(2) If an order is made under consider to permit the accused to serve his (g.1) where the lieutenant governor in council of
paragraph 742.6(9) or (d) before deciding to impose a term in the community She found the province in which the probation order is made
to commit an offender to conditional sentence that, while the accused would not
has established a program for curative treatment
in relation to the consumption of
alcohol or drugs, attend at a
treatment facility, designated by
the lieutenant governor in council
of the province, for assessment
and curative treatment in relation
to the consumption by the
offender of alcohol or drugs that
is recommended pursuant to the
program;
(g.2) where the lieutenant
governor in council of the
province in which the
probation order is made has
established a program
governing the use of an
alcohol ignition interlock device
by an offender and if the
offender agrees to
participate in the program,
comply with the program;
and
(h) comply with such
other reasonable conditions as
the court considers desirable,
subject to any regulations made
under subsection 738(2), for
protecting society and for
facilitating the offenders
successful reintegration into
the community.
Optional
conditions
organization
(3.1) The court may
prescribe, as additional
conditions of a probation
order made in respect of an
organization, that the
offender do one or more of
the following:
(a) make restitution
to a person for any loss or
damage that they suffered
as a result of the offence;
(b) establish policies,
standards and procedures
to reduce the likelihood of
the organization
committing a subsequent
offence;
(c) communicate
those policies, standards
and procedures to its
representatives;
(d) report to the court
on the implementation of
those policies, standards
and procedures;
(e) identify the senior
officer who is responsible )
for compliance with those
policies, standards and
) where the offender is sentenced
procedures;
(f) provide, in the
manner specified by the )
court, the following
information to the public,
namely,
(i) the offence of
which the organization was
convicted,
(ii) the sentence
imposed by the court, and )
(iii) any measures
that the organization is
taking including any
policies, standards and
procedures established (2)
under paragraph (b) to )
reduce the likelihood of it
committing a subsequent including an offence under section desirable, and the court shall thereupon
offence; and 733.1, or is imprisoned under endorse the probation order accordingly
(g) comply with any other paragraph 731(1)(b) in default of and, if it changes the optional conditions or
reasonable conditions that the payment of a fine, the order extends the period for which the order is to
court considers desirable to continues in force except in so far remain in force, inform the offender of its
prevent the organization from as the sentence renders it action and give the offender a copy of the
committing subsequent impossible for the offender for the order so endorsed.
offences or to remedy the harm time being to comply with the Compelling appearance of person
caused by the offence. order; and bound
Consideration organizations (b) no probation order shall (6) The provisions of Parts XVI and
continue in force for more than XVIII with respect to compelling the
(3.2) Before making an order three years after the date on which appearance of an accused before a
under paragraph (3.1)(b), a court the order came into force. justice apply, with such modifications
shall consider whether it would be Changes to probation order as the circumstances require, to
more appropriate for another (3) A court that makes a probation proceedings under subsections (3)
regulatory body to supervise the order may at any time, on and (5).
development or implementation of application by the offender, the Section 733.1 Failure to comply with
the policies, standards and probation officer or the prosecutor, probation order. (1) An offender
procedures referred to in that require the offender to appear before who is bound by a probation order and who,
paragraph. it and, after hearing the offender and without reasonable excuse, fails
one or both of the probation officer or refuses to comply with that order is guilty
Form and period of order and the prosecutor, of
(a) an indictable offence and is liable to
(4) A probation order may be (a) make any changes to the
in Form 46, and the court that optional conditions that in the opinion imprisonment for a term not exceeding
of the court are rendered desirable by two years; or
makes the probation order
shall specify therein the period a change in the circumstances since (b) an offence punishable on summary
those conditions were prescribed, conviction and is liable to imprisonment
for which it is to remain in
force. (b) relieve the offender, for a term not exceeding eighteen
either absolutely or on such terms months, or to a fine not exceeding two
Obligations of court
or for such period as the court thousand dollars, or both.
(5) The court that makes a deems desirable, of compliance Where accused may be tried and
probation order shall with any optional condition, or punished
(a) cause a copy of the order (c) decrease the period for
(2) An accused who is charged with an
to be given to the offender; which the probation order is to offence under subsection (1) may be tried
(b) explain the conditions of remain in force, and the court shall and punished by any court having
the order set under thereupon endorse the probation
jurisdiction to try that offence in the place
subsections (2) to (3.1) order accordingly and, if it changes
and the substance of where the offence is alleged to have been
the optional conditions, inform the
section 733.1 to the offender of its action and give the committed or in the place where the
accused is found, is arrested or is in
offender; offender a copy of the order so
(c) cause an explanation to be endorsed. custody, but where the place where the
given to the offender of the Judge may act in chambers accused is found, is arrested or is in custody
procedure for applying is outside the province in which the offence
under subsection (4) All the functions of the is alleged to have been committed, no
732.2(3) for a change to court under subsection (3) may be proceedings in respect of that offence shall
the optional conditions and exercised in be instituted in that place without the
of the substance of chambers.
Where person convicted of offence consent of the Attorney General of that
subsections 732.2(3)
(5) Where an offender who is province. R v Ziatas Facts - Appeal by
and (5); and
bound by a probation order is the accused from the sentence imposed
(d) take reasonable measures
upon conviction after his plea of guilty to a
to ensure that the offender convicted of an offence, including
understands the order and an offence under section 733.1, charge of assault with intent to resist
the explanations. For and arrest contrary to s. 246(2)(b) of the
greater certainty (a) the time within which an Code. The trial judge imposed a fine of $150
(6) For greater certainty, a failure appeal may be taken against that and placed the appellant on probation for a
to comply with subsection (5) conviction has expired and the term of one year. One of the conditions of
does not affect the validity of offender has not taken an appeal, the probation order was that the appellant
the probation order. (b) the offender has taken an
should not operate a motor vehicle for the
Section 732.2 Coming into force appeal against that conviction and the period of one year. Issue - Was the driving
of order. (1) A probation order appeal has been dismissed, or
(c) the offender has given prohibition a valid probation condition for
comes
written notice to the court that assault with intent to resist arrest? Held -
into force
convicted the offender that the No; appeal allowed. The trial judge
on the date on which the order
offender elects not to appeal the proceeded upon a wrong principle,
is made;
conviction or has abandoned the inasmuch as he imposed this term of the
appeal, as the case may be, in probation order as an additional punishment,
to imprisonment under
addition to any punishment that may whereas his only power, was to impose such
paragraph 731(1)
be imposed for that offence, the court reasonable conditions as he considered
or was previously sentenced to
that made the probation order may, desirable for securing the good conduct of
imprisonment for another
on application by the prosecutor,
offence, as soon as the offender the accused and for preventing the repetition
require the offender to appear before
is released from prison or, if by him of the same offence or the
it and, after hearing the prosecutor
released from prison on commission of other offences . Note - The
and the offender,
conditional release, at the ruling in Ziatas with respect to the residual
(d) where the probation order
expiration of the sentence of subcategory, s. 732.1(3)(h), has been
was made under paragraph 731(1)
imprisonment; or
(a), revoke the order and impose any followed in a number of cases.
where the offender is under a
conditional sentence order, at sentence that could have been Fines
the expiration of the conditional imposed if the passing of sentence Section 734 Power of court to impose
sentence order. Duration of had not been suspended, or fine. (1) Subject to subsection (2), a court
order and limit on term of order (e) make such changes to the that convicts a person, other than an
Subject to subsection (5), optional conditions as the court organization, of an offence may fine the
where an offender who is bound deems desirable, or extend the period offender by making an order under section
by a probation order is for which the order is to remain in
734.1 (a) if the punishment for the offence
convicted of an offence, force for such period, not exceeding
one year, as the court deems does not include a minimum term of
imprisonment, in addition to
or in lieu of any other
sanction that the court is
authorized to impose; or (b) if
the punishment for the
offence includes a minimum
term of imprisonment, in
addition to any other sanction
that the court is required or
authorized to impose.
Offenders ability to pay
(2) Except when the
punishment for an
offence includes a
minimum fine or a fine is
imposed in lieu of a
forfeiture order, a court
may fine an offender
under this section only if
the court is satisfied that
the offender is able to
pay the fine or discharge
it under section 736.
Meaning of default of
payment
(3) For the purposes of this
section and sections
734.1 to 737, a person
is in default of
payment of a fine if the
fine has not been paid in
full by the time set out in
the order made under
section 734.1.
Imprisonment in default of
payment
(4) Where an offender is
fined under this section, a
term of imprisonment,
determined in
accordance with
subsection (5), shall be
deemed to be imposed in
default of payment of the
fine.
Determination of term
(5) The term of
imprisonment referred to in
subsection (4) is the lesser of
(a) the number of days that
corresponds to a fraction,
rounded down to the nearest
whole number, of which (i)
the numerator is the unpaid
amount of the fine plus the
costs and charges of
committing and conveying
the defaulter to prison,
calculated in accordance with
regulations made under
subsection (7), and (ii) the
denominator is equal to eight
times the provincial minimum
hourly wage, at the time of
default, in the province in
which the fine was imposed,
and (b) the maximum term of
imprisonment that the court
could itself impose on
conviction or, if the
punishment for the offence
does not include a term of
imprisonment, five years in
the case of an indictable
offence or six months in the
case of a summary conviction
offence.
Moneys found on offender circumstances, or (ii) that the offender appropriate agreement is in effect between
(6) All or any part of a fine has, without reasonable excuse, the government of the province and the
imposed under this section refused to pay the fine or discharge it Government of Canada.
may be taken out of moneys under section 736. Section 787 General penalty. (1)
found in the possession of the Reasons for committal Unless otherwise provided by law,
everyone who is convicted of an
offender at the time of the ( 2) Where no time has been
offence punishable on summary
arrest of the offender if the allowed for payment of a fine
conviction is liable to a fine of not
court making the order, on and a warrant committing the more than five thousand dollars or
being satisfied that ownership offender to prison for default of to a term of imprisonment not
of or right to possession of payment of the fine is issued, exceeding six months or to both.
those moneys is not disputed the court shall state in the Imprisonment in default where not
by claimants other than the warrant the reason for otherwise specified
offender, so directs. immediate committal. (2) Where the imposition of a fine
Provincial regulations or the making of an order for the
(7) The lieutenant governor in Period of imprisonment payment of money is authorized by
council of a province may law, but the law does not provide that
(2.1) The period of imprisonment in
make regulations respecting default of payment of the fine shall be imprisonment may be imposed in
the calculation of the costs and specified in a warrant of committal default of payment of the fine or
charges referred to in compliance with the order, the court
referred to in subsection (1) or (2).
may order that in default of payment
subparagraph (5)(a)(i) and in
of the fine or compliance with the
paragraph 734.8(1)(b). Compelling appearance of person order, as the case may be, the
Application to other law bound defendant shall be imprisoned for a
(8) This section and term not exceeding six months.
(3) The provisions of Parts XVI
sections 734.1 to 734.8 and XVIII with respect to Discharges
and 736 apply to a fine compelling the appearance of an Section 730 Conditional and absolute
imposed accused before a justice apply, with discharge. (1) Where an accused, other
under any Act of Parliament, such modifications as the than an organization, pleads guilty to or is
except that subsections (4) circumstances require, to found guilty of an offence, other than an
and (5) do not apply proceedings under paragraph (1) offence for which a minimum punishment is
if the term of imprisonment in (b). prescribed by law or an offence punishable
default of payment of the fine Effect of imprisonment by imprisonment for fourteen years or for
provided for in (4) The imprisonment of an life, the court before which the accused
that Act or regulation is offender for default of payment appears may, if it considers it to be in the
of a fine terminates the operation best interests of the accused and not
(a) calculated by a different
of sections 734.5 and 734.6 in contrary to the public interest, instead of
method; or convicting the accused, by order direct that
relation to that fine. Section 736
(b) specified, either as a the accused be discharged absolutely or on
Note, there is no fine-option program
minimum or a maximum. Section in force in most provinces, including the conditions prescribed in a probation
734.6 Civil enforcement of fines, Ontario. order made under subsection 731(2).
forfeiture. (1) Where (a) an Fine option program. (1) An
offender is in default of payment of offender who is fined under section Period for which appearance notice, etc.,
continues in force (2) Subject to Part XVI,
a fine, or (b) a forfeiture imposed 734 may, whether or not the offender
where an accused who has not been taken
by law is not paid as required by is serving a term of imprisonment
into custody or who has been released from
the order imposing it, then, in imposed in default of payment of the
custody under or by virtue of any provision
addition to any other method fine, discharge the fine in whole or in
of Part XVI pleads guilty of or is found guilty
provided by law for recovering the part by earning credits for work of an offence but is not convicted, the
fine or forfeiture, the Attorney performed during a period not greater
appearance notice, promise to appear,
General of the province to whom than two years in a program summons, undertaking or recognizance
established for that purpose by the
the proceeds of the fine or issued to or given or entered into by the
lieutenant governor in council (a)
forfeiture belong, or (d) the accused continues in force, subject to its
of the province in which the fine
Attorney General of Canada, terms, until a disposition in respect of the
was imposed, or (b) of the province
where the proceeds of the fine or in which the offender resides, accused is made under subsection (1)
forfeiture belong to Her Majesty in where an appropriate agreement is unless, at the time the accused pleads guilty
or is found guilty, the court, judge or justice
right of Canada, may, by filing the in effect between the government of
orders that the accused be taken into
order, enter as a judgment the that province and the government of
custody pending such a disposition.
amount of the fine or forfeiture, the province in which the fine was
and costs, if any, in any civil court imposed, if the offender is admissible Effect of discharge
in Canada that has jurisdiction to to such a program. (3) Where a court directs under
enter a judgment for that amount. Credits and other matters subsection (1) that an offender be
(2) A program referred to in discharged of an offence, the offender shall
Effect of filing order
subsection (1) shall determine the be deemed not to have been convicted of
(2) An order that is entered as a
rate at which credits are earned and the offence except that (a) the offender may
judgment under this section is may provide for the manner of appeal from the determination of guilt as if it
enforceable in the same manner crediting any amounts earned against were a conviction in respect of the offence;
as if it were a judgment obtained the fine and any other matters (b) the Attorney General and, in the
by the Attorney General of the necessary for or incidental to carrying case of summary conviction
province or the Attorney General of out the program. proceedings, the informant or the
Canada, as the case may be, in Deemed payment informants agent may appeal from the
civil proceedings. (3) Credits earned for work decision of the court not to convict the
Section 734.7 Warrant of performed as provided by subsection offender of the offence as if that decision
committal. (1) Where time has (1) shall, for the purposes of this Act, were a judgment or verdict of acquittal of
been allowed for payment of a fine, be deemed to be payment in respect the offence or a dismissal of the information
of a fine. against the offender; and the offender
the court shall not issue a warrant
Federal-provincial agreement may plead autrefois convict in respect
of committal in default of payment (4) Where, by virtue of of any subsequent charge relating to
of the fine (a) until the expiration of subsection 734.4(2), the proceeds of
the offence.
the time allowed for payment of the a fine belong to Her Majesty in right of Where person bound by probation
fine in full; and (b) unless the court Canada, an offender may discharge order convicted of offence (4) Where
is satisfied (i) that the mechanisms the fine in whole or in part in a fine an offender who is bound by the
provided by sections 734.5 and option program of a province pursuant conditions of a probation order made
734.6 are not appropriate in the to subsection (1), where an at a time when the offender was
directed to be discharged
under this section is
convicted of an offence,
including an offence under
section 733.1, the court that
made the probation order
may, in addition to or in lieu
of exercising its authority
under subsection
732.2(5), at any time
when it may take action
under that subsection, revoke
the discharge, convict the
offender of the offence to
which the discharge relates
and impose any sentence
that could have been
imposed if the offender had
been convicted at the time of
discharge, and no appeal lies
from a conviction under this
subsection where an appeal
was taken from the order
directing that the offender be
discharged.
R v Fallofield Facts - The
accused pleaded guilty to a
charge of being in unlawful
possession of some pieces of
carpet of a total value of less
than $200, knowing the same
to have been obtained by
theft. He is a corporal in the
Canadian Armed Forces,
aged 26, married, and with
no previous record. The trial
judge declined to grant the
discharge, convicted the
appellant, and sentenced him
to a fine of $100, or in
default, 30 days in prison.
Issues - 1. Did the trial judge
err in refusing to grant an
absolute or a conditional
discharge? 2. If so, can the
CA make such an order?
Held - 1. Yes; 2. Yes; appeal
allowed. At trial - convicted
and fined $100, because it
was not unintentional or strict
liability. Appeal allowed,
Discharge ordered.
Discharge should not be
used nor denied routinely for
any offence. By reviewing the
authorities the court
concluded that the
application of section 730 is
as follows:
1. The section may
be used in respect of any
offence other than an offence
for which a minimum
punishment is prescribed by
law or the offence is
punishable by imprisonment
for 14 years or for life or by
death 2. There is nothing in
the language that limits it to a
technical or trivial offence 3.
Of the two conditions
precedent to the exercise of
the jurisdiction, the first is that
the court must consider that it
is in the best interests of the
accused that he should be
discharged either absolutely
or upon condition; if it is not,
then that is the end of the
matter 4. If it is decided that it
is in the best interests of the
accused, then the court must
consider that a grant of
discharge is not contrary to
the public interest 5. Generally, recognizance and, where the justice Section 810.1 Where fear of sexual
the first condition would or summary conviction court decides offence. (1) Any person who fears on
presuppose that the accused that it is so desirable, the justice or reasonable grounds that another person
is a person of good character, summary conviction court shall add will commit an offence under section 151,
without previous conviction, such a condition to the recognizance. 152, 155 or 159, subsection 160(2) or (3),
that it is not necessary to section 163.1, 170, 171 or 172.1,
Surrender, etc. subsection 173(2) or section 271, 272 or
enter a conviction against him
in order to deter him from (3.11) Where the justice or 273, in respect of one or more persons
future offences or to summary conviction court adds a who are under the age of 16 years, may
rehabilitate him, and that the condition described in subsection lay an information before a provincial
entry of a conviction against (3.1) to a recognizance order, the court judge, whether or not the person or
him may have significant justice or summary conviction persons in respect of whom it is feared
adverse repercussions 6. In court shall specify in the order the that the offence will be committed are
the context of the second manner and method by which (a) named.
condition the public interest in the things referred to in that Appearances
the deterrence of others, while subsection that are in the (2) A provincial court judge who
it must be given due weight, possession of the accused shall be receives an information under
does not preclude the surrendered, disposed of, subsection (1) may cause the parties to
judicious use of the discharge detained, stored or dealt with; and appear before a provincial court judge.
provisions 7. Discharges (b) the authorizations, licences and Adjudication
should not be exercised as an registration certificates held by the (3) If the provincial court judge
alternative to probation or person shall be surrendered. before whom the parties appear is
suspended sentence. satisfied by the evidence adduced that
8. Discharges should not be the informant has reasonable grounds
Reasons for the fear, the judge may order that the
applied routinely to any
particular offence (3.12) Where the justice or summary defendant enter into a recognizance to
Recognizance Orders Section conviction court does not add a keep the peace and be of good behaviour
for a period that does not exceed 12
810 Where injury or damage condition described in subsection
months.
feared. (1) An information may be (3.1) to a recognizance order, the
Duration extended
laid before a justice by or on behalf justice or summary conviction court
shall include in the record a statement (3.01) However, if the provincial court
of any person who fears on
judge is also satisfied that the defendant
reasonable grounds that another of the reasons for not adding the
was convicted previously of a sexual
person will cause personal injury to condition.
offence in respect of a person who is
him or her or to his or her spouse Idem
under the age of 16 years, the judge may
or common-law partner or child or (3.2) Before making an order
order that the defendant enter into the
will damage his or her property. under subsection (3), the justice
recognizance for a period that does not
Duty of justice
or the summary conviction court exceed two years.
(2) A justice who receives an
shall consider whether it is Conditions in recognizance
information under subsection (1)
(3.02) The provincial court judge may add
shall cause the parties to appear desirable, in the interests of the
any reasonable conditions to the
before him or before a summary safety of the informant, of the
recognizance that the judge considers
conviction court having jurisdiction person on whose behalf the
information was laid or of that desirable to secure the good conduct of
in the same territorial division.
the defendant, including conditions that
Adjudication persons spouse or common-law
(a) prohibit the defendant from engaging
(3) The justice or the partner or child, as the case may
in any activity that involves contact with
summary conviction court before be, to add either or both of the
persons under the age of 16 years,
which the parties appear may, if following conditions to the
including using a computer system
satisfied by the evidence adduced recognizance, namely, a condition
within the meaning of subsection
that the person on whose behalf (a) prohibiting the defendant from
342.1(2) for the purpose of
the information was laid has
being at, or within a distance communicating with a person under that
reasonable grounds for his or her
age;
fears, (a) order that the defendant specified in the recognizance from,
(b) prohibit the defendant from
enter into a recognizance, with or a place specified in the
attending a public park or public
without sureties, to keep the peace recognizance where the person on
swimming area where persons under the
and be of good behaviour for any whose behalf the information was
age of 16 years are present or can
period that does not exceed twelve laid or that persons spouse or
reasonably be expected to be present, or
months, and comply with such common-law partner or child, as
a daycare centre, schoolground or
other reasonable conditions the case may be, is regularly
playground;
prescribed in the recognizance, found; and (b) prohibiting the
require the defendant to participate in a
including the conditions set out in defendant from communicating, in
treatment program;
subsections (3.1) and (3.2), as the whole or in part, directly or
(d) require the defendant to wear
court considers desirable for
indirectly, with the person on an electronic monitoring device, if the
securing the good conduct of the
whose behalf the information was Attorney General makes the request;
defendant; or (b) commit the
(e) require the defendant to remain
defendant to prison for a term not laid or that persons spouse or
within a specified geographic area unless
exceeding twelve months if he or common-law partner or child, as
the case may be. written permission to leave that area is
she fails or refuses to enter into
Forms obtained from the provincial court judge;
the recognizance.
(4) A recognizance and (f) require the defendant to return
Conditions
committal to prison in default of to and remain at his or her place of
(3.1) Before making an order
residence at specified times; or (g)
under subsection (3), the justice or recognizance under subsection (3)
require the defendant to abstain from the
the summary conviction court shall may be in Forms 32 and 23,
consumption of drugs except in
consider whether it is desirable, in respectively.
Modification of recognizance accordance with a medical prescription,
the interests of the safety of the
of alcohol or of any other intoxicating
defendant or of any other person, (4.1) The justice or the summary
conviction court may, on substance.
to include as a condition of the
Conditions firearms
recognizance that the defendant application of the informant or the
(3.03) The provincial court judge shall
be prohibited from possessing any defendant, vary the conditions
fixed in the recognizance. consider whether it is desirable, in the
firearm, cross-bow, prohibited
Procedure interests of the defendants safety or that
weapon, restricted weapon,
(5) The provisions of this of any other person, to prohibit the
prohibited device, ammunition,
defendant from possessing any firearm,
prohibited ammunition or explosive Part apply, with such modifications
cross-bow, prohibited weapon, restricted
substance, or all such things, for as the circumstances require, to
proceedings under this section. weapon, prohibited device, ammunition,
any period specified in the
prohibited ammunition or
explosive substance, or all
of those things. If the judge
decides that it is desirable to
do so, the judge shall add that
condition to the recognizance
and specify the period during
which the condition applies.
Surrender, etc.
(3.04) If the provincial court
judge adds a condition
described in subsection
(3.03) to a recognizance, the
judge shall specify in the
recognizance how the things
referred to in that subsection
that are in the defendants
possession should be
surrendered, disposed of,
detained, stored or dealt with
and how the authorizations,
licences and registration
certificates that are held by
the defendant should be
surrendered.
Condition reporting
(3.05) The provincial court
judge shall consider whether
it is desirable to require the
defendant to report to the
correctional authority of a
province or to an appropriate
police authority. If the judge
decides that it is desirable to
do so, the judge shall add
that condition to the
recognizance.
Refusal to enter into
recognizance
(3.1) The provincial court
judge may commit the
defendant to prison for a term
not exceeding twelve months
if the defendant fails or
refuses to enter into the
recognizance.
Judge may vary
recognizance
(4) A provincial court
judge may, on
application of the
informant or the
defendant, vary the
conditions fixed in the
recognizance.
Other provisions to apply
(5) Subsections
810(4) and (5)
apply, with such
modifications as
the
circumstances
require, to
recognizances
made under this
section. R v
Budreo Leave
to appeal to SCC
refused.
The principles of
fundamental justice in
section 7 of the Charter
requires that there be a
residual discretion to
issue process. Section
810.1 (2) must therefore
be read down so that the
word may should replace the returned, where the amount is readily fine, the court shall first make the order of
word shall. ascertainable; restitution and shall then consider whether
(b) in the case of bodily or and to what extent an order of forfeiture or
The court has the power to psychological harm to any person as an order to pay a fine is appropriate in the
issue a warrant for the arrest a result of the commission of the circumstances.
of the defendant and require offence or the arrest or attempted Section 741 Enforcing restitution
that he be detained in custody arrest of the offender, by paying to the order. (1) Where an amount that is
or to make a release order person an amount not exceeding all ordered to be paid under section
under section 515. However, pecuniary damages incurred as a 732.1, 738, 739 or 742.3, is not paid
because of a hearing under result of the harm, including loss of without delay, the person to whom the
section 810.1 can only result income or support, if the amount is amount was ordered to be paid may, by
in the defendant being readily ascertainable; and in the filing the order, enter as a judgment the
required to enter into a case of bodily harm or threat of bodily amount ordered to be paid in any civil court
recognizance, the harm to the offenders spouse or in Canada that has jurisdiction to enter a
circumstances in which it common-law partner or child, or any judgment for that amount, and that judgment
would be necessary in the other person, as a result of the is enforceable against the offender in the
public interest to issue an arrest commission of the offence or the same manner as if it were a judgment
warrant will be limited to cases arrest or attempted arrest of the rendered against the offender in that court in
where that process is necessary to offender, where the spouse or civil proceedings.
preserve the integrity of these common-law partner, child or other Moneys found on offender
proceedings. The justice will person was a member of the (2) All or any part of an amount that is
require the informant to make out a offenders household at the relevant ordered to be paid under section 738 or
case that the defendant will not time, by paying to the person in
otherwise attend court or that the question, independently of any 739 may be taken out of moneys
defendant pose an imminent risk to amount ordered to be paid under found in the possession of the offender
the safety of children, which paragraphs (a) and (b), an amount at the time of the arrest of the offender if
section 810.1 is designed to not exceeding actual and reasonable the court making the order, on being
protect. If the justice does expenses incurred by that person, as satisfied that ownership of or right to
issue an arrest warrant, a result of moving out of the possession of those moneys is not
section 515 directs the justice offenders household, for temporary disputed by claimants other than the
to release the defendant on a housing, food, child care and offender, so directs. Section 741.1
simple undertaking without transportation, where the amount is Notice of orders of restitution. Where a
conditions, unless the readily ascertainable. court makes an order of restitution under
prosecutor shows cause why Regulations section 738 or 739, it shall cause notice
some more intrusive order (2) The lieutenant governor in of the content of the order, or a copy of
such as recognizance with council of a province may make the order, to be given to the person to
conditions is required. The regulations precluding the inclusion of whom the restitution is ordered to be
discretion under section 515 provisions on enforcement of paid.
restitution orders as an optional Section 741.2 Civil remedy not
must be exercised judicially
and bearing in mind the condition of a probation order or of a affected. A civil remedy for an act or
limited conditions that can be conditional sentence order. Section omission is not affected by reason only
imposed following a successful 739 Restitution to persons acting in that an order for restitution under section
application. Although section good faith. Where an offender is 738 or 739 has been made in respect of
515 provides that the justice convicted or discharged under that act or omission.
may order the detention of the section 730 of an offence and (a)
defendant pending the any property obtained as a result of Victim Surcharges
hearing, that discretion is the commission of the offence has
been conveyed or transferred for Section 737(1) Victim surcharge. (1)
circumscribed by the
Subject to subsection (5), an offender
provisions of section 515(10). valuable consideration to a person
acting in good faith and without who is convicted or discharged under
In light of the limited
section 730 of an offence under this Act or
consequences of a successful notice, or (b) the offender has
borrowed money on the security of the Controlled Drugs and Substances Act
application under section
that property from a person acting in shall pay a victim surcharge, in addition to
810.1, only in unusual
any other punishment imposed on the
circumstances will the justice good faith and without notice, the
offender.
be entitled to order the detention of court may, where that property has
the defendant pending the hearing. been returned to the lawful owner or
the person who had lawful possession Exception
Restitution of that property at the time the offence (5) When the offender establishes to the
Section 738 Restitution to was committed, order the offender to satisfaction of the court that undue
victims of offences. pay as restitution to the person hardship to the offender or the
(1) Where an offender is referred to in paragraph ( a ) or ( b )
an amount not exceeding the amount
dependants of the offender would
convicted or discharged under result from payment of the victim
of consideration for that property or surcharge, the court may, on
section 730 of an offence, the
the total amount outstanding in application of the offender, make an
court imposing sentence on or
respect of the loan, as the case may order exempting the offender from
discharging the offender may, on
be. the application of subsection (1).
application of the Attorney General
Section 740 Priority to
or on its own motion, in addition to
restitution. Where the court finds it
any other measure imposed on the Sentencing Aboriginal Offenders
applicable and appropriate in the
offender, order that the offender
circumstances of a case to make, in Section 718.2(e) Other sentencing
make restitution to another person
relation to an offender, an order of principles. A court that imposes a sentence
as follows:
restitution under section 738 or shall also take into consideration the
(a) in the case of damage
following principles:
to, or the loss or destruction of, the 739, and (a) an order of forfeiture
property of any person as a result under this or any other Act of (e) all available sanctions other than
of the commission of the offence or Parliament may be made in respect of imprisonment that are reasonable in the
the arrest or attempted arrest of property that is the same as property
in respect of which the order of circumstances should be considered for all
the offender, by paying to the offenders, with particular attention to the
person an amount not exceeding restitution may be made, or (b) the circumstances of aboriginal offenders. R v
the replacement value of the court is considering ordering the
Gladue Facts: Offender, an aboriginal
property as of the date the order is offender to pay a fine and it appears woman, plead guilty to stabbing death of her
imposed, less the value of any part to the court that the offender would husband. Sentencing judge sentenced her
of the property that is returned to not have the means or ability to to three years imprisonment. Stated that s
that person as of the date it is comply with both the order of
restitution and the order to pay the 718.2(e) did not apply since she was living
in an urban area off-reserve and not within
the aboriginal. CA disagreed
with narrow application of s.
718.2(e) but did not vary the
sentence. Issues: How is s.
718.2(e) to be applied?
Held: the sentencing judge
may have erred in limiting the
application of s. 718.2(e) to
the circumstances of
aboriginal offenders living in
rural areas or on-reserve.
BUT the offence was a
particularly serious one, and
the sentence was no
unreasonable. Appeal
dismissed. Reasoning:
s. 718.2(e) mandatorily
requires judges to consider
all available sanctions other
than imprisonment and to pay
particular attention to the
circumstances of aboriginal
offenders. o It is remedial in
nature and is designed to
ameliorate the problem of
overrepresentation of
aboriginal people in prisons,
and to encourage judges to
take a restorative approach.
s. 718.2(e), however,
alters the method of analysis
for sentencing judges in
determining a fit sentence for
aboriginal offenders. o
directs judges to undertake
the sentencing of such
offenders individually, but
also differently, because the
circumstances of aboriginal
people are unique. o the
judge must consider: (a) the
unique systemic or
background factors that may
have played a part in bringing
the particular aboriginal
offender before the courts;
and (b) the types of
sentencing procedures and
sanctions that may be
appropriate in the
circumstances for the
offender because of his
particular aboriginal heritage
or connection.
If there is no alternative to
incarceration the length of the
term must be carefully
considered. o The jail term
for an aboriginal offender
may in some circumstances
be less than the term
imposed on a non-aboriginal
offender for the same
offence. o Doesnt
automatically reduce the
prison sentence of aboriginal
offenders; nor should it be
assumed that an offender is
receiving a more lenient
sentence simply because
incarceration is not imposed.
Section 718.2(e) applies
to all aboriginal persons
wherever they reside,
whether on- or off-reserve, in
a large city or a rural area. o
The term community must
be defined broadly so as to
include any network of
support and interaction that
might be available, including
one in an urban centre. The
fact that an aboriginal offender in an order that clearly sets out (a) the the circumstances of the commission of the
an urban centre lacks a network of amount of the fine; offence and the character and
support does not relieve the circumstances of the offender, that the
sentencing judge of the obligation (b) the manner in which the fine is to expression of societys denunciation of the
to try to find an alternative to jail.be paid; offence and the objectives of specific and
the time or times by which the fine, general deterrence would be adequately
Punishment of Organizations or any portion of it, must be paid; and served by a period of parole ineligibility
(d) any other terms respecting the determined in accordance with the
Section 718.21 Additional Corrections and Conditional Release Act.
payment of the fine that the court
factors. A court that imposes a
deems appropriate.
sentence on an organization shall
Principles that are to guide the court
also take into consideration the
following factors: Effect of filing order (2) For greater certainty, the paramount
(2) Section 734.6 applies, with any principles which are to guide the court under
(a) any advantage realized by
modifications that are required, when this section are denunciation and specific or
the organization as a result
an organization fails to pay the fine in general deterrence, with rehabilitation of the
of the offence;
accordance with the terms of the offender, in all cases, being subordinate to
(b) the degree of planning these paramount principles. Section
involved in carrying out the order. 745.2 Recommendation by jury.
offence and the duration Subject to section 745.3, where a
and complexity of the Parole
jury finds an accused guilty of
offence; Section 743.6 Power of court to second degree murder, the judge
whether the organization delay parole. (1) Notwithstanding presiding at the trial shall, before
has attempted to conceal subsection 120(1) of the
discharging the jury, put to them
its assets, or convert them, Corrections and Conditional
the following question:
in order to show that it is Release Act, where an offender
not able to pay a fine or
receives, on or after November 1, You have found the accused guilty of second
make restitution; 1992, a sentence of degree murder and the law requires that I
now pronounce a sentence of imprisonment
(d) the impact that the imprisonment of two years or
more, including a sentence of for life against the accused. Do you wish to
sentence would have on the
imprisonment for life imposed make any recommendation with respect to
economic viability of the
otherwise than as a minimum the number of years that the accused must
organization and the continued
serve before the accused is eligible for
employment of its employees; punishment, on conviction for an
offence set out in Schedule I or II to release on parole? You are not required to
(e) the cost to public
that Act that was prosecuted by way make any recommendation but if you do,
authorities of the investigation
your recommendation will be considered by
and prosecution of the offence; of indictment, the court may, if
me when I am determining whether I should
(f) any regulatory penalty satisfied, having regard to the
circumstances of the commission of substitute for the ten year period, which the
imposed on the organization or
the offence and the character and law would otherwise require the accused to
one of its representatives in
circumstances of the offender, that serve before the accused is eligible to be
respect of the conduct that
the expression of societys considered for release on parole, a number
formed the basis of the offence;
denunciation of the offence or the of years that is more than ten but not more
(g) whether the
than twenty-five.
organization was or any of its objective of specific or general
representatives who were deterrence so requires, order that the R v Zinck SCC considered circumstances
involved in the commission of portion of the sentence that must be in which delayed parole should be
the offence were convicted of served before the offender may be invoked. Delayed parole must be used in a
a similar offence or sanctioned released on full parole is one half of
the sentence or ten years, manner that is fair to the offender. The
by a regulatory body for similar
whichever is less. sentencing judge must engage in a double
conduct;
(h) any penalty imposed Power of court to delay parole weighing exercise.
by the organization on a (1.1) Notwithstanding section PROCEDURE
representative for their role in 120 of the Corrections and (1) First they must evaluate the
the commission of the offence; Conditional Release Act, where facts of the case in light of the factors
(i) any restitution that the an offender receives a sentence set out in section 718 of the Code in
organization is ordered to make of imprisonment of two years or order to impose the appropriate sentence.
or any amount that the more, including a sentence of The issue of parole eligibility is not
organization has paid to a victim imprisonment for life imposed considered at this stage. (2) The sentencing
of the offence; and (j) any otherwise than as a minimum judge must then review the same facts
measures that the organization punishment, on conviction for a primarily from the perspective of the
has taken to reduce the criminal organization offence other
requirements of deterrence and
likelihood of it committing a than an offence under section
denunciation, which are given priority at this
subsequent offence. 467.11, 467.12 or 467.13, the
Section 735 Fines on court may order that the portion of the stage. The prosecution has the burden of
organizations. (1) An sentence that must be served before demonstrating that the additional
organization that is convicted the offender may be released on full punishment of increased parole ineligibility is
of an offence is liable, in lieu parole is one half of the sentence or required. The offender must be allowed to
of any imprisonment that is ten years, whichever is less. make submissions and introduce additional
prescribed as punishment for evidence in response to the request for
that offence, to be fined in an Power of court to delay parole delayed parole. Courts should be generous
amount, except where if adjournments are requested for this
(1.2) Notwithstanding section
otherwise provided by law, (a) purpose. Written reasons must be given at
120 of the Corrections and
that is in the discretion of the the end of the process. The reasons must
Conditional Release Act, where an
court, where the offence is an state with sufficient clarity the reasons for
offender receives a sentence of
indictable offence; or (b) not
imprisonment of two years or more, the delayed parole order.
exceeding one hundred
including a sentence of imprisonment APPEAL AND REVIEW
thousand dollars, where the for life, on conviction for a terrorism APPEALS OF FINAL DECISIONS AND
offence is a summary offence or an offence under section JUDICIAL REVIEW OF INTERIM
conviction offence. 467.11, 467.12 or 467.13, the DECISIONS
court shall order that the portion of the Final verdicts can be appealed.
Application of certain provisions sentence that must be served before Interim decisions cannot be appealed.
fines the offender may be released on full o Interim decisions can be the subject of
(1.1) A court that imposes a fine parole is one half of the sentence or judicial review applications where
under subsection (1) or under any ten years, whichever is less, unless jurisdictional errors occur. o Judicial review
other Act of Parliament shall make the court is satisfied, having regard to may be necessary to challenge preliminary
inquiry results, to seek or
quash publication bans, or to
suppress or access third
party records; in these cases
if we wait until the end of the
trial, the damage sought to
be prevented may have
already occurred, hence the
judicial review application.
In the case of appeals,
different grounds of appeal
and procedural routes apply,
depending on whether an
offence has been prosecuted
summarily or indictably.
Appeals
Section 674 Only
appeals authorized in
Parts XXI and XXCI
can be brought with
regard to indictable
offences.
Indictable offences
Appeals by the Accused:
o Bases upon which appeals
can be made - Section
675(1)(a) A person can
appeal a conviction based
on a question of law
alone (with leave from
the court of appeal), on a
question of fact, on a
mixed question of law
and fact, or on any
ground of appeal that
appears to the court of
appeal to be a sufficient
ground of appeal. o
Bases upon which appeal
can be granted Section
686(1)(a) (i) the verdict
should be set aside on the
ground that it is
unreasonable or cannot be
supported by evidence; (ii)
the judgement of the trial
court should set aside on
the ground of wrong
decision on a question of
law; or (iii) on any ground
that there was a
miscarriage of justice. o
Grounds which the court of
appeal can dismiss an
appeal Section 686(1)(b)
If none of the above
grounds are made out; (i)
although there was an
error, the accused was
properly convicted on
another count or part of
the indictment. o
Section 686(b) - Appeal
might be dismissed
despite an error (iii)
curative proviso -
notwithstanding that the
court is of the opinion
that on any ground
mentioned in
subparagraph (a)(ii) the
appeal might be decided
in favour of the appellant,
it is of the opinion that no
substantial wrong or
miscarriage of justice has
occurred, or (iv)
notwithstanding any
procedural irregularity at
trial, the trial court had
jurisdiction over the class
of offence of which the
appellant was convicted and (R v Yebes). Errors of Law separately to decide whether they
the court of appeal is of the and Miscarriages of Justice constitute proof BARD.
opinion that the appellant There is no requirement that
suffered no prejudice thereby. the verdict was not If Court of Appeal grants an appeal
Rules governing appeals that supportable on the evidence. from an acquittal in a trial by judge
permits an appeal to be An error of law is any alone , it can (i) order a new trial; (ii)
dismissed despite the presence of decision that was an enter a conviction. If trial by judge and
a legal error at trial, if it is found erroneous interpretation or jury only option, order a new trial.
that the error is harmless and does application of the law (R v Khan). Statutory Powers on Appeal:
not cause a miscarriage of justice. A miscarriage of justice can be either
substantive or procedural. Any error Section 683 A court of appeal can order
(1) Appeals based on an that deprives an accused of a fair trial exhibits or other items produced, hear
error relating to question of is a legal error (Fanjoy v The witnesses or admit an examination of a
fact or mixed fact and law Queen). Miscarriage of justice witness, and refer questions to a special
must result in an unreasonable can be matters of mixed law and commissioner. An appeal court can also
verdict or miscarriage of fact. The Curative Proviso amend the indictment where the accused
justice. (2) Appeals based S. 686(1)(b)(iii) TEST requires has not been misled or prejudiced.
on questions of law has a that there is a reasonable
broader meaning in s. 675 Section 684 A court of appeal can
possibility that the verdict would
than s. 686. S. 686 question have been different had the error assign counsel for an accused. Section
of law may be treated as a 679 A court of appeal can order an
not been made (Khan). To satisfy
question of mixed law and accused released pending an appeal.
: o (1) can show the error is
fact. harmless in itself, thus no prejudice to
Section 688 An appeal court can order
(3) Even if an appeal meets the accused; o (2) show evidence that an accused in custody can only appear
the conditions of s. 686(1)(a), against the accused is so by electronic means.
it may not be granted overwhelming that even if Fresh Evidence on Appeal:
nonetheless. the appeal was granted and a
R v Palmer - Fresh evidence may be
The curative proviso and s. retrial ordered, the result introduced on appeal. Guidelines: o (1) The
686(1)(b)(iv) = not all errors of would inevitably be a evidence should not be admitted if could
law will lead to a successful conviction the provision
should only be applied if have been adduced at trial by due diligence;
appeal.
o (2) The evidence must be relevant, it
Only an error of law under s. conviction would be
686(1)(a)(ii) could be saved by inevitable or invariable bears upon a decisive or potentially decisive
the curative proviso in s. (S.(P.L.)) or that the result issue in trial; o (3) The evidence must be
686(1)(b)(ii). would necessarily have credible (reasonably capable of belief); and
If an appeal is granted under s. been the same (B.(F.F.)). o (4) Must be that, if believed, with other
686(1)(a) then the court of evidence at trial, could affect the result.
Procedural Irregularities
appeal quashes the conviction. Note the evidence sought to be
s.686(1)(b)(iv) If the procedural
Can either acquit the accused or irregularity was previously classified introduced must have been capable of
order a new trial. If the appeal is as an irregularity causing a loss of admission at the initial trial hearsay or
dismissed on the basis that the jurisdiction, this section provides that opinion evidence that would not have been
accused was properly convicted on this is no longer fatal to the conviction admissible at trial is no more admissible on
some part, then the appeal court and an analysis of prejudice must be appeal (R v Assoun).
can substitute a verdict, affirm the undertaken in accordance with the Summary Offences
sentence, impose a new principles in s. 686(1)(b)(iii). Summary conviction appeals are taken to
sentence, or remit the the provinces superior court of criminal
matter back to the trial Appeals by the Crown Section jurisdiction; not the court of appeal.
court for sentencing (s. 676(1)(a) - any ground of appeal
686 (2) & (3)). that involves a question of law alone. Section 813 What Can Be Appealed a
This right specifically applies in this defendant can appeal a conviction or order
Section 686(1) & (d) the section to verdicts of acquittal or of made against her, and the Crown can
appeal court can hear appeals not criminally responsible on account appeal an order that stays proceedings on
relating to findings that an accused of mental disorder. an information or dismisses an information.
was unfit to stand trial, that an Both parties may appeal sentences, verdicts
accused was not criminally Section 676(1)(b)&(c) allows of not criminally responsible, and fitness to
responsible by reason of mental appeals of most decisions that could stand trial decisions.
disorder, or with regard to special bring an end to a prosecution, such
verdicts. as an order of a superior court of Section 822(1) incorporates most of
criminal jurisdiction that quashes an ss. 683-689 by reference. All of the rules in
Section 687 a court of appeal indictment or fails to exercise s. 686(1) that concern appeals from
can vary a sentence imposed jurisdiction on an indictment, and an convictions or acquittals are equally
on an accused. Standard of order of a trial court that stays applicable to summary conviction offences.
