Anda di halaman 1dari 62

1

Criminal Law Process ..................................................................................................................................................................4


Morality ...................................................................................................................................................................................4
R v Malmo-Levine .......................................................................................................................................................4
R v Labaye ...................................................................................................................................................................4
Prostitution ...............................................................................................................................................................................5
Reference Re ss 193 and 195.1(1)(c) of the Criminal Code ........................................................................................5
Test for s 7 Violation ...............................................................................................................................................................5
Proof ............................................................................................................................................................................................6
Burden of Proof .......................................................................................................................................................................6
Woolmington v DPP ....................................................................................................................................................6
R v Oakes .....................................................................................................................................................................7
R v Keegstra ................................................................................................................................................................7
R v Downie ..................................................................................................................................................................7
Quantum of Proof ....................................................................................................................................................................8
R v Lifchus ..................................................................................................................................................................8
R v Starr .......................................................................................................................................................................8
Actus Reus....................................................................................................................................................................................9
Contemporaneity......................................................................................................................................................................9
Fagan v Commissioner of Metropolitan Police ...........................................................................................................9
R v Miller .....................................................................................................................................................................9
R v Cooper ...................................................................................................................................................................9
R v Williams .............................................................................................................................................................. 10
Voluntariness ......................................................................................................................................................................... 10
R v Larsonneur........................................................................................................................................................... 10
Kilbride v Lake .......................................................................................................................................................... 10
R v Ruzic ................................................................................................................................................................... 11
Acts ........................................................................................................................................................................................ 11
Omissions .............................................................................................................................................................................. 11
R v Browne ................................................................................................................................................................ 11
R v Thornton .............................................................................................................................................................. 11
Status Offences ...................................................................................................................................................................... 12
Circumstances ........................................................................................................................................................................ 12
Consequences & Causation ................................................................................................................................................... 12
R v Winning ............................................................................................................................................................... 13
Smithers v The Queen ................................................................................................................................................ 13
R v Cribbin ................................................................................................................................................................ 13
Pagett v The Queen .................................................................................................................................................... 14
R v JSR ...................................................................................................................................................................... 14
R v Reid & Stratton ................................................................................................................................................... 15
R v Harbottle .............................................................................................................................................................. 15
R v Nette .................................................................................................................................................................... 16
Mens Rea ................................................................................................................................................................................... 16
Subjective Fault ..................................................................................................................................................................... 16
R v Tennant and Naccarato ........................................................................................................................................ 16
R v Lewis ................................................................................................................................................................... 17
R v Steane .................................................................................................................................................................. 17
R v Hibbert ................................................................................................................................................................ 17
R v Buzzanga and Durocher ...................................................................................................................................... 18
R v Theroux ............................................................................................................................................................... 18
R v Sansregret ............................................................................................................................................................ 18
R v Briscoe ................................................................................................................................................................ 19
Objective Fault....................................................................................................................................................................... 19
R v Tutton & Tutton .................................................................................................................................................. 19
R v Gingrich and McLean.......................................................................................................................................... 20
R v Hundal ................................................................................................................................................................. 20
R v Creighton ............................................................................................................................................................. 20
R v Beatty .................................................................................................................................................................. 21
Absolute and Strict Liability .................................................................................................................................................. 21
Beaver v The Queen .................................................................................................................................................. 21
R v Pierce Fisheries ................................................................................................................................................... 22
R v Wholesale Travel Group ..................................................................................................................................... 22
R v City of Sault Ste Marie ........................................................................................................................................ 22
Reference re Section 94(2) of the BC Motor Vehicle Act ......................................................................................... 23
Homicide ................................................................................................................................................................................... 23
Manslaughter ......................................................................................................................................................................... 23
Second Degree Murder .......................................................................................................................................................... 23
R v Simpson ............................................................................................................................................................... 24
R v Cooper ................................................................................................................................................................. 24
R v Fontaine ............................................................................................................................................................... 24
R v JSR ...................................................................................................................................................................... 25
Vaillancourt v The Queen .......................................................................................................................................... 25
R v Martineau ............................................................................................................................................................ 25
First Degree Murder .............................................................................................................................................................. 26
R v More .................................................................................................................................................................... 26
R v Widdifield ........................................................................................................................................................... 26
R v Nygaard ............................................................................................................................................................... 26
R v Collins ................................................................................................................................................................. 27
R v Russell ................................................................................................................................................................. 27
R v Arkell .................................................................................................................................................................. 27
R v Luxton ................................................................................................................................................................. 28
Sexual Assault ........................................................................................................................................................................... 28
R v Chase ................................................................................................................................................................... 29
Pappajohn v The Queen ............................................................................................................................................. 29
Osolin v The Queen ................................................................................................................................................... 29
Sansregret v The Queen ............................................................................................................................................. 30
R v Seaboyer .............................................................................................................................................................. 30
R v Darrach ................................................................................................................................................................ 30
R v Cornejo ................................................................................................................................................................ 31
R v Ewanchuk ............................................................................................................................................................ 31
Inchoate Offences ...................................................................................................................................................................... 32
Attempt .................................................................................................................................................................................. 32
R v Cline .................................................................................................................................................................... 32
Deutch v The Queen .................................................................................................................................................. 32
R v Ancio ................................................................................................................................................................... 33
R v Logan .................................................................................................................................................................. 33
R v United States v Dynar ......................................................................................................................................... 33
Counselling ............................................................................................................................................................................ 34
R v Hamilton .............................................................................................................................................................. 34
Conspiracy ............................................................................................................................................................................. 34
United States v Dynar ................................................................................................................................................ 34
R v Dry ..................................................................................................................................................................... 35
Complete Offences ................................................................................................................................................................ 35
R v Legare .................................................................................................................................................................. 35
Participation ............................................................................................................................................................................... 35
Principals ............................................................................................................................................................................... 36
R v Thatcher .............................................................................................................................................................. 36
Aiding and Abetting .............................................................................................................................................................. 36
R v Greyeyes .............................................................................................................................................................. 37
Dunlop and Sylvester v The Queen ........................................................................................................................... 37
R v Jackson ................................................................................................................................................................ 37
R v Nixon ................................................................................................................................................................... 38
R v Helsdon ............................................................................................................................................................... 38
R v Popen ................................................................................................................................................................... 38
R v Palombi ............................................................................................................................................................... 39
R v Kirkness .............................................................................................................................................................. 39
R v Logan .................................................................................................................................................................. 40
Counselling ............................................................................................................................................................................ 40
R v OBrien ................................................................................................................................................................ 40
Accessory After the Fact........................................................................................................................................................ 41
R v Duong .................................................................................................................................................................. 41
3
Defences .................................................................................................................................................................................... 41
Necessity ................................................................................................................................................................................ 41
Morgentaler v The Queen .......................................................................................................................................... 41
R v Morgentaler et al ................................................................................................................................................. 42
Perka v The Queen ..................................................................................................................................................... 42
Latimer v The Queen ................................................................................................................................................. 42
Duress .................................................................................................................................................................................... 43
Paquette v The Queen ................................................................................................................................................ 43
R v Mena.................................................................................................................................................................... 43
R v Hibbert ................................................................................................................................................................ 43
R v Ruzic ................................................................................................................................................................... 44
Entrapment ............................................................................................................................................................................. 44
R v Mack.................................................................................................................................................................... 45
R v Barnes .................................................................................................................................................................. 46
Ignorance of the Law ............................................................................................................................................................. 46
R v Howson ............................................................................................................................................................... 46
Jones and Pamajewon v The Queen ........................................................................................................................... 46
R v Pontes .................................................................................................................................................................. 47
Officially Induced Error..................................................................................................................................................... 47
Molis v The Queen .................................................................................................................................................... 47
R v Cancoil Thermal Corporation .............................................................................................................................. 47
R v Jorgenson ............................................................................................................................................................ 48
Lvis (City) v Ttrault ............................................................................................................................................... 48
Self Defence .......................................................................................................................................................................... 48
R v Bogue .................................................................................................................................................................. 49
R v Pawliuk ................................................................................................................................................................ 49
Reilly v The Queen .................................................................................................................................................... 50
R v Faid...................................................................................................................................................................... 50
R v Cinous ................................................................................................................................................................. 50
R v Lavallee ............................................................................................................................................................... 50
R v Ptel ..................................................................................................................................................................... 51
R v Malott .................................................................................................................................................................. 51
Provocation ............................................................................................................................................................................ 52
R v Hill ...................................................................................................................................................................... 52
R v Thibert ................................................................................................................................................................. 53
R v Campbell ............................................................................................................................................................. 53
R v Nahar ................................................................................................................................................................... 53
R v Humaid ................................................................................................................................................................ 54
Automatism ........................................................................................................................................................................... 54
Rabey v The Queen .................................................................................................................................................... 54
R v Parkes .................................................................................................................................................................. 55
R v Stone.................................................................................................................................................................... 55
R v Luedecke ............................................................................................................................................................. 56
Mental Disorder ..................................................................................................................................................................... 56
R v Whittle ................................................................................................................................................................. 56
R v Swain ................................................................................................................................................................... 57
R v Chaulk and Morrissette ....................................................................................................................................... 57
Winko v British Columbia ......................................................................................................................................... 58
R v Simpson ............................................................................................................................................................... 58
Cooper v The Queen .................................................................................................................................................. 58
R v Abbey .................................................................................................................................................................. 59
R v Oommen .............................................................................................................................................................. 59
Intoxication ............................................................................................................................................................................ 59
DPP v Beard .............................................................................................................................................................. 60
R v Daley ................................................................................................................................................................... 60
R v George ................................................................................................................................................................. 60
Bernard v The Queen ................................................................................................................................................. 61
R v Davivault ............................................................................................................................................................. 61
R v Chaulk ................................................................................................................................................................. 62

Criminal Law Process
Morality
Parliament has the power to legislate on the basis of morality alone (Malmo-Levine)
Test for a PFJ (Malmo-Levine)
o Legal principle
o Significant societal consensus
o Fundamental to the way in which the legal system ought to fairly operate
o Can be identified with precision
o Manageable standard to measure deprivation of liberty
Harm test (Butler, Labaye)
o Does the harm flowing from the act predispose a person to act in an antisocial manner (conduct that society
formally recognizes as incompatible with its proper functioning)
o Is the harm to such a degree that it is incompatible with the proper functioning of society

Devlin, The Enforcement of Morals (CB 47)

Hart, Immorality and Treason (CB 52)

R v Malmo-Levine
[1969] 1
Facts
M was charged with simple possession of marijuana and possession with intent (under the reverse onus clause)
Issue
Can Parliament criminalize possession? Does it violate the Charter?
Holding
Yes. No.
Reasons (Gonthier & Binnie JJ)
Groups in society are harmed by marijuana, and while they are small relatively, their numbers are large in absolute
terms
Widespread use despite the prohibition encourages disrespect for the law
Marijuana is not as harmful as sometimes claimed, but it is harmful to some vulnerable groups
Valid criminal law purpose, prohibition, penalty
There is a reasoned apprehension of harm (Butler)
Test for a PFJ: legal principle, significant societal consensus, fundamental to the way in which the legal system ought
to fairly operate, can be identified with precision, manageable standard to measure deprivation of liberty.
State can criminalize harm to self
Arbour J dissenting
o Imprisonment must be restricted to those who cause harm to others
Ratio
Harm principle is not a PFJ. Parliament can legislate on morality alone.