Review Housen v Nikolaisen: o proceedings or quashes an Section 816 bail pending a summary
Pure questions of law s. o. r. indictment. conviction appeal can be granted.
is correctness, and an Section 822(4) it is possible for an
appellate court can substitute Section 676(1)(d) the Crown appeal of a summary conviction matter to
its opinion for that of the trial can appeal an accuseds sentence take place by a trial de novo.
with leave. o The Crown is required
judge. o Question of fact -
higher standard. A finding of fact to satisfy the court that the verdict Section 829-838 create alternative
would not necessarily have been the methods of appeal by either party,
should not be overturned in the
same had the errors not occurred, o on erroneous point of law,
absence of a palpable and
overriding error, which amounts to and the Crown has a heavy onus in o excess of jurisdiction, or
prohibiting an appellate court from doing so (R v Sutton). o a refusal or failure to exercise jurisdiction.
Grounds which an appeal could be
reviewing a trial judges decision if Ways in which treatment of
there was some evidence upon launched are under s. 813. Section 836
evidence can be a question of law a Defendant is only permitted to opt for one
which he or she could have relied (1) a question of law could concern
to reach that conclusion. of the two methods of appeal.
the legal effect of undisputed facts;
Unreasonable Verdicts- the (2) misdirection as to the evidence Section 830 appeals under this section
standard for assessing whether a can be a question of law, but only can be brought either on a transcript or an
verdict is unreasonable is whether in limited circumstances; (3) it is agreed statement of facts.
the verdict is one that a properly an error of law for a trial judge to
instructed jury acting judicially, instruct a jury to consider the Code permits a potential 2nd level of
could have reasonably rendered individual pieces of evidence appeal from summary conviction matters to
the court of appeal such an
appeal depends on leave of
the court and can be brought
only on a question of law (s.
839).
Appeals to the SCC:
Section 691 - 695
create a right to appeal
decisions of a court of
appeal regarding indictable
offences to the SCC.
Appeal to SCC can only
be on question of law. It
is possible to bring an
appeal to the SCC based
on whether the court of
appeal ought to have
allowed the appeal (Yebes).
Whether the court of
appeal has made a correct
decision in applying the
curative proviso is a
question of law; thus
appealable to the SCC (R v
Mahoney).
Appeal only permitted (for
Crown or accused) (i)
where a judge of the court
of appeal dissents on a
question of law; (ii) where
the SCC gives leave to
appeal a question of law.
If accused was acquitted
at trial but that acquittal
was replaced with a
conviction on appeal the
accused can appeal on any
question of law; whether
there was a dissent in the
court of appeal or not (ss.
691(1),(2) & 693).
Section 694.1 and 695
The SCC has the power to
appoint counsel for an
accused and has the power
to make any order that the
court of appeal could have
made.
Judicial Review
(Exemplified in the
context of preliminary
inquiries) Decision to
commit or discharge at a
preliminary inquiry can only
be reviewed on the basis
of an action for certiorari. Charter cases are criminal
It is open to the Crown to
seek certiorari in the case of REGULATORY OFFENSES (as
discharge. Section 577
The Crown has a simpler
option of preferring a direct
indictment despite the
discharge, so more frequently
certiorari applications involve
an accused seeking review of
a decision to commit.
Certiorari is only granted if
the judge has fallen into
jurisdictional error. o
Erroneously excluding
evidence, unlikely a
jurisdictional error unless
rises to level of denial of
natural justice (Dubois).
If trial judge fails to comply
with a mandatory provision of
the Code it is a jurisdictional
error.
Section 548 requires a judge
to commit the accused for trial if
there is sufficient evidence. It
also requires a preliminary inquiry
judge to discharge the accused if
on the whole of the evidence no
sufficient case is made out.
Sazant the accused had been
discharged at the preliminary
inquiry on a charge of sexual
assault. Preliminary inquiry judge
said that there was absolutely no (Criminal Code, s. 743.1)
evidence of non-consent.
Complainant had testified he did
not want to partake in the sexual
activity. Held - The judge had
made a jurisdictional error.
Scope of the federal criminal law
power: prohibited act with
penal consequences
(a) Not colourable
invasion of provincial
power.
Provincial Regulatory
Offences: Constitution Act
1867, s. 92 (15)
The imposition of Provincial Courts
punishment by fine,
penalty, or imprisonment
for enforcing any law of
the province made in
relation to any matter
coming within any of the
classes of subjects
enumerated in this
section.
-Property and Civil Rights
(92(13)) - matters of a local and
private nature (92(15)).
Dominant Purpose Test:
Upheld Struck Down
highway traffic
(OGrady v. Sparling)
-prostitution (Westendorp)
film classification and but only on errors of law etc Double
censorship - abortion
(Morgentaler)
compulsory drug
treatment (Schneider)
-censorship (Swtiman v.
Enlbling)
1982, Charter of Rights convicted, you appeal to the superior
and Freedoms: large no. of
cases.
- *Federal govt can also legislate automatically to the Court of Appeal
can provinces)
BUT only feds can
legislate CRIMINAL OFFENSES Legal Rights in the Charter
under s.91(27).
Policing and Prosecutions
What branches are
responsible for the
administration of the criminal
code?
o Constitution Act, 1867
o 91(27) Criminal Law, feds can
enforce any criminal law. (If you
can pass it you can enforce it)
o 92(14) Administration of Justice. seizures
o Look at s.2 of the Criminal imprisoned
Code, Feds can
investigate all crimes, but arrested rights to counsel etc.
in practice most are handled
by the provinces.
o RCMP Federal agency often
acting as a police force
employed by provinces
Corrections
Federal penitentiaries s.
91(28), 2 years or more
Provincial prisons 92(6),
less than 2 years
2 years or more rule,
4 subjected to cruel and unusual treatment or
Trial Courts
Superior Courts:
Supreme Court, Queens
Bench and Court of
Appeal, Federal Court
Tier-of-fact: person in a
trial who decides factual
(as opposed to legal
issues, thats the judge)
issues, this may be a
judge or jury.
Serious crimes, eg
murder, treason etc. tried
in Superior courts
No juries, judges
appointed by the province.
Offenses: all summary
conviction offenses, provincial
regulatory offenses, many
indictable offenses.
On indictable offences,
defendant can choose prov/QB
Summary conviction
offense can go to jail for up to 18
mo.
Indictable offense:
punishment set out in Criminal
Code (usually not more than 5
years).
Appeals
Either side can appeal. In
Canada you can appeal an acquittal,
jeopardy does not attach because its
an appeal, not a re-trial.
Summary conviction v.
indictable offenses: for summary
regardless of where you were
court, and then with leave to the court
of appeal and with leave again, to the
SCC. With indictable, you go
and with leave to the SCC. There is
an automatic right to appeal to the
SCC when in the Court of Appeal
there is a dissent on a legal issue
General Legal Right (s.7):
right to life, liberty, and security of
the person, not to be deprived thereof
except in accordance with the
principles of fundamental justice.
Specific Legal Rights (s.8):
unreasonable search and seizure S.8
to 10 protects those
subject to investigation by the state 8
unreasonable search and
9 arbitrarily detained or
10 for those who have been
s. 11 to 14 To protect those who are
tried and convicted of an offence
11.e right not to be denied reasonable
bail
11.b tried within reasonable time
11.d presumed innocent until proven
otherwise in a fair trial
11.f right to a jury in certain
circumstances
11.h once acquitted, accused has a
right not to tried again for the same
crime
s.12 everyone has the right not to be
punishment
s.15 everyone equal under the law
If a law infringes on one of these rights, the
onus is on the state to prove that under s.1 it
is a reasonable infringement
The Criminal Code
Criminal Code contains wide ranging
offences, depending on the offence they are
designed to do 1 of 3 things;
1) protect bodily integrity (murder, assault,
etc.)
2) protect property (theft, fraud etc.)
3) proclaim standards of acceptable
societal behaviour (possession/sale of
drugs)
Common Law Offences:
Frey p21 v. Fedoruk (this is not a
criminal case, one individual v. the other)
One common law offence was
breach of the peace. In this case the
breach was peeping. Fedoruk in
defense says he was conducting a
citizens arrest that defense hinges on
whether or not peeping was a crime.
Fedoruk argues that it was a common-
law offense (since breaching the Kings
peace is not in the criminal code).
Decision: SCC finds that they cant find
something criminal which had not in the past
been found to be criminal in the case law, we
cant create new common law crimes. The
common-law method was thus too uncertain.
We put a high importance on certainty.
1953 revision of the Criminal Code in
response in part to Frey v. Fedoruk that
abolished common-law offences EXCEPT for
contempt of court (s.9). Common law
defences still allowed s.8(3).
Use of Common Law in Statutory Interpretation:
Jobidon p23 v. The Queen (1991 SCC) s.
265(1)(a): Jobidon is charged with assault
after a fight in which the other person was killed.
Jobidon argues that they agreed to fight
therefore other party consented.
Decision: common law legitimately served in this
appeal to find certain situations where people are
not allowed to consent and that already existing
principles in the common law should be
considered if the Code does not expressly
displaced the common law. Consent in this
context, it is not a good thing to allow people to
voluntarily fight. Consent must be interpreted to
mean that consent will exist when trivial bodily
harm is intended and caused (i.e. in sporting
events). Anything more serious than this there is
no real consent, therefore Jobidon found guilty.
Dissent: Justice Sopinka dissents argues that
the Court has essentially created a common-law
offence (offence created was the intentional
application of force with the consent of the victim)
by changing the meaning of s. 265(1)(a), which
they are not allowed to do under s.9 of the CC.
Common Law Defenses as minimally as possible? Is there (2) Application Heywood p27, CFCYL the validity of consent to bodily harm 8 R v.
Amato p132: defense advanced proportionality between the good and p29, Demers Welch
was entrapment, a defense the bad effects of the law? Heywood p27 Case if Ontario CA held that consent would
SCC had not previously you have been convicted of a not be a defence to a charge of assault
S.7 is the Catch-all everyone has sexual offense you cant go to
recognized. Complainant claimed that she did not
the right to life, liberty, and security of public place with children for an consent to the acts
Decision: The SCC wants to give the person and the right not to be undetermined amount of time. But, court said that the defendant
judges the flexibility to change deprived thereof except in accordance Law was struck down for being
with the principles of fundamental could still be guilty even if there had been
with the circumstances and (1) overbroad on geographical consent
change with the times. So the justice. This section mirrors s.1 in terms, (2) chronologically
courts can recognize new many ways and courts have been overbroad, (3) too broad in that it Court explained that hurting people is
common-law defenses. reluctant to find that a violation of s. 7 affected ALL convicted of sexual wrong doesnt matter whether the victim
is saved under s. 1. assaults even if not on kids, (4) gave consent Prostitution: (Prostitution
Doctrine of Strict Construction enforced without notice to those Reference p62)
(DSC): When the text of a statute Vagueness and the Charter (Nova affected Not illegal in Canada, but we have criminalized
can be understood in more than Scotia Pharm)
almost every other aspect of prostitution besides
one way, the approach which You can argue that a law is the act itself (i.e. communicating for the purposes
would afford the greatest benefit unconstitutionally vague in three ways: Limits on Criminal Law
of, keeping a common bawdy house etc) and
to the accused is adopted When should we regulate these have been found to be constitutional
(1) It violates principles of human behaviour with criminal
Goulis p37, fundamental justice (Charter s. 7) sanction and when isnt it? And who Reference Re ss. 193 and 195.1(1) of the Criminal
Pare p41 used a (2) Prescribed by law (s.1) you can gets to decide? Code (1990) p62
contemporary approach to argue that the limitation is not Theories of Criminal Law, 2
prescribed by law because it is so Court upheld under the Charter certain sections of
the doctrine of strict sets of theories:
vague the Criminal Code that deal with prostitution
construction. These are all 1. The Moral Approaches:
examples of the court (3) Can also argue that it fails the o Conservative Approach (i.e. Court Held:
looking to what Parliament minimal impairment part of s. 1. Stephen, Devlin):
An all-encompassing prohibition
aimed at doing with the
on certain things (i.e. Speech) will (1) For large complex societies s. 195.1(1) (against communicating in
legislation first, before a public place for the purposes of engaging
catch too many things and people to function we need certain
going to strict construction. in prostitution) did infringe freedom of
wont know what they can say. shared values to govern
Plain meaning of statute expression under s. 2(b) of Charter, but that
APPLICATION: Extremely difficult to human norms otherwise we
considered first, if it was justified under s. 1 it was held to be
demonstrate in practice, courts go to get social disorder,
ambiguity persists then a reasonable limit
great lengths to find certainty (2) To ensure that these values
benefit given to accused
Pare p41 (issue of strict Problems w/ VAGUENESS:
are passed on we can be Held that neither (included s. 193 -
fairly heavy-handed through
construction because while against operating a bawdy house)
1. No FAIR NOTICE to citizens paternalism,
committing was contested). violated s. 7 of the Charter although they
absolute certainty is not required, (3) Societal integration
Even if a murder is not infringed liberty and security of the person,
there has to be sufficient guidance, conformity
premeditated it can still be 1st they did so in accordance with the principles
common law and societal o Liberal Approach (i.e. Mills, Feinberg):
degree if it is committed while the of fundamental justice
accused is committing another standards are considered. (1) We need to have autonomy,
listed crime in the CC (i.e. sexual Ignorance is no excuse. that is the basic social Pornography
assault). 2. Give too much LAW contract, not conformity;
ENFORCEMENT DISCRETION: We R. v. Butler p68 (1992 SCC) Justified infringement
(2) Millean notion of harm, do
Issue: In this case can the want to limit arbitrariness to avoid on certain types of porn (freedom of expression)
what you want as long as it
doctrine of strict construction be abuses by law enforcement. Accused operated shop selling porn material,
doesnt harm others (i.e.
used to benefit the criminal Canadian Foundation for Children, charged with 77 counts of violating s.163lCode.
consensual crimes, or
because the murder was Youth and the Law v. Canada A.G. (distribution is prohibited of materials with explicit
suicide should not be a crime
committed after the sexual (2004) CFCYL p29 sex with violence, and explicit sex without
for example that is a
assault? violence but which subjects people to treatment
Case about reasonableness of parents paternalistic law).
that is degrading or dehumanizing)
Decision: Upon considering using force in child correction (CC s. (3) Exceptions
statute, there is no ambiguity, 2. The Economic Approach:
assault and murder seen as
43) - shows that courts will go to great
(bentham, becker) ? S.163 violates freedom under s.2
lengths to clarify whats not in a statute
single transaction 1. We assume rationality of ppl (freedom of expression) but could be upheld
in plain language.
in system under s.llCharter: (1) Community standard
Non-retroactivity Decision: upheld provision not too 2. We assume that people have of tolerance - determine standard of
vague or broad, serves as guidance not all the info they need community (2) S.163 only refers to types 1 &
Charter ss. 11(g) & (i) 2 of porn: risk of harm (3) Is the legislative
direction. No violation of charter ss. 3. People have concrete
Principle that crimes objective outweighed by infringement of
2/15 interests that dont change
cannot be created or freedom? No, objective aimed at avoiding
and can be assumed, we can
punished retroactively. D. Overbreadth harm.
maximize utility according to
Applies to both charge and Butler p68 Test In determining if pornography is
preferences (which are taken
punishment. Laws means are far more as a given) too explicit or graphic(obscene - where
Oakes Test (see Orbanski SMp25 exploitation of sex is undue), the following test
sweeping than its objective. 4. People make decisions
for good ex.) - used for assessing was created:
Consider the means chosen by based on the above perfect
whether charter limit is
state in relation to purposes. rationality with perfect
reasonable and justified Community Standard of Tolerance Responds
Overbreadth occurs when a state information with set
to the changing morals of the nation. Does not ask
(1) objective of the law must be emplovs means that are far preferences.
people what they would view, but what would they
sufficiently important. Must show broader than necessarv for an Charter Limits
allow others to see. (the most important step of
that the law is of pressing and obiective. Jobidon v. The Queen
the test)
substantial concern (pretty easy) (1) Overbreadth v. vagueness Issue: Is consent a defence
(Heywood p27) Overbreadth to a serious assault? Degradation - sex depicted in a degrading or
and vagueness are related in Held: No dehumanizing manner, which includes
(2) show proportionality of the that both are the result of a Reasons: submission, subordination and humiliation, will
effects of the law on the right lack of sufficient precision by not generally be accepted. To depict sex in this
being infringed (minor, severe?) a legislature in the means Fights are socially useless
way is against the principles of dignity, and this
and balance it against the used to accomplish an Not in the public interest to kind of exploitation is harmful, especially to
positive effects of the law. Are the 7 allow this sort of thing women.
means and the ends in a Result in this case was the
reasonable degree of objective. In the case of death of a young man on his Internal Necessities Does the sexual
proportionality to each other? vagueness, the means are not engagement day exploitation have a legitimate role in advancing a
clearly defined. In the case of theme or plot in an artistic, literary, intellectual or
o To establish proportionality is overbreadth the means are too Argued for the sanctity of scientific work? If so, it may be justified. This kind
there a rational connection? Does sweeping in relation to the human body should vitiate against
the law impair the Charter right objective.
of sexual exploitation is not just
dirt for dirts sake, but has a
purpose.
R. v. Sharpe p71 (2001 SCC)
Justified provision prohibiting
possession of child porn BC trial
judge ruled s.163.1(4)lCode
provision (forbidding possession
of porn)
SCC found the
provision constitutional: 1)
Provision combats material
that poses risk of harm to
kids. 2) Provision violated
the freedom of expression
but was justified under s.
11Charteras the
government
9 ex. of princs - law cannot be
objective of protecting
children from
exploitation was
proportional to the
violation.
Two exceptions (also apply to
making child porn):
a) does not prohibit
possession of expressive Police Powers
material created through
the efforts of a single
person and held by that
person alone, exclusively Assembly line model: go through
for his or her own personal arrest, conviction, punishment as fast 2) Even where a court determines that a
use, such as personal
journals and drawings
b) does not prohibit seen as obstacles; currently an
possession of visual
recordings created by or
depicting that person, but powers, criminal control system wants deals w/ police who refused. However,
only where these
recordings do not depict
unlawful sexual activity, are we should not exclude evidence or give made to R w/ respect to gf, only
held only for private use,
and were created with the
consent of those persons Due Process: Fairness of trial and pre- inducement. fact that R took bargaining
depicted
The Harm Principle
R. v. Malmo-Levine; R v
Caine (2003 SCC) p78
Justified infringement on use of
marijuana Issue of criminalization
of simple possession of
marijuana contrary to principles
of fundamental justice, as to
whether it causes to harm to
others. Challenge to Narcotic
Control Act provision. SCC:
imprisonment for marijuana
possession does not violate s.7
principle against gross
disproportionality: (1) Court:
harm principle is not a strict legal Questioning Suspects:
principle since many examples of
criminal laws do not cause harm
to others (cannibalism,
bestiality, incest). (2) A claimed
charges based on s. 7l Charter
since it is his chosen lifestyle.
Court: his lifestyle choice is not
protected by s. 7 since harm is
not insignificant or trivial. (3)
Court acknowledges Parliament
entitlement to act under crim
power for reasons other than
avoidance of harm to others, but
is subject to Charter rules such
as arbitrariness, irrationality,
gross disproportionality. A used
the legality of alcohol and
tobacco as an example of
arbitrariness of the law. Court:
Parls choice to limit one harmful rule: Whenever a person makes a
behavior more than another is not statement to police or other persons in Issues: Are the drunken confessions admissible?
arbitrary or irrational of the law by authority, and Crown wants to submit it as Is an involuntary confession admissible? (No)
itself. evidence, prosecution must show that
statement was submitted voluntarily BRD, Decision: Accused had not voluntarily waived
Of note from Malmo - -a principles of otherwise all evidence collected can not be right with full awareness of consequences. Appeal
fundamental justice must: used. permitted; evidence excluded, court restored
acquittal:
a) be a legal principle Rationales for rule
b) about which there is (1) D could not waive her 1O(b) right to counsel
1. Ensures the innocent are not
significant societal consensus until she was sober enough to do so with full
convicted
that it is fundamental to the way knowledge of the rights the procedure was
2. Society places tremendous
in which the legal system ought weight on self-incriminating
enacted to protect and the effect the waiver
fairly to operate, and will have on those rightsshe did not know
evidence
c) it must be identified with what was at stake.
3. Public underestimates how often
sufficient precision to yield a (1)a - waiver - must be clear and unequivocal
people confess to crimes that
manageable standard against that the person is waiving the safeguard with
they didnt commit
which to measure deprivations of full knowledge
4. Disincentive towards police
life, liberty, or security of person abuses ie torture etc. (2) Police should have held off investigation
the harm principle is not a Three things court will consider in they exploited opportunity to violate Ds
principle of fundamental justice determining Voluntariness: rights.
(3) Under s.24(2), evidence obtained in violation
inordinately vague, overly broad, no (1)Operating mind - (Whittle)
of Charter should be excluded as it would
retroactive application of law, only (2)Was there a threat or a promise (quid
bring AOJID.
voluntary conduct should attract pro quo?) violence=always exclude, offers
(4) Purposive interpretation of 1O(b): designed to
criminal liability (Ruzic p291), right to a to procure lenient treatment = almost protect fairness to A with respect to
fair trial, law of causation and mens rea always exclude incriminatinq themselves.
(Cribbin p341), presumption of (3)Oppressive conditions
R. v. Oickle 2000 SCC - confession thrown out
innocence (Wholesale Travel, p406) (4) Trickery (see below)
Trickery Failed polygraph (not admissible in court
anyways), admitted he set gfs car on fire after
1) Courts may consider certain forms of
a 6 hour interview that he asked many times
Kent Roach on Parkers Theory, trickery, such as the use of fabricated
to leave from, police played good cop
Criminal Control vs. Due Process evidence, in determining whether the
Criminal Control p107: Efficiency - interrogation was oppressive and
hence involuntary. (2) Section 10 of the Charter:
COMPONENTS OF s. 10 of Charter
as possible (current system statement is voluntary, it may exclude
it if it was obtained by trickery so Triggered by arrest or detention
government. Procedural aspects are
appalling as to shock the community. (Therens p173, Thomsen p177, Obranski,
Elias),
obiective-oriented process) - Though R. v. Spencer, 2007, SCC, SM p13 -
concerned with limiting abuse of confession admissible, R tried to make Police have no legal power to demand
cooperation in interrogation. They can seek
to control outside of criminal process; police allowed visit to gf conditional on it, but not demand it.
if the polices conduct is unreasonable, giving confessions. no offer of leniency (Obranski) If police have reasonable grounds to
believe that you are driving impaired by alcohol,
a stay withholding visit to her until at least partial they can demand s. 254(2) that you provide a
confession was made - not strong enough breath sample. If you refuse, you can be charged
with an offence of Refusing to Blow. s254(5)
role was significant. Affirmed use of Oickle *They cannot physically force you to do it, but
trial test: Do a contextual analysis to see if will youll be charged if you dont. 10b rights must be
of subject has been overborne. Used
Excludes evidence obtained
above factors. quid pro quo is the most
given before blood sample/breathalyzer sample
can be taken s.254(3) - note that this is not
through unreasonable methods; important consideration, but is not required if youre too drunk to understand right to
focuses on possible remedies if exclusive, when an inducement is alleged counsel (Mohl p175)
police misbehave. This system to have been offered by a person in
considers exclusionary rules authority -regardless, it is the strength of
R. v. Therens p173 (1985) Three types of
(excluding tainted evidence) as the inducement and his or her
detention outlined
it is believed that evidence that is circumstances, that is to be considered in
Facts: accused collides w/ tree, officer takes to
obtained through force is the overall contextual analysis into the
station to provide breath sample under 254(3) (not
unreliable. There is less trust in voluntariness of the accused statement-
screening device), accused complies, over legal
the police and skepticism of their inducements become improper only when
limit; at no time was informed of right to counsel
powers. standing alone or in combination with
under 10(b).
other factors, they are strong enough to
10 raise a reasonable doubt about whether Issue: Was this a detention under s.10? If it was a
the will of the subject has been overborne detention was 10(b) violated?
Most important tool police Operating mind! (lowered Clarkson p113 Reasons: In its use of detention, s.10 is directed
requirement) (Whittle SCC 1994) you can to restraint of liberty other than arrest in which a
have.
confess as long as you basically person may reasonably require assistance of
Allows police to gather
understand what you are saying and counsel but might be impeded from doing so but
evidence and (hopefully) comprehend that the evidence may be
incriminating statements from the used against you. If you exercise poor for the constitutional guarantee. s.254(5) of Crim
accused. Code: criminal liability under this section is
judgment, that doesnt necessarily meant sufficient to make compliance involuntary.
Two standards, Confessions that you didnt have this level of
Rule and s. 10 of the Charter Detention (besides physical threat) can be effected
understanding. Schizophrenic heard if person submits in the deprivation of liberty and
voices to confess, wasnt fully rational but
believes that the choice to do otherwise doesnt
(1) Confessions Rule had some understanding of the exist.
consequences.
(common law rule of
Finding: 10(b) violated, evidence of breath sample
evidence, you dont need
to invoke the Charter to Clarkson p113 v. The Queen (1986 SCC) excluded under 24(2) b/c obtained as a result of
Facts: Voluntary confession rule: flagrant and overt Charter violation.
use it because its a
exclusion of evidence because D was
common law rule)
Three Categories of Detention:
Boudreau, Clarkson p113. drunk when she murdered her husband.
Police instructed of her right to counsel;
Voluntary Confession Rule: evidentiary meanwhile, A blabbed about murder in (1) Physical Compulsion
their presence. (2) Legal Compulsion
(3) Psychological understanding - may need requirement to ensure all detainees Administering the road-side screening test,
compulsion - accused interpreter get legal counsel, as 10(b): prior to consulting a lawyer was held to
reasonably believe no R. v. Brydges p123 (1990) The be a justifiable breach of the Ds Charter
choice but to submit defendant said that he couldnt 1) Does not impose positive s. 10b rights.
*NEED TO KNOW In afford a lawyer and the SC found constitutional obligation of Ratio: Why can police get away with this?
Canada, when the police that his statement was a request government 14
question someone with the for a lawyer that should have 2) Far-reaching implications; it would (1) Time is an important consideration
intention of furthering the triggered the police to help him do mean in order to arrest, every accuracy of the Breathalyzer,
investigation by gathering that including telling him about province must have a duty (2) Objective of road safety not
information, the court tends duty counsel or Legal Aid in that counsel system. - Suggested efficient to stop people for long
to find that the person is NOT jurisdiction. remedy: police should hold off periods of time (police should be out
detained under s.10. But, until person gets counsel, even if enforcing the law, not waiting on
when the polices prime Ratio: as part of information given benefit of presumption is lost. sides of roads for people to talk to
motive is to elicit self- re: 10(b), detainees should be R. v. Manninen p119 (1987 SCC) lawyers)
incriminating evidence, then informed of existence of Legal Exclusion of confession when police (3) and the road-side screening device
the person WILL considered Aid/duty counsel/equivalent used baiting question number can only go to suspicion
to be detained under s. 10. **After this case Ontario set up toll Suspect detained for robbery; asked NOT conviction for impaired.
free number (24 hour), Nova to see lawyer, but request was Entrapment:
R. v. Thomsen p177 (1988)
violation saved under s. 1. Scotia didnt ignored. Suspect was tricked into Generally arises in investigation of
admitting he had the weapon.
R v. Bartle (1994) - if there is a list consensual crimes
Issue: whether demand made
Rationales (Mack p135, Posner)
by cop to accompany him to of lawyers on-call you must inform
the defendant of that service as
Confession inadmissible:
Moral - permits discrimination, police
his car and provide breath accused right to counsel was
sample (under 234(1) now well and about how you can can go too far, also Economic - waste
access it. denied. Nature of the of resources. Police cant be arbitrarily
254(2)) resulted in detention questioning (two simple
of appellant under s.10 of testing the virtue of random people.
Facts: Accused arrested for drunk questions followed by baiting central issue is not disciplining police or
Charter driving, informed of right to counsel one) led to involuntary self- prosecutorial conduct, but avoiding the
Reasons: and availability of legal aid but not incrimination. Act of answering improper invocation by the State of the
the free 1-800 number some questions does not judicial process and its powers (Mack
See definitions of detention indicate that one has voluntarily p135)
from Therens p173: Decision/Reasons: Court held that waived ones right to counsel.
10(b) rights violated, excluded R. v. Mack p135 (1988) Test for
The request under Breathalyzer under 24(2) Entrapment Appellant gets new
R v. Obranski, R v. Elias (2005 SCC) trial
234(1)) to give roadside
Implementational Duties SMp21 police do not Facts: Accused a former drug user w/
sample does meet this
(Manninen p119, Prosper p125, have to give s. 10(b) right several convictions
criteria and appellant
was therefore detained.
Obranski and Elias SM p21). during roadside Repeatedly (over 6mo period)
screening asked by informer for drugs, repeatedly
Then found denial
13 Facts: Obranski stopped after seen said no (only real estate now)
of right to counsel
implicit in wording of st
1. 1 component must hold off running through a stop sign and Informer took accused into woods
234(1) (forthwith, when accused requests a swerving on the road. Elias stopped in w/ handgun, said one could get lost in
roadside) but this denial lawyer, (cant persistently his vehicle at a random road-side woods (accused thought this was a
of 10(b) rights justified question (Manninen p119), stop. In both cases officers could threat)
under s.1 of Charter cant denigrate counsels smell alcohol when they approached Informer took accused to see a
(noting that counsel is integrity, can plea bargain the cars. Both were arrested and purchaser (undercover cop), showed
available at the more 2. 2nd (Prosper p125) must give neither was advised of right to retain a $50,000
serious Breathalyzer accused a reasonable lawyer prior to being tested or Accused was arrested when
stagepolice station). opportunity to talk to a lawyer questioned. Both charged with delivered 12oz of coke (bought on
(not indefinite). relevant factors impaired driving and driving over credit) to informer.
- is counsel available? 80 History: Trial: convicted (said more probable
NOTE: In R. v. Grant 1991
30 min delay was urgency? suspect must be that accused became involved for profit
not acceptable diligent, however Decision: SCC the police acted rather than fear); Appeal court: confirmed
3. BUT lawyer of choice is lawfully when they conviction; now at SCC
In R. v. Bernshaw also guaranteed, law is not stopped
immediate demand nor clear what reasonability Police didnt interrupt ongoing
required after immediate Reasons: Lawful police conduct wont criminal enterprise, offence was
standard is here always be outlined in statute. Limit on
alcohol consumption - 15 min 4. Courts will consider factors brought on by their conduct, would not
delay acceptable s. 10(b) right of drivers in both cases have occurred otherwise.
such as the time of day, and was prescribed by law, scope of
2 categories to think about the importance of carrying on the police power to check the sobriety Length of time (6mo) show police
that SC has read-in to s.10: the investigation immediately of drivers at the roadside is: a had to go beyond merely providing
opportunity
Informational Duties Have to ask someone if procedure cannot be reasonable... Most important factor here:
they want to talk to a unless it can be performed at the site
(Brydges p123, Bartle) informer acting threateningly in woods;
lawyer. Must record the of the detention, with dispatch, with
no danger to the safety of the if police have to go this far they have
10a - Police must answer.
detainee and with minimal gone beyond providing reasonable
If no, police can opportunity.
tell you ALL of the inconvenience to the detainee
proceed Finding: entrapment applies (accused met
reasons you are being -necessarily calls for a case-specific
If yes
arrested or detained. If inquiry. Also, Limit on right to counsel burden of proof - BOP), allow appeal, set
the nature of the Implementational Duties during questioning and compliance aside conviction, ordered new trial (?) and
investigation changes R. v. Prosper p125 (1994 SCC) with s. 254(2) demand for roadside entered stay of proceedings
while you are being Violation of s. 1O(b) right: screening device sample is
exclusion of evidence) Entrapment TEST:
detained, they have to reasonable under Oakes test.
tell you that as well. Accused was arrested for impaired Oakes Test: justified limit because: (1) (a)The authorities provide a person w/ an
10b have to tell you driving, informed of legal aid and objective of reducing the effects of opportunity to commit an offence w/out
that free duty counsel his 10(b) right, but after attempting impaired driving is a compelling state acting on a reasonable suspicion that this
exists, and give you the to call 15 legal aid lawyers, he person is already engaged in criminal
number objective, (2) infringement on the right activity or pursuant to a bona fide inquiry;
stated that he could not afford to counsel is rationally connected to
have to provide private counsel. Accused failed a that objective, (3) minimal impairment (sufficient connection between the past
without delay, unless breath test. - Evidence was conduct of the accused and the provision of
- scope of powers carefully limited an opportunity?)
imminent risk of serious inadmissible: taking of the breath and limitation on right to counsel
bodily harm sample infringed on rights. - Court: temporal, (4) Proportionality -
must ensure basic not necessary to impose screening is short and minor
level of linguistic inconvenience
(b) Although having
such a reasonable
suspicion or acting
in the course of a
bona fide inquiry,
they go beyond
providing an
opportunity and
induce the
commission of an
offence. (what the
average non-
predisposed
person would have
done?)
To determine
whether police have
gone farther than
providing opportunity, a
number of factors useful
to consider (10 on p139)
More on Bona Fide Inquiry: R
v. Barnes, SCC, 1991
p141, bona fide inquiry
requires: -1) the officers
conduct must be
motivated by the genuine
purpose of investigating
and repressing criminal
activity; and-2) the
inquiry must be directed
at a suitable area. BFI -
Here, officer induced
person outside of
Granville mall, where
officer reasonably
believed drug offences
were occuring.
Conversely, random
virtue-testing only arises
when a police officer
presents a person with
the opportunity to commit
an offence without a
reasonable suspicion that:
-a) the person is already
engaged in the particular
criminal activity; or -b) the
physical location with which
the person is associated is a
place where the particular
criminal activity is likely
occurring
Amato p132 v. The Queen
(1982) no entrapment
asking to buy drugs is not in
itself entrapment
Facts: Informer (persistently)
asks Amato (A) for coke, A
sells him small amt. Informer
persists for more, A sells him
oz. -D introduced to
undercover cop who asks
(persistently) for coke, cop
told D that he didnt screw
around and that he needed
coke to answer to these
ppl and if not, these ppl
would come see D. Next day,
D sold cop 2 oz coke and
charged and convicted for
trafficking
Reasons: Evidence falls short
of evidence required to
establish entrapment;
amounts to no more than
persistent solicitation by
informer/undercover officer.
Informer
importuned D, police
simply had relationship
w/ informerthis doesnt give for fair competition. The CB (federal v. Carrington (Britain hundreds of years
rise to entrapment agency) enforcing Combines Act was ago) cant just go into peoples houses
Only where police tactics suspicious that Southam company to search for evidence because not
leave no room for criminal was engaged in unfair competition authorized by law to do so.
intent can entrap. enter into and wanted to search offices of 3. Third way to challenge under s. 8
determination of guilt. Edmonton Journal to establish this. argue that the law in this case was
Dissent: there was persistent Edmonton Journal challenged the applied unreasonably. Example of this
importuning, police had no reason search and took Hunter (director of case:
to suspect that accused was CB) to court. Challenged the law R. v. Collins [1987] SCR 265
related to such activity. allowing the search under s.8 .
Facts: Police conducting surveillance of
This enterprise by police Decision: drug dealers who tended to swallow
would in all circumstances - (1) a member of this commission goods before being caught by police.
be viewed by community as was NOT independent of government Woman about to swallow a balloon, the
shocking; such conduct is cop grabbed her by the throat to prevent
like a judge (impartial) and also had it. The technique is actually authorized
contrary to proper principles an important role in the investigation.
by law (as valid incidental to arrest), as
of justice. Independent body authorizing
applied generally the law complies with
Procedural Issues: searches is reqd
s.8, BUT as applied in this particular
To be decided by trial case it didnt. Decision: Search was
- (2) there was no requirement in the
judge, proper remedy: stay of statute that the search be based on unreasonable. Reasons: Because in this
proceedings (Jewitt p131). case the police didnt demonstrate
reasonable and probable grounds.
reasonable and probable grounds that
Guilt established first, Ratio A reasonable search and she was about to commit a crime.
then look at entrapment; seizures occurs if: Crown has to show that the warrantless
If jury, judge decides search was reasonable, they must
entrapment 1) Prior Authorization where establish:
BOP - Onus on accused it is feasible to obtain prior
to prove on balance of authorization, I would hold that (1)Reasonable grounds to believe that
probabilities that entrapment such authorization is a pre- there was a narcotic in place;
occurred. condition for a valid search and
(2)Whether the manner of the search
seizure
was reasonable. Seizure by the throat
An Economic Theory of the was found to have been unreasonable
Criminal Law (Richard 16 unless cop had reasonable grounds to
A. Posner) SM p27 believe that the person was a drug
2)Neutral Arbiter it is
handler.
police inducements that merely necessary for the person
affect the timing and not the level authorizing the search to be able
of criminal activity are socially to assess the evidence as to Sniffer Dogs - AM and Kang-Brown
productive; those that increase the whether that standard has been Kang-Brown, SCC, 2008 - officer tried to look into
met, in an entirely neutral and
crime level are a waste of social guys bag at bus depot, guy didnt want him to,
impartial manner; and
resources sniffer dog alerted to drugs, arrest. All judges
3) RPG where the states agree its a search
Search and Seizure: Hunter interest is law enforcement and Lebel+3 = need RPG for sniffer dog search. Not
p144, Collins, Buhay the individuals interest is his
SM p29 auth at common law
expectation of privacy, Binne+1 = need RS because of minimal intrusion
reasonable and probable
Pre-Charter case Entick and high accuracy - no RS
grounds, established upon oath, Deschamps+1=need RS because minimally
v. Carrington (hundreds of to believe that an offence has
years ago in Britain) where intrusive, RS in this case, consider totality of
been committed and that there is circumstances
police were searching for evidence to be found at the
evidence of sedition and Bastarache =need generalized susp,
place of the search, constitutes R. v. AM, SCC, 2008 - sniffer dog search found
entered home without the minimum standard,
consent and were sued for drugs in backpack in gym, students knew
consistent with s. 8 of the search would happen
trespass (plaintiff won). A charter, for authorizing search
mans home is his castle. Lebel+3=no auth at common law, student entitled
and seizure. to privacy at school
Common law protected from Reasoning: s.8 acts as limitation on
search and Seizure under Binne+1=no RS, exclude
powers of search that the gov has; it Deschamps+1=RS, no SEP , no OEP
application of trespass laws is entrenched (not vulnerable to
Section 8 challenges: Number of change by legislative enactments); Bastarache=unreasonable search, dont exclude,
not- conscriptive
different ways that state action can guarantees a broad/general right.
17
be challenged under s. 8 of
Guarantee from EXCEPTIONS TO WARRANT
Charter. Set out in Collins
REQUIREMENT
unreasonable search/seizure
-In a s. 8 charter case, you need: only protects a reasonable State must demonstrate, when it
conducts a search, that it was
1) to prove state action expectation; assessment must
authorized by a neutral third party.
be made whether publics
(s.32 - applies to state or In Thompson Newspapers court
interest to be left alone must
state agents) found that it was NOT required to
give way to govt in order to
2) need a search or get a warrant because a regulatory
advance its goals, notably law
seizure seizure, no criminal sanctions and
enforcement.
3) need it to be Finding: the disputed statute does not sometimes its too hard to get a
unreasonable warrant based on the evidence.
embody the above requirements,
To show an Hunter p144 also a classic example
therefore it is inconsistent w/ the
unreasonable search, you Charter of a regulatory search (NOT going
can do 1 of three things: after criminals) but because of the
th
First way to challenge NOTE 4 REQUIREMENT (FROM fairly unrestricted nature of
under s. 8 - can challenge the BARRON): the neutral and impartial investigative powers, court found
law itself as being arbiter retains the discretion to not that search violated s. 8. *This case
unreasonable in allowing authorize the search is in opposition to Thompson
searches and seizures. Law 2. Second way to challenge under Newspapers.
applied generally, does it s.8 the action of the police Onus is on crown to prove
violate s.8? wasnt authorized by law warrantless search was reasonable
Hunter p144 v. Southam (common law or statute) in the Regulatory searches (Thomson
Competition Bureau responsible first place. (Stillman p167)Entick Newspapers p148) Section in the Combines
Act requiring books and
records as part of an
investigation challenged. The
regulation and investigation
of competition is a regulatory
law (federal, but not criminal
law). Courts found that the
Hunter Standards will be
relaxed in the context of
regulatory investigations, i.e.
dont need prior authorization
and reasonable and probable
grounds.
B. Why would they do this?
Too hard to get to get
evidence in advance so
we cant make it too hard
for the state to
investigate, plus the
people generally being
investigated are wealthy
companies and
organizations there
seems to be some
implicit agreement to play
by the rules state needs
to be able to investigate
what they are doing, also
because there is less
social stigma with
regulatory infractions.
C. We make it harder to
investigate criminal
matters because those
usually involve less
powerful people who
need more protection.
\ or in s.8. Requires a reasonable
Thomson Newspapers Ltd.
v. Canada
(Director of
Investigations,
Restrictive Trade
Practices
Commission)
(1990) p148
Finding: court held that the
power of the director of
investigations to demand the
production of documents
under s.17 of Combines
Investigation Act did not
violate s.8 of Charter though
it did amount to seizure under
the section.
Reasons: To require warrant
for any power of investigation
would, in these
circumstances, immunize
perpetrators from
discovery/prosecution. Power
to search/take away
documents is more intrusive
than mere power to order
production of them. Dissent:
Important to look past form of
information gathering and
look at the effect the
gathering has on the
individual. Looked at criteria
from Hunter
Concluded that
these requirements not
satisfied, s.17 violates
s.8
WHY DID THE COURT
RULE DIFFERENTLY THAN
IN HUNTER? Difference in
the search power in the
cases, because in this case
they were just demanding
documents, whereas in Hunter The search must be reasonable
they were actually taking Factors to consider to
documents during an intensive
determine if a search was reasonable
search
1. Can it be inferred by the relevant
Education Act that the school authority is
Others (R. v. M (M.R.) SM p45 authorized to conduct searches in
Hunter Standards appropriate circumstances? In the school
Relaxed for schools environment such a statutory authorization
R. v. M.(R.)(1998 SCC) SM would be reasonable.
p45Requirement for lawful search and 2. The search itself must be carried out in a
seizure in school setting Search reasonable manner. It should be conducted
conducted by vice-principle (in RCMP in a sensitive manner and be minimally
presence) on grounds that he was told intrusive.
by several students that the appellant 3. To determine whether the search was
was selling drugs on school property. - reasonable all the circumstances will have
Search was reasonable: modified to be considered.
standard should apply to searches of The standard from M.(R.) will only be
students on school property conducted applied if agent acting for school is not a
by teachers not acting as agents of the police officer
police, because orderly environment PENNEY argues that if you are going to
needed for learning. Search was bring in the police, then shouldnt the
authorized by the provisions of Nova Charter apply? The student may now be
Scotia Education Act. - Vice-principal facing criminal charges and a criminal
was not acting as an agent of the record so it would seem to make sense
Police; search would have occurred w/o that the search should be conducted in
RCMP. - Reasonable expectation of accordance with the Charter.
privacy was diminished, as a student in REASONABLE EXPECTATION OF PRIVACY
a school, where teachers are (REP)
responsible for safe school General principles (Hunter, Lebeau p150
environment - standard to be applied to & Lofthouse, Buhay SM p29 (has TEST)
searches by school authorities: Electronic Surveillance (Wong p152,
Duarte p156)
Exception to the Hunter rule, a search Plain View Doctrine (Buhay SM p29)
of a student by a teacher may not Sense-Enhancing Technologies
require a warrant ahead of time (Tessling SM p35)
Search or seizure, generally mean the
and it will not create the presumption
same thing because of the inclusive word
that the search is prima facie
unreasonable.
expectation of privacy.
A warrant is not essential in REP test is a cost-benefit analysis:
order to conduct a search of a benefits or privacy (vis a vis the individual)
student by a school authority. vs. benefits of surveillance (vis a vis
The standard should NOT society).
be that a search by school When we say there was no REP, we forgo
authorities is prima facie our ability to regulate law-enforcement in
unreasonable if no warrant is certain kinds of searches.
obtained. If there IS a REP, then we have the ability
to regulate law-enforcements search
Standard of care expected
powers.
of schools is sufficient to justify
relaxed standard
The school authority must
have reasonable grounds to
believe that school regulations
have been breached and a search
of the student would reveal this
breach.
School authority is in the
best position to assess
information given to them and
relate it to the situation existing in
their school, and decide whether
reasonable grounds exist.
The basic principle that a
reasonable search must be based
on reasonable and probable
grounds should still apply, but
teachers are in a better position
to determine if reasonable
grounds exist.
The following is a list of
reasonable grounds, but it is not
exhaustive: info received from a
student considered to be credible,
info from more then one student,
a teacher or principals
observations, any combination,
etc. The compelling nature of the
information and the credibility of
these or other sources must be
assessed by the school authority
in the context of the
circumstances existing at the
particular school.

Depending on the case (i.e. R.v.
M) the standards may be more
lax (i.e. in the case of regulatory
principles) or more stringent (in
the case of criminal
investigations).
19
Lebeau v. Lofthouse 1988
Ont.CA No expectation of
privacy: public washroom
Police had surveillance in a
public washroom used by gay
men for sexual encounters in the
public area of the washroom.
Ont.CA found that there was no
REP in the public area of the
washroom, and moreso because
D kneeled in cubicle and would
be seen by outsiders. The fact
that there were lookouts
implies that these men didnt
think that they had a REP.
CASE ILLUSTRATES physical
characteristics of the place where
we are claiming a REP are going
to be very important to courts
determination. REP in the stall,
not in the public area of the
washroom because people are
free to come and go.
R. v. Wong SCC There is an
expectation of privacy -
electronic surveillance of a hotel
room
Police suspect group of men had illegal Note: Ss 184.1 and 184.6lCode ISSUE: Does the FLIR image obtained of the
gambling ring in a hotel room. Police enacted in part in response to this case. accused house without a warrant violate the
would normally send in undercover, but note that it is a criminal offence to accused rights under s. 8 of the Charter?
at the time had lack of Chinese cops so intercept communications w/out warrant s. - Should the police have been granted a search
they used electronic surveillance. 184 warrant for the house based in part on the FLIR
Under part 6 of Criminal Code R. v. Buhay [2003] SCR 631 image, when they did not have a warrant to take
there are strict guidelines for such Section 8 violation: warrantless search the image in the first place?
surveillance, but there was a loophole of locker - Did the accused have a reasonable expectation
in it because it only covered private FACTS: police seize pot from a Winnipeg of privacy against the FLIR image taken by the
audio communications. So cops just locker in a bus terminal. Security guards police?
set up a camera (with no audio) to smell pot, open the locker and find it in the DECISION: No violation - the FLIR image did not
capture what was going on. locker. Call police, open locker for them, trigger s. 8 b/c the info generated by the image
ISSUE: In this case, is there a REP (no.2 defendant arrested. Defendant argues does not touch on a biographical core of the
above) when invitation has been violation of s.8. respondents personal information,
extended to public to come to a hotel ISSUES: Does the Charter apply to the External patterns of heat distribution on an
room? initial search of the locker by the security external surface is not information that the
DECISION: SCC Yes, there was REP. guards? respondent had a reasonable expectation of
When we rent a hotel room, even if we 1. Did the subsequent search and seizure privacy with. Note pg 38 factors.
invite strangers, we have a REP. But by the police violate the appellants rights REASONS: The nature of the information revealed
evidence admitted because its under s. 8 of the Charter. was characterized by the court as not disclosing
admission wouldnt bring the AOJ into 2. Did the appellant have a reasonable sensitive personal (lifestyle) information. In Plant,
disrepute. expectation of privacy in the rented looking at electrical bills is not a violation of s.8
REASONS: If you want to use locker? because there is no reasonable expectation of
something as invasive as electronic 3. Should the evidence be excluded under privacy. In this case they found that same thing,
surveillance, you must get a warrant s. 24(2)? no reasonable expectation of privacy. wHAT s. 8
based on reasonable and probable DECISION: find that the trial judge did not PROTECTS: s. 8 of the Charter should seek to
grounds. Finds that s. 8 violated err in finding that the appellant had a protect a biographical core of personal
because there was no warrant reasonable expectation of privacy in the information which individuals in a free and
(however, there was no CC provision locker he rented and the search violated democratic society would wishto maintain and
requiring one at the time) but allowing his s. 8 rights and should be excluded control from dissemination to the state. This
the tape wouldnt bring administration under s. 24(2) would include information which tends to reveal
into disrepute. Court asks: - Ratio: A search will be found to be intimate details of the lifestyle and personal
- Was there state action? YES unreasonable if the person has a choices of the individual.
(2) REP? YES subjective expectation of privacy which is Arrest and Detention
- Must consider if invasion of REP is objectively reasonable. The fact that there S. 8 (search and seizure), s. 9
reasonable under Hunter requirements may not have been sufficient grounds for a (arrest and imprisonment)
(warrant? Reasonable and probable search warrant does not make a RPG higher standard than that articulable
grounds?) warrantless search reasonable. Bad faith cause or reasonable suspicion
- If this is found to be unreasonable of police as well. People may decline unless officer places them
based on above, then the there is a Plain View Doctrine (Buhay under arrest or detention
violation of s.8. SM p29) also brought up argued that Police may not use any force unless they are
NOTE: s.487.01 now allows general by the time the police came along they placing someone under arrest or detention
warrant for any investigative technique were seizing something in plain view. If Arrest Powers:
that might constitute an unreasonable police see something that is clear and Criminal Code
S or S. obvious, they can seize it without violating s. 495 sets out arrest powers of a peace
Also - no REP in GF's apartment, even s. 8. SC rejects this because the police officer w/out a warrant - NOTE: officer must
if have key - R. v. Edwards 1996 didnt have authorization to have access to subjectively have reasonable and probable
p154 the pot in the first place. grounds on which to base the arrest. -Those
R. v. Duarte p156 (1990 SCC) State Agents? test is would the grounds must, in addition, be justifiable from
Reasonable expectation of privacy: exchange between the accused and the an objective point of view (R. v. Storrey
taped conversation by informer informer have taken place, in the form and p165)
Accused was charged with trafficking manner in which it did take place, but for s. 495(2) States that a police officer will not
narcotics. Evidence was obtained the intervention of the state or its agents? arrest a person w/out a warrant for less serious
through taped conversations by (Broyles) - security guards not state offences where public interest in establishing
informer. Trial judge excluded tapes as agents identity and securing attendance in court, as well
violation of s.8, Ont CA allowed them, Test for REP determined on the basis of as evidence of the offence, and preventing
accused appealed to SCC. the totality of the circumstances, repetition of the offence can be satisfied by
- Appeal dismissed: evidence violated considering following factors: include, but issuing an appearance notice.
s.8, but admissible under s.24(2) are not restricted to: S. 494 arrest powers of ANYONE without a
(good faith, reasonable belief of -the accuseds presence at the time of the warrant. Used the most by police as they have
legality). search, inherent powers over liberties but only according
- S.178.111Code allowed police to -possession or control of the property or to specific powers by the statute and common law,
tape conversations provided they had place searched, which ordinary citizens do not have
consent of one party. Court said that -ownership of the property or place, s. 507 states that if the officer believes a case
this allowed police to do indirectly what -historical use of the property or item, has been made by oath that will compel the
they could not do directly, by -ability to regulate access, accused to answer the charge, then the officer will
dispensing police from requirement to -existence of a subjective expectation of issue a summons, unless there is evidence
seek a warrant for conducting privacy, and presented that discloses reasonable grounds to
participant surveillance. Police had -the objective reasonableness of the believe that it is necessary in the public interest to
onus of proving they were justified in expectation issue an arrest warrant.
performing warrantless search R. v. Tessling [2004] 3 SCR 432 SM 1. The code has a preference for the procedure
according to Hunter. They did not p35 No expectation of privacy: FLIR that constitutes the least drastic interference w/
satisfy this onus, so the onus of technology the accuseds liberty.
proving the evidence should be Police use overhead Forward Looking Statutory Powers:
excluded then lies on accused. Re: Infra-Red (FLIR) technology to take SEARCH INCIDENT TO ARREST - Once
admission of evidence, cites R. v. pictures of a home with a suspected you arrest someone, you are permitted as a
Collins. marijuana grow-op as it will pick up heat police officer to conduct a search incidental
- Recording should be viewed as patterns emanating from a house. This is a to arrest. (Storrey,Cloutier
search and seizure in all circumstances passive technology because it doesnt v.Langlois,Stillman)
except where all parties to conversation show what is inside the home. But it does - can do this if:
have expressly consented, therefore allow police to glean information about (a) lawfully arrested
standard of reasonableness applied in what is going on inside the home. Police (b) logical basis - some relationship
Hunter should be used to assess had a tip, and used this technology to get between reason for arrest and reason
constitutionality of search. warrant. Turns out there was a grow-op for search
 Do you need reasonable
and probable grounds to
conduct search incidental
to arrest? NO
- Power to search incidental to
arrest, you can also search for
evidence relating to the offense
(as well as weapons or anything
to ensure safety or health) , can
do pat down, check bags,
vehicle, basically the immediate
vicinity
(a) Restricted - no body cavity
searches except for the mouth,
and no body samples to be taken
(b) Justified b/c a suspect has a
lessened REP,
(c) Also,keep in mind search
must meet objectives of
Discretion, Valid Purpose, and
Non-abusive fashion from
Cloutier):
Strip Searches Incident to
Arrest: (Golden)
In addition to RPG for the
arrest, you need RPG to justify a
strip search. Again, may be for
weapons or evidence. Absent
extenuating circumstances, you
must conduct the search at the
station where the person is
afforded more privacy.
R v. Golden (2001 SCC)
Requirements of a reasonable
strip search -only constitutionally
valid at common law where they
are conducted as an incident to a
lawful arrest for the purpose of
discovering weapons in the
detainees possession or
evidence related to the reason for
the arrest. -In addition, the police
must establish reasonable and
probable grounds justifying the
strip search in addition to
reasonable and probable grounds
justifying the arrest. -Strip
searches conducted in the field
could only be justified where
there is a demonstrated
necessity and urgency to search
for weapons or objects that could
be used to threaten the safety of
the accused, the arresting
officers or other individuals.
Relevant factors - see p170 -
Police strip searches require a
high degree of justification
DETENTION POWERS:
Fixed point stops (Dedman,
Hufsky)RIDE PROGRAM
Random, roving stops
(permitted so long as the purpose
of the stop is to investigate
driving-related offenses)
(Ladouceur)
Give police this power
because of concern mostly over
drunk driving, but for other
traffic-related offences as well
(i.e. vehicle fitness, insurance,
licenses etc)
Even though these stops
technically violate s.9, they are
upheld under s.1 out of concern
for safety on highways.
R v. Dedman 1985 SCC)
Can use Waterfield Test to
show that fixed stops are a valid
exercise of police power Facts:
stopped under RIDE program and
refused to provide a breath
sample. Challenged legality
of stop and detention.
Decision: Appeal dismissed public a consented search. Stop itself allowed believe that his or her safety or that of others is at
safety justifies the police action: under s.1. Cop does not suspect that he is risk, the officer may engage in a protective pat-
Reasons: impaired; he had his papers in order. Cop down search of the detained individual. -Both the
(1) Random stops fall within the scope should have let him go as there were no detention and the pat-down search must be
of officer duties under statute of further causes for detention. However, conducted in a reasonable manner. -the
common law: preservation of peace, notices gym bag with a brown baggie and investigative detention should be brief in duration
prevention of crime, and protection of becomes suspicious. Has him open bag and does not impose an obligation on the
life and property where drugs are revealed. detained individual to answer questions posed by
(2) Interference with liberty was Reasons: Police road checks should not the police. . If the officer provides reasonable
reasonable and necessary for carrying be extended beyond the scope of traffic grounds to believe the search necessary, the
out the duty; related to impaired driving related offences. According to Collins, search must also be conducted in a reasonable
(3) Driving is licensed activity subject admission of this real evidence would manner (Collins test)
to regulation and control in the generally not affect trial fairness, but it R. v. Clayton, SCC, 2007, SM
interest of safety would in this case for above reasons. Facts: Affirms Waterfield test, Police stop
(4) Wide publicity of RIDE program Check stop does not constitute a general car with black guys after caller sees parking lot of
reduces the psychological effect of warrant to search vehicles, drivers, or black guys and handguns. Black guys act
stopping innocent drivers (Court passengers; search and seizure of plain suspiciously under questioning and try to run for
acknowledges psych effects of random view evidence. it, and are stopped. Used waterfield test to
stops on innocent drivers, but decides Investigative Detention Power: affirm presence of common law justification of
it is only a slight inconvenience). (Simpson, Mann initial and continuing detentions
R v. Hufsky (1988 SCC) Upheld *There are no detention powers set out in 1) Lawful Duty -met, because although the
power to randomly detain the Criminal Code absent reasonable and police had no specific statutory authority for the
Facts: Appellant stopped at road check probable grounds. Meaning of detention is initial stop, the police were clearly acting in the
under Highway Traffic Act and claimed same for ss. 8 and 9 course of their duty to investigate and prevent
violation of s. 9. He was asked to R. v. Simpson (1993 ON CA) Failure crime when they stopped the car and detained its
surrender license and insurance, to meet investigative requirements: occupants
claims violation of s. 8 as well. exclusion of evidence Accused emerged 2) Justifiable Use -both the initial and the
Decision: Random stops/detentions fall from a suspected crack: house and drove continuing detentions of Clayton and Farmers
with the meaning of s. 9 according to away Police stopped him and asked him to car were justified based on the information the
Therens Test: remove a lump from his jacket which police had, the nature of the offence, and the
Reasons: Detention was arbitrary (no turned out to be cocaine timing and location of the detention. -initial
criteria that govern exercise), but - Accused rights under ss. 9 and 8lCharter detention: -met, as police were justified in
justified, since: were violated, evidence should be stopping all vehicles emerging from the
1) Driving is a licensed and regulated excluded: parking lot and would have been derelict in their
activity 1) Detention requires "articulable cause"; a duties had they sat by and watched vehicles
2) Controlled in the interest of safety hunch is never good enough leave-further detention and search: -facts of
and, 2) Suspicion of illegal activity in the house matching description of race, Clayton wearing
3) Intrusion is proportionate to the was based on weak evidence gloves despite being a passenger and non-glove
purpose being served 3) Police did not know D and there was no weather, and evasive behaviour by Clayton to
*There was no unreasonable search or evidence that D was engaged in criminal remain in the car, gave rise to the reasonable
seizure: requirement to produce a conduct suspicion that the Ds could be in possession of
license never qualifies as a search 4) Passing through a suspected location of the reported handguns and that, as a result, the
under s. 8 (no reasonable expectation illegal activity is not articulable cause lives of the police officers and of the public were
of privacy according to Hunter v. Searches incident to Detention: at risk, justifying their continued detention.
Southam Test) R. v. Mann (2004 SCC) Failure to Waterfield Test for Common Law Police Powers
Random Roving Stops: meet investigative requirements: exclusion (Mann Dedman and Clayton
R v. Ladouceur (1990 SCC) of evidence Police were looking for a Step 1 -Lawful Duty Interference falls w/in
Police power to drive around and select suspect, described as a 21 year old the general scope of a duty imposed by
who to stop aboriginal male. Near the scene of reported statute/common law for the police officer,
Facts: Driver stopped randomly and crime, police stopped A, asked him which is to protect life and property -
was found to be driving with a questions, conducted pat-down search and were the police clearly acting in the
suspended license. Challenged found illegal substances in his pockets. A course of their duty to investigate and
Highway Traffic Act under s. 9 of the was arrested for the offence of possession prevent crime? (Clayton)
Charter. for the purpose of trafficking marijuana. Step 2 -Justifiable use- The search must
Decision: Appeal dismissed police - SCC: evidence should be excluded be conducted in a manner justified by law.-
may stop motorists randomly but only because police had no reasonable reason requires consideration of: -a) necessity:
to inquire about driving related to go beyond pat down search whether an invasion of individual rights
offences, can check 1 ) Officers had reasonable grounds to is necessary in order for the peace
licence/registration, sobriety, and detain, as A matched the description of the officers to perform their duty, and -b)
mechanical fitness only. suspect, near crime scene reasonableness: whether such invasion is
Reasons: Random stops are arbitrary in 2) There were reasonable grounds for a reasonable in light of the public purposes
violation of s. 9, but are saved because: protective search of A; logical possibility served by effective control of criminal
- They are rationally connected to that A was the suspect. acts on the one hand and on the other
highway safety; 3) However, search into the A s pocket was respect for the liberty and fundamental
- Degree of intrusion is minor stops an unreasonable violation of the A's dignity of individuals. NOTE -the
are authorized by statute and are reasonable expectation of privacy. necessity and reasonableness must be
proportional to the ends served. Ratio: To avoid violation of ss. 8 and 9 of assessed against all of the
Limitations: the Charter, the police must follow this circumstances, most notably the extent
R v. Mellenthin (1992 SCC) procedure regarding the detention of an to which the interference with individual
limitation to random roving stops: must individual: liberty is necessary to perform the
be related to a driving offence, affirms -1) Detention for investigative purposes officers duty, the importance of the
Ladoceur, can only do more if RPG, - police officers may detain an individual performance of the duty to the public
or if drugs/alcohol/weapons in plain for good, the liberty interfered with, and the
view investigative purposes if there are nature and extent of that interference
Facts: Accused stopped during a reasonable grounds to suspect in all the (Mann)
random traffic spot check - police circumstances that the individual is Charter Remedies
officer asks what was in a gym bag, connected to a particular crime and that S.24: (1) Anyone whose rights or freedoms,
opening reveals drugs. Claimed his s. 8 such a detention is necessary. (Penney as guaranteed by this Charter, have been infringed
rights violated. says "reasonable suspicion" ok) -the high or denied may apply to a court of competent
Decision: SC says no RPGs to search crime nature of a neighbourhood is not by jurisdiction to obtain such remedy as the court
the bag. Evidence excluded. Also, itself a basis for detaining individuals. considers appropriate and just in the
Mellenthin was not informed of his matching description is though. circumstances
right to refuse to have his bag -2) Search incident to Detention - where a Kinds of remedies you could apply for under this
searched. No voluntary consent, so not police officer has reasonable grounds to section:
 a court order for Crown to
comply if you havent received all
of your evidence.
a witness may be recalled
you can ask for costs to be
awarded (i.e. if there is an
adjournment because of wrongful
Crown action, defense can ask
that their costs be awarded
during that time).
Can ask for a more lenient
sentence.
If crown was really bad, they
may be ordered to pay the costs
of the defendant.
A stay of proceedings
equivalent of an
acquittal * only
granted when the
Crowns behaviour is
especially bad and it is
clear and obvious. i.e.
the Crown has made it
impossible for you to
get a proper defense.
Assuming that we
have a violation not
saved under s. 1 you can
seek a remedy under s.
24(1)and (2) exclusion of
evidence.
S. 1 is rarely relevant to s.8
(but can be relevant to s. 9 and s.
10).
S. 24(2) - Where, in
proceedings under subsection
(1), a court concludes that
evidence was obtained in a
manner that infringed or denied
any rights or freedoms
guaranteed by this Charter, the
evidence shall be excluded if it is
established that, having regard to
all the circumstances, the
admission of it in the
proceedings would bring the
administration of justice into
disrepute.
If you want evidence excluded
under s. 24(2) you must:
Establish standing, must show
on BOP that your clients rights
were violated (not in the
abstract),
Obtained in a manner There punishing offender
has to be a causal ("but for") or
temporal (no but for, but obtained
in same transaction) relationship
between the violation the right
and the obtaining of evidence.
Allow temporal to send message
to cops to behave
Disrepute (R. v. Grant
SM The admission of the
evidence into the proceedings
would bring the administration of
justice into disrepute. NEW
TEST: GRANT! (Collins,
Stillman p167, Buhay
SM p29, Mann SM p52,
Obranski, Elias SMp21
formed old test)
The New Admission of
Evidence Rule aka,
The s. 24(2) Analysis
When faced with an application
for exclusion under s. 24(2), a
court must assess and balance
the effect of admitting the
evidence on societys long-term
confidence in the justice system
having regard to the following
three lines of inquiry:
Seriousness of the Charter-infringing breach on the protected interests of the strengthening or attenuating the self-incriminatory
state conduct accused from whom a statement is character of the evidence.
1. Would the admission of the evidence obtained in breach of the Charter. iv. third inquiry - since evidence in this category is
bring the Administration of Justice into eg. individual informed of choice to real or physical, there is usually less concern
Disrepute by sending message that speak, but compliance with s. as to the reliability of the evidence, and thus, the
courts condone deviation? 10b technically defective at public interest in having a trial adjudicated on its
2. How bad was it? either the informational or merits will usually favour admission of the
1. Flagrant or slight implementational stage derivative evidence.
1. deliberate violation, or pattern of also, statement made spontaneously e. General rule =where reliable evidence is
abuse, tends to support exclusion after, or would have been made regardless discovered as a result of a good faith infringement
2. Reasonable or unreasonable of, a breach that did not greatly undermine the accuseds
3. Understandable or in good faith iv. The third inquiry focusses on the protected interests, admission favored.
3. Good Faith (doesn't include public interest in having the case tried f. Caveat =On the other hand, deliberate and
negligence or blindness) fairly on its merits. This may lead to egregious police conduct that severely impacted
1. Must have acted reasonably consideration of the reliability of the the accuseds protected interests may result in
2. Requires more than intention evidence. exclusion, notwithstanding that the evidence may
3. Looks at the amount of training b. Bodily Evidence be reliable.
received by the officer and the level of i. evidence taken from the body of the R. v. Grant-
knowledge of Charter requirements accused, such as DNA evidence and Facts: The defendant, Grant, was stopped and
1. Police are required to have received breath samples. questioned by the police on the grounds that he
adequate training, therefore ignorance ii. Plucking a hair from the suspects head was acting suspiciously. While being questioned
is not a defense may not be intrusive, and the accuseds by the police Grant admitted to having a handgun
4. Exigency - Here the court will also privacy interest in the evidence may be in his possession. He was then arrested and
considers any need to act without relatively slight. charged with possession of a restricted weapon.
certainty due to urgent situation iii. a body cavity or strip search may be Grant appealed on the grounds that he was
Impact of the breach on the Charter- intrusive, demeaning and objectionable. detained and questioned in violation of the
protected interests of the accused iv. first inquiry - fact-specification Charter.
1. Calls for an evaluation of the extent determination Issues: 2) Should the evidence be admitted in this
to which the breach actually v. second inquiry requires the court case?
undermined the interests protected by to examine the degree to which the search Decision:2) The evidence should be admitted even
the right infringed. and seizure intruded upon the privacy, though it was obtained in violation to the charter
1. fleeting or profoundly intrusive? bodily integrity and human dignity of the Ratio: See above
2. s. 7 right to silence accused. Reason: In balancing all of the relevant issues, the
3. S. 8 Search and Seizure - What high intrusion = the forcible taking of court found that the police in this case acted
level of privacy was expected? blood samples or dental impressions (as in reasonably, and that the public interest
4. S. 9 Arrest and Detention To what Stillman outweighed any effect on the perception of the
degree was the liberty of the accused low intrusion= relatively innocuous administration of justice. weighing the factors,
limited? procedures such as fingerprinting or iris- admission of the gun is favored. -first inquiry -
5. s. 10b - right to counsel recognition technology, or breath sample police conduct was not in bad faith, egregious, or
2. Not generally directed at the evidence deliberate - admitting the evidence would not
accuseds interest in avoiding a vi. third inquiry favours admission - greatly undermine public confidence in the rule of
conviction evidence obtained from the accuseds law-second inquiry - interests of accused include
Societys interest in the adjudication body is generally reliable, liberty interest (s. 9) and right to counsel (s. 10b) -
of the case on its merits. c. Non-bodily Physical impact of the infringement of Mr. Grants rights
1. Would the truth-seeking function of Evidence under ss. 9 and 10(b) of the Charter was
the criminal trial process be better i. first inquiry - fact-specification significant.-third inquiry - gun is
served by the admission or exclusion determination reliable and thus valuable evidence
of the evidence? ii. second inquiry - breach most often Trial Process
2. How important is the evidence? associated with non-bodily physical Wrongful Convictions
1. Reliability evidence is the s. 8 protection against Causes:
2. Required for trial unreasonable search and seizure The scope of the problem
3. Seriousness of the offence Privacy is the principal interest involved No. 1 Reason Police Misconduct and Tunnel
1. May be a relevant factor, however in such cases. Vision
Can cut both ways illegal search of house more serious than Accomplice and Jailhouse informant testimony
1. Public has a heightened interest in a place of business or automobile Leading Cause Eyewitness testimony (often
an unjustified strip search or body cavity completely genuine).
2. Offender faces a more serious search is demeaning to the suspects Forensic evidence
sentence human dignity and will be viewed as False confessions
3. Grant seems to suggest the extremely serious on that account Prosecutorial misconduct
conflicting lines of reason cancel each Ineffective assistance of counsel
other out iii. third inquiry - Reliability issues not Judicial error and bias
4. Discoverability generally be related to the Charter breach, Racism
1. Would the cops have admission favored Lack of Post-conviction remedies we dont have
discovered the evidence d. Derivative Evidence an independent investigative body, what we have
regardless of the breach? i. physical evidence discovered as a result is still associated with the Crown.
1. Only one of the many factors to be of an unlawfully obtained statement The death penalty
considered therefore not determinative. ii. first inquiry - depends on the factual Prosecution and Defense:
If yes, it would weigh in favour of circumstances of the breach: the more Crown Counsel (Boucher p219)
admitting evidence serious the state conduct, the more the Boucher v. The Queen (Supreme
Application to three kinds of admission of the evidence derived from it Court of Canada (1954)) - Case deals
evidence: tends to undermine public confidence in with the role of the Crown counsel in a criminal
a. Statements by the Accused the rule of law. trial
i. presume exclusion of statements iii. second inquiry - in many cases the It cannot be over-emphasized that the purpose of
obtained in breach of the Charter. Charter right breached is the s. 10(b) right a criminal prosecution is not to obtain a
ii. first inquiry focusses on whether to counsel, which protects the accuseds conviction; it is to lay before a jury what the
admission of the evidence would harm interest in making an informed choice Crown considers to be credible evidence
the repute of justice by associating the whether or not to speak to authorities. The relevant to what is alleged to be a crime
courts with illegal police conduct. relevant consideration at this stage will be Ratio: The role of prosecutor excludes any notion
iii. second inquiry the extent to which the Charter breach of winning or losing; his function is a matter of
right violated by unlawfully obtained impinged upon that interest in a free and public duty than which in civil life there can be
statements is often the right to counsel informed choice. none charged with greater personal responsibility
under s. 10(b) discoverability of the derivative evidence Disclosure Stinchcombe
particular circumstances may may also be important as a factor - Prosecutor should make timely disclosure to the
attenuate the impact of a Charter accused or defense counsel of all relevant facts
and known witnesses, whether
tending to show guilt or
innocence, or that would affect
the punishment of the accused.
- Although there are no changes
to the Criminal Code, section 7
of the Charter now includes a
broad right to disclosure by order
of the SCC
R. v. Stinchcombe (SCC
1991) - Case imposed a
concrete obligation on the Crown
to disclose its case. This same
requirement is NOT imposed on
the defense.
Issue: The appeal raises the
issue of the Crowns obligation to
make disclosure to the defence
Facts: Crown decided not to call
a witness that gave favourable
testimony to the accused, and
would not produce the
statements made in an interview.
The judge at trial and appeal
refused the application by
defence for disclosure
Reasoning: Requires Crown to
turn over everything in its
possession that is not (1) clearly
irrelevant or (2) anything that is
privileged
- Clearly irrelevant to make
the point that if there is any
uncertainty as to whether it is
relevant, it should be turned over.
- Relevance anything that might
bear on the ability of the defense
to make a full answer in defense.
- Privilege means you own a
privilege, and that evidence is
inadmissible in court. Most
relevant in criminal cases is
informer privilege (i.e. relying
on an informant to obtain a
warrant). Crown can claim
privilege and must tell the
defense that they are doing so,
but not disclose the information
in violation of the privilege. One
exception to informer
privilege is when the very guilt
or innocence of the accused is at
stake.
- If Crown fails to disclose then
defense can challenge it and the
judge will decide if the
information is relevant and not
privileged.
-Evidence obtained by the Crown
is not property of the Crown, it is
property of the public to ensure
that justice is done
- Much court time can be saved if
all evidence is revealed by the
Crown including increases in
guilty pleas, withdrawal of
charges, etc
- Anything less than complete
disclosure by the Crown falls
short of decency and fair play
- This obligation is not absolute,
and is in the discretion of the
Crown with regards to
withholding information and the
timing of the release of
information. For example, the
Crown has to respect the rules of
privilege, and to protect the
identity of informers
-Discretion must also
be exercised with
respect to the
relevance of
information. Doesnt need to (This is the ONLY ground recognized by Selecting the Jury:
provide clearly irrelevant material the SCC). See factors 3 ways to exclude people:
Plea Bargaining: 2. Parliament has outlined in Hall: (1) Challenging the array: (Cr. C. s. 629)
1. Most cases resolved at this stage reproduction of s. 515 strength of (Kent
without going to trial. prosecutions case, gravity offense, R. v. Kent et al (Manitoba Court of Appeal
2. Ok for defence counsel to advise to circumstances of offense, potential for a (1986)) Accused has no right to demand
plea bargain for lesser offence, if have lengthy term of imprisonment. Court also members of their racial/ethnic group on a jury
informed consent noted in Hall that you can detain someone Facts: Member of a Native band is challenging the
Defense Counsel: for their own protection. racial composition of a jury. Only one of those
- Duties of Defence Counsel MOST IMPORTANT TO KEEP IN who identified themselves as Indian sat on the jury
1. When Defending an accused person, MIND we dont need the tertiary Reasoning: It is implicit in the reasoning, that if
the lawyers duty is to protect the client ground if we can make our case based there had been deliberate exclusion of persons of
as far as possible from being convicted on the either of the first two a particular race or origin, that would be contrary
except by a court of competent grounds. So by definition in any case to the Bill of Rights and would require the
jurisdiction and upon legal evidence where we rely on the tertiary dismissal of the array. Accused has no right to
sufficient to support a conviction of the ground, we have already established demand that members of his race be included on
offence. that they dont meet the first two criteria. the jury, just as discriminatory to require certain
2. Admissions made by the accused to Therefore the threat to public argument numbers of people be from certain races
the lawyer may impose strict limitations should NOT come up in the tertiary Decision: Sinclair has not been deprived of a
on the conduct of the defence and the argument because it would have jury of his peers, and thus has not been deprived
accused should be aware of this already been successful in the of any Charter rights
1. EG when the accused admits guilt, second step. So the third step Challenges to the poll:
lawyer cant allow perjury seems to center on the reaction - Judicial exclusion (Cr. C. ss. 632,
a) Tend to have even more limited of the public. The strength of the 633) maybe you know the accused or the judge,
resources than the Crown. case and the seriousness of the also hardship
b) There are limitations placed on offense seem to be overriding (2) Peremptory challenges:
defense if you are certain that your factors here. (Cr. C. s. 634) (Pizzacalla,
client is guilty. I.e. if your client intends PROBLEMS: strength of the case is
Biddle)
on committing perjury, you cant be a tough at this point and you could
Under s 634, both the prosecutor and defence
party to it. You cant actively mislead contaminate the jury pool if they see that
counsel can make peremptory challenges of 4-20
the court. Basically, everything you do someone was denied bail because of the
jurors depending on the seriousness of the crime
to attack the Crowns case is fair game. strength of the prosecutions case.
- Have the ability to insert racial prejudice in the
When you are actively misleading the Reverse Onuses (Cr. C. s. 515(6),
jury selection process.
court that you know is unreliable and Charter, s. 11(e)):
R. v. Pizzacalla p252 (Ontario Court of
false, you cant do that. Key question is who bears the burden of
Appeal (1992)) Jury must be
USA v. Burns and Rafay, SCC proof?
impartial, representative, and competent
2001 - when fugitives are sought to 1. Indictable offense while at large in
Facts: Appellant convicted on indictment in which
be tried for murder by a death penalty another indictable offense If youve
he was alleged to have committed sexual assault.
retentionist state, however similar in demonstrated in the past that you have
Crown used 23 stand asides, 20 of which were to
other respects to our own legal system, done this, less likely that you are going to
prevent men from being on the jury. This resulted
this history weighs powerfully in the get bail. That is why burden is on you to
in the whole jury being composed of women
balance against extradition without prove this.
Decision: Appeal allowed, new trial
assurances. (2) Criminal organization
Bail: ordered
offense (charged with) broad definition of Reasons: Based on the jury selection process, not
- S. 11(e) of the Charter this
the fact that the jury was composed of all women.
provides that those charged (3) Terrorism and national
Selection process of Crown using stand asides to
with an offence have the right security offences
defeat defenses challenges was not right, just so
not to be denied reasonable (4) Indictable offense and not ordinarily a
all women could be present on jury. An apparent
bail without just cause resident of Canada you are a flight risk
attempt by the prosecution to change the
- S. 515(10) Criminal Code (5) Offense based on failure to attend court
composition of the jury so as to exclude
Generally, Onus on Crown to and comply with conditions of release
representatives as occurred in this case, in itself
show why bail should be (6) Serious drug trafficking offenses
undermines the impartiality of a jury
denied (Pearson) in that case SCC addressed
(3)Challenges for cause: (Cr. C. s. 638)
Bail can be denied on 3 whether reverse onus for drug traffickers
(Hubbert, Parks Williams
Grounds s. 515(10): complied with 11(e). Tend to deny bail
Under s. 638, the prosecutor and the accused
Primary - Demonstration that in drug trafficking because its very
are entitled to any number of challenges for cause.
the person is not likely to show lucrative and likely to go back to it.
The most common of which is the challenge for
up for their trial. consider past Also because its lucrative, they have cause that a juror is not indifferent between the
history of not showing up, if resources and connections to get out of Queen and the accused.
you are extremely wealthy you the country. DISSENT in Pearson
Tough to select 12 jurors who have not heard of
could flee to a country with no argued that there is a stereotype of wealthy the case in an age where dissemination of
extradition (not a likely drug traffickers that isnt very accurate. information is so quick
grounds), connection to the They tend to be street level addicts and Once challenge for cause has begun, the party
community (is important) i.e. dealers.
making the challenge may call the proposed juror
job, family, assets, etc (7) S. 469 offences (i.e. as a witness without calling for evidence to
Secondary protection of the murder) Bray, Pugsley, establish a prima facie case
public. If a case can be made that the Sanchez just murder and the rest are You have to demonstrate to the judge that there
person will not adhere to terms of bail crimes against the state (i.e. treason, is a realistic potential that the jury pool as a whole
and possibly re-offend then bail is often alarming the Queen, political crimes). will be biased and not impartial based on
denied. Court will look at: seriousness There is some suggestion that the reverse something that cant be remedied by proper
of the offense (but not always! onus for murder violates s. 11(e). instruction etc Can do this on the
Someone charged with murder may Juries: basis of pre-trial publicity and
NOT actually be a significant risk to the S. 11(f) of the Charter allows any racial bias.
public i.e. domestic violence which is a person charged with an offence to have the The Trial
situational crime); a past criminal benefit of jury if the maximum punishment Quantum and Burden of Proof
record is going to be key especially if for the offence is imprisonment for five Burden of Proof: Who has the
those crimes were committed while on years, or a more sever punishment responsibility? General rule is the Crown has this
bail (kiss of death); 90% plus cases are tried by judge alone Quantum of Proof: What level of proof is
Tertiary (note development - Why do we have juries? required? Beyond a Reasonable Doubt (BRD) or
Morales Hall 1. They connect the community to the Balance of Probabilities (BP)
1. The judge can deny bail for any other justice system: i.e. public education Persuasive Burden: Who has the Burden?
just cause including, the need to 2. Rights to jury trials (Cr. C. s. 473, Usually the Crown, otherwise Reverse
maintain confidence of the Charter, s. 11(f)) but only for a Persuasive Burden
administration of system of justice. small subset of offenses.
Evidentiary Burden:
Who has the Burden to
Raise an Issue? If not
the Crown then
Reverse Evidential
Burden (AOR). This is
the case in regards to
defences.
The burden on the
crown to prove the guilt of an
accused beyond a reasonable
doubt is one of the most
important safeguards in the
criminal justice system
Presumptions may
be: FROM OAKES
permissive or
mandatory
irrebuttable or
rebuttable
rebuttable, three
potential ways the
presumed fact can be
rebutted:
First, the accused may be
required merely to raise a
reasonable doubt as to its
existence.
Secondly, the accused may
have an evidentiary burden to
adduce sufficient evidence to
bring into question the truth of
the presumed fact.
Thirdly, the accused may
have a legal or persuasive
burden to prove on a balance of
probabilities the non-existence of
the presumed fact.
presumptions of law or fact
o Burden of Proof
Presumption of
innocence is a principle of
fundamental justice
Burden falls on the Crown to
demonstrate the requirements
(Burden of Proof) for conviction
beyond a reasonable doubt
(Quantum of Proof)
(woolmington
Conversely, the accused is not
expected to prove his innocence,
must only demonstrate a
reasonable doubt for acquittal
Under the Constitution
Burden of proof is
now codified within s.
11(d) of the Charter
S. 11 Any person charged with
an offence has the right (d) to
be presumed innocent until
proven guilty according to law in
a fair and public hearing by an
independent and impartial
tribunal;
Any criminal offence that
imposes a persuasive reverse
onus (BOP) (allows accused to
be convicted despite RD) violates
s. 11(d) of the Charter
(Oakes)
includes mandatory
presumptions, even if evidential
burdens ("in the absence of
evidence to the contrary") sic
(Downey)
ex. s.8 NCA possession
presumed for trafficking, and
accused must 'establish" that it
wasn't for trafficking (Oakes)
ex. if drunk behind
wheel of care, deemed
to have care and
control of vehicle
(Whyte)
ex. person selling minerals had behaviour that is the product of a free will (b) Or when inaction is viewed as action by the
persuasive burden to show had lawful and controlled body, unhindered by courts (fagan & r. v. miller)
auth. (Laba) external constraints should attract the (c) Omitting to do a legal duty
Exceptions, only if the existence penalty of criminal liability. (ruzic 1. usually statute
of the substituted fact leads inexorably Requires sufficient degree of conscious 2. use common law if not statute- arguable since
to the conclusion that the essential choice and control of action SCC in thornton avoided issue
element exists, with no other Involuntary conduct In Canada statutory obligations sometimes
reasonable possibilities, will the o Reflexive action (instinct), criminalize inaction
statutory presumption be accident Eg. s. 252(1) Failing to stop after an accident
constitutionally valid. (Whyte) o Automatism (see (Hit and Run)
permissive presumptions don't automatism below) - S. 126 Disobeying a Statute
infringe (Downey) Accused engages in a series (Catch all)
Once a violation is demonstrated, the of complex acts without (a) Can be used to criminalize inaction when it is
courts will consider the provision in the actual awareness, Eg. sleep contrary to a statutory provision
light of s. 1 to determine if the walking or dissociation (b) Any provision creating an offence for failure to
infringement is justifiable act can be used w/ s. 126
S. 1 The Canadian Charter of Rights ex. involuntary - man killed step-parents - s. 180 see thornton Below
and Freedoms guarantees the rights while sleepwalking (ruzic
and freedoms set out in it subject only o Includes morally involuntariness (ruzic
to such reasonable limits prescribed by Does not require awareness of
law as can be demonstrably justified in consequences R. v. thornton
a free and democratic society. - HIV positive and donated blood
In their analysis the court will consider - Charged w/ s. 180(1) common nuisance
the criteria set out in Oakes (the Absolute Liability endangering public
Oakes test) Some offences do not require mens rea (a) "endanger" doesn't require actual
(1) There must be a pressing and Actus Reus is sufficient for a conviction injury/damage, and includes even slight risks
substantial objective Photo Radar may be an example - Court found him guilty on the grounds that he
(2) The means must be proportional Absolute Liability + Possible Jail Time = failed to live up to the duties of civil legal duty.
(a) The means must be rationally violation of s. 7 of Charter (a) legal duty PROBABLY includes common law
connected to the objective Contemporaneity duties (OCA in thornton, and SCC in R. v.
(b) There must be minimal impairment It is a principle of natural justice, and of Cuerrier)
of rights our law that actus non facit reum nisi mens Legal Duties PROBABLY include Common Law
(c) There must be proportionality sit rea. The intent and the act must concur ex. Under the common law anyone carrying such
between the infringement and objective [in time] to constitute the crime. (Must a dangerous weapon as a rifle is under the duty to
Where a provision fails as it did in coincide in time) (Fowler v. Padget, take such precaution in its use as, in the
Oakes, an appropriate constitutional fagan, cooper) circumstances, would be observed by a
remedy will be applied - when faced with contemporaneity, argue reasonably careful man. (R. v. Coyne, 1958)
Reverse onus placed on drug continuing transaction - analysis of ex. a parent is under a legal duty at
possession amounting to trafficking omission stuff should be reserved to common law to take reasonable steps to
was overturned in Oakes where statute creates duty (from Pare) protect his or her child from illegal violence
Reverse onus placed on Care and Sometimes there is a fuzziness used by the other parent or by a third person
Control offences was upheld in Whyte o Fagan v. Commissioner of towards the child which the parent foresees
Reverse onus placed on Living on the Metropolitan Police or ought to foresee. R v. Popen, 1981
Avails of Prostitution was upheld in Act driving the car onto the cops foot, ex. moore - implied duty to provide one's
Downey preceded the mens rea component, i.e. name/address before arrest, failing which you are
Quantum of Proof (Lifchus) failure to remove the car guilty of obstruction of justice (moore
For Criminal Cases Beyond a Court viewed the action and failure to Common Nuisance
Reasonable Doubt (BRD) move the car as a single continuous action 180. (1) Every one who commits a common
B. Does not require absolute certainty R. v. Miller nuisance and thereby (a) endangers the lives,
(Lifchus), but falls much closer to AC R. v. miller accidentally set mattress safety or health of the public, or (b) causes
than BOP (Starr) on fire but did nothing to stop fire from physical injury to any person, is guilty of an
C. Requires more than probably consuming house indictable offence and liable to imprisonment for a
guilty, i.e. higher than BOP, if this is An unintentional act followed by an term not exceeding two years
the best the jury can agree upon then intentional omission to rectify that act Definition
they must acquit or its consequences can be regarded (2) For the purposes of this section, every one
D. based on reason and common in toto as an intentional act commits a common nuisance who does an
sense, not sympathy/prejudice o R. v. Cooper (only Canadian case of unlawful act or fails to discharge a legal duty and
E. "In short if, based upon the evidence the three) thereby (a) endangers the lives, safety, health,
before the court, you are sure that the SCC - It was sufficient that the intent property or comfort of the public; or (b) obstructs
accused committed the offence you and the act of strangulation coincided at the public in the exercise or enjoyment of any
should convict since this demonstrates some point. It was not requisite that the right that is common to all the subjects of Her
that you are satisfied of his guilt intent continue throughout the entire two Majesty in Canada.
beyond a reasonable doubt." minutes required to cause the death of the 215. (1) Every one is under a legal duty (a) as
(Lifchus) victim." a parent, foster parent, guardian or head of a
Conduct or Actus Reus (Guilty Act) Action, Inaction, & Status family, to provide necessaries of life for a child
Sometimes referred to as the act Action - the verb in the sentence under the age of sixteen years; (b) to provide
requirement Inaction (or Omission) necessaries of life to their spouse or common-law
There is no guilty act w/out a guilty if you see failure to act, identify partner; and (c) to provide necessaries of life to a
mind presumption that it is not generally person under his charge if that person (i) is
(2) Three Requirements for Actus Reus criminally culpable. Then talk about unable, by reason of detention, age, illness,
1. Subject2. Voluntary (ruzic 3. exceptions, give examples, mention mental disorder or other cause, to withdraw
Prohibited Act4. Circumstances (ONLY possibility that duty could be derived from himself from that charge, and (ii) is unable to
when explicitly required in statute) common law but SCC in thornton provide himself with necessaries of life.