R v Labaye
[2005] 3 SCR 728 CB 70
Facts
L ran a swingers club
Issue
Is the swingers club indecent?
Holding
No.
Reasons (McLachlin CJC)
Crime should be defined with as much precision as possible
Butler test for obscenity:
o Does the harm flowing from the act predispose a person to act in an antisocial manner (conduct that society
formally recognizes as incompatible with its proper functioning)
o Is the harm to such a degree that it is incompatible with the proper functioning of society
Types of harm
o Harm to those whose autonomy and liberty may be restricted by being confronted with inappropriate conduct
5
o Predisposing other to antisocial conduct
o Harm to people participating in the conduct
Where the crown relies on risk of harm, it must be significant, but threshold is lower if there is more severe harm
Ratio
Restatement of the harm test

Prostitution
Not actually criminal, just acts around prostitution:
o 213(1)(c) communication for purposes of prostitution (90% of all prostitution prosecutions, CB 91)
o 212(1)(j) living off the avails
o 210(1) keeping a common bawdy house

Report of the House Standing Committee on Justice and Human Rights (2006, CB 90)
213 has not had the desired deterrent effect
Forces prostitutes into secrecy and isolation
Minimizes information sharing on violent clients, makes obtaining assistance harder
Must frequently change locations, so separates them from friends, coworkers, regular customers
Negotiations must be quick, so cant screen clients
210 (keeping a bawdy house) prostitutes cannot sell sex under safer conditions of a house with people
212 (living on the avails) cohabitation is good for saving money, reduces risk of abuse and isolation
Better if a third party can screen clients
Prostitution is a violent and alienating activity
Police say 213 can protect clients from pimps

Reference Re ss 193 and 195.1(1)(c) of the Criminal Code
[1990] 1 SCR 1123 CB 85
Issue
Are the provisions against communicating for the purposes of prostitution and keeping a common bawdy house contrary to
the Charter?
Holding
Yes, but saved by s 1; No.
Reasons (Dickson CJC)
PFJ not designed to ensure optimal legislation
Concurrence (Lamer J)
o Fair notice is given, and discretion is limited
o Liberty and security of the person so far are negative rights
o To expand the scope of s 7 too much would infringe on the judiciarys role as guardian of the justice system,
because it would bring s 7 into the policy field, which is not for the judiciary
Dissent (Wilson J)
o Prohibition is not proportionate because it prohibits all expressive activity conveying a certain meaning
o Definitional limits are desirable
o Resistance to outright criminalization of sex is consequential because court cannot, therefore, treat prostitution as
socially undesirable, since its not a crime
o Communication provisions violate ss 7 and 2(b), and are not saved by s 1
Ratio

Test for s 7 Violation
From first year Constitutional
Deprivation of life, liberty, security of the person
o Violations
Absolute liability offences (BC Motor Vehicle Reference)
Preventing an abortion (Morgentaler)
Preventing assisted suicide (Rodriguez)
Prohibition on private medical insurance (Chaoulli)
Denying parents decisional autonomy over their children (B(R))
Denying choice of where to live (Godbout)
Denial of state counsel in custody proceedings
Must be more than the ordinary stresses and anxieties that a person of reasonable sensibility would
suffer as a result of government action serious and profound effect on a persons psychological
integrity (New Brunswick v G(J), CB 1189)
o Not a violation
Denying welfare (Gosselin)
Delay in sexual harassment trial causing psychological distress (Blencoe v British Columbia, CB 1191)
Consistent with fundamental justice
o Test for principle of fundamental justice (Chaoulli, dissent, drawing on Rodriguez)
Legal principle
Significant societal consensus
Can be identified with precision, by a manner yielding predictable results
o Not consistent
Absolute liability offences (BC Motor Vehicle Reference)
Illusory defences (Morgentaler)
Arbitrary laws (Chaoulli)
o If not consistent with the principles of fundamental justice, go to s 1

Proof
Burden of Proof
The Crown must prove the accused guilty BARD (Woolmington)
There is no burden on the accused to prove his innocence (Woolmington)
Any burden that would allow a conviction despite the existence of a reasonable doubt violates the Charter (Oakes)
s 11(d) jurisprudence summary (Downie)
o Presumption of innocence infringed whenever conviction is possible despite a reasonable doubt of guilt
o If accused is required to prove or disprove an essential element of an offence or excuse, s 11(d) is violated
(Oakes)
o A rational connection between the established and presumed facts does not justify an accused having to
disprove an element of the offence
o Presumption will be valid if proof of the substituted facts leads inexorably to the proof of the other fact, but will
infringe s 11 if it requires the trier to convict in spite of a reasonable doubt
o Permissive assumptions will not violate s 11(d)
o Minor provisions will contravene the Charter if they must be established by the accused (ex sanity, Chaulk)
o Infringement of s 11(d) can be justified by s 1 (Keegstra)
Presumptions
o Permissive optional inference from proven fact to presumed fact
o Mandatory inference must be made
o Rebuttable
BOP
Raise a reasonable doubt
Evidentiary burden
o Of Fact frequently recurring examples of circumstantial evidence

Woolmington v DPP
[1935] AC 462 CB 279
Facts
W convicted of wifes murder and sentenced to death
Judge instructed he was presumed in law to be guilty unless he could satisfy the jury his wifes death was due to
accident?
Issue
Did the defendant have the burden to prove the murder was an accident?
Holding
No.
Reasons (Lord Sankey)
There is authority supporting the trial judge
That authority should be interpreted if it is proved that the conscious act of the prisoner killed a man and nothing else
appears in the case, there is evidence upon which the jury may find him guilty of murder but the onus is still on the
Crown
No burden on accused to prove his innocence, it is sufficient to raise doubt about his guilt
7
Ratio
Crown must prove the accused guilty beyond a reasonable doubt. There is no burden on the accused to prove innocence.

R v Oakes
[1986] 1 SCR 103 CB 284
Facts
O convicted of possession with intent to traffic under a reverse onus provision that presumes trafficking and requires the
accused to disprove intent on the BOP
Issue
Does the reverse onus violate s 11(d)?
Holding
Yes
Reasons (Dickson CJC)
Types of presumptions: permissive (optional inference from proven fact to presumed fact), mandatory (inference must
be made)
Ways to rebut a rebuttable presumption: accused can raise a reasonable doubt, accused has evidentiary burden to
question the presumption, legal burden on the BOP to disprove presumed fact
Presumptions of fact: frequently recurring examples of circumstantial evidence; presumptions of law involve actual
legal rules
Presumption of innocence means Crown must prove guilt BARD
Legal burden to disprove an essential element of the offence violates s 11(d) possible for a conviction to occur despite
the existence of a reasonable doubt
Reverse onus does not pass rational connection stage of s 1 test.
Test for s 1
o Necessary and pressing objective
o Rational connection
o Minimal impairment
o Proportionality (salutary/deleterious)
Ratio
Any burden that would allow a conviction despite the existence of a reasonable doubt violates the Charter.

R v Keegstra
[1990] 3 SCR 697 CB 290
Facts
K was charged with hate speech
Claimed the provision that put a legal burden on the accused in a truth defence violated the Charter.
Issue
Do the hate speech provisions violate s 11(d)?
Holding
Yes, but it is justified under s 1.
Reasons (Dickson CJC)
The reverse onus on the truth defence does violate s 11(d)
To require otherwise would excessively compromise the offences effectiveness, since many statements are not
susceptible to true/false categorization
Small possibility truthfulness outweighs harm of wilful promotion of hatred
Valuable precaution against justifying hatred
McLachlin J (dissenting)
o Possibility of imprisonment does not minimally impair s 11(d)
Ratio
Violation of s 11(d) can be justified by s 1.

R v Downie
(1992), 72 CCC (3d) 1 (SCC) CB 292
Reasons (Cory J)
s 11 jurisprudence summary
o Presumption of innocence infringed whenever conviction is possible despite a reasonable doubt of guilt
o If accused is required to prove or disprove an essential element of an offence or excuse, s 11 is violated
o A rational connection between the established and presumed facts does not justify an accused having to disprove an
element of the offence
o Statutory presumption will be valid if proof of the substituted facts leads inexorably to the proof of the other fact,
but will infringe s 11 if it requires the trier to convict in spite of a reasonable doubt
o Permissive assumptions will not violate s 11(d)
o Minor provisions will contravene the Charter if they must be established by the accused
o Infringement of s 11(d) can be justified by s 1.

Quantum of Proof
Reasonable doubt instruction (Lifchus)
o Judge should explain:
Proof BARD is intertwined with the presumption of innocence
Burden is on the prosecution the whole trial
RD is based on reason and common sense, logically connected to evidence, does not involve proof to an
absolute certainty
More than probably
o References to be avoided
Ordinary expression, no special legal context
Qualifying doubt with any word other than reasonable
Instructing a conviction can be based on being sure
Lifchus standard requires instruction of special significance, and significantly greater burden than BOP (Starr)

R v Lifchus
[1997] 3 SCR 320 CB 292
Issue
Was the trial judges instruction to use reasonable doubt in its ordinary, natural, everyday sense wrong?
Holding
Yes.
Reasons (Cory J)
Judge should explain:
o Proof BARD is intertwined with the presumption of innocence
o Burden is on the prosecution the whole trial
o RD is based on reason and common sense, logically connected to evidence, does not involve proof to an absolute
certainty
o More than probably
References to be avoided
o Ordinary expression, no special legal context
o Qualifying doubt with any word other than reasonable
o Instructing a conviction can be based on being sure
Ratio
How to instruct a jury on RD.

R v Starr
[2000] 2 SCR 144 CB 294
Issue
Is the instruction that RD has no special meaning and does not require proof to an absolute certainty wrong?
Holding
Yes.
Reasons (Iacobucci J)
Lifchus standard requires instruction of special significance, and significantly greater burden than BOP
Must explain how much less than an absolute certainty the RD threshold is
Do not use examples from real life, must be specific to the legal context, not quantifiable
falls much closer to absolute certainty than proof on a BOP
LHeureux-Dub (dissenting): TJ properly communicated charge
o Lifchus is a broad template but not a mandatory checklist.
Ratio
Lifchus standard requires instruction of special significance, and significantly greater burden than BOP.


9
Actus Reus
Criminal liability requires a prohibited act
Without it, the State could police thought (CB 301)
Requirements
o Physically voluntary
o Act or omission
o Sometimes in certain prescribed circumstances
o Sometimes causing certain circumstances
Contemporaneity
AR and MR coincide at some point in the transaction (Cooper)
MR can be superimposed on continuing AR (Fagan)
Duty to rectify a risky situation unintentionally created. Omission to do so will bring liability (Miller)

Fagan v Commissioner of Metropolitan Police
[1969] 1 QB 439 CB 302
Facts
F drove onto a police officers foot, the car turned off, and F was slow to back off the foot
Issue
Is F guilty of assault?
Holding
Yes.
Reasons (James J)
Assault: act which intentionally or recklessly causes another person to apprehend immediate personal violence.
Distinction is between complete acts, where results to continue to flow, and continuing acts
Mens rea can be imposed on actus reus, it need not be present at the start
Subsequent inception of mens rea cannot convert an act which has been completed without mens rea into assault
Keeping the car on the foot continued the act of the car rolling onto the foot, so the MR was superimposed on the AR
when F didnt back off right away.
Ratio
MR can be superimposed on continuing AR, as long as it has not been completed.

R v Miller
[1982] 2 All ER 386 CB 305
Facts
M was a squatter who fell asleep on a mattress
He dropped his cigarette into the mattress, and when he realized it was on fire, moved into another room and fell asleep
again
He was charged with arson
Issue
Was Ms omission to do something about his unintentional dropping of a cigarette enough to ground liability?
Holding
Yes.
Reasons (Lord Diplock)
Court of Appeal
o Unintentional act followed by an intentional omission to rectify that act or its consequences
o Whether the offender adopts what he has done earlier by what he deliberately or recklessly fails to do later is an
important consideration
o His failure with knowledge to extinguish the incipient fire had it in a substantial element of adoption on his part of
what he had unintentionally done earlier namely set the fire
Omission to counteract a danger the accused created attaches liability if there is the requisite MR
When a person becomes aware of a danger he created that presents an obvious risk, he has a duty to fix it
Ratio
Duty to rectify a risky situation unintentionally created. Omission to do so will bring liability.