5. consequences/causation deliberately avoided the issue, find an 126. (1) Every one who, without lawful excuse,
Voluntariness example from CC that sets out duty, find an contravenes an Act of Parliament by wilfully doing
For any offence, the actus reus is not offence provision in CC anything that it forbids or by wilfully omitting to do
satisfied unless the defendant acted Eg. Failing to stop a blind man from anything that it requires to be done is, unless a
voluntarily walking off a cliff punishment is expressly provided by law, guilty of
Criminal liability cannot be attributed As a default, is not criminal (for policy an indictable offence and liable to imprisonment
to a person unless that person is reasons) for a term not exceeding two years.
responsible for his or her acts - Exceptions S. 216 - Every one who undertakes to
(a) Where Good Samaritan laws have administer surgical or medical treatment to
It is a principle of fundamental been enacted, (Quebec) another person or to do any other lawful act that
justice that only voluntary conduct - may endanger the life of another person is, except
in cases of necessity, under a
legal duty to have and to use
reasonable knowledge, skill and
care in so doing.
S. 219 Criminal
Negligence (1) Every one is
criminally negligent who (a)
in doing anything, or(b) in
omitting to do anything that it
is his duty to do, shows
wanton or reckless disregard
for the lives or safety of other
persons.
Status
Generally, you cannot
criminalize status
Some offences have
attempted to restrict
certain status type
activities or some specific
state of affairs, Most have
been repealed
Vagrancy (void in
Heywood)
Keeper, inmate, or
being found in a gaming
(s. 202) or bawdy house
(s. 210)
Living off the avails of
prostitution (s. 212)
Nude in a public place (s.
174)
Possession offences s.
4(3) - need a measure of
control on the part of the
person deemed to be in
constructive possession -
terrence
Participation or contribution to
a terrorist organization
(s.83.18)
Participation or contribution to a
criminal organization
(s.467.11)
Circumstances
Many offences require a
circumstance under which the
offence was committed
Definition sections, look to s.2
In these cases Circumstance
forms another required
component of Actus Reus
An example is sexual
assault where assault
of a sexual nature
(circumstance) is
committed
- ex. of CCC provisions
that identity relevant
circumstances that
form part of the actus
reus
Consequences and
causation
Examples
o Assault causing
bodily harm
o Criminal negligence
causing death
o Any murder requires
demonstration of
causation
Ss. 224-226 establish
causation rules for homicide
S. 224 Where a person by an
act or omission does any thing
that results in the death of a
human being he causes the death
of that human being
notwithstanding that death from
that cause might have been prevented event, without being spent or without ordinary negligence is insufficient same
by resorting to proper means being in the eyes of the law sufficiently standard is applied to all skill levels -
o If you stab someone and they bleed interrupted by some other act or event. Causation Requirements
out because the ambulance ran out of (nette o But for test
gas on the way to the hospital, you still o Court in nette reworded the finding If he had been given access to
caused his death of Smithers medical attention he would have
S. 225 - Where a person causes to a De minimus = not trivial or lived
human being a bodily injury that is of insignificant = significant Legal causation
itself of a dangerous nature and from The current rule is: A Significant cause of death?
which death results, he causes the significant contributing cause Failure to provide med treat. was
death of that human being Court may have effectively changed a significant cause
notwithstanding that the immediate the requirements for Legal Causation Absolute & Strict Liability
cause of death is proper or improper significant may imply a higher Regulatory Offences vs Criminal
treatment that is applied in good faith legal standard than de minimus, only Offence
o If you stab someone and they die time will tell Is it Criminal or Regulatory?
because the wrong blood type was o Upheld as Constitutional under s. 7 1) Is it provincial leg? All offences
transfused in the hospital, you still in cribbin passed by the provinces can be
caused his death Criminal Offences categorized as regulatory offences or
S. 226 - Where a person causes to a First Degree Murder public welfare offences
human being a bodily injury that results Best not thought of as a separate o note that regulatory offences can be
in death, he causes the death of that offence, is a sentencing provision strict, absolute, or subjective fault
human being notwithstanding that the Consider all murders as a second degree 2) Is it from the CCC? Federal
effect of the bodily injury is only to murder first offences can be either regulatory or
accelerate his death from a disease or Factual and Legal causation, criminal
disorder arising from some other All homicides have the same level of o if from the CCC/drug act (probably),
cause. causation except 1st degree (see below) presume subjective mens rea
o If you stab someone who was about intent is subjective foresight of death
3) If may be regulatory or criminal,
to die from cancer, you still caused (nette consider all the theories:
their death Once second degree murder proven,
o malum in se v. malum prohibitum
Causation consider if 1st degree Cory J- Wholesale
Tests for Causation 1st degree murder requires all second
traditional analysis of absolute
There are two tests for causation, both degree murder causal requirements, plus vs. criminal - some activities are
must be satisfied acts must form an essential, substantial
inherently wrong and prohibited
Factual Causation and integral part of the killing (Nettie,
for the public good.
o onus on crown to prove BRD Harbottle)
licensing theory (Cory J - Wholesale)
o The but for test usually direct physical contribution
certain areas of activity such as
o but for the relevant act, would the Also apply the mens rea requirements
economic activity where you are
consequences have followed? Life sentence, w/ 25 year minimum before
figuratively agreeing to be subject
o Most follow a logical sequence, parole
to a certain form of regulation in
therefore the test is reasonably simple Hypothetical
exchange for a privilege to do that
o Basically, if the act contributed in any Manslaughter - Requirements
activity
way, the but for test is satisfied, and for manslaughter
factual causation is established Vulnerability (Cory J - Wholesale)
o S. 234 - Manslaughter is culpable we pass regulations to protect
o Q for trier of fact (smithers) homicide that is not murder
Legal Causation vulnerable groups, such as workers,
o Manslaughter requires some form of consumers, environment
o onus on crown to prove BRD assault (unlawful act) causing death
o How significant was the relevant o Two elements, Assault and Causation criminal standard may be too harsh
act in producing the consequences? o Assault Requirements for these things, so don't impose the
o Significant contributing cause same stigma
265(1) application of force w/out
beyond de minimus standard (dont just consent regulations to protect public interests
say the de minimus standard) in health, convenience, safety and
voluntariness is always required, not an
(nette reworded smithers general welfare of public
issue here
This is a low standard - death may be Jobidon? Penalty
unexpected and physical reactions we can look to the penalty imposed and decide
Assault is not present where there is
unforeseen, but still responsible whether the legislation is criminal or regulatory
consent
(smithers 4) Interpret what the offence requires:
Consent can only exist where there is no
ex. met - stomach kick caused serious harm o if no mention of absolute liability or subjective
epiglottis to malfunction which fault, PRESUME strict
Consent is vitiated where Non-Trivial
caused death (smithers For Absolute liability - Legislation
Bodily Harm is intended and caused
o Thin skull principle must send a clear and obvious
o NTBH - bodily harm (s. 2) means any
The mere fact that the victim hurt or injury to a person that interferes signal if this is the case. (beaver
suffered from some frailty is with the health or comfort of the person
not sufficient to negate a ex. "automatically and without notice" (pontes
and that is more than merely transient or
criminal act trifling in nature;
o Remoteness - Court in Causation Requirements Other considerations:
smithers recognized the role of Legal cause and but for test Regulatory offences are
remoteness. satisfied? generally structured differently
Multiple Causes But for test Both can carry strict penalties
Acts of accused don't have to be Legal causation including prison
medical cause of death (cribbin Regulatory if it is a regulation
consider ss. 224-226 of conduct in the interests of
Acts don't have to be the most Criminal Negligence Causing
immediate and severe factor in death, Death health, convenience, safety, and
as long as is a supervening cause the general welfare of the public
Two elements, Negligence and (ex. undersized lobsters - pierce
ex. two beat man to death, one only Causation
punched him once (cribbin fisheries)
Negligence Requirements Regulatory if it is a public welfare
Intervening cause - whether an o S. 219 (b)(1) Was there an act or an
act or series of acts (in exceptional offence (ex. dumping prohibition - city
omission? of sault ste. marie
cases an omission or series of Omission must be combined w/ a legal Regulatory if it is passed by one
omissions) consciously performed by duty
the accused is or are so connected with o S. 215 (d) legal duty defined of the provinces
the event that it or they must be Criminal if its in the Criminal
o Was the duty satisfied? Code, (probably the Drugs Act too)
regarded as having a sufficiently
o S.219 wanton disregard DLSOP Criminal if there is a mandatory
substantial causal effect which
gross negligence (marked departure) prison sentence
subsisted up to the happening of the
 For Criminal Offences provision also violates human s. 7 Intent high degree of fault subjective b. Do not confuse with motive and desire, also
there is a presumption rights (wholesale travel (vaillancourt If someone intentionally doesnt matter if accused didnt think was
of full mens rea (beaver Reverse Onus and s. 11(d) does the act, high degree of fault immoral (theroux
of the Charter Knowledge Not lower than intent i. ex. doesnt matter that he didnt want his friend
For Regulatory Offences there is 11. Any person charged with subjective to die - hibbert
a presumption of limited fault an offence has the right Recklessness knows likely and does it
c. Can prove the intention with either of two
requirement (d) to be presumed innocent anyways high degree - close to intent -
things: (hibbert)
Absolute Liability v. until proven guilty according subjective mens rea
Strict Liability v. to law in a fair and public Criminal Negligence lowest level i. Either a desire to bring about certain
Subjective Fault hearing by an independent - objective/statutory s. 219 very close circumstances, or
This distinction and impartial tribunal; to recklessness ss. 220 and 221 ii. knowledge that the circumstances are
applies to regulatory Due diligence reverse onus is substantially certain to result
offences supported in most regulatory offences Subjective States of Fault d. Wilfulness = intention generally (buzzanga and
Absolute Liability = because otherwise it would be too hard Motive or Desire durocher
no fault requirement, for the crown to prove BRD, and also - Not an essential element i. Either conscious purpose or foresaw
conduct is the only not enough stigma in the offence Mens Rea consequences
requirement (wholesale travel - Ulterior purpose for action ii. If person knew consequences were certain or
- no defence of DD - - that which precedes and substantially certain the intended the
pontes p628 p393 induces the exercise of the consequences
Strict Liability = crown must will lewis e. Recklessness can in some cases
demonstrate conduct, but then Fault or Mens Rea (a) distinct from intent (the exercise of a be sufficient
defendant can use the Defence of Definitions free will to use particular means to f. Where either intentionally or willfully are
Due Diligence Where Actus Reus is concerned with produce a particular result)
used, presumption is either desire or certain belief
- If you can show that you have conduct, Mens Rea is concerned with - desire - (step down from motive) - a wish
fault or hope to bring some consequence into g. Even where accused is forced to commit a
done everything that can be
reasonably expected then DDD o For criminal offences both must be effect crime they can intend the consequences
will succeed present to establish guilt - Highest or most subjective mental state (hibbert)
Subjective Fault = onus It is the component that makes the act - Relevant in three cases Knowledge (theroux, Duong)
is on the crown to demonstrate blame-worthy or morally wrong (a) Statutory exceptions eg.
terrorist activity
Triggers presumption that fault is
both fault and conduct BRD
Different than the voluntary required
1. 83.01(1)(b)(i)(a): in whole or in
- look for words like wilfully, with component of conduct part for a political, religious or ideological if leg says knowing - presume
intent, without excuse, Knowledge of a prohibition is not purpose, objective or cause, and certain belief needed, unless some other standard
knowingly, etc. (Pierce) required - see ignorance of the law (b) In support of a defence given - may be believing in a possibility (ex.
Strict Liability is o Also, knowledge that act is wrong or (self-defence, necessity, theroux)- consider wilful blindness, below
presumed in all regulatory immoral is not required duress) Common for possession based
offences (city of sault ste. Concerns a subjective appreciation (c) Evidence of intent, or to offences
marie) that the consequences would follow prove a disputed issue at
available if: The fault requirement can be found in trial (ex. lewis Eg. Cannot possess something unless
the accused reasonably the written statute and the relevant a. Lewis - Dickson on motive - following you are aware of its nature (buzzanga and
believed in a mistaken set of case law propositions: durocher
facts which, if true, would render Often more than one fault component i. (1) As evidence, motive is always Knowledge is based on Belief as
the act or omission innocent, or required relevant and hence evidence of motive is opposed to truth
if he took all reasonable steps to o Eg. Sexual Assault admissible. If you stab a manikin believing it to be
avoid the particular event. requires knowledge of ii. (2) Motive is no part of the crime and is a human you will satisfy the mens rea requirement
Absolute Liability assault, and knowledge (or legally irrelevant to criminal responsibility.
of knowledge
Conduct is the only req. recklessness) of non- It is not an essential element of the Ex. Fraud s. 380 (theroux
Strict Liability consent prosecution's case as a matter of law.
Why have it?Two Theories iii. (3) Proved absence of motive is always the actus reus of the offence of
Onus is on Accused to
fraud will be established by proof
demonstrate due diligence(This Moral Approach an important fact in favour of the accused of:
is the Presumption) Based on liberal theory of and ordinarily worthy of note in a charge to
independent actors with choice, 1. the prohibited act, be it
Subjective Fault the jury.
Crown must show both conduct deserve punishment if choose wrong iv. (4) Conversely, proved presence of an act of deceit, a falsehood or
and fault Mens Rea addresses this at the source motive may be an important factual some other fraudulent means; and
Constitutional Considerations by focusing on states of mind ingredient in the Crown's case, notably on 2. deprivation caused by
Absolute Liability and Has some limitations, especially in the issues of identity and intention, when the prohibited act, which may
S. 7 of the Charter hard cases the evidence is purely circumstantial. consist in actual loss or the
S. 7. Everyone has the right to Eg. Copyright v. (5) Motive is therefore always a question placing of the victims pecuniary
life, liberty and security of the infringement of fact and evidence and the necessity of interests at risk. b.
person and the right not to be Economic Approach (prices referring to motive in the charge to the jury Correspondingly, the mens rea of
deprived thereof except in (tort/regulatory law) and falls within the general duty of the trial fraud is established by proof of: i.
accordance with the principles of sanctions (criminal law)) judge "to not only outline the theories of 1. subjective knowledge of the
fundamental justice. Where two values conflict, society the prosecution and defence but to give prohibited act (certainty); and
Where there is potential jail places a lower price on the one that is the jury matters of evidence essential in
time, there can be no liability to be deterred arriving at a just conclusion." 2. subjective knowledge
w/out fault (Motor Veh. Ref.) Valueless activities are generally vi. (6) Each case will turn on its own that the prohibited act could have
Mere possibility of qualified as criminal activity unique set of circumstances. The issue of (awareness of possibility) as a
imprisonment will trigger liberty A sanction is imposed in proportion to motive is always a matter of degree. consequence the deprivation of
component of s. 7 the expected negative value of the Purpose / Intention / Willfulness another (which deprivation may
Where there is no possibility of crime Highest forms of subjective consist in knowledge that the
imprisonment (even if fine is not Cannot be equal because of the mens rea victims pecuniary interests are
paid), the liberty component is probability of detection (1) Purpose put at risk).
not triggered (pontes Still not sufficient because we do not a. Generally synonymous with Intent, ex. party to an offence - s.
1. Liability without fault is have perfect info to determine except does not include desire (hibbert 23(1)
possible where no risk of jail time appropriate penalty b. S. 21(1)(b) act for the purpose of
Punishments other than jail time Leads to upward bias which can lead aiding a criminal
will not likely trigger s. 7 to a deterrence of lawful activity Recklessness
c. It is not necessary to desire the
(william cameron trucking Mens Rea allows us to conduct lawful
Exception - activity without fear of disproportionate consequences, it is sufficient that the Note: two different levels:
consequences for accidental defendant knew that the consequences Possibility or Probability o
corporations cannot
avail itself of infringements were substantially certain Reckless = possibility
protection offered by Subjective /Objective (2) Intention or Willfulness (PRESUME unless otherwise
s. 7(Irwin Toy), unless the Distinction: a. They are synonymous stated) PRESUME if provision
(Docherty) silent on mens rea
o Likely = probability , murderer told him he was wanted for standard in the case of (1) Actus Reus - Negligence constitutes a marked
ex. s. 229aii cooper - murder - didnt have specific negligence departure (or gross negligence) from the standard
For murder, knowledge but was WB and guilty Criminal Negligence of the reasonable person
recklessness exists under s. 23 of accessory 219. (1) Every one is criminally (2) Mens Rea - Objective foresight of risk of NTBH
where there is after the fact (Duong) negligent who via standard of a reasonable person in the same
subjective knowledge
that death is likely -
ex. zWB accused broke into (a) in doing anything, or circumstances - no need to foresee death in crim
house and terrorized ex -gf, then she let (b) in omitting to do anything that it is his negl causing death
cooper
him sleep with her (Duong) duty to do, shows wanton or reckless Personal characteristics - Not shifted
o [recklessness] is disregard for the lives or safety of other up or down based on personal limitations or
found in the attitude Interpretation persons. experiences or skills
of one who, aware that Causing Death by Criminal Standard lowers only if the defendant
there is danger that If criminal, presume Negligence is incapable of appreciating the nature, quality and
his conduct could bring subjective fault -beaver 220. Every person who by criminal consequences of act (creighton p462)
about the result Some subjective elements are relevant
prohibited by the If silent - presume negligence causes death to another person
Such as: info at time, other factors
is guilty of an indictable offence and liable
criminal law, recklessness (awareness of possibility) beyond their control
(a) where a firearm is used in the
nevertheless persists, Look for mens rea words: (3) Trier of fact must still be convinced BRD that
commission of the offence, to
despite the risk. It is, In a criminal case this negligence occurred (Hundal)
in other words, the imprisonment for life and to a minimum
means recklessness is the default (4) Marked Departure (creighton p462)
conduct of one who theroux p438 punishment of imprisonment for a term of
Constitutional Considerations
sees the risk and who for the purpose of(Intent), four years; and
The SCC has indicated that some
takes the chance. knowingly(Knowledge), (b) in any other case, to imprisonment for offences require a minimum of subjective mens
sansregret p444 intentionally(Intent), life. rea due to their serious nature
willfully(Intent) Any lower standard would trigger s. 7
o Lower level of Causing Bodily Harm by Criminal
subjective mens rea of the Charter
than knowledge, do not
if there are words then the Negligence Examples: Murder (vaillancourt p709),
221. Every one who by criminal negligence
confuse with negligence appropriate fault requirement is applied Attempted Murder, War Crimes, and Crimes
causes bodily harm to another person is
o Risk = takes a deliberate and to the applicable conduct requirement Against Humanity
guilty of an indictable offence and liable to
unjustified risk They all require desire or imprisonment for a term not exceeding ten ex. s. 21(2) - Common intention - the
(buzzanga p430 and years.
certain belief Duong phrase ought to have known in s. 21(2) is of no
durocher p418)
NOTE: maybe modified to
dangerous, force and effect when applied to the crimes of
careless, criminal Consider medical treatment provision murder or attempted murder (R. v. logan)
substantial and unjustified risk
(hamilton sp88), but not clear
negligence - presume S. 216 - Every one who undertakes to Other crimes are very unlikely to
objective, and marked administer surgical or medical treatment to
if applies beyond secondary trigger s. 7 in the same way; Durham, (careless
departure unless crim negl, another person or to do any other lawful storage of firearms s. 86(2) Finlay), (wilfully
liability (i.e. counselling), act that may endanger the life of another
which is marked and set fire to certain things s. 434(a)) Peters,
bring it up and decide - probably person is, except in cases of necessity,
substantial departure. (dangerous driving s. 249) Hundal,
doesnt apply because Fish uses under a legal duty to have and to use
Also, if objective look at (manslaughter requries only reasonable
unjustified risk in the next reasonable knowledge, skill and care in so
capacity and foreseeability of BH s. 222(5)(a))
sentence to clarify, maybe a typo doing.
circumstances creighton p462, (unlawfully causing
not intended to change the law.
wilful blindness bodily harm s. 269) DeSouza
Willful Blindness Parent/guardian duty Participation
relevant only when
(sansregret Duong) Parties v. non-parties
recklessness not sufficient 215. (1) Every one is under a legal duty (a)
Do no apply WB (1) A party to an offence is charged with the same
Proving Subjective Fault as a parent, foster parent, guardian or head
where recklessness is sufficient!
Its redundant
Inferences from of a family, to provide necessaries of life crime as the perpetrator (ss. 21 & 22)
conduct (buzzanga and for a child under the age of sixteen years; (2) A non-party is charged with a separate offence
Proxy for
durocher) (b) to provide necessaries of life to their (such as ss. 23, 23.1 & 463
knowledge - Only relevant accessory after the fact)
o Since people are usually able to spouse or common-law partner; and (c) to
when offence requires knowledge (3) Can be convicted as party even if principal
foresee the consequences of their acts, provide necessaries of life to a person
Used as a substitute for cant be convicted - s 23.1
if a person does an act likely to under his charge if that person (i) is
knowledge but satisfies (4) 23.1 For greater certainty,
produce certain consequences it is, in unable, by reason of detention, age,
requirements for near sections 21 to 23 apply in respect of an
general reasonable to assume that the illness, mental disorder or other cause, to
certain belief accused notwithstanding the fact that the person
accused also foresaw the probable withdraw himself from that charge, and (ii)
where the Crown
consequences of his act, and if he, is unable to provide himself with whom the accused aids or abets, counsels or
proves the existence of a fact procures or receives, comforts or assists cannot
nevertheless, acted so as to produce necessaries of life.
in issue and knowledge of that be convicted of the offence.
those consequences, that he intended.Consider other sections in the inaction
fact is a component of the Principals
section above, ex. 126 (breach of statute)
fault requirement of the crime
charged, wilful blindness as to
Reasonable Person and 180 (common nuisance) S. 21 Aiding or Abetting
Parties to an offence,
(tennant The standard
the existence of that fact is S. 21 (1) Anyone is a party to an offence who,
o Where liability is imposed on a There are three levels Actually commits it;
sufficient to establish a
subjective basis, what a reasonable
culpable state of mind
man ought to have anticipated is
Lowest negligence(1) not Does or omits to do anything for the purpose of
(Duong) aiding any person to commit it; or
merely evidence from which a applied to criminal law
Actual suspicion, combined with Abets any person in committing it.
conclusion may be drawn that the Negligence
S. 21 is usually brought up where more than one
a conscious decision not to make Middle negligence(2) applied
accused anticipated the same person is involved in the committing of a
inquiries which could confirm in most criminal cases involving
consequences. crime H(LI)
that suspicion, is equated in the negligence Circumstances - an offence must have been
Objective States of Fault
Marked departure
eyes of the criminal law with
actual knowledge. (Duong, also
Fairly rare, s. 219
(Hundal, creighton
committed
(Criminal Negligence) is one Act
sansregret
example Highest negligence(3) criminal Anyone who satisfies (a), (b), or (c) can
Look for negligence
Not clear what level of suspicion be charged with the offence itself (thatcher
wanton or reckless Marked and substantial
is required - Dont have to show
disregard departure (JL) This means that someone committing a
that inquiry would have provided Standard (circumstances) crime through the agency of another (b or c) is
dangerous
knowledge, just that the inquiry creighton seen as a principal party in the same way as the
negligent
was not made Same standard for everyone actual perpetrator (a)
duty
ex. WB- accused
Tutton and Tutton
-what would reasonable person
In thatcher the SCC ruled that a jury
helped alleged murderer hide, do in the circumstances
applied an objective (creighton can rule on both a) and b) or c), prosecution does
knew of murder and alleged
not need to choose one or the
other
Even if you cant prove
(a), (b) or (c) can be sufficient for
conviction of the same crime
Did the actions of the
accused have the effect of
encouraging the principals?
must be evidence of
encouragement -dunlop and
sylvester p511
Aiding and abetting are
effectively the same thing
Can be convicted for
an omission (Kulkacki,
dunlop and sylvester
and Sylvester (only
SCC case), Popen, Nixon)
ex. if had authority to
control/stop crime, or if had a
statutory duty to act
kulbacki - mere
presence while girl sped car
dunlop and
sylvester - passive
acquiescence at the scene of the
crime is not enough to constitute
aiding or abetting
however presence may
be evidence that the trier of fact
can use to decide aiding/abetting
have to draw a line
between mere presence and
anything that we can characterize
as offering implicit
encouragement or assistance
Popen - acquiescing
silently with knowledge other
parent is hurting child
Nixon - if purpose in
omitting was to facilitate - ex.
senior officer in jail watching
beating
Innocent Agency:
the person who causes a crime to
be committed by means of the act
of an innocent agent is
considered to be a principal party
under (b) or (c) states that even
where not the person who
actually carried out the act, you
can still be guilty of (b) or (c) if
you aided or encouraged that
person in committing the crime
(passport forgery) berryman
p501.
Consequential
offences - party liability follows
where crime committed is of the
same type as the one which the
accused has assisted
(kirkness)
offence must be similar
and must be sufficiently
contemporaneous with the
contemplated offence
(Kirkness
Where several people
participated in a murder, it is
irrelevant who actually inflicted
the mortal blow, all are parties
and can be charged w/ the same
offence (H)(LI) - consider
causation as principal first, then
as aider/abetter
Fault (hibbert)
Did the accused intend to degree of participation in crime
3) ulterior intention or desire (purpose) that the
help or knew that their actions would Kirkness
person assisted escape as a consequence of
assist? (Desire or near certain belief) (a) factors
the conduct alleged.
purpose is synonymous with ex. unclear if saying stop it ex. accused was present during
intent (hibbert youll kill her good enough to murder, and helped wash clothes - Camponi
accused need not be absolve liability for murder after no exception for spouses
accused facilitated rape and robbery
convictable s. 23.1
Defence -Duress does not of victim (kirkness Can be guilty under s. 23 even if
S. 22 Counselling the principal offender is not convictable - s. 23.1
negate a s. 21 offence, although
common law duress may provide a Commission of an Accessory after murder falls under
separate defence (hibbert p951 p426) Offence s. 240 w/ a stiffer penalty
defence of abandonment 22. (1) Where a person
available, see common counsels another person to sentencing provisions - s. 463,
intention below (Kirkness be a party to an offence and generally half principal but not always
Common Intention that other person is Inchoate Offences Inchoate
S. 21(2) Where two or more persons afterwards a party to that (incomplete) offences: where the
form an intention in common to carry offence, the person who substantive offences are not
out an unlawful purpose and to assist counselled is a party to that offence, completed.
Three types in Canadian law:
each other therein and any one of them notwithstanding that the offence was
in carrying out the common purpose committed in a way different from that
commits an offence each of them who Attempt
which was counselled.
knew or ought to have known that the Incitement (counseling)
commission of the offence would be a Idem Conspiracy
probable consequence of carrying out (2) Every one who counsels another These offences recognize criminal liability for
the common purpose is a party to that person to be a party to an offence is a culpable conduct, and fault that lies between
offence. party to every offence that the other innocent behaviour and the successful completion
commits in consequence of the of a substantive offence.
Result - If two parties plan counselling that the person who
to commit an offence in Rational: criminality does not lie solely in the
counselled knew or ought to have known
conjunction and actually commit was likely to be committed in consequence completion of an offence. There is demonstrable
the offence, both are equally and sufficient harm, once the commission of a
of the counselling.
culpable regardless of who criminal offence has been set in motion to, to
actually committed the offence Definition of counsel sanction the commencement of the offence as
Act requirement (3) For the purposes of this Act, criminal conduct on its own.
counsel includes procure, solicit or Attempt
form a common intention...
(a) Common intention need not be pre- incite. A person who tries to commit a
planned, it can arise just prior to or at 1. Also known as inciting an offence that is criminal offence but does not succeed can
the time of the commission (Kirkness committed, if the offence wasnt nevertheless be found guilty of attempting the
commited then see Incitement, below offence if his or her conduct falls within the terms
No actual assistance is 2. Act - Counsel - includes procure, solicit, of s.24:
required - incite 24. (1) Every one who, having an intent to commit
consequential offences - an offence, does or omits to do anything for the
look at the particular offence
3. Fault
purpose of carrying out the intention is guilty of
1. 1) intention to counsel
committed 2. 2) knew or ought to have known was an attempt to commit the offence whether or not it
(a) s. 21(2) is reserved for where likely - was possible under the circumstances to commit
there has been a break in time between
1. subjective = knowledge the offence.
two offences, and a consequential
2. objective standard except in the case of Question of law
offence occurs after but as a (2) The question whether an act or omission by a
consequence of the planned offence murder; subjective standard. As
person who has an intent to commit an offence is
(Kirkness long as the conseq was not foreseeable,
or is not mere preparation to commit the offence,
the A cannot be convicted.
Must be common intention accused need not be convictable s. 23.1 and too remote to constitute an attempt to commit
the offence, is a question of law.
to carry out an unlawful purpose see also incitement section below, and
Two essential fault note distinction from incitement = s. 24 is the general provision, although
elements (Kirkness incitement (oral), abetting (physical) specific provisions also exist (ex. s 71 -
Accessory after the fact -camponi dueling, 265(1)b assault)
1). common intention to
p530, Duong Act
carry out unlawful purpose
o Must go beyond mere preparation Cline
2) The commission of the 23. (1) An accessory after the fact to an
offence has to be probable (reckless). offence is one who knowing that a person o the distinction between preparation and attempt
and the accused must know or ought to has been a party to the offence receives is essentially a qualitative one, involving the
have known of the probability comforts or assists that person for the relationship between the nature and quality of the
Knew or ought to have purpose of enabling that person to escape. act in question and the nature of the complete
known this implies an objective Does not fall under s. 21, but forms a offence, although consideration must necessarily
standard separate offence be given, in making that qualitative distinction, to
(a) For stigma offences, a subjectiveAct (Camponi) the relative proximity of the act in question to what
standard is applied (just read-down 1) conduct on the part of the accused would have been the completed offence, in terms of
ought to have know) (Logan time, location and acts under the control of the
which had the effect of receiving,
accused remaining to be accomplished. (Deutsch
(b) leave ought to for manslaughter - comforting or assisting a person
objective awareness of risk of NTBH 2) circumstances that such person ex. if A had intent to induce women to be employed
(Davy) had been a party to the offence for intercourse, holding out of financial rewards in
with respect to which the interview could be sufficient actus reus
accused need not be accessoryship is alleged. (Deutsch
convictable s. 23.1
Fault (Camponi o More from Cline evaluated on a case by
Defence - Intention can be1) intention with respect to the case basis
abandoned prior to offence conduct alleged Evidence of similar acts done by the accused
(kirkness 2) knowledge by the accused of the before the offence with which he is charged, and
issue is quality of circumstance that the person was also afterwards if such acts are not too remote in
withdrawal, and D held to a party to the offence with respect time, is admissible to establish a pattern of
different standard depending on to which the accessoryship is conduct from which the Court may properly find
alleged. mens rea.

not essential that the actus reus
be a crime or a tort or even a
moral wrong or social mischief.
when the preparation to commit
a crime is in fact fully complete
and ended, the next step done by
the accused for the purpose and
with the intention of committing a
specific crime constitutes an
actus reus sufficient in law to
establish a criminal attempt to
commit that crime.
o Depends on how obvious mens
rea is - where the accuseds
intention is otherwise proved,
acts which on their face are
equivocal, may, nonetheless, be
sufficiently proximate to
constitute an attempt. Where,
however, there is no extrinsic
evidence of the intent with which
accuseds acts were done, acts of
the accused, which on their face
are equivocal, may be insufficient
to show that the acts were done
with the intent to commit the
crime that the accused is alleged
to have attempted to commit, and
hence insufficient to establish the
offence of attempt. (Sorrell p546)
Fault
o intent to commit offence (mere
recklessness appears to be
insufficient)
o For attempted murder there
must be subjective foresight of
the fact that the death of the
victim was likely to ensue. (Ancio
p543, Logan p545)
Defences o
Impossibility - whether or not it
was possible only a defense
where the offence is imaginary
(dynar p586 p547)
o not defences - Legal
Impossibility = Factual
Impossibility in Canada, both are
different from imaginary crimes
o ex. factually impossible -
accused thought he was
laundering drug money, but it
was set up by the govt (dynar
- Result
o Generally carries half of the
penalty that the completed
offence would bring
51
o sentencing s. 463 (general) and
239 (attempted murder)
Incitement
Two types:
Incitement of an
offence that is actually committed
(counselling - s. 22: where the
inciter, in effect, causes the
commission of the offence
through another person, see
participation above)
Defendant is a party
to the offence
Incitement of an
offence that is not committed (s.
464: an offence of inchoate
liability
Defendant is a non-
party
Same penalty as attempt (half
Also called counseling a of actual offence)
(ii) two or more of its representatives engage
in conduct, whether by act or omission, such
crime that isnt committed Conspiracy
that, if it had been the conduct of only one
Criminal Code., s. 464: A conspiracy exists when two
S. 464 representative, that representative would
or more people agree to commit a criminal
(a) everyone who counsels another have been a party to the offence; and
offence and the offence of conspiracy is
person to commit an indictable offence complete upon their agreement. S. 465 (b) the senior officer who is responsible for the
is, if the offence is not committed, CCC aspect of the organizations activities that is
guilty of an indictable offence and liable If unilateral conspiracy, see relevant to the offence departs or the senior
to the same punishment to which a incitement officers, collectively, depart markedly from the
person who attempts to commit that Again, applies to any criminal standard of care that, in the circumstances, could
offence is liable; and code offence reasonably be expected to prevent a
Act (Dungey, dynar dery representative of the organization from being a
(b) everyone who counsels another smp82)
person to commit an offence party to the offence.
agreement -must have a
punishable on summary conviction is, meeting of at least two minds Concerns a corporation being a party
if the offence is not committed, guilty of must be an underlying offence to an negligence type offence
an offence punishable on summary before the elements of the attempt offence (a) - acting within the scope of their
conviction. can be considered. (dynar p586 p586) authority
offence need not be legally or (b) marked departure must be more than
Can be applied to any Criminal Code
factually impossible (dynar p586 p586) simple negligence or lack of due
offence
requires at least two ppl, diligence
1. ex. unilateral conspiracy (Dery SM
although all conspirators need o does not require actual knowledge
p82)
A. Act
not be identified or convictable
(Dynar p586)
aggregate approach, corporation can
I. Section 22(3) of the Code states that be a party even if no single officer satisfies
counselling includes soliciting, Cant attempt to marked departure as long as the total
procuring, and inciting. This form of conspire (Dery Sp82) equals a marked departure
participation requires not only (a) ex. no consp - two Strict liability offence
completion of an offence, but discussed possibility of 22.2 In respect of an offence that
completion that is a consequence of requires the prosecution to prove
stealing liquor, but didnt
the inciters action.
agree and didnt take steps fault other than negligence
1. Counselling: advise or recommend to complete (dery smp82) an organization is a party to the
2. Procuring: investigate encourage or Fault Requirements (dynar) offence if, with the intent at least
persuade Intention to agree in part to benefit the organization,
3. Soliciting: Entreat or urge At least two ppl must agree (a) one of its senior officers
4. Inciting: Urge, stir up, or stimulate pretending not to agree isnt (a) Acting within the scope of their
i. deliberate encouragement or active authority, is a party to the offence;
agreement (Dynar p586) (b) police
inducement of the commission of a (b) having the mental state required to be
informant cant be one of the two
criminal offence. -Hamilton SM p89
(Dynar p586) a party to the offence and acting within the scope
the materials or statements
Intention to put common of their authority, directs the work of other
made or transmitted by the
design into effect - requires representatives of the organization so that they do
accused must actively induce
or advocate - and not merely knolwedge of terms of agreement the act or make the omission specified in the
describe - the commission of (dynar p586 p547) offence; or
an offence - Hamilton SM p89 More than one person must (c) knowing that a representative of the
II. Does not require agreement as intend (Undercover cops dont count) organization is or is about to be a party to the
conspiracy does, can be unilateral Defence of Impossibility? Only offence, does not take all reasonable measures to
(Dery SM p82) relevant when two people conspire to stop them from being a party to the offence.
III. distinction from abetting = commit an imaginary crime (dynar Applies to all offences other than those
incitement (oral), abetting p586 p547) requiring negligence (subjective fault crimes)
(physical) No aggregate element, one officer must
Corporate Liability
B. Fault have required fault elements
s. 2: organization means (a) a public
I. an accompanying intent or conscious
body, body corporate, society, company, Must be acting within scope
disregard of the substantial and
unjustified risk (i.e. recklessness) firm, partnership, trade union or Must intend to benefit the corporation
inherent in the counselling: that is, it municipality, or (b) an association of Three types
must be shown that the accused either persons that (i) is created for a common Officer is actor
intended that the offence counselled be purpose, (ii) has an operational structure, Officer acts through representatives
committed, or knowingly counselled and (iii) holds itself out to the public as an Officer allows representative to commit
the commission of the offence while association of persons; offence
aware of the unjustified risk that the representative, in respect of an vicarious liability = acts and fault of one person
offence counselled was in fact likely to organization, means a director, partner, are attributed to another - normally disfavored
be committed as a result of the employee, member, agent or contractor of under criminal law, as such a crime may be said
accuseds conduct. (Hamilton Sp91) to offend the principles of fundamental
the organization;
justice under s. 7 - however, a statute that
Do not have to initiate the senior officer means a representative
transaction, can start with party alleged who plays an important role in the applies to only corporations may be immune
to have been incited (Gonzague) establishment of an organizations policies from s. 7 challenge since corporations are
not protected under s. 7
Awareness of a possibility
or is responsible for managing an
important aspect of the organizations Ignorance
that the crime will be committed and S. 19 ignorance is not an
activities and, in the case of a body
not justified in taking the risk 1. This
corporate, includes a director, its chief excuse
gives protection to those who teach
potentially unlawful skills to people for executive officer and its chief financial Reason: we expect people to
learn the basic rules of society
a lawful and valuable purpose ie. officer;
(Jorgensen p621)
Teachers 22.1 In respect of an offence
ex. no intention to induce that requires the o Encourage knowledge of the law, if we
bomb-making or burglary- D attached prosecution to prove dont, then there is an incentive to remain
instructions on bomb-making and ignorant
negligence, an organization
burglary to a credit card generator - he
is a party to the offence if Due diligence in trying to figure
hadnt read the instructions
(a) Acting within the scope of their out law not a defence
(Hamilton Sp91)
authority (Jorgensen p621)
Cant attempt to incite
(i) one of its representatives is a party Exceptions
to the offence, or
Colour of right if explicitly
stated in provision: ex. ss.
322 Theft, 429(2), 72(2)
Forcible entry (howson
p615) o Accused charged
with theft for towing a car,
there was no statutory right
for the towing company to
keep the car. o Colour of
right applied, Howson
honestly believed he had
the authority, therefore
could not be applied o
Onus is on the crown to
show that there was no
colour of right 54
Sometimes when one
provision requires
knowledge of breaching
another - ex Probation
Violation (Docherty)
o Care and control of a
motor vehicle while
impaired
o Willful Breach of a term
of probation (keep the
peace and be of good
behaviour)
o Court said willfully
meant there must be
knowledge that his actions
were a breach of his
probation, this basically
circumvents s. 19
o Was still guilty of
care and
control, but got
away with
breach of
parole, law then
removed wilfully
impossible to gain
knowledge of law
because not
published
(jorgensen p621
p621)
mistake of fact, ex.
property
Mistake of law vs Mistake
of Fact
o If you honestly believed
you had satisfied the legal
requirements then this is a
mistake of fact and is a
component of mens rea
A mistake of law is
where you dont
think the law
prohibits what you
are doing
o License suspension
(Prue and Baril (ignore),
MacDougall, pontes p628
p393)
When charged under
CCC, If you didnt actually
know your license was
suspended youll be
acquitted, mistake of fact
(Prue)
When charged under
Provincial Statute, mistake
of law, no defence
(MacDougall)
SCC has said that both
cannot be correct, probably
mistake of law (pontes
p628 p393)
Obscenity
(Jorgensen p621)
o If you dont know that the Until 1983, a husband (d) Complainant communicates a non-
specific content is prohibited, could not be convicted of raping consent
then mistake of law his wife (e) Complainant communicates a desire to
o If you dont actually know Was also difficult to obtain cease sexual conduct
what content is on the tapes, Sexual nature (Chase p638)
conviction
then mistake of facts
Past sexual history was sexual integrity of the victim must be
Officially induced error
(Jorgensen p621, Levis, sp98) admissible violated
Various factors will be objective test: Viewed in the light of
taken into consideration in the course all the circumstances, is the sexual or carnal
of this assessment, including the Doctrine of recent context of the assault visible to a reasonable
efforts made by the accused to obtain complaint, if not immediately observer
information, the clarity or obscurity of made, then adverse assumption The part of the body touched, the
the law, the position and role of the Corroboration required nature of the contact, the situation in which it
official who gave the information or crown to produce evidence beyond occurred, the words and gestures accompanying
opinion, and the clarity, definitiveness testimony the act, and all other
and reasonableness of the information circumstances surrounding the conduct, including
Sexual assault was
or opinion. It is not sufficient in such created in 1983, most restrictions threats which may or may not be accompanied by
cases to conduct a purely subjective
were eliminated force, will be relevant
analysis of the reasonableness of the
information. This aspect of the question
Darrach upheld the - The intent or purpose of the
current evidence exclusion laws s. person committing the act, to the
must be considered from the
perspective of a reasonable person in a 276 (see CAN)- Darach extent that this may appear from
situation similar to that of the accused. Elements Section 265(1) the evidence, may also be a factor
(Levis sp98) and (2) in considering whether the
Six Requirements If have weapon, or conduct is sexual. If the motive of
c) Must be a question of law, or injury, use 272 or 273, resp. the accused is sexual gratification,
mixed fact and law otherwise use 265 to the extent that this may appear
d) Must be consideration of from the evidence, it may be a
Conduct
legal consequences, aware - (Voluntary) touching factor in determining whether the
of possibility that their
actions might be unlawful
Without consent conduct is sexual. It must be
(ewanchuk emphasized, however, that the
e) Require accused to obtain
existence of such a motive is
advice from an appropriate Jurisprudence
official Consent is simply one of many factors to be
f) general, therefore, determined subjectively from considered, the importance of
government officials who are the point of view of the which will vary depending on the
involved in the complainant at the time circumstances.
administration of the law in assault occurred ex. grabbing breasts and saying you
question will be considered If crown can prove want it (Chase
appropriate officials. BRD that the complainant did No requirement of
(jorgensen p621) penetration
not consent in their own
relying on a court Fault
mind, then no consent
judgement for others
insufficent (Chez Pierre)
doesnt matter if 1) Intention to touch
conduct reasonable, or if consent This should be easy
g) Advice received must communicated 2) Without consent
be reasonable if the complainants testimony (pappajohn, sansregret, ewanchuk
h) if an appropriate is the only source of direct evidence as to knowing of, or being reckless
official is consulted, the advice her state of mind, credibility must still be or wilfully blind (not necessary to
obtained will be presumed to be assessed by the trial judge, or jury, in light discuss since recklessness is sufficient)
reasonable unless it appears on of all the evidence. It is open to the to a lack of consent on the part of the
accused to claim that the complainants person touched. (ewanchuk
its face to be utterly
unreasonable. words and actions, before and during the ex. WB - accused broke into
i) Advice must also be incident, raise a reasonable doubt against victims house (Ex gf), she had sex
erroneous her assertion that she, in her mind, did not with him because she was afraid
j) Must rely on the advice want the sexual touching to take place. (sansregret)
given Consent can be vitiated where Belief of consent must relate to
k) ex the advice was there is intent to cause NTBH and NTBH actual communication
obtained before the actions in caused - unclear if applies in SA but lower Can be through words or conduct
question were commenced and courts say yes! (Jobidon) Implied consent is not adequate
Awareness of the possibility the
by showing that the questions Legislation
posed to the official were S. 265(3) no consent when consent has not been given
specifically tailored to the compl. submits/doesnt resist because Mistaken Belief Defence
accuseds situation. (aApplication of force to compl. or 3rd party applies (Oslin)
If all are satisfied then D (b) Threats or fear of above appl of Where the D honestly
is acquitted force. believed that valid consent had been
Does not apply to (c) Fraud given, cannot convict (ewanchuk
advice from lawyers, or reliance (d) Exercise of the accused believed that the
on judgments (only public Authority complainant effectively said yes through
officials?) S. 273.1(1) consent is her words and/or actions.
the voluntary agreement of the silence, passivity, inertness is not
55
sufficient
Sexual Assault and Assault in complainant to engage in sexual
General activity ex. Continuing sexual contact
There are a bunch of S. 273.1(2) no consent after someone has said No is, at a
elements that do not apply to when minimum, reckless conduct which is not
other offences (a) Consent is given by someone excusable. ewanchuk
Effects women and other than the complainant - (Beware of mistakes of law, for example,
children disproportionately (b) Complainant is incapable of even if D believed consent had been given,
History consenting if that consent would not have been valid
(c) Induced through trust, power under one of the statutes, then this is a
or authority
mistake of law and conviction (5) A person commits Unlawful object - (Definitely) Recklessness (possibility of
is still possible) culpable homicide when (tennant and naccarato and death) is the bare minimum standard
D must provide an he causes the death of a Naccarato, vasil First degree Murder
AOR to substantiate their claim human being, the unlawful object An enhanced sentencing
to mistaken belief (pappajohn (a) by means of an unlawful contemplated by Parliament mechanism
p639, Osolin) act; in that section is that which, Must show the requirements for
AOR - Must go (b) by criminal negligence; if prosecuted fully, would second degree murder, then show the
beyond a mere assertion by the (c) by causing that human amount to an indictable additional requirements for first degree
D, need more support, (Osolin) being, by threats or fear of offence requiring mens rea murder
consider Ds testimony and violence or by deception, to do (vasil p705) Requirements
surrounding evidence: anything that causes his death; or ought to have known likely no Must satisfy criteria for Murder from s.
ex. clothes neatly (d) by wilfully frightening longer of effect, unconstitutional 229 and?or s. 230
folded, no damage, present in the that human being, in the case of a (Martineau p721) Must satisfy the criteria
house for hours, no physical child or sick person. Where accused knows death is for one of the categories of First
injuries (pappajohn Second-degree murder s. 229 likely (probable), can still convict Degree Murder set out in s. 231
Can use any evidence 229. Culpable homicide is Very rare, only when no intent to All types require the additional Causal
given before the court - but murder cause bodily harm, but there is requirement of substantial and integral cause
consider s. 276 for (a) where the person who an awareness the death is likely (nette p343, see causation above)
evidence of complainants sexual causes the death of a Consider section 230 There are several different types of
history - upheld as constitutional human being 59 first degree murder
in darrach (i) means to cause his 230. Culpable homicide is murder Use to be capital murder, was
Mistaken Belief death, or where a person causes abolished in 1976, first degree murder was
Defence is invalid when (ii) means to cause him bodily the death of a human established (capital murder carried the possibility
(s. 273.2) harm that he knows is likely to cause being while committing of capital punishment)
Mistaken his death, and is reckless whether or attempting to commit First-degree murder still carries the
belief arises due to death ensues or not; high treason or treason most severe (other than US) sentence in the
self-induced (b) where a person, meaning to or an offence mentioned western world, 25 years w/out the possibility of
intoxication, or willful cause death to a human being or in section 52 parole s. 231(2) - Murder is first degree murder
blindness meaning to cause him bodily harm that (sabotage), 75 (piratical acts), 76 when it is planned and deliberate
note: no point he knows is likely to cause his death, (hijacking an aircraft), 144 or Interpretation (more Widdifield)
discussing WB, since it and being reckless whether death subsection 145(1) or sections 1. planned has natural meaning
equates recklessness ensues or not, by accident or mistake 146 to of calculated scheme or design which
Or the accused causes death to another human being, 148 (escape or rescue from has been carefully thought out, and
did not take notwithstanding that he does not mean prison or lawful custody), section the nature and consequences of which
reasonable steps to to cause death or bodily harm to that 270 (assaulting a peace officer), have been considered and weighed.
ascertain whether human being; or section 271 (sexual assault), 272 Can be a simple plan (Widdifield p724)
consent had actually (c) where a person, for an (sexual assault with a weapon, 2. deliberate means considered,
been given unlawful object, does anything that he threats to a third party or not impulsive (More), slow in deciding,
Also consider - knows or ought to know is likely to causing cautious (Widdifield p724)
trier of fact is to cause death, and thereby causes death bodily harm), 273 (aggravated Attempt to make the
review evidence and to a human being, notwithstanding that sexual assault), 279 (kidnapping distinction between planned and
consider the presence he desires to effect his object without and forcible confinement), 279.1 impulsive murder
or absence of causing death or bodily harm to any (hostage taking), 343 (robbery), Recklessness is sufficient, ex.
reasonable grounds human being. 348 (breaking and entering) or group beat man to death with bats, but
for the belief - s. 229a(ii) 433 or 434 (arson), whether or didnt intend to kill him (Nygaard)
265(4) Fault (simpson not 1. Awareness that a planned
3) (There is NO cooper the person means to cause death beating was likely to result in death is
fault element for (a) subjective intent to cause bodily to any human being and whether sufficient to satisfy the requirements
sexual nature!! harm; or not he knows that death is for first degree murder 60 s. 231 (4)
ewanchuk (b) subjective knowledge that the likely to be caused to any human Murder is first degree murder when it
Homicide bodily harm is of such a nature that it is being, if is murder of a police officer and others
CCC s. 222 likely to result in death. (a) he means to cause bodily Does not require planning or
Homicide Act and fault concurrent harm for the purpose of deliberation
222. (1) A person (cooper p791 p694) (i) facilitating the Must show that accused (Collins
commits homicide Must concur in time - ex. commission of the offence, or
had knowledge of identity
when, directly or accused began strangling before (ii) facilitating his flight
of victim as one of the listed ppl
indirectly, by any passing out (cooper p791 p694) after committing or attempting to
and that such person was acting in
means, he causes the Not strict or precise - If death commit the offence, and the death ensues the course of his duties or
death of a human results from a series of wrongful acts from the bodily harm; was reckless as to such
being. that are part of a single transaction (b) he administers a stupefying or identity and acts of the victim
Kinds of homicide then it must be established that the overpowering thing for a purpose Includes a police officer,
(2) Homicide is requisite intent coincided at some point mentioned in paragraph (a), and the death constable, sheriff, warden, jailer,
culpable or not with the wrongful acts. (cooper p791 ensues therefrom; or other prison workers
culpable. p694) p694 (c) he wilfully stops, by any means, the s. 231(5) While committing or
Non-culpable homicide Must occur during the same breath of a human being for a purpose attempting to commit
(3) Homicide that is transaction (Pare) mentioned in paragraph (a), and the
not culpable is not S. 229 (b) death ensues therefrom. 1. while committing or attempting to
an offence. Transferred intent Charter considerations (Vaillancourt commit requires the killing to be
closely connected, temporally and
Culpable homicide (fontaine p698) p709, martineau p717, Sit)
causally with an enumated offence
(4) Culpable homicide If you kill someone other Any murder or stigma offences
(Russell
is murder or than who you intended to kill, you still which allows for a conviction in the 2. one continuous transaction Russell
manslaughter or satisfy the intent requirement absence of subjective fault (not aware of Sexual assault, hijacking an
infanticide. Cant intend to kill yourself the possibility of death) is of no force or aircraft, kidnapping, forcible
Idem and kill someone else by mistake effect (vaillancourt p709) confinement, hostage taking
(fontaine - (Maybe) As a minimum the Charter Forcible confinement can
S. 229 requires knowledge of the probability of exist almost anywhere there is a
death robbery
 Some Courts of
7, it must be shown that 61 Police officer has a right to issue of whether there was a
the accused made a marked detain etc, wont constitute murder
Appeal have found
that a Robbery could
departure from the usual provocation As normally applied,
standard Victim (provoker) cannot have provocation does not detract from
therefore result in a
charge of first degree ex. injecting drug been incited to provoke by accused the mens rea required to establish
murder, not in Alberta S. (creighton Criminal negligence s. Cant induce the victim to murder. (cameron p772)
231(6) (6.2) 222(5)(b) provoke How it works
(a) 6 Criminal Defined in s. 219 Provocation must be sudden Crown must first show murder
harassment Doing anything, or not doing History is only relevant as it To bring up defense, the accused must
(b) 6.01 Terrorist Activity something they have a duty to gives colour to the reaction only establish an air of reality (thibert
1. Penney says pure Requires a marked and The test (Hill - must meet AOR p760)
politics, substantial departure from the threshold to be put to jury o This is decided by the judge
(c) 6. 1Use of explosives standard A. 1. Would an ordinary Once AoR is established,
in association with criminal Provocation person be deprived of self- Crown must show accused was not
organization provoked BRD
232. (1) Culpable homicide that control?
1. Penney says pure Need only establish a
otherwise would be murder may be I. Subjectivised objective
politics,
reduced to manslaughter if the person standard reasonable doubt
(d) 6.2 Intimidation
who committed it did so in the heat of a. Normal temperament Critiques
Charter challenges
passion caused by sudden and level of self-control (hill) Homosexual panic - seems to
All have failed provocation. b. We expect a minimum favor overreactions that we more
SCC has said that the What is provocation standard for everyone typically associate with men.
minimum standard is (2) A wrongful act or an insult that is of c. not exceptionally Violence against women -
recklessness, but because First such a nature as to be sufficient to excitable, pugnacious (Hill men have used this defence to defend
degree murder does not require a deprive an ordinary person of the d. Transitory states like action against women
reduced component of mens rea, power of self-control is provocation for drunkenness not considered (hill Cultural Background
the recklessness standard is met Defense is probably in effect
the purposes of this section if the e. Constitutionality sound
Minimum 25 year because of the minimum sentence for
accused acted on it on the sudden and because provocation is only brought up
punishment is not grossly murder
before there was time for his passion to after all the elements of Murder are already
disproportionate, challenge on
cool. proven, it does not violate s. 7 of the Defences of Mental Disorder and
these grounds have also failed
For the purposes of this section, the Charter for applying an objective standard Automatism
231(5)(b) - Arkell
questions (cameron p772) Basically there are three
p737, 231(5)(e) Luxton p738
(a) whether a particular f. Personalization branches, unfit to stand trial (ss. 2 &
Manslaughter 222(5), 234,
wrongful act or insult amounted to i. Non-idiosyncratic personal 672.22), Not Criminally Responsible (s.
creighton p462
provocation, and characteristics (hill p750) 16) by reason of mental disorder, and
If a culpable
(b) whether the accused was ii. attributes of accused that we non-mental disorder automatism
homicide is not murder
deprived of the power of self-control by can ascribe to a group, ex. Same age, sex, 63
or infanticide then it is
the provocation that he alleges he race Unfitness to stand Trial
manslaughter, s. 234
received, are questions of fact, but no iii. Consider factors having a s. 2 unfit to stand trial means unable
222(5) A person commits
one shall be deemed to have given special significance to accused (thibert on account of mental disorder to
culpable homicide
provocation to another by doing p760) conduct a defence at any stage of the
when he causes the
anything that he had a legal right to do, Race may be relevant in certain proceedings before a verdict is
death of a human
or by doing anything that the accused situations (Hill p757) rendered or to instruct counsel to do
being,
incited him to do in order to provide the iv. Background history - consider so, and, in particular, unable on account
(a) by means of an unlawful
accused with an excuse for causing background of relationship, including of mental disorder to
act;
death or bodily harm to any human earlier insults which culminated in the final o (a) understand the nature or object of the
(b) by criminal negligence;
being. provocation (Thibert p762) proceedings,
(c) by causing that human
being, by threats or fear Culpable homicide that otherwise note: rejection in context of o (b) understand the possible consequences of
the proceedings, or
of violence or by would be murder is not necessarily romantic relationship alone not basis
o communicate with counsel;
deception, to do manslaughter by reason only that it for defence (Thibert)
anything that causes was committed by a person who was B. 2. Was accused provoked? S. 672.22 accused is presumed fit
his death; or being arrested illegally, but the fact that (thibert until otherwise proven otherwise on BOP
(d) by willfully frightening the illegality of the arrest was known to I. subjective S. 672.23
that human being, in the accused may be evidence of a. can take into account mental o (1) Accused, crown, and court all have the power
provocation for the purpose of this section. state and psychological temperament - to raise issue
the case of a child or
Manslaughter has no Hill o (2) Onus falls on party raising the issue
sick person.
minimum, could be found b. take into consideration o (3) Issue can be raised before or during trial
While culpable
homicide is not the same guilty and get an absolute background and history of relationship s. 672.32(1) Where accused is
as manslaughter, if you discharge (Thibert p763) found to be unfit, the crown may try again at a
commit culpable Restrictions (thibert later date if the accused becomes fit
homicide, manslaughter Can only be made out C. 3. Did the accused act on the Consequences - mental health board,
will be found as a for murder charges, not other provocation on the sudden and panel, may get committed for life
minimum offences like attempted before there was time for his or Interpretation (Whittle p781)
Two forms in murder (Campbell her passion to cool?
need operating mind (same as for
Canada, ss. 222(5) Provocation must be made by Relationship to fault (campbell p770,
voluntary confessions rule)- must possess a
(creighton the victim cameron p772, parent p774)
Actually there are cant be by a 3rd party
limited degree of cognitive ability to understand
what he or she is saying and to comprehend that
four, last two are Cannot be provoked by Defense of
the evidence may be used against him
redundant something done with legal Provocation may be relevant
not a prerequisite that accused be
Unlawful Act s. right in showing that the accused
capable of exercising analytical reasoning in
222(5)(a) Legal right only includes did not have the required
Mens Rea (campbell making a choice to accept the advice of counsel or
Must be either a action that is protected by law, and
Eg. Reaction is so in coming to a decision that best serves her
criminal or regulatory does not include activity that is not
impulsive that they did not interests
offence, and must be explicitly prohibited
Very minimal standard
inherently dangerous Positive legal rights only know death was likely
Very Different from the standards set
Where the There is a legal right to self- This would be applied
out in s. 16
unlawful act is strict defense, therefore where SD is being before defence is raised and
Can be NCR but still fit to stand trial
liability offence, under s. exercised by the deceased, the defense specifically addresses the
of provocation wont fly
 Can be unfit but still
criminally responsible
Not Criminally
Responsible, s. 16
16. (1) No person is criminally
responsible for an act committed
or an omission made while
suffering from a mental disorder
that rendered the person:
incapable of appreciating the
nature and quality of the act or
omission or of knowing that it
was wrong.
Presumption
(2) Every person is
presumed not to
suffer from a
mental disorder so
as to be exempt
from criminal
responsibility by
virtue of subsection
(1), until the
contrary is proved
on the balance of
probabilities.
Burden of proof
(3) The burden of proof
that an accused
was suffering from
a mental disorder
so as to be exempt
from criminal
responsibility is on
the party that raises
the issue.
Procedure
Crown can only
raise issue of MD when;
(Swain
The trier of fact
has found the
accused otherwise
guilty
When the
Defence raises issues
of capacity in regards
to intent
at any other
time, will violate Ds
s. 7 rights
Burden falls on
party alleging MD,
proof is based on a
BOP, and must
overcome a
presumption that the
accused does not
suffer from MD
Previous
presumption was
upheld as
constitutional (chaulk
p800 and Morrissette
p785)
Issues of law
addressed by Judge
Is there an Air of
Reality?
Would the condition
amount to a MD if proved?
Issues of fact
addressed by Jury
Was the accused
capable of appreciating the
nature and quality? Or
Did the accused know
it was wrong?
Consequences (Winko 1. ex. accused thought probabilities. trial judge must first
that he was protected from the examine:
Court has three law (Abbey the psychiatric or
options where Defence is 2. ex. irrestible impulse psychological evidence and
raised, conviction (if not sufficient (Abbey inquire into the foundation and
defence fails), or acquittal 3. ex. satisfied - accused nature of the expert opinion.
or Review Board (if the thought he was god and victim all other available
defence succeeds and was satan - Landry p814 evidence, if any.
accused found to be 2. b) knowing that the act
dangerous) is wrong TJ shouldnt weigh evidence -
Review Board (RB) 1. Wrong means wrong leave for jury fontaine Relevant factors are not
1. Where accused is according to law and ordinary a closed category and may, by way of example,
NCR they are referred to a moral standards (Chaulk include: pp872-874
review board 2. Boils down to whether the the severity of the triggering stimulus,
2. RB has the power accused was impaired in a way that corroborating evidence of bystanders,
to keep accused in a prevented him from making a rational corroborating medical history of
secure institution, release decision automatistic-like dissociative states,
the accused on conditions, 3. Must be able to know right from whether there is evidence
or release the accused wrong in an abstract sense (i.e. killing is of a motive for the crime, and
unconditionally wrong). But must also be able to apply that
whether the alleged
3. Other than knowledge in a rational way to the specific
trigger of the automatism is
unconditional release the killing that took place (Oomen, p809)
1. ex. satisfied - accused was also the victim of the
Review Board must find
convinced deceased was about to kill him, automatistic violence.
that the accused is
dangerous to society and that the only 65 way out was to kill the no single factor is meant
4. RB must employ the least deceased (Oomen p812) to be determinative.
intrusive method that is not contrary to2. ex. satisfied - accused thought 2) If proper evidentiary
public safety he was god and victim was satan - Landry
foundation established, TJ must
5. Decisions by the Review p814
next determine whether to leave
Board must be reviewed at least every Automatism
mental disorder or non-mental
12 months
A state of impaired disorder automatism with the trier
6. There can be no
consciousness, rather than of fact (Stone
presumption of dangerousness
unconsciousness, in which an Comes down to Q of is the condition a
What is a Mental Disorder?
individual, though capable of action, mental disorder?
(1) Judge decides - it is not a medical has no voluntary control over that presume MD
or scientific opinion, but we rely on action (Stone p864) Holistic Approach (Stone p877)
experts as to nature of the Available whenever there is o No single Factor is conclusive
accuseds mental state, illness, evidence of unconsciousness o Were the factors Internal or External?
condition, etc. (simpson throughout the commission of the compare with a normal persons reaction to the
a. ex. MD -personality crime (rabey p817) stimulus p877
disorder or psychopathic Where automatism is shown, use this theory in case of psychological blow
personality (simpson the accused acted involuntarily and automatism 879
(2) Can be any illness, disorder, therefore does not have the required actus contextual objective test -take in the
or abnormal condition of the reus circumstances p880
human mind that impairs the
Falls into two branches - Stone Internal, where the cause of the automatism is
human mind and its p864 internal to the D, this serves as evidence of MD
functioning (cooper)
Non-mental Disorder Often permanent, or at least non-
(3) Excludes self-induced states transient in nature
Automatism leads to a full acquittal
caused by alcohol or drugs as
well as transitory mental states Mental Disorder Automatism
such as hysteria or same as MD, NCR External, where the cause of the
concussion, or non MD Automatism flowchart (stone p837) automatism is external to the D,
-automatism (cooper this serves as evidence of non-MD
1) assess whether a proper automatism
The Two Branches of s. 16 foundation for a defence of automatism
Often transient, ex. Concussion,
If either is satisfied then has been established. extreme stress, etc.
accused is NCR is the equivalent of satisfying
the evidentiary burden for this defence. limited to things ppl would find
Applied to the accused The mere assertion of extremely shocking p878 ex. Stone -
at the time of the act (cooper involuntariness will not suffice. shock of wife insults wasnt extraordinary
Accused doesnt have to Question of mixed law and fact, (Stone) o Continuing Danger
decided by the Judge any condition which is likely to present a
have a normal (or any)
Large presumption that it recurring danger to the public should be treated
emotional response
stems from a disease of the mind (stone as a disease of the mind.
(simpson There are two
distinct branches p837)
1. a) appreciating the nature presumed voluntary - so qual - absence of danger not
and quality of the act, and burden on defence to prove determinative of no MD
1. Was the accused involuntariness BOP the more frequent the trigger, the greater the
unable fully to appreciate not reverse onus justified under s. risk to society, more likely MD
only the nature of the act but 1 o Policy Factors
the natural consequences that defence must make automatism easily feigned
would flow from it?(cooper an assertion of if unclear whether MD or non MD, presume
p791 p694 p694) involuntariness and call MD
2. Requires the accused expert psychiatric or concerns based on facts, ex.
appreciate that they are doing psychological evidence parks p834 was clearly
a certain act, but must also confirming that assertion. sleepwalking (hard to fake), acquit
perceive the consequences, trial judge must consider greater level of
impact and results of that act decide if there is evidence awareness, ex. motive, Stones
3. Do not need to upon which a properly claim suspicious because came from
appreciate the penal instructed jury could find angry wife (stone p837)
consequences attached, or that the accused acted o ex. MD automatism - only cause
that they are applicable to him involuntarily on a balance of was wifes words, continuing
(Abbey danger existed Stone

Types of
Evidence
o Anything from
the first step
o Motive, or lack
thereof
o Expert testimony
o Corroborating evidence (eye-
witnesses, documented history,
etc.)
Onus (stone p837)
o D must show air of Reality of
Automatism
o Evidentiary D must prove to
Judge that automatism was not
due to a MD Balance of
Probabilities
o Legal D must also prove to
the Decider of Facts that he was
disassociative Balance of
Probabilities
Who decides what?
Judge Jury
Is there a Mental Disorder?
Internal v. external,
cont. danger
Air of reality?
There must be some
evidence support the claim
If Judge did not find MD, then
address the question of whether
there was automatism?
Jury will never be
instructed on both s. 16 and
automatism DEFENCES
(1) Intoxication
The conventional defence
(bernard p901)
For specific intent
offences, Intoxication is
considered among other
evidence
If accused was too
intoxicated to have required
mens rea, then must acquit
For all other
offences, requiring general
intent, it is not a defence
Specific v. General Intent
Generally, we do not
consider intoxication for General
Intent offences
Courts still struggle
to make this distinction
Specific Intent require
crown to prove a more
sophisticated intent than General
Intent
general intent
offences - can presume mens rea
from actus reus (bernard p901)
General Intent
Specific Intent
Assault applying
force without consent, simple,
general intent
Sexual Assault
general intent because its
assault, but has many
characteristics of a specific
intent offence
Manslaughter
general intent offence
B&E General intent
B&E with intent to
commit a general intent offence
general intent
Murder requires element an assault or any other
awareness of the probability interference or threat of interference by a
Recognition that human beings can be
person with the bodily integrity of another compelled by circumstance to commit a criminal
of death, specific intent
offence, but in those circumstances we would
Robbery Specific intent person.
view these actions to be justified or excused
B&E with intent to
commit a specific intent Amendment was passed in the Duress is Necessity compelled by
another party
offence specific intent wake of the SCC decision in
Self-Defence is similar
For the exam you will be told daviault
Requirements (perka latimer
whether general or Self-induced intoxication
cannot be a defence to show a lack
specific Imminent peril or danger
of the general intent or
Cant argue that you were 1. Uses a modified objective standard, same
involuntariness where the offence is age, same sex, education, experience
too drunk to know you were
an interference or threat of only consider non-idiosyncratic
drunk
interference with the bodily integrity characteristics
Intoxication can sometimes of another(s. 33.1(3)) and the
be a consideration in general would this person reasonably have
accused departed markedly from the thought they were in imminent peril?
intent offences (see EI below) standard of care in sub s. (2) 2. disaster must be imminent, or harm unavoidable
Otherwise, in general intent Marked departure when and near. It is not enough that the peril is
offences we ignore the fact that accused voluntarily consumed an foreseeable or likely; it must be on the verge of
the accused was intoxicated, intoxicating substance transpiring and virtually certain to occur (latimer
as a matter of law we deem the Very broad, not really a marked p933)
defendant to have been sober departure
Only applies to self induced
intoxication, if you are
objective, so doesnt apply to will probably be interpreted flexibly in order to
satisfy the requirements of s. 7 of the
unknowingly intoxicated and do
stigma offences - counter argue the
standard is absolute, not objective Charter
not have the required mens rea You dont have to wait until the last absolute
you will be acquitted for both doesnt apply to specific intent moment, ex lost hiker ex.
general or specific offences 3. note Wilsons dissent in perka p927 - imminent
(2) Extreme Intoxication risk/emergency not required necessarily
There is now a new defence Summary No reasonable legal alternative (perka
of extreme intoxication (daviault In any case where an accused p927)
1. drunkenness akin to is charged with a general intent offence 1. Again, there is a modified objective standard
(see above)
automatism - such an extreme degree involving violence, the defence of extreme
of intoxication that they were in a state intoxication is NOT valid by s. 33.1 2. If a reasonable person (same age, sex, etc.)
reasonableness, not perfection
akin to automatism or insanity that
might expect to raise a reasonable
cant use intoxication as a reasonable person is not a criminal, no special
defence to an element of the offence that treatment for members of criminal groups
doubt as to their ability to form the
includes intoxication - Penno p911 (perka p927)
minimal mental element required for a
daviault p912 applies to Proportionality -must be proportionality
general intent offence
everything else between the harm inflicted and the harm
2. We can negative mens rea avoided.
However, s. 33.1 may not
and possibly actus reus in cases of
survive a constitutional challenge, remains
extreme intoxication
to be seen 1. Plain objective standard
Applies even in cases of
2. If by committing offence, you would cause more
self-induced intoxication
Justifications & Excuses harm than if you hadnt, the defence of necessity
Applies a reverse onus on
will fail
the defendant, BOP Defences that can be invoked
Relies on expert evidence, by the accused Application
corroborating evidence etc. CC, s. 8(3)
Basics
This is actually 8(3) Every rule and principle of the
been very hard to prove common law that renders any If it is another person threatening you,
duress
Self-induced Intoxication - circumstance a justification or excuse for
When defence not an act or a defence to a charge continues If it is another person beating you, self-
defence
available in force and applies in respect of
33.1 (1) It is not a defence to an proceedings for an offence under this Act If it is due to the environment,
offence referred to in subsection (3) or any other Act of Parliament except in so necessity
that the accused, by reason of self- far as they are altered by or are Importation of Narcotics - perka p927
induced intoxication, lacked the general inconsistent with this Act or any other Act Second step, would it have been
intent or the voluntariness required to of Parliament. reasonable to dump the drugs
commit the offence, where the accused Proof If it was, then you should have,
departed markedly from the standard of D has only evidentiary burden, necessity fails
care as described in subsection (2). Is it ever reasonable to dump drugs
i.e. must raise AOR
No reverse onus on Defendant, (Theyd hunt you down)?
Criminal fault by reason of intoxication Crown must disprove BRD This is not the standard applied,
(2) For the purposes of this section, a Justification v. Excuse (perka reasonable people are not drug smugglers,
person departs markedly from the p927) we dont look at what a reasonable criminal
standard of reasonable care generally Justification is a defence that would do
recognized in Canadian society and is morally justifies a crime Abortion Morgentaler p921
thereby criminally at fault where the 1. Eg. Self-defence No air of reality to necessity of doctors
person, while in a state of self-induced Excuse only legally
intoxication that renders the person providing abortions
justifies a crime There was a reasonable legal
unaware of, or incapable of consciously 1. Eg. Breaking into a cabin
controlling, their behaviour, voluntarily to avoid dying alternative
or involuntarily interferes or threatens Penney says this distinction is Murder latimer p933
to interfere with the bodilyintegrity of arbitrary In UK, murder is eligible to necessity
another person. Both Justification and Excuse (Re A(Children)
have same legal significance Contrary to Dudley and Stevens
Application Necessity
None of the three requirements were
(3) This section applies in respect of an Most other defences are
present
offence under this Act or any other Act variations of necessity
of Parliament that includes as an
 is it ever NOT a
reasonable alternative to
murder?
note: Re A Children -
operation to separate
conjoined infant twins may
be rare case where 70
killing justified
Engaged in criminal
activity does not disentitle
the defendant
Duress
Two important
categories 1. S. 17 CCC 2.
Common Law defence
doesnt negate fault,
but excuses (hibbert p951
p426)
Cant use to negate
fault elements in s. 21(1)b
or 21(2), but may be used to
excuse conduct through
operation of common law
duress (hibbert p951 p429)
S. 17
S. 17
A person who commits an
offence under compulsion by
threats of immediate death or
bodily harm from a person who is
present when the offence is
committed is excused for
committing the offence if the
person believes that the threats
will be carried out and if the
person is not a party to a
conspiracy or association
whereby the person is subject to
compulsion, but this section
does not apply where the offence
that is committed is high treason
or treason, murder, piracy,
attempted murder, sexual
assault, sexual assault with a
weapon, threats to a third party
or causing bodily harm,
aggravated sexual assault,
forcible abduction, hostage
taking, robbery, assault with a
weapon or causing bodily harm,
aggravated assault, unlawfully
causing bodily harm, arson or an
offence under sections 280 to 283
(abduction and detention of
young persons).
Requirements
1. Applies only if the defendant is
the perpetrator
1. If D is a party the common law
defence applies (paquette
p946)
2. Cannot be one of excluded
offences treason, murder,
piracy(?), sexual assault, hostage
taking, robbery, assault with a
weapon, arson
1. Limitations of s. 17 may not
survive a Charter challenge.
3. Distinct from common law in
that:
1. Requires belief in threat of
death or bodily harm on the part
of the defendant - common law
has an objective standard necessary to enable him to defend
himself.
2. doesnt require that there is a
reasonable legal alternative (mena
p949)
4. Cannot be a part of a conspiracy, eg.
gang member etc.
5. Requires immediacy and presence in
the statute, but this has been rendered
unconstitutional (Carker, ruzic p958
p958)
1. note: only unconstitutional when
elements are not present and the
accused is morally involuntary - thus if
the facts line up, use these elements
6. if stuck w/ s. 17, could make charter
arg that unfair to convict when in
morally involuntary position, also
arbitrary (may work for
robbery/assault)
Common Law Defence
Requirements
Use if have principal
offender, or when s. 17
violates charter (ruzic
p958)??
No safe avenue of escape
Modified objective standard
(hibbert p951 p951 p426)
Did the accused reasonably
perceive that there was no
safe alternative (look at
personal circumstances - ex.
his perceptions of the
surrounding facts)
ex. D didnt have authorities
to go to (ruzic p958)
Third parties included - i.e.
threat to 3rd parties, ex. mom -
(ruzic p958)
Proportionality/excluded
offences - arguably no excluded
offences
Similar requirement as
necessity
Not entirely clear, no
explicitly excluded offences
As long as the threat of
harm to ones self is great enough
it can possibly be used to excuse
murder
Never available to
perpetrators (paquette p946)
no immediacy required
(ruzic p958)
Cant be used to negate s.
21(1)b or 21(2), but can be used to
excuse conduct under the
common law defence of duress (a) he causes it under reasonable
(hibbert p951 p429)
Self-Defence
Where successful, leads to
a full acquittal
We are only dealing with
two forms of self-defence 34(1) from death or grievous bodily harm.
&34(2)
no common law
S. 34(1)
34. (1) Every one who is unlawfully
assaulted without having provoked the
assault is justified in repelling force by
force if the force he uses is not
intended to cause death or grievous
bodily harm and is no more than is
Applies where death or
grievous bodily harm are not
intended
Requirements
i. Unlawful assault s. 265
i. Does not require actual force, only
threat of force
ii. People are not often charged with
this type of assault, but it is
relevant for self-defence
iii. If the accused reasonably
perceived that they were about to
be assaulted they satisfy the
requirements for SD (petel p1002)
iv. Reasonable apprehension of
unlawful assault
v. Does not apply in consensual fights
(paice sp108)
vi. Consent is vitiated where NTBH is
both intended and caused
(Jobidon)
vii. Applied to SD, if the accused
consented, then NTBH must be
intended and caused by the
Victim
ii. No Provocation
i. If accused provoked the fight or
assault they are disentitled to the
defence of SD
ii. note that provocation not always
made out in a consensual fight
iii. Not intended to cause grievous
bodily harm
i. Therefore, if you are otherwise guilty
of murder, SD s. 34(1) cannot be
applied - GO TO s. 34(2) if this
isnt present
1. 34(1) will not apply to murder
because it requires an intent to
cause death
ii. Intend even if the victim dies, SD
can still apply if accused did not
intend - doesn matter if victim
died
iv. Proportionality
i. Accused must believe the force they
used to defend themselves was
required
ii. Reasonable person must also
believe the force to be required
(kong sp102)
iii. You are expected to use a minimal
amount of force
1. Though we do not expect perfection
or exactitude
72
iv. Not required to retreat
S. 34(2)
32(2) Every one who is unlawfully
assaulted and who causes death
or grievous bodily harm in
repelling the assault is justified if
apprehension of death or grievous bodily
harm from the violence with which the
assault was originally made or with which
the assailant pursues his purposes; and
(b) he believes, on reasonable grounds,
that he cannot otherwise preserve himself
Requirements
Applies when accused caused
grievous bodily harm, or s. 34(1)
doesnt apply
Requires unlawful assault (or
apprehension of)
1. Where consent, same process as s. 34(1)
Requires a reasonable
apprehension of grievous bodily
harm
1. battered women
1. women in a situation, particularly under a
history of abuse, do not necessarily have to wait
until an assault by their partner is imminent before
they defend themselves. (lavallee p993/malott
p1012)
1. victim of ongoing violence (accused) may be
able to reasonably sense the onset of
violence
2. women are in disadvantaged situation if they
wait for guy to attack them, thus if you require
imminence, you are condemning women to death
by instalment
2. Where evidence exists that an accused is in a
battering relationship, expert testimony can assist
the jury in determining whether the accused had a
reasonable apprehension of death when she acted
by explaining the heightened sensitivity of a
battered woman to her partners acts. The issue is
not what an outsider would have perceived but
what the accused reasonable perceived, given her
situation and experience. (lavallee p993)
3. Prior evidence of abuse is relevant to accused
reasonable belief in the existence of the assault,
and the reasonable apprehension of danger and
the belief that there is no alternative but to kill.
(petel p1002 p1002)
Reasonable belief that there is no
alternative
1. No proportionality requirement, but is built
into reasonable requirements
2. Excessive force does not disentitle
3. Air of Reality must be established
4. Judge does not question credibility, only
trier of fact
5. if can go to authorities, you should, even if
a criminal (cinuous p986)
Do not have to intend to cause death
or grievous bodily harm
No provocation exclusion, unlike s.
34(1)
Reasonable Requirements
Accused is allowed to make mistakes
Modified version of the objective
standard, person history, experience,
capacities etc.
Reasonable person cannot be
intoxicated
Battered Woman Syndrome
There is not an independent discreet
defence known as Battered Woman
Syndrome
73
What is accepted is that women in a
particular situation do not necessarily have
to wait until an assault from their spouse is
imminent before defending themselves
(Lavalle, Mallet)
Context is important
Accused may be able to reasonably
infer the onset of violence
Also, the reasonable person standard
can be based on women
Hasnt been particularly successful
-TRANSFERRED SMR:
-s.229(b): Codified CL doctrine of
transferred intent
-Can be transferred by accident or
mistake regardless of absence of intent (R v
Droste)
-NOTE: Cannot apply to instances in
which D intended to kill himself but
instead killed another, absent moral
blameworthiness (R v Fontaine)
-CL PRESUMPTIONS OF MR: -Violations of s.7 Sault ste Marie says subjective mens rea In cases where parliament implements the term
-NOTE: SC reluctant almost never upheld under s.1 does not apply to administrative and wilful there may be an intention to elevate the
to constitutionalize -Substitutions of elements for essential regulatory offences. mens rea requirement. Though wilful can mean
SMR for all but most elements are also almost never Subjective mens rea can be inferred from reckless or intent, it is context dependent
serious crimes, accepted under s.11(d) the act Theroux Buzzanga [remember that wilful also modifies
instead relies on CL -R v Vaillancourt: Preferred INTENT-consciously choosing to carry out either a consequence or conduct] you decide
presumptions in constitutional principle of SMR but an act/ Act with purpose of accomplishing Conduct Intentional or
favour of SMR (such recognized most are OMR OR knowing that a consequence is reckless act or
as in R v Sault Ste -SMR only required under s.7 for substantially certain and persisting omission [dont
Marie) murder (Martineau) & attempted murder nonetheless (Buzzanga) analyze if there
-CL presumption (R v Logan) The subjective presumption of mens rea is
towards subjective -SUBSTITUTIONS: SCC can change when parliament includes consequences]
existed prior to hesitant to allow MR substitutions mention of it intends to with the .
Charter (R v Prue -Only if substitution would prove purpose of with intent of, wilfuly
1979) beyond reasonable doubt required (Buzzanga) Circumstance Knowledge of
-Courts would read element was present (R v Whyte) Wilfully is context dependent, can be intent s the
knowing into Ex. Martineau: SCC HELD: Cannot or recklessness circumstance
statute, required substitute MR of constructive murder Wilfully might be used to modify a or being
explicit intent (s.230a) (intended to cause bodily harm consequence or conduct reckless
otherwise (Beaver) for purpose of facilitating serious May be used to by legislature to elevate (Theroux) or
-MR must offence) for essential MR of murder mens rea so that its greater than just willfully blind
be established required under s.7 Charter (proof of recklessness to its existence
regarding ALL subjective knowledge victim likely to Live question after Briscoe if Wilful (Briscoe).
elements of AR die) Blindness can substitute for intent where it Consequence Must intend or
-Sault Ste Marie: -INTENT, PURPOSE OR WILFULNESS: is explicitly required by the statute s be reckless or
Where offence is -HIGHEST LEVEL OF SMR: D must act Subjective mens rea has nothing to do with willfully as to
criminal, Crown must with intent/purpose to achieve whether a person thinks what theyre the
establish MR: That D prohibited AR or to wilfully pursue such doings is right or wrong good innocent consequence
committed AR did so result motive doesnt negate intent Theroux
intentionally or Ex. s.229(a)(i): Murder: means to IF TALKING ABOUT INTENTION, MAKE A
recklessly, with cause....death DISTINCTION BETWEEN MOTIVE AND STATUTORY LANGUAGE PREVAILS/ if statutory
knowledge of facts of -LOWER FORMS OF SMR: CITE LEWIS (A and co-accused convicted language seems to intend a lower standard of
offence or with wilful Knowledge & recklessness on murdering co-accuseds daughter by mens rea then common law. Beaver says that
blindness toward -Usually mailing an explosive.) needs to be clear
them. Mere satisfies for most crimes KNOWLEDGE- knowing that a intent, purpose means to etc : ELEVATE
negligence not -NOTE: More peripheral circumstance exists or doesnt, includes MENS REA, wilful =ambiguous, sometimes intent
enough Causation Smithers Standard not wilfully choosing not to confirm suspicion and reckless, sometimes just intent. IF WE SEE
-Recklessness insignificant beyond de minimus in (wilful blindness) WILFUL, WE NEED TO MAKE A DECISION
requires proof D Nette becomes significant and Beaver gives definition of knowledge
subjectively aware of contributing factor for homicide and is actual awareness that a particular OBJECTIVE MENS REA
prohibited risk (R v used for other crimes Moquin (about circumstance exists or does not exist. Negligence; duty; reasonableness [Tutton];
Sansregret) assault)...dissent in Nette says it Knowledge of the character of the dangerousness [Beatty]; unlawfully [DeSousa}.
-CONSTITUTIONAL elevates the standard but majority says circumstance These necessarily import an objective MR
REQUIREMENTS OF MR: just makes it easier for jury to (Briscoe): defines WILFUL BLINDNESS as Unlawfully objective MR. There is a predicate
-ELEMENTS: understand [SEE CHART] when a person is aware of a need for offence.
Creighton: I would use the Nette approach inquiry but making a deliberate choice not Use standard AR/MR analysis but full AR/MR
Considerations in because the court said its the same to make the inquiry because he does not analysis for predicate offence goes under AR
determining standard and was used after in Moquin, wish to know the truth and would rather circumstances and objective dangerousness/risk
constitutional and its the standard I assume court remain ignorant. [NOT CLEAR AFTER of body harm becomes MR circumstances
requirements: would use in future BRISCOE IF STATUTE SAYS INTENT (DeSousa; Creighton).
1. Stigma of offence & available Causation- Higher Standard for First WHETHER WILFUL BLINDNESS IS Objective dangerousness at minimum that a
penalties requiring MR & Degree murder : Substantive and ACCEPTABLE] reasonable person would realize that As action
reflecting particular nature of integral cause of death (Harbottle) Briscoe- says WILFULLY BLIND= would subject another person to the risk of some
crime [SEE CHART] KNOWLEDGElive q about intent harm that is more than trivial or transitory in
-Martineau & Logan: Indicate Canadian courts use moral Briscoe court charged Briscoe under nature.
murder/attempted will require blameworthiness in addition to factual aiding and abetting which statutorily Step 6: Defences
SMR blameworthiness in murder cases JSR requires intent, even though the court **May be more than one possible defence. Argue
-NOTE: New terrorism laws are Look to words that signal objectivity: focused on the fact that Briscoe had the all of them.
diluting SMR (s.83.19) NEGLIGENCE, DUTY, UNLAWFUL, requisite knowledge and wilful blindness. Mistake of fact (different for subjective and
-Need only know of REASONABLE, DANGEROUS, No express mention of whether knowledge objective MR offences) must raise an air of
activities, not of actual attack When a statute is silent start with the and intent can be equated, but the fact that reality. Cinous (AOR) Best to consider under MR.
2. Whether punishment presumption that mens rea is the court proceeded in charging Briscoe Kundeus, Pappajohn, Ewanchuck.
proportionate to moral subjective (Beaver, Sault Ste Marie) under the statute, even though they didnt Provocation Partial defence applicable only to
blameworthiness of offender: This can be altered by parliaments expressly deal with his intent, suggests murder; D raises an AOR at which point Crown
-s.12 Charter: Prohibits grossly specific wording in the statute that the court might believe that knowledge must establish BRD that D wasnt provoked. Hill,
disproportionate punishment (R v Buzzanga is sufficient for intent and therefore that Thiebert, Neily, Daniels, Tran
Smith) Some offences explicitly state mental Wilful Blindness is sufficient for intent. Mental Disorder Person relying on s. 16 must
-Could also violate s.7 (R v element but others are silent Therefore, where intent is required by prove on BOP (can be Crown or A) Cooper, Swain,
Malmo-Levine) If theres language in the statute, use it statute, one might infer that wilful Chaulk
3. Notion those causing harm to interpret blindness is enough because of it being Non-insane Automatism D must prove on BOP.
intentionally must be punished If statute has intentionally altered equated to knowledge and knowledge with Rabey, Parks, Stone
more severely starting presumption, this must be intent Necessity - A must raise an AOR on every element
-Note distinction clear and unambiguous Beaver RECKLESSNESS- foreseeing that risk of then the burden shifts to the Crown to disprove
between murder and Subjective mens rea consequence occurring but choosing to defence BRD. Perka, Latimer, Ungar Cinous (AOR)
manslaughter * Subjective mens rea is often satisfied proceed regardless Sansreget Duress - A must raise an AOR on every element
-ISSUE: Constitutional by lower forms of MR such as You can be reckless to the circumstances then the burden shifts to the Crown to disprove
requirement of SMR under s.7 recklessness, without needing to go to as well. Recklessness is the minimum so defence BRD. Hibbert, Ruzic
Charter leaves Parliament fewer higher forms (ie if you meet its the easiest to prove
options than CL presumption recklessness, you dont need to go to Step 7: Charter Issue:
-Overcoming CL presumption by intent) unless statute requires it (Theroux): subjective foresight of the 11 D charter issue is raised when there is a chance
Parliament only requires explicit Beaver says subjective mens rea consequences and a decision to proceed of conviction with the existence of reasonable
statement presumed for True Crimes regardless. In most cases doubt. Look for a mandatory statutory
RECKLESSNESS is enough to satisfy presumption, or reverse onus provision Oakes
subjective mens rea. OR
When a law has the potential to
convict a morally innocent
person, offends the principles of
fundamental justice and, if
imprisonment, it violates a
persons liberty under s. 7 .In
other words, absolute liability
and imprisonment (even potential
of) can never be combined.