R v Cooper
[1993] 1 SCR 146 CB 307
Facts
C strangled a woman, but was not conscious at the point the strangulation caused death, only at the start of it
Issue
Is C guilty despite not having intent at the time of death?
Holding
Yes.
Reasons
Once the accused had formed the intent to cause the deceased bodily harm, which he knew was likely to cause her
death, he need not be aware of what he was doing at the moment she actually died.
At some point the AR and MR must coincide
Series of facts may form part of the same transaction
Grabbing the neck there was necessary coincidence of wrongful act of strangulation and intent to do bodily harm that C
knew was likely to cause death
Ratio
AR and MR must coincide at some point during the transaction.

R v Williams
[2003] 2 SCR 134 CB 309
Facts
W practiced unprotected sex with the victim for a year with HIV, and gave the victim HIC
Reasons
Failure to disclose information that changes the nature and quality of the act vitiates consent
There was reasonable doubt as to whether, at the time he was aware of his HIV positive status, he was endangering the
victims life
Before the test, there was endangerment but no intent, after, there was intent but a reasonable doubt as to the existence of
endangerment
Ratio
Confirms Cooper, though the facts don't support guilt in this case.
Voluntariness
AR must be physically voluntary, cannot be result of involuntary action (Larsonneur)
Mental element of AR AR must be voluntary before court can consider MR (Kilbride)
Required by s 7 of the Charter (Ruzic)

R v Larsonneur
(1933), 24 Cr App R 74 CB 311
Facts
L was deported to Ireland and forbidden back in the UK
Ireland deported L back to the UK
On arrival in the UK at the hands of the Irish, L was convicted of being in the UK illegally
Holding
Conviction upheld
Ratio
Wrongly decided because it ignores voluntariness component of AR.

Kilbride v Lake
[1962] NZLR 590 CB 312
Facts
L parked his car and went into the store
While he was there, someone stole the registration sticker off his car
He was convicted of having a car without a registration sticker?
Issue
Is L liable of driving without a registration sticker?
Holding
No.
Reasons (Woodhouse J)
Lack of MR is no defence to absolute liability
Accused must be shown responsible for the physical ingredient of the crime
11
Until AR is established, no reason to discuss MR
Liability for acts or omissions in circumstances where there was some other course open to him
AR must be voluntary
Ratio
AR must be voluntary before MR can be considered.

R v Ruzic
[2001] 1 SCR 687 CB 315
Reasons
Absence of volition WRT the AR is always brings complete and unqualified acquittal
Would violate s 7 otherwise
Critical importance of autonomy in attribution of criminal liability
Fundamental principal of criminal law: offenders are rational, autonomous, choosing agents
Ratio
Voluntariness is required by s 7.

Acts
CB 316
Most complications related to the act are definitional in nature
o See definitions: break (321), communicating (319(7)), operate (214), sell (183, 462.1), transfer (84), general
definition (2)
Description of action can mean different things depending on express definition in the section or statute
Where no statutory definition, use common law

Omissions
Law is reluctant to punish omissions sweeping liability
No duty to intervene, prevent, or offer assistance unless the legislature says so
Only liability for omission where there is a duty (Browne), parents (ss 215-16)
o Statutory duty ex police (Nixon, below in Aiding and Abetting)
o Under s 180 (common nuisance): Common law duty Donoghue duty (Thornton)
o Under criminal negligence: undertaking clear and binding intent (Browne)
Canadian law does not recognize common law offences (s 9) so no duty unless prescribed by statute

R v Browne
(1997), 116 CCC (3d) 183 (ONCA) CB 319
Facts
B is charged with criminal negligence causing death when he did not bring AG to the hospital after he said he would
and knew she was having a severe reaction to drugs
Issue
Did Bs words constitute an undertaking fixing him with a duty to do it?
Holding
No.
Reasons (Abella JA)
s 217: everyone who undertakes to do an act is under a legal duty to do it if an omission to do the act is or may be
dangerous to life
Duty does not flow from relationship, as in s 215 (spouses, parents, etc) duty flows from undertaking
Threshold must be high to justify serious consequences
Civil standard: must be a commitment generally, though not necessarily, on which reasonable reliance can be placed
Criminal standard: undertaking must be clearly made, and with binding intent
There was no undertaking
Ratio
Only liability for omissions where there is a duty.
Undertakings giving rise to a duty under s 217 must be clear and with binding intent.

R v Thornton
(1991), 3 CR (4th) 381 (ONCA) CB 323
Facts
T had HIV, and lied on a questionnaire so he could giving blood, knowing his condition.
Issue
Did T have, and fail to discharge, a legal duty not to endanger public safety?
Holding
Yes. Yes.
Reasons (Galligan JA)
s 180: common nuisance, 180(2) where by unlawful act or failure to discharge legal duty endangers the public.
unlawful act must be specifically proscribed by legislation
legal duty can arise at common law
Heaven v Pender (1883): a duty lies upon him not to do that which may cause a person injury to tat other
Donoghue: the rule that you are to love your neighbour becomes in law, you must not injure your neighbour
Legal duty requires everyone to refrain from conduct which it is reasonably foreseeable could cause serious harm to
other persons
When the gravity of a potential harm is great, the public is endangered even when the risk of harm actually occurring is
slight
Ratio
Liability for breach of a legal duty can be founded on breach of a common law duty.
Everyone has a duty to refrain from conduct which it is reasonably foreseeable could cause serious harm to other persons

Status Offences
Imposes liability for who the defendant is, not what he did
o Law is reluctant to do so
Examples
o Possession offences: bawdy house etc (201, 210)
o Living off the avails of prostitution (212)
o Being nude in a public place (174)
Strong case status offences offend the Charter (s 7)(CB 332)
Parliament prefers to criminalize participation in activities of bad organizations, rather than just being a member

Circumstances
Crown must prove circumstances for the conviction
o Ex being drunk for impaired driving driving only becomes a crime when the circumstance of drunkenness is
added
o Statutory definitions of statuses: CB 333-37

Consequences & Causation
Some offences are defined by the fact they cause certain consequences dangerous driving causing death
Requirements
o The prohibited consequence occurred
o The accused action caused the prohibited consequences
Is it the factual cause?
Is the factual cause sufficient to qualify as the legal cause
Smithers Test (manslaughter)
o Crown must show BARD that the accuseds act was at least a contributing cause outside the de minimis
range
o For manslaughter, the faulty act must have been reasonable foreseeable to cause bodily harm that is not trivial
(from Creighton)
o Endorsed by majority in Nette for all forms of homocide, but can be rephrased when instructing the jury as
significant contributing cause
o Harbottleexception for s 214(5)(first degree murder for crimes of domination), causation is substantially
caused
Thin Skull Doctrine (Smithers)
Intervening Acts
o Dont count as novus actus (Pagett)
Reasonable act performed for the purpose of self preservation is not a novus actus
13
Attempt to escape the consequences of the accused act
Maybe: act done in the execution of a legal duty
Victim not taking medical treatment because of religious belief (Blaue, thin skull doctrine in Smithers)
Dangerous situation (gunfight, car race)
o Liability for everyone involved (Menzes, JSR)
o Caveat: if one party withdraws and the other is aware and doesnt slow down, no liability for the withdrawing
party (Menzes)

R v Winning
(1973), 12 CCC (2d) 449
Facts
W applied for credit with Eatons and made at least 2 false statement on the application
Eatons did not rely on the application for anything but name and address, which were true on Ws application
Eatons relied on its own investigation to determine whether or not to give credit
Issue
Is W guilty of obtaining credit on false pretences?
Holding
No
Reasons (Gale CJO)
The credit was not given in reliance of the false pretences, so it therefore was not obtained on the false pretences
Ratio
Where a crime requires a result, the result must be caused by the actus reus for liability.

Smithers v The Queen
[1978] 1 SCR 506
Facts
S got in a fight with C after a hockey game
There was some question of provocation, etc
S kicked C in the stomach when C was down
Within 5 minutes C stopped breathing
Cause of death was determined to be aspiration of vomit
Issue
Did S cause Cs death?
Holding
Yes. Guilty of manslaughter
Reasons (Dickson J)
Defence of provocation only available for murder
S submits trial judge minimized issue of causation in jury instructions
Manslaughter only requires assault and person dying
Causation is factual, has nothing to do with intention, foresight or risk
Crown has the burden to prove causation beyond a reasonable doubt
There is evidence the kick was at least a cause of death outside the de minimis range that is all the Crown is required
to establish
It is no defence to manslaughter that death was not anticipated or death would not ordinarily result from the act
Must take the assault victim as you find him R v Blaue liability for manslaughter where the victim could have been
saved with a blood transfusion but refused it for religious reasons
Thin skull rule applies in criminal law
Ratio
Causation must be more than de minimis. Liability for everything more.

R v Cribbin
(1994), 89 CCC (3d) 67 (ONCA) CB 344
Facts
C severely beat the victim and left him unconscious at the side of the road
The victim drowned in his own bood
C challenges Smithers causation for constitutionality
Issue
Is the de minimis causation too remote to attach criminal liability?
Holding
No.
Reasons (Arbour JA)
C claims the Smithers test is so low as to infringe upon s 7 (contrary to fundamental justice)
Fault element of manslaughter requires objective foreseeability of bodily harm which is neither trivial nor transitory, in
the context of a dangerous act, such that the most trivial assault, not dangerous in itself and not likely to cause injury
would not give rise to a conviction for manslaughter if it did somehow cause death (R v Creighton)
Cs argument
o Causation involves moral judgement as to blameworthiness, fundamental justice requires that the rule triggering
criminal responsibility be commensurate with the moral blameworthiness of the conduct that it prohibits de
minimis is too remote to attach criminal liability
o Definition is too vague
Vagueness can be dismissed standard of precision is to provides guidance to legal debate, this does
Actus reus is the same for manslaughter and murder difference is the degree of fault: subjective foresight for murder,
objective foreseeability of serious bodily harm for manslaughter
Causation is a principle of fundamental justice like mens rea morally innocent shouldnt be punished
Fault element articulated in Creighton removes any danger that de minimis is so broad as to punish the morally innocent
Causation and fault element must be proven by Crown beyond a reasonable doubt
Ratio
Smithers test accords with fundamental justice.

Pagett v The Queen
(1983), 76 Cr App R 279 CB 349
Facts
P shot at police officers
Used a woman as a human shield
Cops killed the woman shooting back at P
Issue
Did P cause the womans death?
Holding
Yes.
Reasons (Lord Goff)
Novus actus interveniens must be voluntary Free, deliberate and informed
Dont count as novus actus
o Reasonable act performed for the purpose of self preservation is not a novus actus
o Attempt to escape the consequences of the accused act
o Maybe: act done in the execution of a legal duty
Ratio
Act must be voluntary to break the chain of causation

R v JSR
(2008), 237 CCC (3d) 305 (ONCA) CB 351
Facts
SR and B were in a gun fight on Yonge Street
B shot at SR and missed him, hit Jane Creba who died
Issue
Did SR cause JCs death?
Holding
Yes.
Reasons
In a car race where a bystander is hit and killed, both drivers are liable for the death there is one danger. Each driver
bears equal responsibility for its continued life span subject to withdrawal or an intervening event (R v Menzes)
o Caveat: if one party withdraws and the other is aware and doesnt slow down, not liability for the withdrawing
party
each shooter induced the other to engage in a gun fight on a crowded street. but for the decision to engage in a gun
fight on a crowded street and the resulting exchange of bullets, Ms Creba would not have been killed
Ratio
Liability for everyone involved in the faulty event that caused death.