Motor Vehicle Reference
Charter issue also when
someone who is morally
involuntary could be
criminalized, its principle of
fundamental justice: Ruzic
State which Charter section is
violated and how, in relation to
the facts, a conviction with
reasonable doubt may occur.
If Charter violated, perform the
Oakes test.
INTOXICATION
MENTAL STATUS DEFENCE:
INTOXICATION
-GENERAL: D commits criminal
act, but not found criminally
responsible as intoxication
prevents Crown from proving
necessary MR or voluntariness
-UK: BEARDS CASE (1920): (Man
drinking, raped & killed woman,
soon after answered questions in
interview for trade union): HELD:
Convicted of constructive murder
during rape
-PRINCIPLES:
Intoxication can ground insanity
defence if it produces disease of
mind
-DISEASE OF MIND:
Inability to appreciate, due to
intoxication, nature of act
-Evidence of drunkenness which
renders D incapable of forming
specific intent should be taken
into consideration with other
facts proved in order to
determine whether D had specific
intent.
-NOTE: Evidence of drunkenness
falling short of a proved
incapacity in D to form necessary
intent does NOT rebut
presumption that a man intends
the natural consequences of his
acts.
-GENERAL v SPECIFIC INTENT:
-Arose in Beard
-DIFFERENCE: Not a hard fast
rule
-SPECIFIC: Subjective MR: D
must raise defence on balance of
probabilities with expert witness
backing
- should be able to rely on defence when
GENERAL: Objective MR
-R v George:
Distinction to be made between:
1. Intention as applied to acts
considered in relation to their
purpose, AND:
2. Intention as applied to acts
apart from their purposes.
-R v Bernard:
-General intent: Acts done to
achieve immediate end,
conscious doing of prohibited act
-Specific intent: Acts done with
specific and ulterior motive and
intention of furthering or
achieving an illegal object,
objective further to immediate
one at hand
-NOTE: Distinction not necessarily -Consumption of that which D ought know (3): This applies to all offences that include
based on criminal law principles, but on has intoxicating effect (prescriptions etc) assault, interference with bodily integrity, or the
policy concern will not suffice for involuntary intoxication threat thereof [ie. Daviault still available in some
-By making defence available to under s.33.1 (R v Chaulk) general intent situations]
specific intent offences, ensures D will -EXTREME INTOXICATION & GENERAL -Penno Case: SC rejected notion that intoxication
be convicted of something, even where INTENT: could be defence to crime of intoxicated driving
voluntary intoxication precludes -DEVELOPMENT OF DAVIAULT DEFENCE -R v Finta: This does not
conviction for more serious specific -Charter ISSUES with Learys allowance of violate Charter
intent offence (get him on the lesser intoxication as supplying fault element: -CONSTITUTIONALITY OF S.31?
general offence) 1. Departed from -s. 11(d): Probably violates
-R v Daviault (1994): THIS IS requirement that MR occurs at same time as allows for fault substitution.
THE PRIMARY CASE ON INTOXICATION as AR -s.7: Probably violates s. 7 as allows D to be
-HELD: Specific intent offences are 2. Transferred fault convicted despite lacking general intent or
usually more serious, and "failure to of intoxication for mental fault of criminal voluntariness required to commit offence & was
prove added element will often result in act incapable of consciously controlling the behaviour
conviction of lesser offence for which 3. Could allow conviction of one so (Ruzic Case)
added element is not required" severely intoxicated that he acted -s.1: Does fact it is restricted to general intent
-Thus, intoxication can be defence to involuntarily or without intent (s.7 & violent offences save it under Oakes?
both AR and MR s.11(d)) -CASE LAW CONFUSED:
-NON-HARM GENERAL OFFENCES: - -R v Dunn: Bitch-slapped the preamble and
Extreme intoxication is available as a Bernard: Considered constitutionality of declared violation of PFJ
defence Leary -Vickberg Case: HELD: s.33.1 violates s.7 and
-HARMFUL GENERAL OFFENCES: No -Much disagreement, but Wilsons flexible s.11(d) because it substitutes proof of voluntary
defence approach embraced in Daviault intoxication for proof of intent to commit offence
-Cannot use getting drunk -Daviault: (FACTS: Wheelchair victim of general intent
as an excuse for violence drinks with D, wakes to him raping her, he -BUT HELD: Justified under
-NOTE: Parliament responded to case drank nearly a bottle of brandy & many s.1
with s.33 which affirmed defence for beers) -Affirmed: R v Decaire
non-harm general offences -HELD: Extreme intoxication could be -R v BJT: Public too upset to allow extreme
-CATEGORIZING INTENT: defence to general intent offences like intoxication as defence, voluntary intoxication
-SPECIFIC INTENT: Murder, theft, assault or sexual assault (as in this case) constitutes criminal culpability
robbery, aiding & abetting a crime, -Burden on D to -NOTE: Real confusion in case law regarding
assault to resist or prevent arrest & prove on BOP, backed by expert testimony validity! (No SCC yet)
attempted crimes -Hints extreme intoxication could be -INTOXICATION AND MISTAKE OF FACT:
-GENERAL INTENT EXAMPLES: defence to AL or SL offences by negating -R v Moreau: HELD: Intoxication could contribute
Manslaughter, assault, sexual assault, voluntariness in AR to mistaken belief in consent, POLICY reasons
assault causing bodily harm, mischief -Introduced two different intoxication trier of fact should be instructed to disregard
-Probably also includes offences and standards: evidence of intoxication when determining
crimes with objective MR 1. Specific offence, evidence of whether D had Pappajohn defence of mistake of
-GENERAL INTENT: intoxication always relevant, need only fact
-RULE IN LEARY: General Intent raise reasonable doubt about required -Affirmed: s.273.2(a)(i)
-Defence of intent -SPECIFIC INTENT OFFENCES:
intoxication not available in crimes of -Would still face -UK Beard: Can be acquitted for specific offences
general intent lesser general intent charge where evidence of intoxication produces
-Recklessness of voluntary intoxication 2. General intent, evidence of intoxication reasonable doubt regarding CAPACITY to form
is sufficient to constitute the MR for only relevant in rare cases supported by specific intent
crimes of general intent (AFFIRMS: expert evidence -INTENT NOT CAPACITY TO COMMIT
Majewski) -D must prove on BOP that did not have THE OFFENCE:
-DICKSON DISSENT: minimal intent -R v MacAskill: AFFIRMS Beard regarding absence
-Seems counter-intuitive; MR must of intent for specific offences
attach to a particular circumstance and -Intimated parliament should -BUT: R v Robinson: HELD: By making it about
act decide capacity, and not whether that capacity was
-Distinction -CONSTITUTIONAL ARGUMENT: Alcohol exercised, Beard violates s.7 and s.11(d) without
between general and specific intent cannot lead inexorably to conclusion D s.1 justification
offences is irrational possessed MR to commit crime. -R v Daley: NOW: Judge must ensure jury directs
-Defence should be available for all Substituted MR rule has effect of mind to whether intoxication negated intent, not
offences (as in Australia and New eliminating minimal MR required for crime Ds capacity to form intent
Zealand) & would deprive D of fundamental justice. -THRESHOLD AIR OF REALITY TESTS:
-VOLUNTARINESS: - -D must establish there is air of reality that
-Defence not Implicates ss.7 & 11(d) justifies instructing trier of fact about intoxication
available for voluntary intoxication and -ELEMENTS OF DEFENCE: defence
general intent offences -Must be -R v Lemky: Threshold not met by merely being
- proven on BOP by D: NOT a reverse onus slight overly drinking limit
Liable under Leary/Majewski -Expert evidence required to show D likely -Could still foresee result of firing gun
-However, D in state akin to automatism at another
-R v Fontaine: Judge should not determine
involuntarily intoxicated -Must also have corresponding credibility of evidence or keep defence from Jury
-R v King: (Dentist gave man drugs, context on basis that D may not be able to establish
impaired driving, charged) -ONLY extreme intoxication: Even those defence on BOP
-HELD: "Impaired through no act of his significantly drunk will usually be able to -OPERATION OF DEFENCE:
own will, could not reasonably be form requisite MR & to have acted
expected to have known his ability was voluntarilyonly on rare occasions that
impaired or might thereafter become evidence of such extreme state of
impaired when he undertook to drive. intoxication can be advanced & perhaps
-King applied in R v Vickberg where D only on still rarer occasions is it likely to
went into automatic state & assaulted be successful.
after overdosing on prescription drugs -PARLIAMENTARY RESPONSE TO
without instructions & in R v Tramble DAVIAULT: s.33.1
where D was surreptitiously given (1): Self-induced intoxication does not
vodka negate general intent or voluntariness, if:
-NOT applicable for deliberate (2): The person voluntarily or involuntarily
instances, such as unexpected effects interferes or threatens to interfere with the
from smoking pot: R v Brenton bodily integrity of another person

DEFENCES: SELF-DEFENCE,
NECESSITY & DURESS
GENERAL
-CONCEPTUAL
CONSIDERATIONS:
-EXCUSE: Perka v R: Act was
wrong, but excused as was
unavoidable
-Criminal fault goes to
circumstances that caused action
( R v Ruzic)
-Depends on circumstances &
reasonableness
-JUSTIFICATION: Perka v R:
Challenges wrongfulness of
action, which technically
constitutes a crime, as values of
society are better promoted by
disobeying
-Broader application
than excuses
-COMPLETE DEFENCES:
-Do not question that
offence occurred, simply excuses
or justifies act
-Intent irrelevant
-Accepted that both AR & MR
were present
-COMMONALITY: Necessity,
duress, self-defence
-Arise where one is subjected to
external danger, & commits act
that would otherwise be criminal
as way of avoiding harm the
danger presents. (R v Hibbert)
-D must act
reasonably when faced with
external dangers [R v Lavallee]
-Self-
defence: Violence, threats of
violence
-Duress:
Threats of serious harm from
third parties
- force:
Necessity: Dire circumstances of
peril
-In assessing reasonable person
standard, use modified objective
standard (R v Creighton)
-Consider
certain characteristics of D in
particular circumstances
-Race, religion,
upbringing etc
-CODIFIED DEFENCES:
-Self-defence
-Duress for principal
offenders
-COMMON-LAW DEFENCES:
-Necessity
-Duress for indirect
offenders
-FAULT ELEMENT
-Defences are NOT based on MR of A reasonable apprehension of a risk of -NOT totally
crimes charged death or of grievous bodily harm subjective
-BUT: Evidence of such a defence MAY A reasonable belief that it is not possible -s.35: For D who, without justification, assault
give rise to reasonable doubt as to to preserve oneself from harm except by another or provoke an assault but do not cause
whether MR present harming the person death or GBH
- -Unlike (1), D need only believe in threat on -Must retreat
Concerns more so specific offences reasonable grounds, does not require -Must not have formed intent to cause
and serious offences such as murder force to be proportionate nor only as much death or grievous bodily harm
-COMMON INTENT: R v Hibbert: Duress as necessary (R v Herbert) -Must have reasonable apprehension
will not negate formation of common -REASONABLE APPREHENSION OF of death/GBH and reasonable belief
intent under s.21(2) or intent required UNLAWFUL ASSAULT: actions necessary to preserve self
under s.21(1)(b) when one performs -Can have honest & reasonable mistake of from death/GBH
act/omission for purpose of aiding assault [R v Petel] -Generally redundant given s. 34(2)
another to commit offence -Question is whether D reasonably -NOTE: Use the sections in these
-SUBJECTIVE & OBJECTIVE: believe in the circumstances: (R v Malott) notes, despite what Roach says!
-D must subjectively perceive danger & -Can consider prior interactions between -s.37: For D who use force to protect themselves
need to respond, but must ACT those involved: (R v Petel) or "any one under [their] protection from assault"
reasonably -Expert evidence on battered woman -Force no more than necessary to
-Like negligence-based offences: Must syndrome (R v Malott) prevent assault or its repetition
find balance between purely objective -REASONABLE APPREHENSION OF -No requirement of reasonable
standard & totally subjective standard DEATH OR GBH: apprehension of death or GBH, or
-NOTE: Here use more subjective -No legal requirement to wait reasonable belief that force necessary
standard than with negligence-based facing imminent attack to prevent death or GBH
offences -"It may be possible for battered spouse to -NOTE: Different from s. 34(1) as can
-APPROACH: Modified accurately predict onset of violence before be used:
objectified standard: Consider some of first blow is struck, even if outsider to (1) even if you intend to
the circumstances relationship cannot" [R v Lavallee] cause death or GBH (as
-BURDEN OF PROOF: -Need not be imminent long as force is necessary
-Once defence raised, onus -NOTE: & not excessive), and
to disprove BRD on Crown Does not apply to battered woman who is (2) protecting another
-However, D must enter merely sick of smacks person.
some evidence actions were -ISSUE: What "D reasonably perceived
reasonable given her situation & experience" -EXCESSIVE SELF-DEFENCE?
-R v Petel: For self-defence, it is Ds - -Use of excessive force negates
state of mind that is examined and who Modified objective standard defence completely: NO partial
must be given benefit of reasonable -REASONABLE BELIEF IN LACK OF defence available (R v Faid)
doubt ALTERNATIVES TO PREVENT DEATH OR -s. 26 makes user of force responsible
-AIR OF REALITY: Not every defence GBH: for any excessive use of force
available in every case -Can consider history, circumstances and -ISSUE: Plea bargaining incentive?
-Judge (or jury) should only consider perceptions of D in determining -DEFENCE OF PROPERTY: (NOW: s.35 as Roach
those defence a properly instructed reasonableness (R v Herbert) writes, but stick with numbers from class)
jury acting reasonably could acquit on -Evidence of battering, & expert evidence -s.38(1): Allows prevention of one
basis of evidence, AND must have air of on effects of battering, also relevant in taking their property as long as they
reality determining whether belief reasonable [R v do not strike or cause bodily harm
-Judge should assume evidence is true Lavallee] -s.38(2): If trespasser persists in
& leave determination of credibility to -Prior assaults relevant to reasonableness
taking property, can use same force as under
finder of fact [R v Cinous] of belief that D could not extricate herself
normal self-defence under s.34
other than by killing attacker" [R v Petel]
-s.40: Dwelling: As much force as necessary to
SELF-DEFENCE -NOTE: No legal requirement to retreat or
prevent break and entry of dwelling
-LEGISLATION: run away (especially at home)
-Cannot kill to prevent
-s.34(1): Applies to anyone unlawfully -BUT: R v Cinous: Stopped at gas station
crime against property (R v Gee)
assaulted without intentionally when D shot victim in back of the head,
-R v Gunning: Always unreasonable to
provoking the act liable as could have fled
intentionally kill someone to remove them as
-Not consent fights: R v Paice -MODIFIED OBJECTIVE
trespassers
-s.265: Unlawful assaults: Application STANDARD:
-Intentional killing only justified where property
of force or attempts or threats to apply -Can consider Ds circumstances &
owner has ordinary case of self-defence [ss. 34 -
force which cause one to believe on experience when determining reasonable
37]
reasonable grounds it will happen basis of belief, but NOT Ds subjective
-s.41: Can use no more force than necessary to
-Need only reasonably believe about to belief (R v Lavallee)
prevent/remove trespasser from dwelling
be unlawfully assaulted (R v Kong) -Existent of prior abuse not -s.41(2): If D persists, he is committing assault
-NOTE: Must
without justification or provocation
satisfy courts of your reasonable belief determinative, battered
-R v Gunning: Force used to expel trespasser
-Justified in using force as long as woman does not equate to must be reasonable and once raised, burden is on
acquittal Crown to disprove
(1) not intended to cause death or
-Cannot kill in defence of
grievous bodily harm, and -Now also used in provocation, necessity
property
-Cannot be defence for murder as act and CL defence of duress
-R v McKay: Can use more than Gunning-minor
requires intent: R v Bayard -Diminished intelligence can be used:
force
(2) no more than necessary to enable (Nelson Case)
-Lawful entry into a dwelling house/real property
the accused to defend him or herself -And aspergers syndrome: R v
can be provocation of lawful possessor (ss. 41(3)
-Can defend manslaughter in absence Kang
& 34) or, if not lawful possessor, then might have
of intent to kill: R v Kandola -CANNOT use intoxication in determining
an unjustified assault on person who is entering
-Need not measure degree of force to reasonableness of belief of harm (R v
(ss. 42(2) & 35)
ward off attack or retreat (R v Reilly)
-RELATED DEFENCES:
Cadwallader; R v Antley) -But does not negate ACTUAL
-ss. 25 - 33: Provisions dealing with prevention of
-s. 34(2): Available for initial aggressors reasonable grounds
offences and assisting in law enforcement
(R v McIntosh) & when D intended -RELEVANT FACTORS: Age, gender,
-s. 43: 'Correcting' behaviour of children by
death or GBH or even when not strength, past experience with the person;
teachers or parents for correction/education
intending such (R v Pintar) Intellectual impairment; developmental
[Canadian Foundation for Children, Youth and the
-Even if you have the intent to cause disorder
Law]: NO Charter violation
death or grievous bodily harm -NOTE:
-s. 45: Performance of surgery (if reasonable
-Three Elements: Judge must tell Jury where to stop
decision in circumstances, & supported with
Existence of an unlawful assault considering certain factors
reasonable care)
NECESSITY
-GENERAL:
-Excuse, not
justification (unlike self-defence)
-Excludes deliberate, planned or
premeditated decisions to break
law [R v Morgentaler]
-R v Perka:
Recognized defence of necessity
-Imminent
risk
-Action
taken to avoid direct and
immediate peril
-Act morally involuntary as
measured on basis of societys
expectation of appropriate &
normal resistance to pressure
-Do NOT need clean hands to rely
on defence unless results clearly
foreseeable
-R v Latimer: (Dad (who loved
her) considers further surgeries
mutilation, poisons)
-HELD: Three elements to
necessity defence
1.
Imminent peril or danger
[modified objective standard]
-NOTE: Ruzic: Struck down under
s.7 for defence of duress
2. No
reasonable legal alternative
[modified objective standard]
-No defence in face if reasonable
legal alternative (R v Perka; R v
Morgentaler)
-Legal alternatives must be
pursued, regardless of
unappealing nature (R v Latimer)
-NOTE: Determination of no
reasonable legal alternative is
assessed on modified objective
standard
-Need not
wait until attack underway (R v
Lavallee indicates)
-Can carry shank in lawless
prison in face of reasonable
belief of no legal means of
defence (R v Kerr)
3. Proportionality between harm
inflicted and harm avoided
[purely objective standard]
-Must be proportionality between
harm inflicted and harm avoided
(R v Perka)
-Killing is disproportionate to
non-life-threatening suffering: R v
Latimer
-Harms
need only be of comparable
gravity, not spot on
-IMMINENT PERIL OR DANGER:
-R v Ruzic: Requirement of
imminence not restricted to
immediate threats
-R v Latimer: "Disaster must be
imminent, or harm unavoidable &
near. Not enough that peril is
foreseeable or likely; must be on
verge of transpiring & virtually
certain"
-Belief of D must have a
reasonable basis or evidence of
legitimate psychological
condition that rendered him
unable to perceive there was no
imminent peril
-NOTE: Could have argued non-
insane automatism or
automatism in order to meet -Defence for one who acts in response to
requirement of psychological condition forceful & paralyzing threats of grave PROVOCATION
-CONCLUSION: Must have imminence injury to member of family from one who is -GENERAL:
of threat, but threat need not be positioned to actualize threats soon if not -No proportionality requirement since D out of
immediate immediately (R v Langlois) control
-LEGAL OR SAFE ALTERNATIVES: -NOTE: Ruzic takes away need -Plays a role in number of defences,
-R v Latimer: If reasonable for immediate even in conjunction with complete defences
legal alternative to breaking law, then -Reformulated s.17 (without immediacy) -s. 232(1): Reduces murder to manslaughter
NO necessity still restricted against list of prohibited -ONLY partial defence to MURDER
-Alternative must be pursued even if acts -s. 232(2): Provocation:
difficult or unpleasant (versus -CHARTER & S.17: 1. Wrongful (NOT UNLAWFUL) act or insult
dangerous) -R v Ruzic: (D tortured to import, mom sufficient to deprive ordinary person of power of
-Defence available if lack of other threatened): ISSUE: Defence unavailable self-control
options: impaired driving to escape an under s. 17 as one making threats not -R v Daniels: (Confronted long-established
attack in a remote area [R v Berriman] present at time of importation mistress, told to fuck off, D stabbed mistress):
-PROPORTIONALITY -HELD: Violates s. 7 HELD: 2nd degree murder
-R v Latimer: Killing of the Charter -ORDINARY PERSON encourages non-violent
"completely disproportionate" to "non- -Principle of fundamental justice that only reasonable behaviour (R v Hill)
life threatening suffering" voluntary conduct should lead to criminal -But has age, gender & experiences as D (R v
-Must balance of harms, must be of liability Thibert)
comparable gravity -NOTE: Not saved by s. 1 as fails on 2. D must act on it suddenly & before time for
-NOTE: Murder CANNOT be excused proportionality as less restrictive passion to cool
under necessity! alternative (CL defence) is available -Anger alone
-MODIFIED OBJECTIVE STANDARD: -S.17: POST-RUZIC: will not suffice (R v Parent)
-Reasonably tailored to reflect past -CHANGE: No longer required that: -NO PROVOCATION WHEN D INCITES OR V IS
experiences and frailties of D (R v (1) must be threats of immediate death or EXERCISING LEGAL RIGHT:
Hibbert) bodily harm or -s. 232(3): No provocation if V had legal right to do
-Includes ability to perceive (2) that person making threat be present at thing, or if incited by D in order to provide excuse
existence of alternative courses of time of offence for attacking V
action -Party to a conspiracy/association remains -R v Squire: Kick during a fight not provocation for
-Applies to self-defence, unchanged initiating D
duress & necessity -Reason for distinction is that party to an -R v Galgay: HELD: Legal right does not remove
-R v Latimer: PROPORTIONALITY IS offence is not under equivalent duress the provocative quality from verbal insult
PURELY OBJECTIVE STANDARD: -List of excluded offences remains -R v Thibert: HELD: No legal right to tell D to shoot
Proper weight to harms suffered by unchanged him while holding onto Ds wife, thus provocation
victim, reflects moral standards of -Only applies to principle offenders (pre- -LEGAL RIGHT: Act sanctioned by law distinct
community (s. 15(1) rights of disabled) Ruzic) from act failing to incur legal liability
-COMMON-LAW DURESS: -REQUIREMENT OF SUDDEN PROVOCATION
DURESS -APPLICATION: -R v Tripoli: Both provocation & retaliation must
-GENERAL: When D commits crime in -s. 17 stipulates commission so ONLY be sudden
response to threat of harm from applies to principal offenders [R v -Cannot be manifestation of grudge or foreseeable
another Paquette] response to something D initiated (R v Louison)
-MR: Duress does not -Parties to offences are covered by CL -Reaction cannot be prolonged: R v Flegel
negate formation of intent if D charged defence [ss. 21(1)(b) and (c), and s. 21(2)] -Defence of provocation should NOT be left to jury
as party to offence -Can also apply to if no sudden provocation that would make
-May raise a reasonable doubt as to MR Principals unexpected impact on Ds mind (R v Gibson)
otherwise -If -Provocation must come from V: R v Manchuk
-But if you are going to be a reluctant distinction unclear, general rule is to treat -Though D can make reasonable mistake that V
participant, then: both D as principle was involved in provocation: R v Hansford
(1) likely not principal offender but a -NOTE: Often argued with defence of -ISSUE: R v Thibert: Though D had initiated
party anyway or necessity, as has same basis [R v Hibbert] confrontation, insults of V were found to
(2) have full defence of duress -IMMINENT THREAT OR DEATH constitute provocation
-TWO MODES OF DURESS: OF BODILY HARM: -ACT BEFORE PASSIONS COOL:
-s.17: Very restrictive in its application -Need close temporal -SUBJECTIVE TEST: Assessment of what actually
and has been altered by the Supreme connection between threat & harm occurred in mind of D...ascertain whether D was
Court threatened (R v Ruzic) acting as a result of provocation" [R v Hill]
-Requires one making threat to be -Likely interpret -Cannot merely claim
present when crime is committed, and flexibly provocation, must satisfy subjective test
threat must be immediate death or -Can be -Was provocation forefront
bodily harm threat to third party in their minds when D acted?
-CL Defence: Much less restrictive -LEGAL OR SAFE ALTERNATIVE: -FACTORS:
-S.17: -Defence does not apply if a safe avenue of -All factors particular to D
-DEVELOPMENT: escape [R v Hibbert] -Intoxication, (R v Salamon)
-Requirement of immediacy (R v -Like necessity, duress only makes sense -Mental state & psychological temperament [R v
Carker) held to violate s.7 (R v Ruzic) if D had no real choice to commit crime [R Hill]
-Threats can be against 3rd parties (R v v Hibbert] -History of relationship with victim [R v Thibert]
Ruzic) -Obligation to contact police if -NOTE: Deliberation inconsistent with sudden heat
-Threats can by implied (R v Mena; R v possible (R v Keller) of passion may negate defence (R v Malott)
McRae) -Reasonableness of opportunity of escape -R v Gill: (V drives by, calls 3 guys "f***ing geeks,
-Need only is assessed with respect to MODIFIED D strikes car in anger, prompting victim & friend to
subjectively believe, need not be OBJECTIVE PERSON STANDARD get out & confront trio, weapons retrieved from
reasonable (R v Mena) -PROPORTIONALITY: cars & knapsacks, after victim comes at D with a
-Does not explicitly require lack of legal -NECESSITY: Proportionality assessed on beer bottle, D stabs him)
escapes of proportionality because PURELY objective standard [R v Latimer] -HELD: Evidence to believe D acted suddenly &
section lists what crimes will NOT be -DURESS: Must be proportionality between before passions cooled in response to being
covered threat & criminal act taken, as judged on called a "f***ing geek"
-NOT the case in CL modified objective person standard [R v -OBJECTIVE STANDARD OF DEPRIVING
-Defence not available to party to Ruzic] ORDINARY PERSON OF SELF-CONTROL:
conspiracy or association whereby -NOT strictly construed as would -s.232(2): Of such nature as to deprive ordinary
person is subject to compulsion (i.e. jeopardize ability to use duress as defence person of self-control
Gang member being pressed into to serious crimes such as murder (R v -Employs objective standard of reasonable
service) Paquette; R v Hibbert) person, not Ds particular mental make-up (R v
-NOTE: Not likely to survive Wright)
s.7 LIMITED DEFENCES
 -R v -Evidence of provocation may go -Cannot incite that criminal behaviour (say, -s.495(1)(b) Anyone committing criminal
Daniels: Indicated movement to MR: D may not suddenly lose through pressure, harassment or offence, subject to 495(2)/(3)
towards modified objective control, but still be unable to form enticement etc) -s. 495(1)(c) Reasonably believes warrant
standard necessary intent, possibly only -REASONABLE SUSPICION: Less than exists
-MODIFIED through anger reasonable & probable grounds to believe
OBJECTIVE STANDARD: -R v Nealy (D & girlfriend at bar, person has committed specific crime OTHER ARREST POWERS
Ordinary person: V repeatedly makes lewd -R v Barnes: Mere hunch -Mainly for compelling judicial appearances:
-R v Hill:
comments about girlfriend, they insufficient ss. 510, 512(c), 524, 597, 796
(Big brothers, homosexual go outside to fight, D ends up -MUST SHOCK COMMUNITY: R v -s.199(2) Peace officers who find someone
advances, returned and killed) stabbing victim to death, D Campbell: Cops acting illegally does not keeping a gaming house/occupants of
-Normal temperament, self- claims self-defence, merit stay of proceedings unless act would gaming house
control; not drunk, exceptionallyintoxication, & provocation) shock conscience of community & be so -s. 31 Breaches of the peace
excitable, or prone to aggression-COA HELD: Trial judge erred in detrimental to admin of justice that it -Disorderly in public
-Age & sex always not instructing jury on warrants judicial intervention -Breaking up a crowd, someone
considered cumulative effect, of all the -R v S(J): Focus is on conduct of police refuses
-NOTE: Not all factors relevant to each defence, officers, not D -SUPPORTING POWERS:
elements relevant, must relate toon MR -s. 25(1) If lawful arrest, then can use as
provocation -Defence applies though D had CRIMINAL INVESTIGATION & LAYING THE much force as necessary (as long as
-R v Thibert: Same age, sex, subjective foresight of CHARGE reasonable grounds)
gender & share other relevant likelihood of death (R v Oickle) -CL extends this to arrests under other acts
factors as would give act/insult -Evidence of provocation could ARREST WITH WARRANT [R v Asante-Mensah]
special significance, past prevent Crown from proving MR -s.507(4): Warrant can only be issued if -s. 25(4) Force likely to cause death or
exchanges between two of murder (R v Campbell) 'necessary in the public interest': not grievous bodily harm:
-Adjusts R v Hill -Cannot even consider anger a challenged constitutionally because ex -If a warrantless would be permitted
-Would include married man factor (R v Walle) parte determination -Person is fleeing to avoid arrest
facing breakup of his marriage" -NOTE: Roach heavily against -Warrants are directed only to peace -Believe force reasonably necessary to
-Crown must disprove beyond this officers within territorial jurisdiction of prevent imminent or future death/harm
reasonable doubt, defence need -PROVOCATION & OTHER issuing authority -No less violent manner to do so
only be raised by D DEFENCES: -Easily executable in other -Can use as much force to affect arrest, but
-Offence is admitted, Crown must -If provocation results in jurisdictions (ss. 703, 514, 528) cannot go beyond necessary force
then prove that provocation is automatism explained by -s. 511 Warrants do NOT expire -Can cause
not justified internal emotional make-up or -s.29: Requires arrestee to be notified death: Ex. Hostage situation
-R v Daniels: Past acts and requiring public to be protected of process/reason -s. 529 If seeking to arrest within a home,
insults relevant to determine from continuing danger: Mental -NOTE: Normally for people who fail then need specific authorization in warrant -
seriousness of final insult disorder automatism to show for court must be RPG that person will be in house,
-RACE: Used to not be relevant -Extraordinary external factors: and immediately before entering, officer
(R v Pernekar) but now racial Non-mental disorder automatism Arrest WITHOUT Warrant must believe person is present
insult to visible minority likely(R v Rabey) -ss. 494 and 495 classify different -If indictable offence,
seen as relevant -Complete acquittal powers of arrests for different classes usually just wait for them to come out of the
-BUT: No provocation -Both must be proved on of persons house
for physical disability BOP -s. 494: Citizen Arrest -Stops police from
-CULTURAL -Intoxication and provocation may -TERMINOLOGY: making a habit of kicking down doors
FACTORS: prevent Crown from proving MR -'Apparently finds committing': Person -s. 529.3/5 Exigent circumstances
-Not including race, cultural for murder even though separately arresting must witness conduct -If reasonable grounds to believe present in
background irrelevant (R v Ly) neither would constitute defence -Acquittal does not negate validity of house
-R v Tran: Cannot argue own arrest not trigger s.9 violation -Conditions for obtaining warrant exist
cultural norms, obliged to play by
ENTRAPMENT -Cant sue for -Ex. When
Canadian cultural norms & -PRE-CHARTER: arrest conducted appropriately youve already arrested someone
fundamental principles -R v Amato: Despite cop mildly -'Reasonable grounds to believe': -Necessary to prevent imminent harm or
-Ordinary person will not be a threatening for and soliciting drugs, Person arresting must loss/destruction of evidence related to an
homophobe; will not believe in still convicted of trafficking SUBJECTIVELY believe person indictable offence
honour killings; will not see -Estey in committed offence & belief must be -Usually deals with a car or the immediate
adultery as "highest invasion of DISSENT: Defence of entrapment OBJECTIVELY justifiable surrounding circumstances
property" should apply -NOTE: More -s. 529.4 Prior announcement (unless RPG
-Cannot consider peculiar or -NOW: R v Mack than a mere suspicion on the officers of harm)
idiosyncratic traits arising from -Defence of entrapment part -Hot pursuit exception [R v Feeney]
culture or faith (R v Humaid) even for one who commits AR & -Must -NOTE: Reasonable grounds is the same as
-No culturally driven sense of has MR have evidentiary support Reasonable Probable Grounds (RPG)
appropriate response to -Not acquittal, but permanent stay -Would
anothers misconduct of proceedings an objective person reasonably come RIGHTS UPON ARREST
-Must consider whether beliefs -Must be established by to same conclusion? -STATUTORY RIGHTS UPON ARREST:
included in modified objective D on BOP -s. 503 Key provisions regarding time period
standard are antithetical to -Can be determined ARRESTS UNDER S.495 by which D must have release considered
Canadian values (echoes after guilt established -s.495 Broad powers for peace -Without unreasonable delay, 24 hours
s.232(3)) -Judge, not jury, decides officers, but cannot arrest if have not maximum
-ENTRAPMENT arises: found D committing offence that is -If JP unavailable within 24 hours, then only
-HOWEVER: If insult about 1. When authorities provide merely summary conviction offence consider unreasonable delay
religion, then being Muslim opportunity to commit offence (UNLESS: Pre-existing warrant for -Back in the day when
relevant (R v Nahar) without reasonable suspicion that arrest); or, JP were not as easy to get a hold of
-PROPORTIONALITY: Test is of person is involved in crime or - SUMMARY: Can only arrest: -NOW: Its all 24 hours due to
ordinary person does not include acting mala fides for dubious 1. Found committing modern technology (Skype on phones)
proportionality (R v Carpenter) motives unrelated to the 2. To determine -Except for rare
-CHARTER: investigation and repression of identity, gather evidence circumstances
-s.232 does not negate MR but crime, OR: 3. Assure -s. 515(2.3) Telephone appearances
serves as partial excuse for 2. Having reasonable suspicion or appearance in court -s. 25 YCJA Right to counsel and notification
those who commit murder (R acting in course of a bona fide -NOTE: Fingerprinted only for of parent or guardian
v Cameron) therefore inquiry, authorities go beyond indictable & hybrid offences -S.10 CHARTER RIGHTS:
objective elements do not providing opportunity & induce -If failed to convict, can -s. 10(a) Promptly inform of reasons for
violate subjective commission of offence seek to have fingerprints destroyed arrest
requirement of murder -Police can target known criminal -s.495(1)(a) Has committed or -ASK: Does individual understand reason for
-Crown still has burden to engaging in criminal behaviour (such reasonably believes has committed or arrest even absent specific info?
prove D subjectively knew V as soliciting drug purchase) is about to commit INDICTABLE -Charter protects from
likely to die offence arbitrary arrest
-MENS REA:
 -Arrests
must be communicated
-If no
English, will provide a
translator ASAP
-s. 10(b) Instruct and provide
right to counsel
-Can only be reasonable
delay between demand for
lawyer & provision of access
-INFORMATIONAL
COMPONENT:
-Must inform without delay of
right to retain/instruct counsel
-Arises in every case of
arrest or detention
-Usually a standard caution
-ISSUE: Concept of detention
can be vague, officers may
not inform appropriately as a
result
Ex. Wait, hold on there a
second is detainment if
connected to police suspicion
-Suberu Case: Officer didnt
have suspicion, was just
asking a few investigatory
questions to get the lay of the
land
-REWARNING: For any
significant change in jeopardy
-If initial charge, during
questioning, is upgraded to
more serious charge, D must
be rewarned of rights etc
-If D changes his mind &
declines counsel, must be
rewarned
- need it most - at time of
IMPLEMENTATIONAL
COMPONENT: Two duties
arise:
1. Must provide reasonable
opportunity to speak to
counsel
-Lawyer should ensure Police
not listening in
2. Must hold off questioning
or trying to obtain evidence
until reasonable opportunity
occurs
-BUT: Onus on D to
take advantage of that
opportunity
- facie unreasonable violation of s.8 -Info need not be admissible in court,
Implementational rights are
NOT absolute
-Must indicate desire to
speak to counsel [R v Baig]
-D can waive [R v Bartle]
-D can lose right if not
reasonably diligent
(especially obstructionist, but
'diligent' is controversial) [R v
Tremblay]
-Ex. Pretends to not know
how to use a phone
(obstructs course of
proceedings)
-REASONABLE
OPPORTUNITY:
-Must be in private
-Must be as soon as possible
-Can be postponed if urgency
requires it
-Must be counsel of choice,
within reason
-HOLDING OFF:
-Must wait until D has
consulted
-After consultation, can
continue to question &
attempt to elicit info
-No obligation on D to respond Ex. Storage locker, -Often must be destroyed, but must be
(can remain silent) roommates gives police key: Illegal added to DNA bank if convicted of primary
-s.24 Charter: Cannot bring justice search designated offence (and usually for
system into disrepute! secondary)
-Frowned upon to interview D with SEARCHES WITH WARRANTS: -'Impression warrants': Dental
mental/physical condition -Can be of persons or -REVIEW OF WARRANTS:
-R v SINCLAIR: HELD: Generally, places -Facial challenges: Did warrant contain
initial warning & reasonable -Different types of searches (ie. enough info of right type (eg. specificity) to
opportunity to consult with counsel persons, places, DNA, wiretaps, justify its issue?
satisfies right tracking) will have different Code -More than possibility of evidence, must be
-Must give additional opportunity to provisions reasonable & probable grounds
receive advice where -SEARCHES OF PLACES: s. 487 -Must have name of responsible officer
circumstances change, including: -Key elements on warrant: Officers -Sub-facial: Reliability of the evidence
-New procedures facing D name responsible for search, more -Not
-Change in jeopardy than possibility of evidence, must evaluating the worth of evidence
-Reason to believe first warning have reasonable & probable grounds -Looks to
was deficient that evidence present (must have police belief that evidence will help support
-BINNIE: Police must properly given affidavit that lays out grounds) case
inform D of charges as they evolve -s.487(1): If reasonable grounds to -Reliability is usually dealt with at trial, along
so that lawyer must properly inform believe that a building, receptacle or with remedy
D of rights place has: -If INVALID: Warrantless search & violation
-[117]: Expand grounds for (a) Anything on or in respect of which of s. 8 which must then be justified
evaluating request for further an offence has or may have been -Evidence can be eliminated from or added
consultation: committed/suspected to have been to warrant (as long as police did not
-Extent of prior contact committed deliberately mislead but made good faith
-Length of interview at time of -IN RESPECT OF: Defined broadly error)
request (CanadianOxy Case) -If evidence eliminated, need to see if
-Extent of info provided by police (b) Provide evidence of crime or remaining evidence would have justified
to D during interrogation location of offender issuance of warrant
-Exigent or urgent circumstances -Must be physical evidence -NOTE: Justice can throw out fishing trips
-Has issue of legal nature arisen? [Re Banque Royale] absent proper grounds, but let others
-Mental and physical condition of (c) To be used to commit offence proceed
detainee against person
-LEBEL & FISH: [209 - 10]: (c.1) Offence-related property: Identify OTHER WARRANT SEARCHES:
-Can wrongly persuade D that right who, why, what is sought & why -INVESTIGATIVE:
to silence is futile & unsound -RESTRAINTS ON SEARCH: -Impaired driving blood samples s.256;
advice -GENERAL: Tracking devices, number recorders,
-Right does NOT apply when D -Warrant must be issued by someone wiretaps
capable of acting judicially (Justice of -Usually similar standards as apply in s.487
interrogation peace, Provincial judge) -PREVENTATIVE:
-Why does right depend on police i.e. Neutrally and impartially [R v -Justified by pursuit of particular type of
evaluation of validity and Hunter] evidence
reasonableness? [179] -Must be -Hate materials, drugs, explosives, firearms
-Why no s. 1 analysis? someone responsible for the search all have their own particular warrant
-Must be more than a possibility of schemes
POLICE POWERS: SEARCH & evidence
SEIZURE - WARRANTLESS SEARCHES:
-Power to search (for law Cannot be a fishing trip -Warrantless searches are primac facie
enforcement purposes) balanced -Thes violation of s. 8 which must then be justified
against individual's interests (in e are the reasons why I believe X is -Must address whether a reasonable
accountability, openness, and there... expectation of privacy exists
crucially, privacy) -Must be supported by affidavit laying -Without which there is no search &
-CHARTER S.8: Hunter v out facts upon which reasonable therefore rights under s. 8 don't apply
Southam: grounds are based [R v Araujo] -If there is such an expectation, then assess
-Warrantless searches are prima -Can be challenged later by D whether search met the standards in (R v
Collins)
Charter but must be obtained legally [R v -TEST: How to figure
-Some minimal constitutional Evans] out reasonable expectation of privacy
guarantees that must be observed -Must be some specificity [R v Times -REASONABLE EXPECTATION:
even in searches conducted Square], but can seize unexpected -Need not have actual privacy, just
pursuant to warrant yet related evidence an entitlement to privacy:
-Must provide reasons for the -DOCTRINE OF PLAIN SIGHT: -What are "the standards of privacy that
warrant s.489 persons can expect to enjoy in a free and
-WHAT IS A SEIZURE? -Usually publicly accessible, and democratic society?"
-Crucial issue: Privacy & executed in daytime -Must decide if there is an expectation of
expectation thereof -SEARCHES OF PERSONS: privacy in order to engage s. 8 rights
Ex. Was video -s.487.05: NOT searches incidental to -If expectation of privacy, use extent of that
taping in public or private? arrest, but searches connected to expectation to evaluate intrusion into s. 8
-Need not be a seizure identification of offender right
by force Ex. Usually DNA ie. a threshold and evaluative concept
Ex. Going -Info must show that: -To find violation, balance privacy interests of D
through Ds garbage 1. Bodily substance connected against investigative interests of state
-Evidence obtained without offence found -INTERESTS & CONTEXT:
consent is not necessarily a 2. Named person a party to the -Privacy interest & expectation varies according to
seizure (abandoned evidence, offence; and, context: Body cavity searches vs school locker
evidence at crime scene) 3. Taking sample from person will searches vs car trunk searches vs border
-Evidence obtained with consent show if bodily substance came from crossings
may still be seizure, especially if D named person -State interests also vary depending on context:
in custody (Nguyen) -Must be to judge (NOT justice of Search at arrest, seizure of DNA evidence,
-ASK: How did peace) in respect of s. 487.04 represent very powerful interests
you get consent and who gave it to designated offences -Nature of violation will affect nature of remedy
you? -Samples only for specific purpose: s. under s. 24(2)
-ISSUE: What if D gives consent to 487.08(1) & (2) -Remedies can be excluded
third party? (see Dyment) or allowed
-FACTORS TO CONSIDER: R v
Edwards on whether expectation
exists:
-Presence at time of search
-Possession/control of
property/place searched
-Ownership of property/place
-Historical use of property/item
-Ability to regulate access to
place
-Existence of subjective
expectation of privacy
-Objective reasonableness of this
expectation
-Types of privacy are: R v
Tessling
1. Personal
2. Territorial
3. Informational
-POST-FACTO ANALYSIS:
-Edwards factors best suited to
territorial privacy & may not
apply to all privacy interests
-There is a trend of defining
Informational Privacy very
broadly and claiming there is
lesser, if not zero, actual privacy
interest
-Danger that lower courts are
taking contextual approach to
mean there are no fixed rules
governing searches
-Decide on case-by-case basis
-NOTE: Bill C30 likely to change
this, allowing greater access in
emergency situations
-THE COLLINS TEST: Once
reasonable expectation of
privacy is found, there is a
search, TEST to see if search is
reasonable:
1. Is search authorized by law?
2. Is law reasonable? [usually
included in first element]
-Charter violation?
3. Was search carried out in
reasonable manner?
-Did police
break down walls?
-AUTHORIZED BY LAW:
-CL, statute & consent rules of
investigatory power all apply to
warrantless searches
-If STATUTORY POWER TO
SEARCH, court should not find
CL power
-Does NOT preclude creating new
powers of search at CL (Courts
should be hesitant to do so)
-Can have warrantless searches
where D has consented
-STATUTORY POWER TO
SEARCH:
-Usually, but not always relate to
'EXIGENT CIRCUMSTANCES'
-Include powers to:
1. Search people while searching
places (s. 11(5) Controlled Drugs
and -Substance Act) with a
warrant, or:
2. Search places when exigent
circumstances mean no warrant
can be obtained quickly enough
(s. 11(7) CDSA and 487.11 CC)
-EXIGENT CIRCUMSTANCES:
Exist if there is imminent danger
of loss, removal, destruction or
disappearance of evidence if
search or seizure is delayed. (R v
Grant)
-SEARCH & ARREST:
-No CL authority to search
property, except search Incident
to Arrest
-No requirement of reasonable -Can only be pat-down -Interference with operation of media outlet?
grounds, mere fact of arrest sufficient -More requires reasonable grounds -Chilling effect on media/sources?
to justify search [R v Caslake] -EXIGENT SEARCH, POLICE POWERS & LAYING
-Privacy interest is unaltered, but CIRCUMSTANCES: THE CHARGE
investigative interest is higher than -Justify search without waiting for GENERAL WARRANTS
normal [R v Caslake] warrant, but grounds for search must -s.487.01: Intended to fill any gaps not
-Can also search surrounding area of already exist accounted for by usual search & seizure
arrest [Cloutier] -Likely exist if imminent danger of provisions
-Easier to search vehicles, need loss, removal, destruction or -Very broadly interpreted power
exceptional circumstances (compelling disappearance of evidence if search -Wong Case: HELD: Video surveillance,
state interest such as safety) to search or seizure is delayed." [R v Grant] which is not covered by any warrant
houses -Also relevant to: strip search in the procedure, was unconstitutional
-Cannot use location of arrest as field, and remedy under s. 24(2) -NOTE: s. 487.01 created as response
pretext [R v Lim] -CONSENT: -ISSUE: Creates catch-all instead of
-NOTE: Broad temporal limits TEST: specifying techniques:
-SEARCH & ARREST TEST: 1. Was consent valid? -Police empowered to "use any device or
-Was the arrest lawful? 2. Extent of consent? investigative technique or procedure or do
-Was the search truly incidental to -FACTORS FOR VALIDITY: R v anything described in warrant that would, if
arrest? (KEY ISSUE) Wills: not authorized, constitute unreasonable
-Must be for valid purpose connected to -Express or implied consent search & seizure."
arrest: -Authority to give consent -FEATURES: s. 487.01
-Must OBJECTIVELY exist -VOLUNTARY: Freedom to choose -Requires reasonable grounds on an
-Officer must have SUBJECTIVELY not negated by police conduct or information, but permits 'no interference with
decided to search particular D for that other external factors bodily integrity'
particular purpose -Aware of conduct to be -Can have reasonable grounds that offence
-If purpose objectively consented to has been or "will be committed"
valid, but no subjective -Aware of right to refuse -Can otherwise search for physical evidence
decision, then invalid -Aware of potential consequences in any way (R v Noseworthy & 487.01(1)(c))
search -SCOPE OF CONSENT: -Only issued by judges or justices (not JP),
-Was the search carried out Limits: must be in best interests of administration of
in a reasonable manner? -D can put limits on extent [R v justice, can attach conditions to warrant
-Police Colarusso] -ARGUE: Best interests seems to add
cannot be behaving -Consent is only for specified nothing
inappropriately purpose [R v Dyment] DETENTIONS
-SEARCH & ARREST -Scope of consent is tied to INVESTIGATIVE DETENTIONS:
PURPOSES: Valid Purposes information given to D -Implicate s. 10 rights, but is
[R v Caslake]: -Cannot mislead as to purposes different from arrest
-Safety of police and public [R v Borden] -R v Thomsen:
(all arrests) -If used for unspecified but -Physically restrained & might
-Preventing destruction of unpredictable purpose, may still reasonably require assistance of counsel
evidence (all arrests) be valid [R v Arp] -Freedom of movement & access to
-Discovering evidence for -Consent is only for specified counsel otherwise impeded by direction
use at trial (depends) or demand
purpose [R v Dyment]
-NOTE: Ex. Sitting in police car for awhile until
-Mistake as to consent may be
Cannot abuse process to everything is sorted
relevant to extent of s. 8
get there -Compulsion or coercion resulting from
violation & therefore s. 24(2)
-Location Issues & COLLINS remedy [R v Lewis] refusal to comply or from reasonable belief
#3: Reasonable manner that one does not have choice to comply
-NOTE: Likely
-Vehicle? Usually fine -NOTE: Can be quite short in length
still to lead to valid evidence as
-House? Compelling -RATIONALE:
long as mistake honest
circumstances -Protect D from self-incrimination (which
-REASONABLENESS OF SEARCH:
- is fundamental to s. 10 rights), even if
-More intrusive the
Usually need a warrant right to counsel would not be of much use [R
search, more restrictions will be
-Body, including strip v Therens]
placed upon it [R v Golden]
searches and body Must tell them their rights
-CHARTER breaches of rights of
cavities? -Need to define detentions as affects ability
3rd parties may be relevant to
- of Courts to intervene:
determining reasonableness of
Has to be justified in -If no detention, no s. 10 violation, even
search, particularly if they are though substance of rights may be violated
context of hiding things large-scale violations (such as
-Particularly important for police questioning
there unlimited wiretap) [R v
of passersby and witnesses
-R v Golden: RPG? At police Thompson]
-Must recognize psychological detention
station? Notice to D? -Examples of unreasonable -PSYCHOLOGICAL DETENTION:
Opportunity to D (remove searches include R v Golden
-In situations of no physical restraint, should
clothing and/or evidence)? (strip searches) and R v Collins
look at multiple factors [R v Moran]:
Dangerous/medical (heroin balloons) -Language & tone of voice of police
personnel? -OTHER CONTEXTS: -Person told no obligation to
-INVESTIGATIVE -Limitations on search authority accompany/respond
DETENTIONS: vary depending on context: -Given choice about location of questioning
-R v Mann: Created power Certain regulatory schemes have -Choice to come to police station
of investigative detention broader search powers than in -Investigation underway? At what stage?
(which do NOT require criminal process -Questions asked
reasonable grounds for -Ex. Legislation pertaining to business -Personal characteristics (age, intelligence,
arrest) (keeping of records) level of sophistication)
Ex. -NOTE: If regulatory investigation -SUBJECTIVE belief of person, & whether
Impaired driving, pulling becomes criminal, limits change [R v OBJECTIVELY justified
them over to blow Jarvis] PRACTICE:
-NOTE: Because no -No absolute rule against searching -If police do not have power to detain, then
reasonable grounds for media offices but adds in s. 2(b) held to not have detained anyone
arrest, no automatic concerns -Rights violated
search powers -Some factors to consider in relation -ARGUE: Only uncooperative have Charter
-Justified to media offices: rights respected
Searches under Mann: -Other ways to get information? Polite just go along, thus if effect granting
-Can only be for officer or public -Reasonable manner of search? consent
safety
-PSYCH DETENTION & -Officer intended to learn more -LIMITS: -Charging document fundamental to right to
REMEDY: R v Grant about situation, not detain Suberu - -s. 25.1(11) does not allow: make full answer & defence
(Multiple officers, restrict once he did, he then proceeded to (1) Intentional or criminally negligent -Charges initially laid by information (s. 505),
passage, cause D to inform of Charter rights causation of death or bodily harm & if indictable offence, then indictment
reveal drugs & gun) -Can you wait for a (2) Wilful obstruction of justice prepared (s. 566(1))
-HELD: Psychological second while I speak to so (3) Conduct violating sexual integrity -Indictment can be on any charges disclosed
detention of individual by evidence at prelim, even if not on
& so? i.e. Cannot sex your way into criminal information charge (574)
-D detained before
-They can wander off organization i.e: Charged with armed robbery & in prelim
admitting to having gun &
-COMMON LAW DETENTIONS: -s. 25.1(9) Permits loss of/serious court, if court realizes D should be charged
drugs
-Court reliance on damage to property if authorized in with possession of weapon, can tack on
-Based on total interaction
WATERFIELD TEST has advance by senior officer, unless: additional charge
with police prior to
expanded police powers (1) Need to preserve life/safety of any -Direct indictments bypass preliminary
admission,
considerably: person inquiry (s. 577)
-Went from general
-Conduct within scope of a duty (2) Prevent compromise of -Usually Crown: Pressing issue in the public,
neighbourhood policing to
imposed by statute or recognized undercover officer, informant or agent overwhelming evidence, prelim is waste of
focused criminal
at CL? identity time
investigation
-Conduct involves an unjustifiable (3) Prevent imminent loss/destruction -Threat of skipping can lead to
-Evidence obtained
use of powers associated with that of evidence of an indictable offence hard ball negotiation
unlawfully in violation of
duty? -Prelim does not guarantee
ss. 9, 10(b) rights
-Has been used as an expansive LAYING A CHARGE guilt/innocence, can help Crown determine
tool based on relationship between -s. 504: Indictable offences charged holes
-Purposive
duty and power when information sworn, received & -D can also elect to skip prelim believing in
Approach to determining if
-Ex. Duty: approved by judicial officer strong case and unwilling to wait
detention takes place
Provide necessities of life -Court have no jurisdiction if no -Require AG consent, and are unreviewable
-s. 9 is to prevent unjustified
-UK: just because you have a duty, charges
state interference with physical &
doesn't mean you have the power -Must be under oath, specify INTERIM RELEASE DISCLOSURE
mental liberty:
at common law commission of offence by identifiable
-If choice to leave removed,
-Canadian: if you have the duty, person, & affirm territorial jurisdiction JURISDICTION
individual has liberty interfered
you likely have the power at -Informant must have reasonable -Refers to variety of different functions &
with
common law grounds to believe offence has been limits on processes
-s. 10 redresses power imbalance
-ARBITRARY DETENTION: committed -For process or function to be valid in law,
& protects against self-
-Arbitrary detentions -s. 507 Judge or justice considers must be undertaken by legal entitle acting
incrimination:
violate s. 9 Charter validity of allegations and decide within its own legal jurisdiction
-When individual is detained,
-Detention not arbitrary if based on whether to endorse it -If charging with impaired driving
power imbalance exists
criteria that are REASONABLE & -COMPELLING APPEARANCE: in BC, court in NS cannot hear trial
-MUST CONSIDER:
CLEARLY expressed [R v Wilson] -PRE-CHARGE: -There are exceptions: D can
Circumstances as perceived by
-R v Mann: Modern investigative -s. 495(1) Arrest without warrant waive the charge to NS (convenience)
D:
detention -s. 495(2) Preference for less -Wrong Jurisdiction? If sent to wrong court,
-Police providing general
-Not a general power intrusive means (appearance notice) D can submit for lack of jurisdiction, will
assistance, making general order,
-Detention must be REASONABLY for less serious (summary, hybrid, s. likely be stayed until P reaffirms charge in
or general inquiries; or singling
necessary on OBJECTIVE view of 553) offences: appropriate court
out D for focused investigation
totality of circumstances informing -If person won't show up, or if -TYPES OF JURISDICTION TO
-Nature of police conduct:
officer's suspicion that there is necessary to identify, secure CONSIDER:
Language; physical contact;
clear nexus between D & recent or evidence, prevent crime, should -To prosecute (public or private)
place of interaction; presence of
on-going criminal offence. arrest -Most public: Crown prosecutor
others; duration of encounter
-Must consider extent of -s. 496 Issue appearance notice -Private: Individual can lay private
-Relevant characteristics of D:
interference necessary to perform instead information against another, but Crown not
Could be age, physical stature,
duty, liberty interfered with, & -s. 497(1) Arresting officer can obliged to run the trial
minority status, level of
nature and extent of interference release with summons or appearance -Must be ratified by Justice
sophistication
-POLICE ROADBLOCKS: notice with same conditions as above -Territorial jurisdiction
-TEST
-Random police stops on road will -s. 498(1) OIC can release for -Each province enforces the
FOR ADMISSION OF EVIDENCE:
violate s. 9 but usually saved broader reasons Federal law
s.24(2) Charter
under s. 1 [R v Dedman; R v -s. 498(1) Includes option of release -Jurisdiction over accused
1. Seriousness of conduct: Would
Ladouceur] on a recognizance -Mode of trial
admission of evidence bring
-R v Clayton: -s. 145 Violations of any of the -Can send to superior court, but
admin of justice into disrepute?
-Minority would have created conditions of release is a criminal not lower court accidentally
-Good faith action? Deliberate
specific rule where detentions in offence -Temporal jurisdiction
breach?
order to prevent serious firearms -Before first appearance, must lay an -Statute of limitations for summary
2. Impact on accused:
offences are saved under s. 1 information: convictions: 6 months
-Effect on privacy, right to not
-Majority HELD: Essentially -If justice is not satisfied, will cancel -None for indictable offences
self-incriminate, and dignity
substitutes Waterfield TEST for any process -Relationship to Charter
3. Reliability of evidence
Charter analysis -If charge not laid in time, will cancel -Court of competent jurisdiction
-HELD: Evidence admitted as was
-If detention is reasonably process but NOT lead to double -Superior court can apply the
reliable & exclusion would bring
necessary, then it is justified jeopardy or statute of limitations Charter
justice into disrepute
-POLICE BREAKING THE LAW: issues -Ensured rights upheld
-Violation was uncertain
-Justified if: (25.1(8)) -NOTE: Lay info & lay charge same Ex. Granted trial in
temporally & not egregious
1. A designated officer thing appropriate time
-Impact serious but not
2. Investigating an offence -POST-CHARGE: -JURISDICTION TO PROSECUTE:
extreme
3. Believes on reasonable grounds -ss. 504/507 Still apply, but will lead to -Most prosecutions are public (ie. initiated
-PSYCH
that commission of act or either summons or warrant for arrest and conducted by the state), but can have
DETENTIONS v DELAYS: R
omission, as compared to nature -s. 507(4) Issue a summons unless private prosecutions
v Suberu:
of offence or criminal activity being warrant needed in public interest -If information is sworn, possible to initiate
HELD: Psych detention can
investigated, is REASONABLE & (same reasons as in 495(2)) private prosecution
arise where police conduct
PROPORTIONAL in -s. 507(6) Justice can authorize OIC -Public: No charge is
can cause person to believe
circumstances, having regard to to jail or release accused even if sworn unless P agrees
they have no choice but to
matters such as: arrested -Operates as exception to ordinary
cooperate
-Nature of act or omission -s. 499 Can add multiple conditions to bifurcation of roles
-But not every asking of
-Nature of investigation & release -WHAT IS AN INFORMATION?
questions or physical delay
reasonable availability of other -s. 503 If not released, brought to JP -Statement of charge
by police is a detention
means for carrying out public without unreasonable delay within describing details of matter
-Can engage in preliminary
officer's law enforcement duties. 24hr max -Affidavit by police
questioning without causing a
-R v Clayton: HELD: Essentially -LAYING & SIGNIFICANCE OF -PUBLIC PROSECUTIONS:
detention
substitutes Waterfield TEST for CHARGE:
Charter analysis
-Structure: Federal AG,
provincial AG, deputies,
possibly a DPP, full-time
prosecutors, agents
(including private counsel
hired by government)
-Federal
government enforces certain
Federal matters
Ex. National
security, immigration
-Will
often get a local lawyer to
prosecute the Federal matter
-Certain offences require
consent of AG: Compare ss.
119, 319, 83.24 and 2
-WHY IS CONSENT
REQUIRED?
-Ex. Conrad Black wanted re-
entry post-conviction into
Canada, had to seek
permission
-Seeking permission from AG
ensures issue is resolved
despite involving many
different government
departments
-Prosecutors have:
(1) important decisions to
make about trials, and
(2) large amount of discretion
in doing so
-Types of decisions: Force
jury trial (s. 568), direct
indictment (s. 577), issue
stay (s. 579), indictable or
summary (hybrid), withdraw a
charge (Prosecutions do not
take place without a
likelihood of success), launch
an appeal (P cannot appeal
Jury verdict, only point of law,
did judge err?)
-Police lay first charge. But
between charge being laid
and first appearance is when
they look at the charge &
whether the evidence is
sufficient.
-PRIVATE PROSECUTIONS:
-Historical: Reflects political
context behind CL & ability to
call anyone to account
-Anyone can swear
information & if endorsed will
become prosecutor (s. 504)
-Information usually goes to
Prov. Ct. (s. 507.1)
-Can be represented by
counsel or personally (s. 785)
-Need judicial permission to
continue beyond a
preliminary inquiry
-Judge
need only find sufficient
evidence for jury to consider
-AG can intervene at any
time - take control or issue a
stay (ss. 579/579.1)
-Must be
indictable offence where
penalty is more than 5 years
-Can lay information for
peace bonds (s. 810)
-C can
go to Justice for peace bond
to keep them away as
preventive measure
-Must
provide sufficient information
to justify such restriction
-TERRITORIAL JURISDICTION: -Circumstances of commission (incl. -s. 7: Cannot make full answer & defence
-Extra-territoriality: Usually criminal firearm) without knowing all relevant evidence, both
jurisdiction limited to Canadian -Potentially lengthy imprisonment inculpatory & exculpatory
territory (including marine areas) (Tertiary) -NOTE: Disclosure to defence is only when
-Ex. -TERTIARY GROUND: R v Hall: charge is brought to court, not as
Conspiracy (s. 465) affecting many Tested constitutionality of tertiary investigation is ongoing
countries by with strong ties to ground -STRUCTURE OF DISCLOSURE:
Canada -HELD: Though denial of -Obligation rests on both Crown &
-Exceptions usually created by bail potentially violates s.11(e), police
international treaty (s. 7), but not justified because: -Must disclose inculpatory & exculpatory
always (s. 465) (1) Provides additional ground not information
-"Real and substantial" connection covered by s. 515(10)(a) and (b); -Must be made prior to election or plea, but
to Canada? (2) Is narrower than 'public interest' is a continuing one
-Cannot be frivolous ground because based on 4 factors -NOTE: Defence must request (and continue
-Charter will rarely restrain police and reasonableness to request)
activity overseas -ISSUE: Was public fear of violent Ds -R v Jack: Right triggered when reasonable
-Provincial Jurisdiction: release: possibility of information being useful to D in
-Link between judicial district & -Necessary to secure appearance? making full answer & defence
AR? See R v Bigelow: Continuity, No -Statements, notes of officers or Crown, or
overt act, effects -No secondary fear? No information about people interviewed etc
-Where does offence take place? -D kept in jail for -LIMITS ON DISCLOSURE:
Jurisdiction within Canada goes to public safety & to ensure faith in -Not absolute right to disclosure: Relevance
place of AR system is key [R v Stinchcombe]
-Can have D transferred from -s.515(10)(c) Authorizes detention on -If issue arises, its for
outside of jurisdiction (ss. any other justification judge to decide whether particular info
503(3)/528), accept his extra- -DISSENT: Wording of relevant
territorial plea (s. 478(3)), or 515(10)(c) not valid under Charter -Evidence must be relevant to case at hand
change venue of trial (s. 599) -Only (a)(b) are [R v Chaplin]
-Can waive into local jurisdiction appropriate -Privilege & need to finish investigation (but
with guilty plea, but if claiming -(c) is a facade only affects timing & nature of disclosure,
innocence, trial must be held in and should not be tolerated as a not obligation)
jurisdiction of those affected catch-all -If evidence does exist, Crown must justify
-Can change venue if can argue -GENERAL RULE: non-disclosure
that D will be negatively affected -s. 520/521 D & Crown can apply for -If existence is issue, defence must show
by trial in particular jurisdiction review every thirty days; conditions or basis to believe evidence exists
Ex. Small towns & nature of release can be amended on -REMEDY FOR BREACH:
tainted jury pools review; otherwise continues until trial -s.24(2): Remedy from judge if
-s. 525 Automatic review if trial failure to disclose so erroneous as to inhibit
JUDICIAL INTERIM RELEASE doesn't start soon enough full defence
-GENERAL RULE: -s. 518 Broad evidentiary standards -No independent Charter right to disclosure,
-s. 515 Presumption of release on bail hearings but can be interpreted as relevant factor
(bail) -s. 524 D who does not appear can falling within considerations under s.7 rights
-Except for s. 469 be arrested -R v La: (Lost interview tape): HELD: Loss
offences (Murder, treason etc) -EXCEPTION TO GENERAL RULE: of evidence breach if through unacceptable
-s. 515(2) Conditions short of -s. 515(6) Lists offences with reverse negligence, otherwise must establish actual
detention: onus on accused to show that ought prejudice
-Undertaking with conditions to be released: -R v Dixon: (Multiple undisclosed
-Recognizance with/without -Current offence charged while on bail statements): HELD: Disclosure is
sureties -Criminal organization, terrorism or component of s. 7 rights, violation not
-Sureties: Bail money, national security offence necessarily violation of s. 7
lien on house etc -Current offence relates to failure to -Defence's due diligence to seek disclosure:
-Recognizance: attend Anything else you want to tell me Ms.
Swearing to obey laws -Life imprison potential under CDSA Prosecutor?
-Recognizance without sureties but -s. 515(11) If charged with s. 469 -R v Carosella: (Crisis centre policy of
with security offence, cannot be released by justice shredding)
-Recognizance with sureties and -Justice: -Breach of obligation to disclose "is breach
deposit Provincial court or justice of peace of constitutional rights without the
-NOTE: P can consider the above -s. 522 Superior Court judge can requirement of an additional showing of
to limit presumption of release release one falling under 469 prejudice"
-s. 515(3) Prosecutor must show -Prejudice is only relevant for determining
cause for each additional condition DISCLOSURE IN GENERAL remedy
-s. 515(10) Grounds for continued -Refers to provision of info regarding -CAN GRANT A STAY IF:
detention Crown's case to Defence, whether or -Prejudice to D cannot be remedied, or
-GROUNDS FOR DETENTION: not that info helps or hurts Crown's -Irreparable prejudice to integrity of justice
-THREE GROUNDS FOR case system if case continued
CONTINUED DETENTION: s. -Obligation ONLY exists on Crown & -REMEDY ANALYSIS: Three Steps Post-
515(10)(a) - (c) arises in CL Dixon:
1. Necessary to secure -ESTABLISHING THE RIGHT: R v (1) Was disclosure right breached?
appearance (Primary) Stinchcombe: (Crown refused to (2) Did breach violate s. 7 rights?
-History of disclose contents of statements given -D must show reasonable possibility that
failing to appear for court, or ability by witness not called at trial) non-disclosure affected outcome or overall
to flee the country? -CONTENT OF RIGHT: HELD: trial fairness
2. Protect public (incl. victims and -Role of Crown: Adversarial -Evidence would have affected decision to
witnesses) (Secondary) relationship, but Crown is officer of convict (look at evidence as a whole) or non-
Ex. Gang violence, organized court, has obligation (to public) to put disclosure affected ability to gather further
crime, husband shouting Ill get all relevant evidence before Court evidence
ya! -Greater efficiency: Crown workload -Breach of disclosure is
3. Maintain confidence in will not increase & will lead to quicker not necessarily breach of rights
administration of justice, having resolution of more cases (3) What remedy should be granted?
regard to all the circumstances, -Crown argued giving -Wait till Crown finishes entering non-
including: everything would be too cumbersome disclosed information, then bring motion to
-Strength of Crown case (Court disagreed) judge to exclude evidence under s.24(2)
-Gravity of offence Charter

-Would have
separate hearing for
disclosure issue
-Judge
decides appropriate remedy
-Does it bring
justice system into disrepute?
-Balanced against
individuals rights
-PRIVILEGE:
1. INFORMER PRIVILEGE
-Protect individual informants
& ensure viability as
investigative technique
-Near-absolute privilege:
"Information regarding police
informers' identity will be,
because of its content, a
class of information which it
is in the public interest to
keep secret, and that this
interest will prevail over the
need to ensure the highest
possible standard of justice."
[Bisaillon v Keable]
-CL EXCEPTION: Innocence-
at-stake
-Unaffected by Stinchcombe,
but can argue innocence
exception (D must show
some basis)
-REMEDY: Disclosure or stay
of proceeding
-Police will stay charge
instead of disclosure of
informant
-Stay of charge means case
can be reinstated
2. SOLICITOR-CLIENT
PRIVILEGE:
-Protect Ds right to
confidential legal advice [s.7]
-MCCLURE TEST: To violate
privilege
-THRESHOLD: D must
establish relevant info
unavailable elsewhere &
unable to otherwise raise
reasonable doubt
-All sources of evidence
against D must already be
decided (to see if able to
otherwise raise a reasonable
doubt)
-Crown cannot seek to
violate, but D may be able to
obtain court order against
another lawyer
-Information must exist
somewhere else (to give
evidence of communication),
but this other source must be
definitively inadmissible
(falling within privilege)
-Cant
merely be conversation
-TIMING: Must wait at least
until Crown has closed case
to see if proved beyond
reasonable doubt (eliminating
need for disclosure)
-Can also wait until after
defence has closed case
-Can
wait until the end
-Can be renewed if clear no
other alternative later on in
case
-INNOCENCE (2) Second stage factors apply at both -DIVERSION
AT STAKE EXCEPTION: Two stages PROGRAMS
stages: (3) Also consider impact on sexual -Usually unavailable for serious violent
1. Demonstrate evidentiary basis offence reporting and treatment, and offences
to conclude communication exists integrity of trial process -PRE-TRIAL CONFERENCES
(that could raise reasonable doubt) R v MILLS INTERPRETATION: -s. 625.1 Can agree on issues that need to
-Lower standard: Must be alleging Reversion to OConnor: be determined on trial
that evidence COULD support, not -s. 278.1 These records are covered -Cannot start first day of trial without pre-trial
fishing expedition only if there is a reasonable conference as both parties must submit
2. Trial judge must examine expectation of privacy in that case statements of agreement on various
communication if likely to raise -s. 278.2(2) Applies to records in elements
reasonable doubt hands of Crown, unless complainant -Not going to
-Higher standard: Likely expressly waived Code protection or argue about date, location etc.
-Can look at evidence beyond file; voluntarily provided records to Crown -Are not binding: Strategy can change
can redact info; only disclose to D -278.5 Added elements: -Mandatory in Jury Trials
3.PSYCH/MEDICAL/COUNSELLI (1) Necessary in interests of justice -PRE-TRIAL MOTIONS
NG PRIVILEGE: Third Party means primarily s. 7 rights -When does trial start?
Records (2) Added factors, including -Once theyve been
-Privacy interest of counseled application of factors at both first and charged (trial doesnt actually refer to
individual does NOT amount to a second stages may be considered standing in court)
class privilege -NOTE: Mills/s. 278.1 ONLY APPLY -Charter rights
-Governed by s. 278.1 - 278.91 TO SEXUAL OFFENCE CASES concerned with day charge is laid to end of
-Issue not so much of disclosure, 4. POLICE RECORDS: R v McNeil trial: Reasonable time
but of forcing 3rd party production -Records dealing with police discipline -Charged once information is sworn or a
-Different issues arise: Privacy that are either related to investigation direct indictment laid
interest of complainant, third- against D OR finding of misconduct -For jury trial, may depend on Code
parties not officers of court, could impact on case, are NOT 3rd provision at issue, and interests at stake
records are not evidence against D party -Must have pre-trial
-R v OConnor: (D charged with -These records are covered by conference
sexual assault, applied for ordinary STINCHCOMBE -Only trial judge should hear motions to
disclosure of Vs medical, -For other records, not covered sever counts
counseling and school records, automatically by Stinchcombe or -In jury trials, anything that could be heard in
pre-trial order for disclosure) Mills, an equivalent presumption of absence of jury can be heard prior to jury
TWO-STAGE TEST: privacy does not apply [O'CONNOR selection s. 645(5)
(1) D must persuade judge of need TEST] -Lack of clarity on some pre-trial motions
to examine records -3rd party privacy interest unlikely to -CHANGE OF VENUE:
-Balance Ds right to make full defeat application for production of -s. 599 Can change venue if expeditious to
answer & defence against 3rd relevant records ends of justice or a jury cannot be
party privacy interest summoned
-D must show "reasonable PRE-TRIAL MOTIONS & JURY -s. 531 Can change venue if makes it easier
possibility that info is logically TRIAL to have trial in official language of D
probative to issue OR competence -Usually applications for change of venue
of witness to testify." LAYING & SIGNIFICANCE OF are for pretrial publicity affecting possibility
-Relevance might be info about CHARGE of fair trial
events, therapeutic influence on -Charging document fundamental to -Strong evidence of general prejudicial
memory, or credibility right to make full answer and defence attitude in community as a whole, that
(2) Judge must decide whether to -Charges initially laid by information cannot be cured by safeguards in jury
release records or portion thereof (505), and if indictable offence, then selection
-Extent necessary for full indictment prepared (566(1)) -Where issue is evidence that will come out
answer/defence -Indictment can be on any charges at trial, not a problem
-Probative value of disclosed by evidence at prelim, even -Date of media coverage is relevant
records if not on information (574) -FITNESS TO STAND TRIAL:
-Nature and extent of -Direct indictments bypass preliminary -s. 672.2 Presumption of fitness
reasonable expectation of privacy inquiry (577) -Requires mental disorder leading to inability
-Production premised on -Require AG consent, and are to understand nature of proceedings, or
discriminatory belief or bias unreviewable possible consequences, or communicate
-ALTERNATIVES TO TRIAL: BC: with counsel
- Diversion Programs -Communicate is a low standard:
Hate crimes -Cannot be inconsistent with communication of facts regarding the
-Evidenced needed to show protection of society offence
prejudice of another -Must be appropriate given interests -Hearing is usually postponed until end of
-Potential prejudice to Vs dignity, of society/victim prelim or end of Crown's case
privacy or security through -Victim -s. 672.22/23(2) Can order fitness hearing
production complaints force P to review decision, on application by prosecutor or accused
-Must look at whether entry into but does not dictate result (balance of probabilities)
records will disproportionately -Cannot be used unless case could -Are there reasonable grounds to bother? Is
affect individual proceed to trial D actually unfit?
- -Must have been advised of right to -Can be decided by judge or jury
PARLIAMENTARY RESPONSE counsel, accepted responsibility, & -s. 672.28 If fit, then go on as if nothing
TO OCONNOR: fully & freely consent happened
-s. 278.1 Broadened definition of -No admission admissible in later -s. 672.54 Otherwise, disposition hearing
record proceedings that can confine D to hospital or discharge
-s. 278.2 Applies to sexual -Agreeing to subject to conditions
offences only Diversion is not admittance of guilt -If found fit, can still raise issue again later if
-s. 278.2(2) Applies to records in -If completed, charges must be change in circumstances
hands of Crown already, unless dropped if laid later (may be dropped -s. 672.33 If unfit, Crown must prove prima
complainant waived Code if partially completed) facie case every two years
protection -Charge usually -Will likely seek stay after a few years
-s. 278.5 Added elements: brought upon failure to complete (unless issue resolves itself)
(1) Balance pros and cons of Diversion -Then person subject only to regular medical
producing record to judge, -Measures include: Community review
including necessity in interests of service, personal service, specialized CHARTER MOTIONS: s. 11(b)
justice education or counselling, letter of
apology
-Guarantees right to be tried
within reasonable time, with
remedy of stay of
proceedings per 11(d)
-Pre-charge delay and delays
in appellate review not
considered
-MORIN TEST:
-Length of delay
-Waiver of time periods
-P can request D waive
specific time periods for
various elements
-Reasons for delay: inherent
time requirements, actions of
accused, actions of Crown;
limits on institutional
resources; other reasons for
delay
-Must consider whether
factors prejudice to accused
-LENGTH OF DELAY:
-Delay means total time from
laying of charge to
completion of trial
-Burden of proof on D to
show unusual delay
-If shown, Crown has burden
to explain it
-Waiver of time periods:
-Must be clear and
unambiguous consent
-REASONS FOR DELAY:
-Inherent time requirements:
Complexity?
-Actions of D: Even good
faith decisions may contribute
to delay
-Actions of Crown: Good faith
decisions again
-Limits on institutional
resources: Standards for
provincial courts is 8 - 10
months, 6 - 8 for other courts
-Prejudice to D: No longer
presumed, because decided
that some D prefer delay;
must show some more
tangible prejudice (prolonged
incarceration, loss of
witnesses)
-Can
lead to appeal by Crown if
judge did not justify prejudice
-ABUSE OF PROCESS &
FAIR TRIALS
-Can stay proceedings
"where compelling D to stand
trial would violate
fundamental principles of
justice which underlie
community's sense of fair
play & decency & to prevent
abuse of court's process
through oppressive or
vexatious proceedings"
-ASK: Is case 'tainted to such
a degree that to allow it to
proceed would tarnish the
integrity of the court'? Is the
system collaborating together
to create abusive process?
-Stay of proceedings may be
a remedy, but not always
-Mostly determined on basis
of s. 7 violations, but a
residual category for non-
Charter abuse
-Ex. Conflicts of interest,
Crown-police collaboration
affecting objectivity, non-
disclosure of evidence
-STAYS:
-Even if abuse of process found, -Three grounds are usually raised -Real danger is whether leaving material for
must meet O'Connor TEST for generally - ask anyone if they are jury to interpret on their own will lead to
stays of proceedings [based on subject to either of those factors confusion and/or legal error
Crown management of disclosure -If juror is actually called by name -Cannot give jury any further
in that case] from array, must challenge for cause evidence
TEST: If it isnt pertinent, cant -CHALLENGES FOR CAUSE: -Judge should only deal with jury in
include -s. 638 Unlimited number of presence of accused and Crown
Ex. challenges for cause, but must be -'Breach' of sequestration will not
278(1): Particularly in rape cases based only on listed grounds: Not on automatically taint the jury: Judge must
and sexual history of victim list, not citizen, physically unable, conduct inquiry to determine prejudice to
-Prejudice of abuse will be language problem, ex-con deliberations
worsened by trial, [ie. will trial be -Reasons to kick -Ex. Girlfriend shows up
unfair, violating s. 7] and no someone out to visit Boyfriend in jury hotel
alternate remedy can remove the -NOTE: Only controversial one is -Some breaches do not require an inquiry
prejudice prejudice: s. 638(1)(b) "not indifferent because of impact on public confidence in
-Potential third criterion: Balancing between the Queen and the accused" administration of justice
interest of D in stay, and interest of -Interest (direct interest in trial) -EXHORTING THE JURY:
society in having trial determined -Specific (attitude/belief about case -If jury appears deadlocked, can discharge
on its merits preventing impartiality) them under s. 653, but should first exhort
-Judge must decide: If applying for -Generic (stereotypes about accused, them to reach a (unanimous) verdict
stay for abusive process, some victims, witnesses, nature of crime) -Ask them to go back
onus on both D/P to demonstrate -Conformity (influenced by strong and return a unanimous verdict
abuse and to what extent, judge community feelings about outcome) -Focus on process of deliberation: No
must determine to stay or not -Presumption of impartiality expression of opinion on facts, no pressure
-Can find Crown in must be overcome on jury, no deadline to be imposed
contempt but still salvage trial with (1) Show basis for challenge (realistic -Take as long as you
new Crown possibility of prejudice) need
-But hard to know much about -Judge cannot highlight
JURY SELECTION individual jurors, so must challenge certain factors to be focused upon
-Provinces determine process of entire array -JURY VERDICTS:
assembling jury array (through Ex. We challenge anyone in array -Verdict announced in court and jury
provincial Jury Act), but Code who may be Dukavors discharged
determines process of selecting -Less difficult to do so if asking about -No authority to alter verdict after discharge
jury bias against particular race/visible -Judge may set aside
-Province: Deal with minorities [R v Williams; Park; Koh; Jurys verdict if Jury is clearly inappropriate
mechanics of selection Spence] -Rarely happens, more
-Federal: Principles and (2) Challenge juror likely to let it run to appeal
values underlying Jury selection -Crown & D alternate asking -JURY SECRECY:
-CREATING JURY ARRAY approved questions of jurors; -s. 649 Offence to disclose any information
-Should be assembled from as impartiality decided by two other about jury's deliberations (unless obstruction
broad a range of people as jurors/appointees of justice investigation)
possible -PEREMPTORY CHALLENGES: -Rationale for secrecy:
-Minimums usually: Age of majority -s. 634(1) Whether or not juror -Promotes candour, and allows jury to
(19), resident in the province, and already challenged for cause consider all possibilities without fear of
Canadian citizen -s. 634(2) Limits on number of recrimination
-Disqualifications usually: challenges, depending on offence -Protects jurors from harassment and
(1) Potential conflict with individual charged; reprisals
accused or -s. 634(3) If more than one charge, -Promotes finality
(2) Juror's day job: Either too then number for most serious offence -Can disclose information about interaction
important or creates some conflict -s. 634(4) If more than one accused, with jury, but not about impact of interaction
with principles of law or politics then all get prescribed number based upon jury
-Ex. Single mother with 9am-5pm on their individual charges, and -ISSUE ESTOPPEL: R v Mahalingan
job Crown gets sum total -Ensures fairness to D, avoiding
-Jury duty only pays roughly -D can use in any manner inconsistent verdicts & maintaining principle
$8/day she likes of finality
-CHOOSING THE JURY: Selection -Crown cannot use it to construct a -Cannot be convicted on elements for one
Mechanics jury that does not appear impartial crime if elements not deemed sufficient for
-Possible to challenge array, [implicates 11(f)] another
otherwise, select jurors -Cant have 12 -Not retroactive: Guilty of first charge & NOT
-s. 631 Is procedure to be followed women for rape trial guilty of second charge: NOT estoppel
until have selected enough jurors -Cannot pre-screen potential jurors to -If found NOT guilty of first charge but guilty
[12, but can select alternates gain advantage over D in knowledge of second, on same facts, estoppel applies
631(2.1)] about personal views [R v Latimer] -Usually first crime is more serious
-s. 644 If run out of jurors in initial -How do you show motive of Crown if
array (first 200), can get more youve used up your pre-umptory but PRELIMINARY INQUIRIES
-s. 644(1) Can discharge jurors you feel that Crown has been aiming
and replace them for particular type of jury? TESTING SUFFICIENCY OF CROWN:
-s. 644(2) If no replacements or -Find patterns & make -Against D in front of Prov. Ct. judge
alternates, that's ok as long as at application to judge -Evolved to focus on secondary purpose:
least ten jurors -JURY SEQUESTRATION: Testing specific evidence from particular
-Jury decision must be unanimous -ss. 647 & 648 After charge witnesses or on particular issues
otherwise acquitted to jury, they may not be required to -PROCEDURE:
-EXEMPTIONS: start deliberations immediately -ss. 535, 536(4), 536.1(3) Only applies in
-s. 632 Can excuse jurors based (leading to publication ban) respect of indictable offences to be tried in
on: Personal interest in matter to -Go home, pack superior court, and must be requested
be tried; relationship with judge, your things etc. -s. 577 Can be overridden even if accused
prosecutor, accused, counsel for -Sequestered once deliberations start discharged
accused or prospective witness; -Contact allowed with judge: When -Judge can say C has
personal hardship or other questions arise, communications not sufficiently proven case, will discharge
reasonable cause must be made available to all parties, charge
-s. 633 Can stand jurors aside who have an opportunity to make -C can overrule Judge
instead, and substitute them in if submissions on appropriate response, and bring forward by way of direct
run out of jurors in initial array and response must be in open court indictment
[Fontaine] -s. 536.3 Issues to be specified in advance
-D will tell Crown what they
want, such as testimonies
from Cs main witnesses
-JURISDICTION:
Commencement:
-Can have adjournments
-No Charter remedies
available
-Purpose
is not to listen to Charter
arguments
-Judge conducting prelim
does not have jurisdiction to
conduct trial, either in respect
of individual accused or in
respect of a co-accused
-Not weighing strength of
evidence, just whether
sufficient cause to put to jury
-May conduct prelims for
both, however
-Judge is not seized for
purposes of jurisdiction until
evidence has been presented
-Until that point, prelim may
go from judge to judge
-Once seized, same judge
must complete prelim
-Evidence is
entered, judge must have
jurisdiction
-This is the start of
the case
-SCOPE OF PRELIM:
-s. 535 Judge to inquire into
charges or any other
indictable offence disclosed
by evidence, as long as it
arises from same transaction
-Judge can inquire into
additional charge as long as
it arises from same fact
pattern
-Judge
realizes D ought to be
charged with additional crime
X statements
-s. 601 Permits judge to
amend charges to conform
with the evidence
-s. 541 D allowed to raise
exculpatory evidence (in
order to test it and to make a
record of it), even though this
is not 'testing sufficiency of
Crown's case'
-D may cross-examine
witnesses and call its own
witnesses (with permission)
-Does not often
occur
-MULTIPLE D/COUNTS:
-Judge cannot order
severance of D or counts
-D can, if
trying to avoid being
associated with baddie
-s. 536(4.2) If multiple D,
each can make request; if
one makes request, all can
participate
-s. 567 If only one D elects
mode of trial leading to
prelim, then judge can
decline to record elections of
the rest, ensuring prelim
occurs
-Multiple counts can be
considered at one prelim; if
some counts are summary,
they will not be considered
-Once
one elects pre-lim, the rest
follow
-DS PRESENCE: -If sufficient evidence, commit in -Can hear victim impact statements; should
-s. 537(1)(j)(1) D entitled to be respect of those charges (including hear about circumstances of D [R v Priest]
present but can be excused by those not yet charged), discharge in -Bound by factual implications of verdict
judge respect of others -If found guilty of rape,
-Usually job -Sufficient evidence: Could cannot then claim that youre not that type of
reasons reasonably jury, properly instructed, person
-Defence acts find the charge proved beyond -Cannot dispute
as agent reasonable doubt [Shephard] established charge
-s. 537(1)(j) Can be present -Completeness: evidence for every -APPEALS:
electronically element of every offence? -Unless sentence fixed by law, both Crown
-s. 544 If D absconds, right to -Weight: Problem resolved by saying and accused can appeal
presence is waived, but prelim is if direct evidence, then order -Fixed by law:
not necessarily abandoned committal; if circumstantial, then Mandatory sentence
-Theyll hold limited weighing of whether could Ex. Murder:
prelim without D support inferences favourable to Life
-CONSTITUTIONAL ISSUES: prosecution, could be considered -But can appeal
Mills/Hynes: reliable and credible regarding decisions on how long before
-Court conducting prelim is not -If not committed no acquittal parole can be considered
competent for purposes of Charter -REVIEW OF DECISION: -s. 687 COA has broad jurisdiction to vary
(but obviously competent when not -No statutory appeal, so must be sentence within prescribed range
conducting preliminary inquiry) certiorari -Can also intervene if demonstrably unfit
-Prelim is not -Crown usually prefers direct and substantial departure for sentences
competent to consider Charter indictment instead of reviewing imposed for similar offenders committing
arguments discharge s. 577 similar crimes
-Can't give remedies under -Reviewable errors: Must be a -Judges must give their reasons correlating
Charter, but also means D can't jurisdictional error, not just an error in sentence to charge
exercise many constitutional rights law -SC advises deference to trial judge [R v
that would lead to discharge or Failure to comply with mandatory part M(C.A.), unless:
deal with important evidentiary of Code -Error in principle
issues at trial -Committal in absence of evidence on -Fundamental principles of Justice
-Can raise essential element -Failure to consider relevant factor
these issues, but youre not -Failure to consider whole of evidence -Decision of Justice does not reference
challenging the evidence important element
-EVIDENCE: SENTENCING -Overemphasis of appropriate factor
-Admissibility: Generally, same -PURPOSES OF SENTENCING:
admissibility rules at trial apply with GUILTY PLEA -Primary Question: Is the sanction just?
one important exception -In most cases, D pleads guilty -s. 718 (a) Denunciation;
-Evidence taken on oath and -Move directly from trial to sentencing (b) Specific and general deterrence;
recorded, in same order as at trial -Can be an important mitigating factor (c) Incapacitation;
-Judge cannot call witnesses or or as it indicates remorse and saves (d) Rehabilitation;
compel their production, or give victim and state the costs (emotional (e) Reparations to victims or community;
remedies such as exclusion of and financial) of a trial (f) Encourage sense of responsibility and
evidence -No requirement that trial judges acknowledgment of harm by offenders
-s. 540(7) Can permit otherwise determine whether there is a factual -PRINCIPLES:
inadmissible evidence if credible or basis for guilty plea or whether the -s. 718.1 Fundamental principle is that
trustworthy, including written plea is truly voluntary, informed and sentence "must be proportionate to the
unequivocal [see Brousseau v R) gravity of the offence and the degree of
-ISSUE: Seems to require -NOTE: Adgey v R: Cases dealing responsibility of the offender."
assessment of credibility with minors (under 18) carry duty for -Individuate to particular acts of particular
-Need only be credible and judge to ensure youth understands person
trustworthy, need not stand up to impact of their plea -Sentencing should be fair and equal to all,
later scrutiny SENTENCING however, judge may individualize such
-What about evidentiary record at -HEARING: sentences within a spectrum
trial? -Less formal, but accused retains -s. 718.2(a) Aggravating/mitigating factors
-Pre-lim becomes procedural rights, including calling -s. 718.2(b) Principle of parity: Sentence
evidentiary record (people can die evidence, cross-examining witnesses "should be similar to sentences imposed on
etc before trial) and addressing the court similar offenders for similar offences
-If nothing materially different -Ex. Submissions of good character committed in similar circumstances"
between prelim and trial, becomes -Can accept as proved any -s. 718.2(c) Combined consecutive
record information disclosed at trial or sentences "should not be unduly long or
-D must have had sentencing hearing, or agreed facts harsh"
opportunity to cross-examine -Ex. That information agreed to a Pre- -Cannot violate cruel &
-Can object admittance of lims unusual under Charter
evidence -Disputed facts to be established on Ex. Two week B & E spree cannot
-Cross-examination: balance of probs reasonably lead to consecutive sentences
Wide right given to accused to -Aggravating factors/previous extending incarceration for a dozen years
cross-examine witnesses convictions to be established beyond -NOTE:
Address: Allows accused to a reasonable doubt -Concurrent:
respond, but rarely does -Has he committed a similar offence? Serves time for multiple crimes
-Required for unrepresented Did he break prior parole board simultaneously
accused 541(2) promises? -Consecutive:
-Judge will -Sentencing judges can require Serves time for each crime, one after the
give D opportunity to respond production of evidence and witness other
-Defence Evidence: No obligation appearances, and must provide -s. 718.2(d),(e) Restraint: Incarceration
to call evidence 541 reasons should not be used if less restrictive
-Will do so in order to make an -May ask for pre-sentencing report to sanctions may be appropriate, and should
evidentiary record in case be prepared by probation board consider all available sanctions other than
evidence will be unavailable later - imprisonment that may be appropriate
(715), or in order to better Current living conditions, family -NOTE: Defence will often collaborate with
understand prosecution case issues etc Crown to submit on agreed sentencing
-Publication Bans: Mandatory if -More proposal
asked by accused, discretionary common with young offenders -Judge not bound by
otherwise 539 this agreement
-COMMITTAL:
 -Police
have no authority to cut deal,
can only promise to speak to
Crown
-ISSUE: What to emphasize
when?