15
R v Reid & Stratton
(2003), 180 CCC (3d) 151 (NSCA) CB 352
Facts
Everyone was drunk
R & S got in a fight with M
S put M in a sleeper hold and R kicked him
M went unconscious
The kids immediately began an attempt at resuscitation
M was pronounced dead on arrival
Cause of death was aspiration of stomach contents induced by resuscitation
Issue
Does the resuscitation break the chain of causation?
Holding
Yes.
Reasons (Saunders JA)
Trial judge was not clear enough when instructing jury on intervening events
The resuscitation broke the chain of causation
Different from subsequent surgical intervention causing death (usually wont break the chain) rescue attempt was by
young bystanders who were drunk
Sleeper hold likely didnt kill M, had they left him he would probably have come to
Judge should give jury examples of intervening acts (beaten unconscious in building, earthquake causes building to
collapse resulting in death)
Instructions
o Was the act a significant contributing cause of death
o Were there any intervening causes resulting in the death? Are you satisfied beyond a reasonable doubt that the
actions are so connected to the death that they can be said to have had a significant causal effect which continued
up to the time of death, without having been interrupted by some other act or event?
Ratio
Judge must be clear on intervening act. Actus reus must continue to have causal effect until death.

R v Harbottle
[1993] 3 SCR 306 CB 358
Facts
H and R forcibly confined EB and brutally sexually assaulted her
H restrained her while R strangled her
H charged with first degree murder pursuant to s 214(5) automatic first degree murder when committed during sexual
assault or forcible confinement
Issue
Did H cause EBs death?
Holding
Yes.
Reasons (Cory J)
Ample evidence upon which the jury could have found the murder was planned and premeditated by H and R
Charge was not correct so there must be anew trial
Wording of the section is broad enough to include both perpetrators and those who assist in the murder and come within
the purview of substantial cause test
Physically caused test advocated by the CA is too restrictive
Impossible to distinguish between the two in blameworthiness
Test takes into account: consequences of a conviction, present wording of the section, aim to protect society from the
most heinous murders
Accused may be convicted if Crown establishes accuseds act was a substantial and integral cause of the death
Accused must play a very active role: essential, substantial and integral part
Higher than Smithers
Accused can be the substantial cause of death without physically causing it
Test for causation under 214(5)
o Accused guilty of underlying crime of domination
o Accused was guilty of the murder
o Participated in the murder such that he was the substantial cause
o No intervening act
o Crimes of domination and murder were part of the same transaction
Ratio
Liability for those who did not physically kill but still substantially caused the death.

R v Nette
[2001] 3 SCR 488 CB 363
Facts
L was robbed an hog tied
Some time in the next 2 days before she was found, she fell from her bed to the floor and died
N was seen robbing the house during the time, charged with first degree murder per 231(5) murder while unlawfully
confining
Issue
What is the standard of causation?
Holding
Smithers test. Can be reformulated as substantial cause
Reasons (Arbour J)
Standard of causation expresses whether the fault is sufficient to base criminal responsibility
Civil causation is of limited assistance
Difference between first and second degree is essentially a sentencing distinction
Substantial cause is particular to the language found in 231(5), as found in Harbottle establishes level of increased
participation before accused can be convicted of first degree murder
Only one standard of causation for manslaughter or murder (all homicide offences)
Need to distinguish between causation and the words used to explain it
Smithers test is still applicable to all forms of homicide
Not insignificant can be rephrased as significant contributing cause
Important to afford trial judge flexibility when describing test for causation
Cause must be more than de minimis, more than a trivial cause
LHeureux-Dub in dissent held that significant cause is a higher standard than not insignificant cause
Ratio
Confirms Smithers, but says it is possible to rephrase not insignificant cause as significant cause.


Mens Rea
Subjective Fault
Common sense inference: a person usually knows what the predictable consequences of his actions are, and means to
bring them about (predictable = certain or substantially certain: Buzzanga)
o Accused can disprove the presumption on a BOP
Intent
o AR must be done with intent
o No intent where under subjection of enemy (Steane)
o Purpose = intend (Hibbert)
o Wilfully means intending the consequence, or subjectively foreseeing its certainty and continuing for another
purpose (Buzzanga)
o Recklessness accused sees the risk and takes the chance (Sansregret)
Knowledge
o MR is based on the facts as the accused knew them (Theroux)
o True belief (Dynar below in Attempt)
Objective (true) and subjective components (belief)
o Wilful blindness will fix the accused with knowledge (Sansregret, Briscoe)
Person has become aware of a need for inquiry and does not because he doesnt want to know the truth
Does not define MR, but will substitute for actual knowledge whenever knowledge is a component of
the MR (Briscoe)

R v Tennant and Naccarato
(1975), 23 CCC (2d) 80 (ONCA) CB 427
Ratio
17
Where liability is imposed on a subjective basis, what a reasonable man ought to have anticipated is merely evidence from
which a conclusion may be drawn that the accused anticipated the same consequences. On the other hand, where the test is
objective, what a reasonable man should have anticipated constitutes the basis of reality

R v Lewis
[1979] 2 SCR 821 CB 428
Reasons
MR relates to intent exercise of a free will to use a particular means to produce a particular result
Motive that which precedes and induces the exercise of the will
Evidence of motive is always relevant and admissible
Motive is no part of the crime and is legally irrelevant to criminal responsibility
There can be intent without motive
Motive is always a question of fact
Ratio
Intent is different than motive. Law is only concerned with intent.

R v Steane
[1947] 1 KB 997 (UKCA) CB 429
Facts
S was a British subject who was trapped in Germany at the start of WWII
The Germans tortured him and threatened his family so that he would read the news on German radio
S was charged with doing acts likely to assist the enemy with intent to assist the enemy
Issue
Did S have the specific intent required?
Holding
No.
Reasons (Lord Goddard CJ)
Where a particular intent is part of a crime, the Crown must prove its existence BARD
Intention comes before any consideration of duress, because duress is a defence
It is impossible to say that where an act was done by a person in subjection to the power of others, especially if that
other be a brutal enemy, an inference that he intended the natural consequences of his act must be drawn merely from the
fact he did it. The guilty intent cannot be presumed and must be proved.
Where the intent is innocent or circumstances show the act was done in subjection to the power of the enemy, the
presumption is unavailable.
Ratio
Specific intent must be proven BARD.

R v Hibbert
[1995] 2 SCR 973 CB 432
Facts
H was friends with the victim
X made H call his friend down to the lobby so X could kill the friend, threatening to kill H if he didnt
H stood by while X shot the victim
Issue
Did duress negate Hs MR for attempted murder?
Holding
No.
Reasons (Lamer CJC)
Duress doesnt necessarily negate MR, depends on particular mental element in the circumstances of the case
Intention: know what you are doing, are aware of the probable consequences
purpose equals desire is problematic because some people are indifferent to committing crimes
duress is a defence on its own, usually doesnt strike at MR
Purpose is intention, not desire
If duress can negate MR, accused to point to threats to raise an RD that he had the requisite MR
Duress is an excuse, and can be invoked even if the threats dont negate MR
MR for s 21(1)(b) (aiding) cannot be negated by duress
Ratio
Purpose means intent. Duress rarely will negate MR.

R v Buzzanga and Durocher
(1979), 49 CCC (2d) 369 (ONCA) CB 427, 436
Facts
B+D were sympathetic to francophones, but published pamphlets that were offensive to francophones to combat apathy
in a campaign about a French school
They were charged with wilfully promotion hatred
Issue
Did the trial judge misdirect himself leading to finding wilful promotion of hatred?
Holding
Yes.
Reasons (Martin JA)
Wilfullys primary mean is intentional, but can also mean recklessly
recklessness = person foresees his conduct will cause the prohibited result, but nevertheless takes a deliberate and
unjustifiable risk of bringing it about
Willmott v Atack on the charge of obstructing a constable, it is not sufficient to prove the accused intended to do what
he did, which resulted in the obstruction; Crown must prove that in doing it, he intended to obstruct the constable
Wilfully intention to bring about the proscribed consequence
Inclusion of an offence in the Code imports a MR in the absence of clear legislative intention to the contrary
Intention includes desire, as well as subjective foresight that the consequence is certain or substantially certain

Ratio
Wilfully means intending the consequence, or subjectively foreseeing its certainty and continuing for another purpose.

R v Theroux
[1993] 2 SCR 5 CB 442
Facts
T was convicted of fraud for accepting deposits from investors in a building project having told them that he had
purchased deposit insurance when he in fact had not
Issue
Did T have the requisite MR for fraud?
Holding
Yes.
Reasons (McLachlin J)
AR has a mental element voluntariness
Typically, MR is concerned with the consequences of the prohibited act
MR = with the facts as the accused believed them to be, did he subjectively appreciate the consequences or their
possibility?
Subjective awareness of the consequences can often be presumed from the act (common sense inference)
Prohibited AR in fraud is deceit, falsehood, prohibited consequence is depriving someone of what is theirs, or putting it
at risk
MR is subjective awareness of deceit that would lead to deprivation or risk
Test for fraud
o AR
Act of deceit or falsehood
Deprivation caused by the deceit, or placing assets at risk
o MR
Subjective knowledge of the deceit
Subjective knowledge of possibility of deprivation or risk
Ratio
MR is based on the facts as the accused believed them, must have subjectively appreciated the ARs consequences.

R v Sansregret
[1985] 1 SCR 570 CB 447
Facts
S beat on his girlfriend and she consented to sex to stop the beatings twice
S is charged with sexual assault, because he was wilfully blind to the fact that her consent was vitiated by duress
Issue
19
Can S be fixed with knowledge of a defect in consent by his wilful blindness of it?
Holding
Yes.
Reasons (McIntyre J)
Recklessness aware conduct could bring a prohibited consequence, and persists despite the risk; sees the risk and
takes the chance
Wilful blindness is like recklessness
Different than Pappajohn, which held that honesty of belief will support mistake of fact even where that belief is
unreasonable
Wilful blindness will bring a presumption of knowledge
Arises where a person has become aware of a need for inquiry and does not because he doesnt want to know the truth
Culpability is justified by deliberately failing to inquire when he knows there is a reason to inquire.
Ratio
Wilful blindness will bring a presumption of knowledge.

R v Briscoe
2010 SCC 13 CB 447
Facts
B charged with first degree murder
Crown contends he drove the murderers to the scene, provided a weapon, held the victim, and told her to shut up
Trial judge acquitted because B did not know the crime would occur
Issue
Did the judge err in not considering wilful blindness?
Holding
Yes
Reasons (Charron J)
Wilful blindness will substitute for actual knowledge whenever knowledge is a component of the MR
Imputes knowledge to an accused whose suspicion is aroused to the point where he sees the need for inquiry, but
deliberately chooses not to make those inquiries.
Looks away when he knows looking would fix him with knowledge
B deliberately chose not to inquire about what the group was doing because he did not want to know.
Ratio
Wilful blindness imputes knowledge were the accuseds suspicion is aroused but he chooses not to inquire.

Objective Fault
Negligence is a controversial standard in criminal law.
Criminal negligence (219)
o Objective test
o marked and significant departure (Tutton & Tutton)
Penal negligence
o Marked departure from the reasonable person standard, contextualized to the case (Beatty)
o Negligence not rising to the level of criminal negligence (ex 249, 249.4)
o Test (Crown burden BARD) (Beatty)
AR
Measure conduct against wording of the statute (ex for dangerous driving)
Not concerned whether it was a marked departure from the reasonable person standard at this stage
MR
Was the accuseds conduct a marked departure from the reasonable person standard in the
circumstances
Ought the reasonable person have been aware of the risk and danger in accuseds conduct?
Manslaughter
o Objective foreseeability of bodily harm which is neither trivial nor transitory (Creighton)

R v Tutton & Tutton
[1989] 1 SCR 1392 CB 450
Facts
Accused are parents who believe in faith healing and didnt bring their child to the hospital
Issue
Are T+T guilty of criminal negligence causing death even though they were not subjectively aware of their negligence?
Holding
Yes.
Reasons (McIntyre J)
Criminal negligence implies an objective standard, considering the accuseds actions, not his mental state
There is no difference between omissions and commissions
Punishment for mindless action, not state of mind
Actions that are wanton or reckless are negligent
Test: proof of conduct which reveals a marked and significant departure from the standard which could be expected of
a reasonably prudent person in the circumstances
Lamer J (Concurring) a generous allowance must be made for the accuseds particular factors: youth, mental
development, education
Wilson J (dissenting) Crown must prove subjective awareness of the risk or departure
Ratio
Criminal negligence is marked and significant departure for the objective standard (3 of the judges, 3 said subjective)

R v Gingrich and McLean
(1991), 65 CCC (3d) 188CB 455
Facts
G+M were convicted of criminal negligence in operating a motor vehicle when a trucks breaks failed and caused a fatal
accident. G was the driver and M was the owner.
Issue
Is the standard objective for criminal negligence?
Holding
Yes
Reasons (Finlayson JA)
MR for criminal negligence in operating a motor vehicle is objective
Ratio
Objective test for MR in criminal negligence

R v Hundal
[1993] 1 SCR 867 CB 456
Facts
H drove a dumptruck through an intersection and hit a car, because he thought he couldnt stop in time and would hit
another car. He was charged with dangerous driving causing death.
Issue
Is H guilty because he violated the objective standard?
Holding
Yes
Reasons (Cory J)
To insist on a subjective MR for driving offences would deny reality: driving decisions are automatic and with little
conscious thought
Objective test should be applied in the context of the events surrounding the incident
Personal factors are taken into account by the licensing requirement
Ratio
MR for driving offences is objective. Still not sure if SCC has endorsed objective standard for criminal negligence.

R v Creighton
[1993] 3 SCR 3 CB 457
Issue
Is the MR for manslaughter objective?
Holding
Yes.
Reasons (Lamer CJC)
There must be some special mental element for homicide to be treated as murder
PFJ require some (limited number) of offences to have a subjective MR because of thir stigma
Stigma for manslaughter is less than murder
21
De Sousa on unlawfully causing bodily harm MR based on objective foreseeability of risk of bodily harm, combined
with MR of the predicate unlawful act, satisfies s 7
Unlawful act manslaughter falls into the category of offences that requires a mental element, but its ok for the mental
element to be objective foresight of death
If the accused can be held to the reasonable person standard, he should be
C had more knowledge than the average person about the situation, so the reasonable person in his case should be fixed
with that knowledge
Concurrence (McLachlin J)
Common law defence of manslaughter is unconstitutional because it does not require reasonable foreseeability of death
Standard should be the reasonable person in all cases, and it should not be altered like the Chief Justice would for C
Most important feature of manslaughter stigma is that it isnt murder stigma
When combined with the thin skull rule, the objective foreseeability of death becomes the objective foreseeability of
bodily harm because the only difference is a victim who reacted badly to the bodily harm
Accused must be capable of appreciating the risk if he put his mind to it
Ratio
MR for unlawful act manslaughter = objective foreseeability of bodily harm which is neither trivial nor transitory

R v Beatty
[2008] 1 SCR 49 CB 378
Facts
B suffered a split second lapse in consciousness which caused his car to swerve and kill people in the oncoming car
There was no other element of negligence
Issue
Is B guilty of dangerous driving causing death for this moment of negligence?
Holding
No.
Reasons (Charron J)
Penal negligence is aimed at punishing blameworthy conduct
Modified objective test is appropriate for establishing penal negligence
o Marked departure
o Reasonable person in the position of the accused must be aware of the risks arising from conduct
Short of incapacity, personal traits are not relevant, but the reasonable person must be in the context of the accused
Dangerous driving is concerned with the manner of driving, not the consequence
Proof of subjective MR helps, but is not essential
A momentary lapse of attention is not a marked departure from the reasonable person standard.
Ratio
The test for penal negligence is marked departure from the reasonable person standard, contextualized to the case.

Absolute and Strict Liability
Law presumes some MR requirement for true crimes
Liability for regulatory or public welfare offences can be based on AR only (absolute), or a reduced fault requirement
(strict)
Regulatory offences are presumed to have a defence of due diligence or reasonable mistake on a BOP (Sault Ste Marie)
Absolute liability only were expressly stated (Beaver, Sault Ste Marie)
Absolute liability cannot lead to imprisonment (BC Motor Vehicle Reference)

Beaver v The Queen
[1957] SCR 531 CB 378
Facts
B was charged with possession and trafficking of heroin
B did not know it was the drug, but thought it was lactose instead
Issue
Does it matter B didnt know the drug was illegal (ie he lacked MR)?
Holding
Yes, criminal liability is presumed not to be absolute.
Reasons (Cartwright J)
There is little similarity between a statute forbidding unsound meat and one making possession and trafficking crimes
Absolute liability only where Parliament expressly provides for it
Conviction for possession quashed
B still held out the drug as heroin to the undercover cop, which counts as the MR for trafficking, so that conviction is
affirmed
Ratio
Absolute liability only where expressly stated in the legislation (NB pre-Charter)

R v Pierce Fisheries
[1971] SCR 5 CB 384
Facts
PF was caught with 26 undersized lobsters in its traps, out of 60,000 lbs of lobster
Issue
Is PF liable though it lacked any MR?
Holding
Yes.
Reasons (Ritchie J)
Regulations are to protect lobster and the public interest
This regulation did not create a crime, because no stigma
No analogy between lobster statutes and Beaver
Language in the statute requires no MR, so it should not be interpreted as such (no words like knowingly etc)
Ratio
Regulatory offences are interpreted as absolute liability (NB pre-Charter)

R v Wholesale Travel Group
[1991] 3 SCR 154 CB 385
Reasons
Regulations
o Enacted to protect the vulnerable
o Acts in the public interest protected under a penalty
o Dont carry stigma of criminal conviction
o No presumption of MR
o Sault Ste Marie created strict liability, which offers the defence of due diligence
o Different concept of fault: directed at the consequence, not the conduct itself
o Based on a reasonable standard of care
o Object is to induce reliance
Ratio
Regulatory offences need no MR.

R v City of Sault Ste Marie
[1978] 2 SCR 1299 CB 388
Issue
Are regulatory offences presumed to be absolute liability?
Holding
No, strict liability (no MR but defence of due diligence)
Reasons (Dickson J)
Criminal offences require MR
Absolute liability means conviction on proof of AR
Arguments for absolute liability
o Protection of social interests requires high standard of care
o Administrative efficiency because the Crown doesnt have to prove MR in every regulatory offence
o Penalty and stigma are insignificant
Court rejects that the penalty is insignificant, and the loss to time etc means the innocent should not be prosecuted
Due diligence is already admissible in sentencing, so evidence to that effect should be considered in considering guilt
Woolmington doesnt stand in the way of making regulatory offences strict liability
Law Reform Commission concurs
Onus should be on the defendant to establish due diligence on a BOP
Three categories of offences
o MR required true crimes, regulatory offences including wilfully, knowingly, etc
23
o No MR, but defence of due diligence (strict liability) regulatory offences presumed to fit here
o No MR required (absolute liability) clearly indicated by the legislature
Ratio
Regulatory offences are presumed to be strict liability

Reference re Section 94(2) of the BC Motor Vehicle Act
[1985] 2 SCR 486 CB 395
Facts
s 94(2) made driving with a suspended license an absolute liability offence, regardless if the accused knew the license
was suspended
s 94(2) came with a mandatory minimum 7 day prison sentence
Issue
Does s 94(2) violate s 7 of the Charter?
Holding
Yes.
Reasons (Lamer J)
absolute liability and imprisonment cannot be combined
ss 8 to 14 are key the the meaning of PFJ they are essential elements of a system of justice founded on human dignity
and worth, and the rule of law
PFJ are the inherent domain of the judiciary as guardian of the justice system
Absolute liability allows morally innocent to be imprisoned, so offends PFJ
Imprisonment incudes probation orders
Regulatory offences can be absolute liability
s 1 can only save a violation of s 7 in exceptional circumstances (war, natural disasters, epidemics, etc)
Ratio
Absolute liability cannot lead to imprisonment.

Homicide
Manslaughter
s 222 (5) manslaughter when death is caused by
o (a) unlawful act
o (b) criminal negligence
o (c) suicide caused by threats, fear of violence, deception
o (d) wilfully frightening a child or sick person
Residual charge to murder where MR cannot be proven
Sentence: up to life (236(b))
o No less than 4 years where a firearm is involved (236(1))
AR requirement
o Causing the death of a human
MR requirement under 222(5)(a), unlawful act manslaughter (Creighton)
o MR for underlying unlawful act (cannot be absolute liability)
o Objective foreseeability that the unlawful act gives rise to a risk of bodily harm neither trivial nor transitory
Second Degree Murder
s 231(7) all murder that is not first degree murder is second degree murder
AR requirement
o Causing the death of a human
MR requirement
o Subjective foresight of death PFJ (Vaillancourt, Martineau)
o Meaning to cause death (229(a)(i))
o Meaning to cause bodily harm that he knows is likely to cause death, and is reckless (229(a)(2))(Cooper)
o Meaning to kill someone but killing someone else (229(b))
o For an unlawful object does anything he knows or ought to know is likely to cause death (229(c))
Ought to know read down to save a s 7 violation (R v Martineau)
Most often used in cases where accused does not intend to harm the victim, but is engaged in the pursuit of
an unlawful object (R v JSR)
Test (JSR)
For an unlawful object (kill another gangster)
The accused did anything (got in a gunfight)
That he knew was likely to cause the death of a human being
Caused the victims death
o Transferred intent only within the same crime (Fontaine)
Section 230 (felony murder) is not valid (Vaillancourt)

R v Simpson
(1981), 58 CCC (2d) 122 (ONCA) CB 684
Facts
S is charged with 2 counts of attempted murder under 229(a) (intentional or reckless killing)
Reasons (Martin JA)
Either intent to kill, or recklessness satisfies the MR requirement
Subjective MR, so accused must subjectively have knowledge the injury is likely to cause deat
Ratio
MR for murder is subjective.

R v Cooper
[1993] 1 SCR 146 CB 686
Facts
C remembers strangling the victim, but loses memory and wakes up when the victim is dead
Issue
Did C have the MR for murder?
Holding
Yes.
Reasons (Cory J)
Nygaard MR is intent to cause such grave and serious bodily harm that the accused knew it was likely to result in
death; must, of necessity, be reckless
MR must be concurrent with AR at some point
A series of acts can form the same transaction
MR did not need to persist throughout the strangulation, he knew it was likely to cause death before he blacked out
Ratio
MR and AR must be concurrent at some point. MR is intent to cause bodily harm the accused knew was likely to cause
death

R v Fontaine
(2002), 168 CCC (3d) 263 (MBCA) CB 690
Facts
F was intent on committing suicide when he drove his car into a parked truck in the oncoming lane
He survived, but a passenger in his car ws killed
Issue
Is F guilty of murder?
Holding
No.
Reasons (Steel JA)
s 229(b) says the specific intent for murder exists when intending to kill one person, the accused kills another by
mistake
Parliament removed attempted suicide from the Criminal Code
Transferred intent only applies within the same crime, because harm follows is the same legal kind as that intended
Attempted suicide is not attempted murder
Strict construction of penal legislation rule mitigates in favour of the accused
Principles on constitutionality of MR (Creighton)
o Stigma and penalty reflects nature of crime
o Punishment is proportionate to moral blameworthiness
o Intentional harm must bring more severe punishment than unintentional harm
First degree murder is the harshest sentence and stigma known to the law
Suicide means the person needs treatment
Ratio
25
Attempted suicide does not satisfy MR for attempted murder. Transfer of intent only within the same crime.