-Multiple purposes and
principles may lead to
different dispositions
-Hard to achieve all in one
sentence: Will depend on
nature of crime and
circumstances of both
offence and offender
-Punishment is not premised
on revenge, but instead on
retribution
-Objective correlation
between offence and
punishment
-Must consider: Public interest,
perception of admin of justice,
deterrence etc.
-PROPORTIONALITY:
Fundamental principle:
-R v M (CA): Sentence imposed
should be broadly match gravity
of offence committed & moral
blameworthiness of D
-Connected to general principle
of criminal liability which holds
that criminal sanction may only
be imposed on those who
possess morally culpable state of
mind
-Morally culpable: Often relevant
for gang crimes, some members
being more morally culpable
(such as leaders) than others
(reticent followers)
-Retribution, not revenge or
vengeance
-Objective, reasoned & measured
determination of appropriate
punishment which properly
reflects moral culpability of
offender
-Allows
for individuating sentences
-Focused on the past: Conduct
itself
-Retribution restrains in order to
ensure imposition of just &
appropriate punishment &
nothing more
-Max sentences not reserved for
worst offender, but should be
rarely 'awarded', only after
consideration of all multiple
purposes of sentencing
-Ref Re Motor Vehicle Act (BC); s.
94(2): Sentence must bear some
relationship to offence, must be
'fit' sentence proportionate to
seriousness of offence.
-Convinces public that D
'deserved' punishment & feel
confidence in fairness &
rationality of system
-FUNDAMENTAL PURPOSE:
-s. 718 Fundamental purpose of
sentencing is to contribute, along
with crime prevention initiatives,
to respect for law & maintenance
of just, peaceful & safe society by
imposing just sanctions.
-R v M. (C.A.): Retribution is not
determinative
-Deterrence, rehabilitation and
societal protection should be
considered
-Relative importance of the
multiple factors varies with
crime, circumstances of the offender, Ex. Native Elder will offer to act as -Consider factors of systemic discrimination
and the needs of the community mentor that may explain why individual is in court
-DENUNCIATION: -BALANCING PRINCIPLES: R v -Look at alternative measures that may be
-s. 718(a) Also a retributive concept, but Priest (Convicted B & E, judge appropriate in circumstances given
focused on past so can clearly define imposed much higher sentence than Aboriginal status or relationship to
what society is disapproving of: Crown recommendation) community
-Objective demands -HELD: Overemphasis on (alleged) -But: "the more violent and serious the
sentence communicate society's prevalence of B&E led to offence"...[R v Gladue]
condemnation of conduct. overemphasis on general deterrence -AGGRAVATING/MITIGATING:
-Represents symbolic, collective -No assessment of background of -NOTE: Applies to everyone, but
statement that D's conduct should be (first) offender was created with Aboriginals in mind
punished for encroaching on society's -Individual deterrence & rehabilitation -s. 718.2(a) Provides list of aggravating
basic code of values as enshrined should be primary: Short prison factors
within our substantive criminal law." [R sentence at most (unless -Mitigating factors:
v M. (C.A.)] serious/violent offence); must explore -Good character
-Can also enact a mandatory minimum all other options -Youth/Old age
sentence (although they seem to be not -Seek minimum necessary -Poor health
very individuated) intervention -Remorse and early guilty plea
-GENERAL DETERRENCE: - -Potentially provocation (even for
-s. 718(b): Posits that legal sanction Incarceration is last resort (except for manslaughter)
imposed on D will discourage others. serious offences) -Unclear:
Basic purpose & effect of criminal -If -Drug/alcohol use
justice system [R v Sweeney] incarcerating, must show it is justified -Social status
-Usually considered for drunk driving, -Need information beyond 'youth': -Ex. Tribe
sexual assault and domestic violence maturity is key elder, sets the standards for the rest of the
-Concern about prevalence of these -Even if prison needed, must be community
crimes tailored to the individual -Time in custody, effect of consecutive
-Also hate crimes, spousal/child abuse, -Must be proportional: to gravity of sentences
crimes about abuse of trust/authority s. offence and culpability of offender -PAROLE & REMISSION;
718.2 -UNFIT SENTENCES: R v Boucher -RULES regarding early release:
-SPECIFIC DETERRENCE: (Attempted murder & -Full parole: Eligible after serving one-third
-s. 718(b) Sentence should seek to threats, served no jail time of sentence
prevent D from re-offending due to time served) -Full release: Eligible after serving two-thirds
-Can related to concerns about -Crown: Proper range for planned of sentence
rehabilitation, but can also lead to and deliberate attempts at murder -Cannot be kept in
harsher punishments in domestic context is 8.5 years - -NOTE: Arises from sentiments that justice
-If sure about re-offending, life imprisonment [proportionality] is not revenge but instead, retribution &
incapacitation under s. 718(c) may be -Trial judge should have given rehabilitation
only way to deal with specific more emphasis to denunciation -EXCEPTION: s.743.6 If convicted of
deterrence -HELD: Unfit sentence violent or sexual offence and sentenced to
-Can also lead to indeterminate -Lack of physical injuries is not enough to 2+ years of imprisonment, can be ineligible
sentences for repeat dangerous reduce sentence: Still had MR for parole until one-half of sentence or 10
offenders (usually violent offenders) -Doesn't account for psychological harm years has been served (whichever is less)
-REHABILITATION: -Conduct was not spontaneous, but -Life imprisonment sentences:
-ss. 718(d), 718.2(d)/(e) Sentence planned and persistent -Murder: 25 years minimum, faint
should assist in rehabilitation of D and -In domestic violence cases, must pay hope clause at 15
should not deprive offenders of their more attention to denunciation & -Murder 2: 10 years before eligible
liberty when less restrictive sanctions deterrence -Absence of prior record may speed up
are appropriate -Should have been six years, less credit; 3 process
-Combined with proportionality, yrs probation -Social status
concern for rehabilitation should mean -NOTE: Likely wont serve much jail -Will consider effect on community
sentence does not deprive D of greater time anyways -Time in custody, effect of consecutive
liberty than necessary -RESTORATIVE JUSTICE: sentences
-Also relevant to concerns about cost -R v Gladue -No longer 2 for 1
of punishment and disproportionate -Approach to remedying crime in -NOTE: Aboriginals receive different
representation of certain groups in which it is understood that all things treatment regarding incarceration
prison population are interrelated & that crime disrupts -s.718: Fundamental purposes of sentencing
-REPARATIONS & harmony which existed prior to its -PAROLE: R v Zinck (12 year sentence
RESPONSIBILITY: occurrence, or at least which it is felt manslaughter, delayed parole, allowed
-s. 718(e) Reparative concerns should exist. under s.743.6)
quite traditional, and usually -Sanction determined by needs of -ISSUE: Judge failed to give reasons for
focused on repair in community victims, & community & offender. delay
context (ie. not purely victim- -R v Proulx: -HELD: Delay must be
centric) -Should restore parties affected demonstrated need
-Concept of restorative -Usually 3 affected parties: Victim, -Judge must apply sentencing principles,
justice community, and offender. prioritizing deterrence & denunciation
-Most relevant to Aboriginal -Should remedy adverse effects of -D must have fair notice of s. 743.6
community complaints that justice crime in manner that addresses application
system did not reflect their needs of all parties. -MANDATORY MINIMUMS:
communities -Via rehabilitation of D, reparations to -Mandatory minimums can violate s 12
-RCMP victim & community, & promotion of a Charter if grossly disproportionate: Must
addressed this with restorative sense of responsibility in D & consider:
justice acknowledgment of harm done to -Gravity of offence
-s. 718(f) Responsibility promotion victims & community. -Personal characteristics of offender
and acknowledgment of harm to -ABORIGINAL OFFENDERS: -Particular circumstances of case
community -s. 718.2(e) Should consider all -R v Ferguson: HELD: Cannot use
-Usually connected to restorative available sanctions other than constitutional exemptions to mitigate
justice ideas: imprisonment that are appropriate & increased use of mandatory minimum
-"Restorative sentencing goals do reasonable in circumstances, with sentences
not usually correlate with the use particular attention to circumstances -Undermines Parliament's attempt to limit
of prison as a sanction" of Aboriginal offenders sentencing discretion & send clear deterrent
"Usually involve some form of -Overrepresentation of Aboriginal message
restitution and re-integration into people within prison population -Undermines certainty, clarity and
the community" [R v Gladue] predictability
-JOINT SUBMISSIONS:
-Crown & D can agree to a
sentence they want to
present to the Court, but
Court has no obligation to
accept it sentence clearly
unreasonable or unfit
ie. Outside proper range
-NOTE: If judge refuses
submission, must provide
reasons
-R v Cromwell: (Joint
submission: 19 months
conditional sentence, driving
while impaired causing bodily
harm & breach of
recognizance)
-HELD: Court imposed 5
months imprisonment
instead, submission failed to
evidence priority of
denunciation
-Joint submissions should be
supported by facts on
particular case, & evidence of
proper range
-SENTENCE REDUCTION:
R v Nasogaluak (Car chase,
drunk driver, resists arrest,
officer assaults D, no
provision of medical services,
D left with broken ribs,
collapsed lung, D received
sentence below mandatory
minimum via s.24(1))
-HELD: s. 24(1) irrelevant as
violation unconnected to
circumstances of offence or D
-Cannot go below mandatory
minimum, D may sue police
Civilly, but guidelines of
sentencing do not consider
mistreatment, has no mitigating
power
-s.24(1): ONLY for challenging
constitutionality of minimum
sentence
-NON-IMPRISONMENT:
Alternative Measures:
-s. 717: If D accepts
responsibility for crime, can
engage in supervised activities in
community
-Community service
-Specialized education programs
-Restorative justice activities with
community representatives &
victims
-No formal determination of guilt
or innocence
-If D fully completes alternative
measures, charges dropped
-PRINCIPLE: Diverting
people away from court, no trial,
no plea
- -Mandatory minimum offences are
Evaluation of D when charged
-NOTE: Failure to
fulfill measures: Back in court
-ABSOLUTE & CONDITIONAL
DISCHARGES:
-s. 730: If charged with offence
not subject to imprisonment for
14 years (what offence is this) or
life, & without a minimum
sentence, can get an absolute or
conditional discharge
-Must be in best interest of D &
not contrary to public interest
-ABSOLUTE: Still guilty, but let
out
-Instead of convicting,
order for discharge absolutely
-No criminal record IF the defence -NOTE: Conditions must be realistically -APPEALS & REVIEWS
lawyers asks for the fingerprints etc to enforceable, given resources of -All appeal powers are statutory
be expunged community -s. 40 Supreme Court Act can act as
-Crown may -R v Bremmer: (Sentenced 18 months for statutory-override, allowing direct appeal to
decline indecent assaults of boys 30 years ago, SC
-CANNOT apply to those since then lived good family life, no threat -CL: Contains other review powers:
offences with mandatory minimum to community) Ex. Certioriari
sentence -Trial judge said that conditional sentence -INDICTABLE OFFENCES: D APPEALS:
-Applies to those offences would detract from the intended general -s. 675(1)(a) Grounds for
carrying 14 years or lower deterrence, the public denunciation, and launching appeal:
-CONDITIONAL: Like probation, but let any restitution to victims -Question of law
out immediately post-conviction -D argued trial judge over-emphasized -Did the judge understand or
-Breach can lead to being sentenced for these principles, the Ds lack of remorse, interpret correctly an element of law?
original offence AND breach of and the improper victim impact statements -Question of fact
probation -HELD: Victim impact statements -Did the jury understand what the
-CAN be applied to those crimes contained improper evidence and opinion facts meant?
carrying min. mandatory sentences about D, as if victims were making -Hard to appeal as reasons for
-No criminal record, but must ask to submissions on sentencing jury decision are not revealed
remove fingerprints -Unfair to refer to him as a pedophile at -Did judge
-NOTE: Conditional sentence and sentencing overemphasis element of fact to jury?
conditional discharge are independent -Conditional Sentences & -Mixed fact and law
-SUSPENDED: Deterrence/Denunciation -s. 686(1)(a) Grounds for granting appeal:
Sentenced to prison but suspended on -Can meet these requirements - stigma -s. 686(1)(a)(i) Verdict unreasonable or
basis will follow probation attached to living in a community house; unsupportable by the evidence
-R v Fallofield: appropriately punitive conditions can act -Jury finding of guilt was unreasonable
-Available for more than minor offences as deterrents based on the charge given to the Jury by the
-Should not be routinely applied to any - Judge
particular offence Conditional Sentences & -Manner in which Defence can
-Must be in best interest of D; and Deterrence/Denunciation appeal a Jury verdict
-Not contrary to the public interest -NOTE: Exceptional case due to: Time -Crown cannot do this, but can indirectly
-If conditions of a conditional discharge elapsed; Ds life since that time; no challenge a verdict by claiming mistake of
breached, can be sentenced for original violence/threat involved; low risk of law regarding Judges charge to the Jury
offence AND breaching probation order recidivism; character references; not a -s. 686(1)(a)(ii) Error on question of law
-PROBATION: pedophile; deterrence through media -s. 686(1)(a)(iii) Miscarriage of justice
-NOTE: Not parole -FINES: -NOTE: Question of law for s. 675 may not
-s. 731: If convicted of -s. 787: Maximum summary conviction fine be so for s. 686(1)(a)
offence: for individual is $5000; for organization, -Demonstration of s.675 grounds for appeal
-May suspend passing of sentence & $100,000 735(1)(b) does not mean appeal will be granted
release offender on conditions in -No limit for indictable offences -Assessment as to whether erroneous
probation order (if no minimum -Can be imprisoned if fail to pay element is substantial enough
punishment) -s. 734(2): Order only if accused can pay -INDICTABLE OFFENCES: Grounds for
-Can issue probation order in addition -Assess ability to pay & ensure fine DISMISSING appeal: s. 686(1)(b)
to fine or sentence of imprisonment of appropriate for Ds means [R v Hebb] -Properly convicted on another count or part
not more than 2 years -Can often perform community service of indictment [result is to substitute verdict,
-Can also be attached to discharges instead of payment of fine affirm sentence, impose new sentence,
under s. 730 -Unless waived by court, also required to order new sentencing hearing]
-Compulsory conditions: Keep peace, pay victim surcharge of 15% of a fine -Can appeal particular count
appear before court as needed, notify -If no fine, then $50/summary, within a number of counts of conviction
of changes in address or employment $100/indictable -Appeal not successful on any ground in s.
-Optional: No alcohol/drugs/guns; -RESTITUTION: 686(1)(a)
support dependants; community -s. 738: Can order restitution for: -Even if error of law, no substantial wrong or
service; other reasonable conditions -Property damage miscarriage of justice
necessary to secure good conduct -Pecuniary damage from offences -Unprejudicial procedural error
[Ziatas] involving bodily harm (or threat), and -s. 686(1)(c)/(d) Issue need not be
-CONDITIONAL SENTENCES; -Expenses of moving spouse & kids from conviction/acquittal
-NOTE: Conditional Ds house (cases involving bodily harm or (d): Lack of fitness for trial
discharge & sentence are the same threat) -Will seek medical treatment instead of jail
-s. 742.1: If sentenced to less than 2 -Are not substitutes for civil process, -s. 687 Appeal court can vary sentence
years imprisonment, can be ordered to but usually enforced as civil -NOTE: If successful on s. 686(1)(a), then
serve in the community judgments conviction quashed & either acquitted or new trial
-If satisfied would not endanger safety -RECOGNIZANCES: ordered
of community -s. 810.1: Can order individual to keep -STANDARD OF REVIEW:
-If would not be inconsistent with s. 718 peace subject to certain conditions, if - Varies with ground of appeal: Housen
& 718.2 reasonable grounds to believe v Nikolaisen
-Principles of sentencing individual will commit a sexual offence -Question of law: Correctness
(or terrorist offence 83.3, violent -Can substitute own opinion
excluded [R v Proulx] offence 810, criminal organization -Question of fact: Palpable & overriding error
-For counting time for imprisonment, offence 810.01, or cause serious -Review prohibited "if some evidence upon which
include time spent in pre-trial custody personal injury 810.2) he or she could have relied to reach that
[R v Fice] -Ex. Pedophiles practicing conclusion"
-Conditions: Can attach same abroad & returning home -Efficiency, judges presumed competent, better
conditions as probation order, but also -Can swear an information to that situated to make findings of fact
mandate treatment programs effect, provincial court judge may -Mixed law & fact: If more question of law, then
-Punitive: Can be longer term than require appearance of named person correctness; if involves judge's interpretation of
imprisonment; often includes house before superior court evidence on whole, then higher standard
arrest (should be norm) -Court can impose recognizance, -Higher standard: More deference to
-s. 742.3 Guiding Principles allowing individual to go free, but with the judge
for conditional sentences conditions -UNREASONABLE VERDI: s. 686(1)(a)(i)
-Ensure safety of community -Constitutional as balances public -"Whether properly instructed jury acting
-Conditions must be tailored to fit interest in safety against liberty judicially, could reasonably have entered" the
particular circumstances of offender interest [R v Budreo] verdict [Yebes]
and offence -Though prohibition against -More than whether there is sufficient evidence:
community centres here too broad Must be some weighing of evidence
APPEALS
 -How was the
evidence presented to the jury by
the judge in his charge?
-Cannot simply substitute own
opinion:
-ASK: Could trier of fact
reasonable reach verdict on
basis of evidence before it?
-Appellate court will not
substitute their weighing of
evidence as they had not
heard the submissions in
person
-They will look to
sufficiency of evidence & the
charge
-JUDGE ALONE: Unreasonable if
unsupportable in evidence or
error in reasoning process
[Beaudry]
-If judge errs in his
decision, such as attributing fact
to wrong person
-JURY: Need precise reasons why
unreasonable verdict such that
no jury could properly have
reached that verdict
Ex. Failed to use evidence
correctly
-ERRORS OF
LAW/MISCARRIAGES OF
JUSTICE:
- No requirement that
verdict unsupportable
-s. 686(1)(a)(ii) Error of law: "any
decision that was erroneous
interpretation or application of
law"
-At this stage, only issue is
existence of error, not its impact
or significance
-But can lead to miscarriage of
justice
-s. 686(1)(a)(iii) Miscarriage of
justice requires error of law &
fact (misinterpretation of law
applied in the course of the case)
-Must then grant appeal
-TEST: "Reasonable possibility
that verdict would have been
different had error not been
made" [Khan]
-CURATIVE PROVISO:
-s. 686(1)(b)(iii) Error of law can
still lead to dismissal of appeal
unless "no substantial wrong or
miscarriage of justice occurred"
-Show that error is minor
-Show that evidence so
overwhelming that conviction
would inevitably result
-FACTUAL question: Must be
deferential to trier of fact
-PROCEDURAL
IRREGULARITIES
-s. 686(1)(b)(iv) Classification
-If irregularity amounts to
ERROR OF LAW, then look
to s. 686(1)(a)(ii) & s. 686(1)
(b)(iii)
-If NOT error: s. 686(1)(a)(iii)
& consider if miscarriage of
justice
-If YES error: Appeal must be
allowed
-If error about
JURISDICTION of court, then
look to prejudice under s.
686(1)(b)(iii)
-NOTE: Must show significant
disadvantage (akin to
curative proviso)
-CROWN APPEALS:
-s. 676 Usually either on -Reasons explain result, provide basis offence as a likely result of the predicate offence
question of law, or decision that for appellate review (DeSousa).
disposes of prosecution -Sufficiency of reasons TEST: Ex: Prove subj intention to steal but can
-Error of law: -Inadequate reasons? objectively have caused bodily harm
Often Charter questions -Does inadequacy prevent review? Directions for dealing with Predicate Offence
-DISPOSES: D argues Crown has -If YES to both, then new trial Parse PREDICATE OFFENCE
not established case, Judge -GUIDELINES FOR REASONS: R v Use standard AR/MR analysisassess mr and ar
agrees & dismisses Sheppard for the predicate offence
-s. 676(1)(a) Decision of acquittal -Reasons are inherent in role of judge Predicate offence must be constitutionally valid.
or verdict of not criminally -Should not leave D in doubt about Predicate offence cannot be absolute liability if it
responsible on account of mental conviction can leads to imprisonment as per Motor Vehicle
disorder based solely on error of -Reasons needed to determine Reference.
law whether & how to appeal, & are Parse PRINCIPLE OFFENCE
-Not the jury decision, necessary to function of appeal courts CONDUCT AR an unlawful actput in whatever
but in how the courts have -Where law unsettled or evidence it was act MR: subjective
interpreted fitness confused, reasons are usually intention/reckless/wblindness
-s. 676(1)(b)-(c) Decisions that necessary CIRCUMSTANCE AR: other circumstances for act
terminate proceedings -Acquittal requires lesser reasons as goes here and objective dangerousness,
-s. 676(1)(d) Appeal of sentence will not be appealed unless error of Creighton says that unlawful act is necessarily
(with leave) law: dangerous MR TEST= Marked Departure test from
-NOTE: Acquittals not lightly -Delay, as opposed to complete lack, Hundal and Beatty see above(DeSousa; Creighton
overturned: Even if error of law, of reasons, can also raise problems say that this test is obj )
must show more than possibility of -SUMMARY CONVICTIONS: It is only modified circumstances and capacity to
acquittal, error must have had -Instead of COA, go to superior court appreciate danger (individual). Beatty
"material bearing on the acquittal" -Broad & similar grounds of appeal for CONSEQUENCES
[R v Sutton] Crown & D (unlike indictable AR: x MR:The rule that symmetry (ie mens rea for
-If successful, either new trial or offences) that specific consequence)usually exists between
substituted conviction (if factual -s. 813 Grounds for launching consequence and requisite mens rea is not a
findings made by judge) appeals principle of fundamental justice, it just happens to
-NOT jury findings -D can appeal conviction or order often be the case If symmetry doesnt exist
-QUESTION OF LAW: Admissibility against him between CONSEQUENCE AR AND MR, you have
of evidence, interpretation of -Crown can appeal order that stays to find moral blameworthiness elsewhere ( in
statute, application of legal proceedings or dismisses information manslaughter its negligence or unlawful act).
standard, correct decision of -Both can appeal sentences & not Parliament is within its rights to impose greater
Charter issue criminally responsible & fitness to penalties for acts that have more serious
-TREATMENT stand trial consequences. Creighton
OF EVIDENCE: -s. 822(1) Grounds for granting If consequence is BODILY HARM, then must be
-Legal effect of undisputed facts appeals objective foreseeability of the risk of bodily
(such that appellate court could -Exactly same as indictable offences harm that is more than trifling or transient.
disagree with ultimate decision -DIFFERENCES: De Sousa
without engaging in fact-finding) -s. 822(4) Appeal If consequence is DEATH, then must be
- can be new trial objective foreseeability of the risk of bodily
Misapprehension of legal principle -ss. 829 - 838 Alternate appeal harm (analogize to Creighton
(of how to treat evidence) procedure on agreed statement of If MANSLAUGHTER, then must be objective
-Instructing jury to consider pieces facts or transcripts, often: foreseeability of the risk of bodily harm
of evidence instead of evidence as -Error of law (analogize to Creighton
whole -Excess of jurisdiction
-STATUTORY POWERS: -Failure to exercise jurisdiction Predicate Offences must be
-s. 683 Can order production of -s. 839(2) Can appeal an error of law Constitutionally valid in its own right, BUT
exhibits, hear witnesses, or to COA with leave it is not constitutionally required for offences
refer to a special -Skips superior court less than murder that subjective MR apply to
commissioner, and amend -APPEALS TO SCC: every element of an offence De Sousa and
indictments -Only can appeal indictable offences Creigthon
-s. 684 Assign counsel for D to SCC [with possible exception under However, predicate offences cannot be
-s. 679 Order D released on s. 40 Supreme Court Act] absolute liability if it can lead to
appeal -Only on question of law imprisonment as per Motor Vehicle
-Can apply for release -Can appeal whether COA should Reference(leads to the possibility that
(or jail avoidance) pending have allowed previous appeal, or someone who is morally innocent cn be
decision should have used curative proviso punished without being proved BRD)
-Courts will not normally put D in -How Crown indirectly challenges Manslaughter Specifically Creighton
jail for appeal of jail time as the error of fact (as error of law on part of The bottom line is that to be guilty of
courts do not want to have D COA) manslaughter, objective foreseeability of
appeal time actually served -If D convicted at trial & on appeal, bodily harm is the minimum standard and
-FRESH EVIDENCE can only go to SCC if: this is constitutionally ok. Confirms the
-FOUR GUIDELINES: [R v Palmer] (i) dissent from judge of COA on common law standard. Distinguished from
-Not admitted if could have been question of law, or Martineau because Martineau was murder
adduced at trial through due (ii) leave from SCC Creighton
diligence -If acquitted at trial but convicted on WHY? McLachlin says Manslaughter is
-Cannot bring up point you simply appeal, can appeal any question of legally understood to be less than intention
missed in the original file, must be law to kill and is thus very different than murder
genuinely new Predicate offences Creighton
-Relevant to decisive or potentially The word unlawful imports objectivity It Follows that Manslaughter carries a
decisive issue into the principle offence(i.e. in the course flexible penalty, and therefore the sentence
-Credible (reasonably capable of of committing another criminal offence) can be tailored to suit the degree of moral
belief) when combined with other means contrary to a federal or provincial fault. It is open to Parliament to say that
evidence, could have affected offence (predicate offence) DeSousa where the consequences are greater, the
result Unlawfully is telling you punishment will be greater. Creighton
-NOTE: Not only way to introduce (1) find the predicate offence and Also, Deterrence: demands that a person
evidence, especially if error in parse/prove it like normal; [could be obj or who embarks on a dangerous course of
disclosure subj] action be held responsible if death ensues.
-DUTY TO GIVE REASONS: (2) the mens rea for the rest is objective. Theres no problem at a policy level for
-No absolute duty, but failure to do Would a reasonable person in the Ds holding ppl responsible for all consequences
so will likely lead to error of law [R circumstances have seen the principle of acts.
v Sheppard]
AND Justice requires that the
criminal law account for the
concerns of the victim and for
the concerns of society in
this case, the fact that
someone has died as a result
of As actions
Thin Skull: The principle that
A takes his or her victim as
s/he finds them requires that
A take responsibility for the
consequences of objectively
dangerous actions, even
death. Creighton
This is why objective
foreseeability of harm is
sufficient
Note arguable that public
doesnt know the
difference between a
conviction of
manslaughter and murder
and that they would thus
carry the same stigma
Air of Reality Test (There
must be AOR to EACH
ELEMENT) Cinous
Its an EVIDENTIARY
BURDEN
1) Must be evidence on
record
2)upon which a properly
instructed jury, acting
reasonably, could acquit
When A gives direct
testimony, it is assumed to be
true enough to be left to jury.
Credibility not at issue in Air
of Reality Test
Once A raises Air of Reality,
LEGAL BURDEN is on the
crown to disprove one
element BRD
AS YOU GO THROUGH
EACH ELEMENT OF THE
DEFENCE: COULD THE
CROWN DISPROVE THIS
ELEMENT BRD?
ANTICIPATE COUNTER
ARGUM
Victims of criminal acts
Understanding
the court system and
sentencing procedure
As the victim of a crime, you
have called the police. The
police has conducted an
investigation, identified a
suspect, and submitted a
report to the Criminal and
Penal Prosecuting Attorney,
who has found that there is
sufficient evidence to take the
case to court. The
Prosecuting Attorney will
determine the charges, and
will handle the case until the
end of the proceedings.
Principles of criminal law
Arraignment
Release hearing
Preliminary inquiry and
trial
Sentencing
Probation order
Fine
Suspended sentence
Prison sentence
Appeal
Conditional release ordering the accused to stay away An accused who fails to comply with the
from your home or your place of work. conditions imposed may be charged with
measures If you want specific conditions to be breach of parole.
Prison sentences of less placed on the accused, you should Fine
than two years tell the Prosecuting Attorney, who will A fine is a sum of money that must be paid
Prison sentences of two assess their relevance. to the State by an offender within a time
years or more If the accused fails to comply with the frame determined by the judge. Before
For more information conditions, new charges may be imposing a fine, the judge must be satisfied
criminal law brought, and the court will review that the individual has the means to pay it.
Before seeing how the court whether or not the accused should Conditional
system works, we will review some have been released. It is extremely sentence of imprisonment
of the main principles of criminal important for you to notify the police If the prison sentence for an offence is less
law: immediately if you become aware of than two years, with no minimum sentence
According to law, a person any failure to comply with the prescribed by law, and if the judge is of the
accused of a crime is innocent until conditions. opinion that allowing the offender to serve
found guilty by a judge. As a result, Preliminary inquiry and trial the sentence in the community will not
a suspect can be deprived of his or The preliminary inquiry (optional) and the endanger the safety of the public, the judge
her liberty during legal proceedings trial follow the disclosure hearing. These can impose a conditional sentence of
only if certain conditions are met. stages involve, first, determining whether imprisonment. The accused must agree to
As a general rule, all suspects are there is enough evidence to warrant a trial respect certain conditions in the conditional
released - detention is the and, second, proving that the accused is sentence of imprisonment, including
exception. guilty beyond a reasonable doubt. In both reporting to a probation officer. An accused
At the trial, the Prosecuting cases, the Prosecuting Attorney and the who fails to comply with compulsory
Attorney must prove beyond counsel for the defence call and question conditions will be required to return to court
reasonable doubt that the witnesses, including the victim or victims, to explain his or her conduct.
defendant is guilty. At this stage, and present evidence with arguments in Imprisonment
any testimony you are asked to support of their respective cases. If the
The Criminal Code specifies the maximum
provide may be crucial. evidence is found to be insufficient at the
period of imprisonment that may be imposed
Court proceedings usually take preliminary inquiry, the charges against
by a judge for each offence defined in the
place in public. However, in certain the accused will be dropped, whereas if the Code. In exceptional cases, it also specifies
circumstances, particularly in evidence is found to be insufficient at the
a minimum period of imprisonment.
cases involving a sexual offence, trial, the accused will be acquitted. A prison sentence of less than two years is
the judge may decide to proceed After the trial, if the accused is found served in a provincial detention facility; a
behind closed doors, in other guilty, the judge will hand down a
sentence of more than two years is served
words in the absence of the public. sentence. in a federal penitentiary.
The accused is not obliged to In the case of a trial with a judge and jury,
In the case of a sentence of ninety days or
testify in his or her own defence, or the judge will instruct the jury, which must less, the judge may allow the offender to
to call witnesses. reach a unanimous verdict. Sentencing
serve it intermittently, usually on weekends.
It is impossible to predict exactly If the accused is found guilty, the
how long a court case will last. judge has several options for Haut
Some cases take several months. sentencing the accused, and may ask
If you are called to testify, you will for a pre-sentencing report. The
receive a subpoena to a witness, report is prepared by a parole officer
along with a document and is intended to facilitate Appeal
entitled Witnesses: Your role in sentencing by informing the court Either the accused, or the Prosecuting
court - Criminal Division - Youth about the accuseds potential for Attorney, may ask the Court of Appeal to
Division. rehabilitation, and the threat he or she review the verdict rendered or the sentence
This document summarizes the presents for society in general. In handed down by the trial judge.
A number of rules govern the appeal
various steps in a criminal trial. preparing the report, the parole procedure; for example, parties cannot
Arraignment
At the arraignment, the charges officer may contact you, as the appeal a judgment simply because they are
are read out to the defendant, who victim, to determine the nature dissatisfied with it.
pleads guilty or not guilty before Conditional
the judge. At this stage the and seriousness of the harm release measures
While detained, the offender may be eligible
presence of the victim is not you have suffered. for various conditional release programs
usually required. By law, you may make a written victim
If the accused pleads guilty, the intended to facilitate social rehabilitation.
impact statement setting out the
judge will either hand down a The programs are available at different times
psychological, social, physical,
sentence in accordance with the material and financial harm you have during the sentence, depending on whether
rules governing sentencing it is being served in a provincial institution
suffered as a victim of the crime
explained below, or postpone (less than two years) or in a federal
committed. It will be taken into
sentencing to a later date in order consideration for sentencing penitentiary (two years or more).
to seek additional information. Prison sentences of less than two years
purposes. The CAVAC in your region
If the accused pleads not guilty, the will provide assistance in drafting the Prison terms of less than two years are
judge sets the date for the next supervised by Services correctionnels du
statement if required.
stage in the court process: the Qubec, which promotes the rehabilitation of
release hearing (often called bail offenders by granting them temporary
Probation order
hearing), disclosure, preliminary The probation order contains various absence.
inquiry or trial. An offender granted temporary absence is
conditions that the judge considers
Release (bail) hearing subject to various conditions, and a failure to
appropriate in the circumstances.
An accused who is in custody at These may include basic obligations comply may result in the offender being
the time of the arraignment must such as keeping the peace and being required to serve the remainder of the
be released by the judge unless of good behaviour and appearing
sentence in prison.
the Prosecuting Attorney objects to before the court when required, etc., The Commission qubcoise des librations
conditionnelles is responsible for making
release and satisfies the court that or specific offence-related conditions
it is necessary to keep the accused such as an obligation to report decisions concerning the conditional release
of offenders. Victims as well as their
in custody for the duration of the regularly to a probation officer,
immediate family members may express
court process. The hearing may be undergo therapy, do community work,
adjourned for no more than three compensate the victim, or avoid all their position using the form provided for that
purpose, adding any relevant comments.
days. contact with the victim. If you, as the The information is forwarded to the
A judge who agrees to release the victim, want specific conditions to be
accused may impose conditions, imposed on the accused, you can commissioners who then decide on the
conditional release of the offender.
such as prohibiting the accused discuss them with the Prosecuting Prison sentences of two years or more
from contacting you, the victim, or Attorney responsible for the case.
An offender serving a prison
sentence of two years or
more is under the authority of
theCorrectional Service of
Canada (CSC) and
the National Parole Board
(NPB) for the full duration of
the sentence.
The CSC is responsible for
custody measures within the
penitentiaries and for the
programs set up to ensure
that offenders serve their
sentences. The CSC also
oversees offenders on
conditional release programs.
The NPB is an administrative
tribunal responsible for
making decisions concerning
the conditional release of
offenders.
Federal law grants victims
the right to obtain certain
types of information about the
person who caused them
harm while that person is
under the authority of the
CSC and the NPB. The
information (for example, the
place where the person is
incarcerated and the date on
which the person is eligible
for parole) is not
communicated automatically:
a victim wishing to obtain this The Correctional Service of
information must register for
the victim notification service.
To learn about registering for
the victim notification service, The National Parole Board:
and for more information
about victims rights under
Canadian law , please call
1 866 789-INFO (4636).
Canadian law recognizes that
crime victims have an
important role to play and
allows them to participate
actively in the federal
corrections process. Victims
may furnish information that
will assist the NPB and the
CSC in their consideration of
an offender's conditional
release. Victims may also
assist at NPB hearings as
observers where they are
given an opportunity to read
a statement prepared in
advance and submitted to the
NPB. The statement may
also be given on tape or by
video.
If you would like more
information about your role
as a victim in criminal court
proceedings or about your
rights and responsibilities,
contact the crime victims
assistance centre closest to
you. The CAVAC staff will
listen to you attentively and
provide assistance, whether
or not you decide to file a
complaint.
For more
information
Crime victims assistance
centres (CAVACs):
CAVAC website
The rights, remedies and
resources available to victims in advance of trial, admit or
of crime:
Victims of crime - Rights,
remedies and resources requests are called motions "in verdict. Juries must typically be unanimous.
Preparing to testify in Criminal limine." (But see Do criminal jury verdicts have to be
Court: Opening statements. The prosecution unanimous?) If less than the requisite
Witnesses: Your role in Court - and then the defense make opening number of jurors agrees on a verdict, the
Criminal Division - Youth Division statements to the judge or jury. These jury is "hung" and the case may be retried.
Preparing to testify in Youth Court: statements provide an outline of the Post-trial motions. If the jury produces a
Witnesses: Your role in the case that each side expects to prove. guilty verdict, the defense often makes post-
Youth Court Because neither side wants to look trial motions requesting the judge to override
The various stages in the judicial foolish to the jury, the attorneys are the jury and either grant a new trial or acquit
process for minors: careful to promise only what they the defendant. (Again, see Acquittals by
The Youth Criminal Justice think they can deliver. In some cases, Judges in Jury Trials. Also see Motions for
Act: The legal procedure the defense attorney reserves New Trial.)
Victims of crime: opening statement until the beginning Denial of post-trial motions. Almost always,
Understanding the youth criminal of the defense case. The lawyer may the judge denies the defense post-trial
justice system even choose not to give an opening motions.
Justice Process statement, perhaps to emphasize to Sentencing. Assuming a conviction (a
Adult Criminal Justice Process the jury that it's the verdict of "guilty"), the judge either
Key information on the street gang prosecution's burden to do the sentences the defendant on the spot or sets
problem convincing. sentencing for another day.
Website Choisis ton gang Prosecution case-in-chief. The
The addresses and telephone prosecution presents its main case
numbers of Qubec courthouses: through direct examination of
Courthouses prosecution witnesses.
The judicial district a municipality is Cross-examination. The defense may
located in: cross-examine the prosecution
Search for a judicial district witnesses. (Also see What are 're-
Community resources (by category direct' and 're-cross' examination?)
and region) Prosecution rests. The prosecution
Ministre de la Sant et des finishes presenting its case.
Services sociaux (In French) Motion to dismiss (optional). The
The Qubec parole board: defense may move to dismiss the
Commission qubcoise des charges if it thinks that the
librations conditionnelles prosecution has failed to produce
website (In French) enough evidenceeven if the jury
believes the evidenceto support a
Canada: guilty verdict. (For more information,
Correctional Service of see Acquittals by Judges in Jury
Canada website Trials.)
Denial of motion to dismiss. Almost
National Parole Board always, the judge denies the defense
website motion to dismiss.
The federal Policy Centre for Defense case-in-chief. The defense
Victim Issues: presents its main case through direct
Policy Centre website examination of defense witnesses.
precedENTS The many legal Cross-examination. The prosecutor
procedures associated with cross-examines the defense
modern criminal trials have witnesses.
developed over centuries. States Defense rests. The defense finishes
and the federal government follow presenting its case.
a largely uniform set of Prosecution rebuttal. The prosecutor
procedures. (For more on these offers evidence to refute the defense
procedures, see Criminal case.
Trials.) Assuming that the criminal Settling on jury instructions. The
trial is carried out to completion, prosecution and defense get together
those procedures tend to include with the judge and determine a final
the following: set of instructions that the judge will
Judge or Jury Trial. The defense give the jury.
often has the right to decide Prosecution closing argument. The
whether a case will be tried to a prosecution makes its closing
judge or jury, but in some argument, summarizing the evidence
jurisdictions both the prosecution as the prosecution sees it and
and the defense have the right to explaining why the jury should render
demand a jury trial. (For more on a guilty verdict.
the jury-trial right, including its Defense closing argument. The
limitations, see The Right to Trial defense's counterpart to the
by Jury.) Juries typically consist of prosecutor's closing argument. The
12 people, but some states allow lawyer explains why the jury should
for juries as small as six members. render a "not guilty" verdictor at
Jury selection. If the trial will be least a guilty verdict on only a lesser
held before a jury, the defense and charge.
prosecution select the jury through Prosecution rebuttal. The prosecution
a question-and-answer process has the last word, if it chooses to take
called "voir dire." In federal courts it, and again argues that the jury has
and many state courts, the judge credible evidence that supports a
carries out this process using finding of guilty.
questions suggested by the Jury instructions. The judge instructs
attorneys, as well as questions that the jury about what law to apply to the
the judge comes up with on his or case and how to carry out its duties.
her own. (Some judges "preinstruct" juries,
Evidence issues. The defense and reciting instructions before closing
prosecution request that the court, argument or even at the outset of
trial.)
exclude certain evidence. These Jury deliberations. The jury
deliberates and tries to reach a