R v JSR
2008 ONCA 544 CB 695
Facts
JSR was one of the shooters in the Young Street Boxing Day shootout that killed Jane Creba.
JSR did not shoot JC, but still was in the gunfight
Issue
Is JSR guilty of murder under 229(c)?
Holding
Yes.
Reasons
Causation is analogous to the car race (R v Menzes) each shooter consented to engage in a gunfight, and but for that
gunfight JC would not have been killed
Test for first degree murder under 229(c) (unlawful object)
o For an unlawful object (kill another gangster)
o The accused did anything (got in a gunfight)
o That he knew was likely to cause the death of a human being
o Caused the victims death (substantially contributed to JCs death by engaging in a gunfight, following causation
rules from Menzes)
Ratio
Test for 229(c) liability.

Vaillancourt v The Queen
[1987] 2 SCR 636 CB 703
Facts
s 213 (now 230) (felony murder) makes it murder when death is caused in the commission or attempt to commit a list of
crimes, if (d) he uses a weapon or has it upon his person
V was an accomplice to a robbery, and thought his partners gun was unloaded. The partner shot a client at the pool hall,
and has never been found. V is charged with felony murder.
Issue
Is s 230 valid?
Holding
No. It must be severed.
Reasons (Lamer J)
PFJ require proof of a subjective MR
Must be some special MR before homicide is murder subjective foresight of death
It would be possible for a conviction under s 213 despite the jury having a reasonable doubt as to whether the accused
ought to have known that death was likely to ensue
Fails s 1 at minimal impairment
Ratio
s 230 is not valid

R v Martineau
[1990] 2 SCR 633 CB 710
Facts
Deceased was deliberately shot by Ms accomplice during a robbery M only thought was going to be a b&e
M convicted under s 213 (now 230)
Issue
Is s 213 valid?
Holding
No.
Reasons (Lamer CJC)
Section removes Crown burden to prove subjective foresight of death
It violates the PFK that punishment be proportionate to moral blameworthiness
Stigma and punishment for murder must be reserved for those who have intent
Section fails Oakes test on minimal impairment
Flexible sentencing scheme for manslaughter is more appropriate
LHeureux-Dub (dissenting) subjective MR is not required by any PFJ, too much concern for stigma, misplaced
compassion, criminals can fuck themselves
Ratio
Conviction of murder requires proof of subjective foresight of death (confirmed in R v Sit)

First Degree Murder
Sentence: life with no chance of parole for 25 years
231(2) first degree murder when it is planned and deliberate
o (3) murder for hire is first degree
o (4) first degree when accused knows victim is a law officer on duty
Accused must subjectively know its an on duty cop (Collins)
o (5) first degree when caused in commission or attempt of:
(a) hijacking an aircraft; (b) sexual assault ((c) sexual assault with a weapon; (d) aggravated sexual
assault); (e) kidnapping and forcible confinement; (f) hostage taking
No same victim requirement (Russell)
o (6) during stalking where the accused intended to cause the victim to fear for his or someone elses safety
o (6.01) first degree when death caused by terrorist activity
o (6.1) first degree when death caused in commission of offence for the benefit of, at the direction of, or in
association with a criminal organization
o (6.2) intimidation of a justice system participant or journalist
Planned (Widdifield)
o Calculated scheme or design
o Carefully thought out
o Nature and consequences have been carefully weighed
o May be very simple
o Time involved in developing the plan is important, not the time between the plan and the act
Deliberate (Widdifield, More)
o Considered, not impulsive, slow in deciding, cautious
o Took time to weigh advantages and disadvantages
Reckless killing
o Can be first degree murder when the recklessness is planned and deliberate (Nygaard)
o Planned to inflict bodily harm that the accused knew would likely result in death (Nygaard)

R v More
[1963] 3 CCC 289 (SCC) CB 716
Facts
M was distressed about his financial affairs and planned to kill himself and his wife
He led psychiatric evidence attempting to raise a reasonable doubt about it being planned and deliberate
Ratio
Deliberate means considered, not impulsive

R v Widdifield
(1961), 6 Crim LQ 152 (ONSC) CB 717
Ratio
Planned
o Calculated scheme or design
o Carefully thought out
o Nature and consequences have been carefully weighed
o May be very simple
o Time involved in developing the plan is important, not the time between the plan and the act
Deliberate
o Considered, not impulsive, slow in deciding, cautious
o Took time to weigh advantages and disadvantages

R v Nygaard
[1989] 2 SCR 1074 CB 717
Facts
27
N and his accomplice beat someone up, and he died
Charged with first degree murder based on recklessness
Reasons (Cory J)
Vital element is intent to cause such bodily harm that the perpetrator knows that it is likely to cause death and yet
persists in the assault
Planning and deliberate to cause bodily harm which is likely to be fatal must include planning and deliberating to
continue in that conduct despite the knowledge of the risk
Recklessness acts in conjunction wit the intentional infliction of terrible bodily harm
Ratio
Reckless killing can be first degree murder, if the bodily harm likely to cause death and recklessness were planned and
deliberate.

R v Collins
(1989), 48 CCC (3d) 343 (ONCA) CB 718
Facts
C killed a police office who was on duty and in his uniform
Issue
Can C be convicted of first degree murder without proof of planning and deliberation?
Holding
Yes.
Reasons (Goodman JA)
Vaillancourt PFJ require at least objective foreseeability of death for murder conviction
Stigma argument is much less relevant here
First degree murder is just a classification, after murder has been established
There is no distinction in intent between first and second degree murder
Killing cops requires greater moral deterrent
Crown must prove BARD that the accused had subjective knowledge the victim was an on duty police officer, or the
accused was reckless as to whether the victim was such a person so acting
Charter is not offended because accused must have subjective knowledge that it is an on duty cop, not objective
knowledge
Ratio
Killing a cop is first degree murder

R v Russell
[2001] 2 SCR 804 CB 724
Facts
Charged with first degree murder because he murdered someone while his girlfriend was forcibly confined in another
room
Issue
Do the victims of the crimes in 231(5) need to be the same as the victim to qualify the murder as first degree?
Holding
No.
Reasons (McLachlin CJC)
Provision does not state the victims must be the same
Other similar provisions dont have a same victim requirement
Principle: where murder committed by someone already abusing his power by illegally dominating another, it should be
treated exceptionally seriously
Killing must be closely connected, temporally and causally, to the enumerated offence
Ratio
231(5) does not have a same victim requirement

R v Arkell
[1990] 2 SCR 695 CB 728
Facts
A killed the victim while sexually assaulting her
Issue
Is s 231(5) contrary to the Charter?
Holding
No.
Reasons (Lamer CJC)
Classification of murder is for sentencing, and does not create two substantive offences
Offences in the section are those of unlawful domination
The distinction is neither arbitrary or irrational, and there is a clear connection between the moral blameworthiness of the
offender and the stricter sentence
Ratio
s 231(5) does not offend s 7.

R v Luxton
[1990] 2 SCR 711 CB 730
Facts
L forced a taxi driver to drive him to a field where he murdered her
Issue
Is the sentencing requirement for murder constitutional?
Holding
Yes.
Reasons (Lamer CJC)
There is some sensitivity in sentencing because convicts of first degree murder can apply to the Chief Justice of the
province for a reduction in the non-eligibility for parole, after 15 years
Dangerous offender is OK because it fits with the moral turpitude of the offence, and protects the public
The sentencing provision is not arbitrary narrowly defined; organizing principle (illegal domination); specifically
defined conditions under which it applies
Cruel and unusual requires gross disproportionality that outrages the standards of decency
Ratio


Sexual Assault
Section 271
Sexual (Chase)
o Objective standard
o Part of body touched
o Nature of contact
o Situation in which it occurred
o Words or gestures accompanying the act
o Intent of person committing act
AR of sexual assault (Ewanchuk)
o Touching (objective)
o Sexual nature of contact (objective)
o Absence of consent (subjective) based on complainants state of mind
MR of sexual assault crime of general intent (Ewanchuk)
o Must be subjective (Darrach)
o Intent to touch
o Knowledge of, wilful blindness to, or recklessness toward, lack of consent
No just when complainant says no, but when accused knew that the complainant was essentially not
saying yes
Silence, passivity, ambiguous conduct are not consent
When a person says no, the other person must wait for an unequivocal yes to start again
Consent
o Vitiated by (265(3))
(a) Force
(b) Threats or fear
(c) Fraud
(d) Exercise of authority
o No consent when (273.1(2))
(a) Expressed by someone other than the complainant
(b) Complainant cannot consent
(c) Accused induces it by abuse of a position of authority
(d) Complainant expresses lack of agreement
29
o Accused must take reasonable steps to obtain consent (s 273.2, Darrach)
o Where ambiguous, accused must have a clear yes (Cornejo)
Defence: honest mistake of fact (re: consent) (265(4))
o Accused honestly believed there was consent
o Negates MR
o Belief does not need to be reasonable (Pappajohn)
o Must have an air of reality (Osolin)
o Must be based on more than the accuseds statement (Osolin)
o Mistake must be honest, not sustained by wilful blindness (Sansregret)
o Accused must have taken reasonable steps to obtain consent (s 273.2(b), Darrach)
o Not available where belief arises from self induced intoxication or wilful blindness or recklessness (273.2(a))
Evidence of complainants sexual history
o Cannot be used to claim the complainant was more likely to consent, or is less credible (276(1))
o Can only be raised if it is of specific instances of sexual activity, is relevant, and probative value outweighs
danger of prejudice (276(2))

R v Chase
[1987] 2 SCR 293 CB 632
Facts
C grabbed the complainant by the shoulders and grabbed her breasts
Reasons (McIntyre J)
Sexual assault is any assault where the victims sexual integrity is violated
Test for sexual nature: viewed in the light of all the circumstances, is the sexual or carnal content of the assault visible
to a reasonable observer
Factors
o Part of body touched
o Nature of contact
o Situation in which it occurred
o Words or gestures accompanying the act
o Intent of person committing act
Ratio
Defines sexual

Pappajohn v The Queen
[1980] 2 SCR 120 CB 633
Facts
P and the complainant got drunk at lunch and went to his house
Later, she ran out naked with her arms tied behind her back
P claimed mistaken belief in consent
Issue
Can an honest mistake of fact be exculpatory even if it is unreasonable?
Holding
Yes.
Reasons (McIntyre J)
Defence of mistaken belief in consent must bear an air of reality, there was none here
There must be some evidence beyond mere assertion of the belief by counsel
Belief does not need to be reasonable, adopts Dickson Js reasoning on this aspect
Dissent (Dickson J)
Intention or recklessness must be proven for all the elements, including absence of consent
Mistake is a defence because it negates MR
Defence must meat the air of reality test
Reasonableness of the belief is not conclusive
Circumstantial evidence in the case supports an honest but mistaken belief in consent
Ratio
Honest mistaken belief negates MR of sexual assault. Belief does not need to be reasonable.

Osolin v The Queen
[1993] 4 SCR 595 CB 640
Facts
s 265(4) was introduced after Pappajohn, provided that when mistaken belief in consent is alleged, the defence must
meet an air of reality
Issue
Does s 265(4) offend s 11(d)?
Holding
No.
Reasons (Cory J)
Defence for which there is no evidentiary foundation should not be put to the jury
Mere assertion by the accused is not enough
Does not create a statutory presumption, only a tactical evidentiary burden
Crown must still prove elements of the offence BARD
It is possible for the jury to accept parts of both parties stories in accepting a defence of honest mistake
Requirement that the testimonies must be the same could lead accused to lie
Ratio
Mistake of fact must have an air of reality. Mere assertion by accused is not enough

Sansregret v The Queen
[1985] 1 SCR 570 CB 642
Facts
S beat on his girlfriend and she consented to sex to stop the beatings twice
S is charged with sexual assault, because he was wilfully blind to the fact that her consent was vitiated by duress
Issue
Can S plead honest but mistaken belief in consent?
Holding
No, because of wilful blindness belief wasnt honest.
Reasons (McIntyre J)
Wilful blindness precludes honest mistaken belief
S was aware of the likelihood of the complainants reaction to his threats, so to proceed with intercourse is self-
deception to the point of wilful blindness.
Ratio
Mistake must be honest, not sustained by wilful blindness.

R v Seaboyer
[1991] 2 SCR 577 CB 645
Facts
s 276 created a rape shield whereby complainants previous sexual activity with anyone other than the accused could
only be introduced if it rebutted evidence of sexual activity adduced by the Crown, it established the identity of the
actual rapist, it was evidence of sex that took place on the same occasion
Issue
Does s 276 violate ss 7 and 11(d)?
Holding
Yes. It is not saved by s 1.
Reasons (McLachlin J)
Concern is not with the legislations purpose, but its effect
Evidence excluded will not necessary be of trifling weight
Can form the basis of honest but mistaken belief
Real risk an innocent person could be convicted
LHeureux-Dub (dissenting) no evidence regarding honest mistake is excluded
Ratio
Old rape shield law unconstitutional
NB: law in response to Seaboyer is constitution (R v Darrach)

R v Darrach
(1998), 122 CCC (3d) 225 (ONCA) CB 650
Facts
s 273.2 requires the accused to demonstrate he took reasonable steps to ascertain whether the complainant consented
Issue
31
Is s 273.2 constitutional?
Holding
Yes.
Reasons (Morden J)
Sexual assault must have a subjective MR component because: general intent; can be prosecuted by summary
conviction; generic offence covering minor to severe offences; no minimum penalty; maximum penalty of 10 years;
sentence can be tailored
The section still allows for subjective fault, because he must take reasonable steps in the circumstances known to the
accused at the time
Does not require all reasonable steps be taken
Does not require belief to be reasonable
If the accused believes consent is ambiguous or unclear, he has a duty to abstain or obtain clarification.
Ratio
Defence of honest mistake only if accused took reasonable steps to ascertain consent

R v Cornejo
(2003), 188 CCC (3d) 206 (ONCA) CB 655
Facts
C was drunk and alleges that by lifting her pelvis for C to take off her panties when she was passed out drunk, the
complainant consented to sex
Issue
Does Cs defence of honest mistake have an air of reality?
Holding
No.
Reasons (Abella J)
Movements of the pelvis were not sufficient evidentiary basis to give the defence to the jury giant leap of imagination
on the part of C
Complainant told C on many occasions she didnt want to have sex with him, including that night
Circumstances cried out for reasonable steps to ascertain consent
Reasonable steps must be taken before engaging in intercourse
Ratio
Reasonable steps must be taken if consent is ambiguous.

R v Ewanchuk
[1999] 1 SCR 330 CB 659
Facts
E sexually assaulted the complainant in the back of his van in the context of a job interview
Complainant said no but did not show her fear, which E claims supports honest mistake
Trial judge said consent was implied
Issue
Is consent objective, can it be implied?
Holding
No. No.
Reasons (Major J)
AR of sexual assault
o Touching (objective)
o Sexual nature of contact (objective)
o Absence of consent (subjective) based on complainants state of mind
MR of sexual assault crime of general intent
o Intent to touch
o Knowledge of, wilful blindness to, or recklessness toward, lack of consent
No just when complainant says no, but when accused knew that the complainant was essentially not saying yes
Silence, passivity, ambiguous conduct are not consent
When a person says no, the other person must wait for an unequivocal yes to start again
Trial judge misdirected himself when he considered the complainants actions, and not her subjective state of mind,
when determining consent
Complainants fear vitiated her consent (s 265(3)(b))
Defence: honest mistaken belief of consent
o Negates MR
o Consent in honest mistake
Considered from the subjective perspective of the accused
Did he believe the complainant communicated consent to engage in the act in question
LHeureux-Dub (concurring) rips on the trial judge for suggesting the complainant was promiscuous and was asking
for it
Ratio

Inchoate Offences
Attempt
24(1) having an intent to commit an offence, does or omits to do anything for the purpose of carrying out his intention
whether or not it was possible under the circumstances to commit the offence
24(2) remoteness (mere preparation) is a question of law
AR for attempt
o Next step after all the preparations are made (Cline)
o Decisive act in crime contemplated (Deutch)
MR for attempt
o For attempted murder: specific intent to kill (Ancio), subjective foresight death is likely to ensue (Logan)
o Generally: intent to do the actions beyond mere preparation (Dynar)

R v Cline
(1956), 115 CCC 18 (ONCA) CB 572
Reasons (Laidlaw JA)
Steps in consummating a crime
o Idea develops to a decision
o Make a plan
o Preparation to carry out plan
o Next step is attempt
Conclusions
o Must be MR and AR, but criminality is mostly in accuseds intention
o Evidence of similar acts is admissible to establish a pattern of conduct for MR
o Prosecution can advance such evidence without the defence raising a specific issue
o Not essential AR is illegal or even wrong
o AR must be more than mere preparation
o Next step after preparation with the intention to commit is attempt
Ratio
Attempt is the next step after mere preparation.

Deutch v The Queen
[1986] 2 SCR 2 CB 573
Facts
D indicated in the interview for his secretary that she would be required to have sex with clients
He offered $100,000 a year for it
Charged with attempting to procure females to have illicit sexual intercourse.
Issue
Were his actions mere preparation or attempt?
Holding
Attempt. Inducement would be the decisive act in procuring. New trial.
Reasons (LeDain J)
Distinction between preparation and attempt is qualitative, considering nature and quality of act in question and nature
of the complete act
Proximity to complete offence judged by: time, location, acts under the accuseds control remaining to be accomplished
Inducement would be the decisive act in procuring
The inducement would not lost its status as attempt even if there was a long time between the interview and sex.
Ratio
Decisive act in completed crime constitutes attempt.

33
R v Ancio
[1984] 1 SCR 225 CB 574
Facts
A went to the apartment where his estranged wife was living with K with a loaded sawed off shotgun
K threw a chair at A when he was coming up the stairs and the shotgun went off
Issue
Was this attempted murder?
Holding
No.
Reasons (McIntyre J)
Intent to commit the desired offence is the basic element of attempt
Criminal element can lie solely in intent, AR does not need to be illegal
MR for attempted murder must be specific intent to kill
Ratio
MR for attempted murder is the specific intent to kill.

R v Logan
[1990] 2 SCR 731 CB 576
Facts
L was involved in the robbery of a store and the wounding of the cashier
He was charged with attempted murder
Reasons (Lamer CJC)
Ancio established specific intent to kill is MR for a principal in attempted murder
Martineau held the MR for murder must be subjective foresight death was likely to ensue
PFJ require minimum degree of MR for few offences, determined by stigma and penalty
Attempted murderer is no less a killer than a murderer, and can get the same sentence
MR for attempted murder must be subjective foresight of the consequences so as not to offend s 7 of the Charter
Ratio
MR for attempted murder is subjective foresight death is likely to ensue.

R v United States v Dynar
[1997] 2 SCR 462 CB 579
Facts
D was the subject of a failed sting and the US wants him extradited on money laundering charges
D argues the fact that the money was not drug money so it was impossible to launder it
Issue
Is impossibility a defence to attempt?
Holding
No.
Reasons (Cory & Iacobucci JJ)
24(1) says attempt exists regardless of impossibility
Intent to commit and some act more than mere preparation is attempt
D clearly had intent and took steps beyond mere preparation
Imaginary crimes are ones that the accused thinks are illegal but actually arent
Factually impossible crimes are thwarted by mere happenstance
That a design is based on a mistake of fact doesnt make it any less a design
D was thwarted only by chance
Knowledge is true belief
o Only belief is the mental element
o Truth cannot be part of the MR, because it exists objectively, not subjectively in the accuseds mind
o Knowledge as such is not part of MR for money laundering, only belief is.
Motive is not important, the only thing that matters is what D believed he was doing: money laundering
Only difference between attempt to do the possible and attempt to do the impossible is chance
Ratio
Impossibility is not a defence to attempt.

Counselling
Includes procuring, soliciting, inciting (22(3))
Two forms
o Inciting an offence actually committed (s 22) form of participation
o Inciting an offence that is not committed (s 464) inchoate liability
Test (Hamilton)
o AR: deliberate encouragement or active inducement of the commission of an offence
Must actively induce or advocate, not merely describe (Hamilton)
o MR: accompanying intent or conscious disregard of the substantial and unjustified risk
Intended the offence counselled to be committed
Knowing counselled the commission of the offence while aware of the unjustified risk that the offence
counselled was in fact likely to be committed as a result of the accuseds conduct

R v Hamilton
[2005] 2 SCR 432 CB 588
Facts
H offered a credit card number generator for sale on the internet, and advertised it for fraud
Also offered bomb recipes and information on how to commit burglaries
Issue
Is it incitement?
Holding
Yes. New trial.
Reasons (Fish J)
Trial judge confounded motive and intent when she let him off for only being in it for the money
AR: actively induce or advocate, not merely describe
Counsel includes procure, solicit or incite (s 22(3))
Incitement increases the potential for harm to occur
AR: deliberate encouragement or active inducement of the commission of an offence
MR: accompanying intent or conscious disregard of the substantial and unjustified risk (intended offence to be
committed, or knowingly counselled the commission of the offence while aware of the unjustified risk the offence was in
fact likely to be committed
Charron J (dissenting) only sufficient MR is intent the offence be committed, recklessness is not good enough
Ratio
Test for incitement
Conspiracy
Test (Dynar)
o Intention to agree, and to attain the common design
o Completion of an agreement
o Common design
AR
o Agreement
MR
o Intent to agree
o Intention to put the common design into effect
Cannot include a cop (Dynar)
Cannot attempt to conspire (Dry)

United States v Dynar
[1997] 2 SCR 462 CB 595
Facts
D was the subject of a failed sting and the US wants him extradited on money laundering charges
D argues the fact that the money was not drug money so it was impossible to launder it
Issue
Is impossibility a defence to conspiracy?
Holding
No.
Reasons (Cory and Iacboucci JJ)
35
Conspiracy:
o Intention to agree, and to attain the common design
o Completion of an agreement
o Common design
Agreement is key, not acts done in pursuance of it
Must involve more than one person, though they might not all be capable of being convicted
Each person must have a genuine intention to participate in the agreement, no liability for pretending to agree
Cannot have conspiracy with a police informant, but conspiracy can exist between the other parties
Two or more people can cause substantially more harm than two people working alone
Conspirators betray a propensity and aptitude to commit crimes
There is no difference between factual and legal impossibility, and impossibility is no defence to conspiracy
AR: agreement
MR: intent to commit the offence
Ratio
Conspiracy is all about the agreement.

R v Dry
[1006] 2 SCR 669 CB 600
Reasons (Fish J)
Attempting to conspire is not a crime
No evidence accused took any steps to carry out the proposed theft
No agreement to steal
AR for counselling: deliberate encouragement or active inducement of the commission of a criminal offence
High threshold for counselling is deliberate to avoid overbreadth
Criminal liability does not attach to fruitless discussions in contemplation of a substantive crime that is never committed,
nor even attempted, by any of the parties to the discussions
Criminal law should not police thought, so conspiracy should not reach too far
Attempt to conspire creates a risk that a risk will materialize
Ratio
Attempt to conspire is not a crime. Cannot combine inchoate liability
Complete Offences
R v Legare
2009 SCC 56 CB 603
Facts
L chatted with a 12 year old and phoned her to talk dirty
Charged with using a computer for the purpose of facilitating a sexual offence including sexual interference and sexual
touching with an underage child (s 172.1(b))
Reasons (Fish J)
Criminalizes conduct that precedes the commission of the sexual offence
Offender need not intend to meet the victim with the view of committing the offences
Facilitating includes helping to bring about and making easier or more probable ex luring or grooming
Accuseds intention must be determined subjectively
The specific intent is required so as not to criminalize innocent behaviour
Elements of the crime
o Intentional communication by computer
o With a person whom the accused knows or believes to be under 14 (now under 16)
o For the specific purpose of facilitating the commission of a specified secondary offence
All three must be present
Ratio
Can have complete offences based on inchoate liability.


Participation
21(1) everyone is a party to an offence who
(a) Commits it
(b) Aiding (commission or commission)
(c) Abetting
21(2) where a group forms a common intention to carry out an unlawful purpose, each of them who knew or ought to have
known the commission of the offence would be a probable consequence of the common intention is a party to the offence.

22(1) Person is guilty of counselling even if the offence was committed in a way different than the counsel
22(2) Party liability to the counsellor for any offence he knew or ought to have known was a likely consequence of the
counselling
22(3) Counselling includes procure, solicit or incite
Principals
Where an accused acted in concert, there is no requirement to determine who struck the fatal blow (McMaster)
Aiding is legally the same as committing the crime (Thatcher)
Jury doesnt need to decide if the accused was the principle or aided, it only needs to be unanimous that he was one or
the other BARD (Thatcher)

R v Thatcher
[1987] 1 SCR 652 CB 526
Facts
T was a Saskatchewan MLA whose wife was murdered
Crown contended T either killed his wife or caused someone else to do it and was therefore party to an offence
Issue
Does the jury need to be unanimous over whether T aided or actually did it?
Holding
No, as long as theyre unanimous that it was one or the other.
Reasons (Dickson CJC)
Aiding and abetting: intentional encouragement of assistance in the commission of the offence
The actual perpetrator need not be identified
Aider or abettor is legally in the same position as the principal guilty of the offence he aided
Crown is under no duty to separate different forms of participation into different counts
Jury need not be unanimous of each piece of evidence, only must be unanimous about the material facts
Because there is no distinction, the jury need not be unanimous over whether T killed her or aided it, just that he did one
or the other
Ratio
Aiding is the same as actually committing the crime from a legal perspective.
Aiding and Abetting
Aiding is legally the same as committing the crime (Thatcher)
Aiding
o Omitting to perform a legal duty is enough for aiding (Nixon)
o Parents not protecting their children for the purpose of aiding (Palombi)
o 21(2) where a group forms a common intention to carry out an unlawful purpose, each of them who knew or
ought to have known the commission of the offence would be a probable consequence of the common intention
is a party to the offence.
Does not include the objective component where the Charter requires a subjective MR (Logan)
Not aiding
o Purchasing or aiding the purchase of drugs is not aiding trafficking (Greyeyes)
o Mere presence at the scene (Dunlop and Sylvester)
MR subjective intent to commit the crime (Helsdon)
o Even if the crime is strict liability (Helsdon)
Common intention
o 21(2) where a group forms a common intention to carry out an unlawful purpose, each of them who knew or
ought to have known the commission of the offence would be a probable consequence of the common intention
is a party to the offence
o Situations where the principal offender commits an offence other than the offence planned
o Test
Accused formed a common intention with others to carry out an unlawful purpose
Accused assisted others in achieving such a purpose
Any offence committed by any of the participants in the common intention makes all liable if it was
37
A probable consequence of the unlawful purpose OR
The accused knew or ought to have known that probability
Defence of abandonment (R v Whitehouse)
o Must be timely communication of intention to abandon where practicable and reasonable
o Abandonment relieves criminal liability for the common intention

R v Greyeyes
[1997] 2 SCR 825 CB 531
Facts
G brought an undercover cop to a drug dealers house, helped them negotiate a price, and passed on money to buy
cocaine
The cop gave G 10$ for his services
He was charged with aiding and abetting trafficking
Issue
Did Gs actions constitute aiding and abetting?
Holding
Yes.
Reasons (LHeureux-Dub J)
Need to be careful not to extend aiding and abetting too far WRT trafficking
Purchasing is not in itself aiding and abetting trafficking
No liability for third parties who assist the purchaser
Advantages: punishment accords with the crime, symmetry because the aid is to the purchaser, not the trafficker and
incidentally benefits the seller
G went beyond this, located seller, brought the buyer to him, acted as a spokesman, negotiated the price, passed the
money, accepted money for helping not the acts of a mere purchaser
Cory J (concurring) no reason to extend exception for purchasers to those who encourage or assist them
Ratio
Aiding the purchase of drugs is not aiding their trafficking.

Dunlop and Sylvester v The Queen
[1979] 2 SCR 881 CB 537
Facts
D and S were present briefly at a dump where a girl was being gang raped by some bikers
Issue
Were they aiding and abetting?
Holding
No.
Reasons (Dickson J)
Abets means encourages, supports, upholds
Mere presence at the scene cannot ground culpability, need more: encouragement, facilitation (ex keeping watch),
preventing interference
Non-accidental presence is not conclusive of aiding and abetting
There is no duty to rescue; it is no criminal offence to stand by hardened urbanite who stands around in a subway
station when an individual is murdered
Aiding and abetting is established if he understood what was taking place and by some act on his part encouraged or
assisted in its attainment
Distinction between presence with prior knowledge and accidental presence
There was no more than mere presence and passive acquiescence here, no positive act or omission to facilitate unlawful
purpose
Martland J (dissenting) evidence on which the jury could have found aiding and abetting
Ratio
No liability for mere presence at the scene.

R v Jackson
[2007] 3 SCR 514 CB 542
Facts
J was found at a marijuana grow op in the middle of the bush
He claims mere presence
Issue
Was J aiding and abetting?
Holding
Yes
Reasons (Fish J)
Liability based on apprehension at the scene, rejection of his explanation for being there, particular nature of the
offence, the context in which it was committed, circumstantial evidence of guilt
Mere presence at the scene in circumstances consistent with innocence will not support a conviction
Ratio


R v Nixon
(1990), 57 CCC 93d) 97 (BCCA) CB 543
Facts
N was the sergeant at the Vancouver police lockup
A prisoner, J, was beaten in the interrogation room after giving a false name
N was not in the room, but was aware of what was going on
Issue
Did Ns omission to act fix him with criminal liability?
Holding
Yes
Reasons (Legg JA)
N was present at the time of the assault and knew what happened
He had a duty to protect J
Failed to discharge that duty, and by that omission, was guilty of aiding and abetting
Police officers have a duty to involve themselves grounded in legislation
Parents have a legal duty under common law to take reasonable steps to protect their children
A failure to act in accordance with a duty to act may be an omission to do something for the purpose of aiding and
abetting
Ratio
Not performing a legal duty is sufficient for aiding and abetting.

R v Helsdon
216 CCC (3d) 1 (ONCA) CB 545
Facts
H was a newspaper reporter charged with aiding a publisher in breaching a publication ban by submitting a story that
contained the name of a complainant in a sexual assault case
Issue
Was H guilty of aiding?
Holding
No
Reasons (OConnor ACJO)
Intent required for breaching a publication ban does not require subjective knowledge of the bans existence
Preparing and filing the article is sufficient AR for aiding and abetting
Aiding must be for the purpose of committing the offence even strict liability offences require intent for aiding
MR includes knowledge of the circumstances which constitute the offence
21(1)(b) requires a subjective MR, even when liability for the principal is strict
Makes sense to require a higher MR for a crime they didnt commit
A person may be convicted of manslaughter who aids or abets another person in the offence of murder where a
reasonable person would have appreciated that bodily harm was the foreseeable consequence of the dangerous act
To found a conviction for abetting, Crown must prove the accused intended his words or acts encourage the principal
Ratio
Aiding requires subjective intent to aid the commission of the crime, even where the crime is strict liability.

R v Popen
(1981), 60 CCC (2d) 232 (ONCA) CB 549
Facts
Ps wife mistreated their infant daughter
39
P was charged with manslaughter as a party to the wifes offence
Issue
Can P be a party to his wifes offence?
Holding
Yes.
Reasons (Martin JA)
No evidence P had done or omitted anything for the purpose of aiding his wife inflict the injuries to the child
Person who is present at the commission by another of an illegal act, which he has a duty to prevent, may by mere
inactivity encourage the illegal act
It would have been open to a jury to find P was criminally negligent in failing to protect his child, when under a duty to
do so, and that failure contributed to the childs death
Providing the necessaries of life includes necessary of protection of a child from harm
Parent is under a legal duty at common law to take reasonable steps to protect the child from violence caused by the
other parent or a third party.
Ratio
Parents have a duty to protect their children.

R v Palombi
(2007), 222 CCC (3d) 528 (ONCA) CB 542
Facts
Ten days after P brought her kid home from the hospital, doctors discovered signs of abuse
Evidence indicated if the child was abused, it was either P or her partner
Issue
Is mere knowledge of abuse enough to found party liability, even where there is a duty to protect?
Holding
No.
Reasons (Rosenberg JA)
By failing to intervene to protect the child, P did something that had the effect of assisting the other parent in assaulting
the child
It was not enough P knew the child was being abused, but that her actions or her failure to act were for the purpose of
assisting or encouraging the commission of the offence
Knowledge can be found in an inference of intention, it alone cannot constitute MR
MR must include intention to aid and abet the commission fo the crime
Intention is subjective
On the facts, the failure to protect the child for the purpose of aiding was not inevitable, so there must be a new trial
Ratio
MR for party liability includes knowledge and intent. Mere knowledge is not enough.

R v Kirkness
[1990] 3 SCR 74 CB 553
Facts
K and S broke into a house when they were drunk to rob it
S went into the residents room and raped her while K stood guard and robbed the house
S dragged the victim out of the room and strangled her, K told him not to
Issue
Did K aid and abet S in murder and sexual assault?
Holding
No.
Reasons (Cory J)
K can only be guilty of murder or manslaughter if he was found to be a party to the sexual assault
Sole evidence implicating him in tis was that he blocked the front door while he knew S was raping the woman
No evidence K knew or had any reason to believe death was likely to result from the sexual assault
No evidence K was party to the murder
Fact that he told S to stop when he say him strangling the victim indicates that if K had been party to any offences, from
that point on he had removed himself from any joint enterprise with S that involved killing the victim
Wilson J (dissenting) distinguishing between mere acquiescence and encouragement is difficult
o Must show a common intention there was one here
o Test for party liability
Commission of the ultimate offence must be probable
Accused must know or ought to have known of the probability
o Violence so often accompanies sexual crimes that it is implicit in the very nature of the offence that some harm
short of death is probable
o Abandonment defence usually applied to common intent provision
Main issue is the quality of the withdrawal in relation to both the offence and the type of criminal participation
Attempts to stop or prevent the crime which are insufficient to exculpate must be considered at sentencing
o Open to the jury K did more than passively watch
o 21(2) is for consequential offences which were not committed nor aided or abetted by the accused, but which
resulted from the prosecution of the original offence
Liability where the accused knew or ought to have known the offence committed would be a consequence of
the offence he aided
Must be similar type, and contemporaneous for 21(1) liability
21(2) is for instances where there has been a break in time between two offences, and offence actually
committed follows after, but as a consequence of the offence originally planned
No assistance needed, only probability of the offence occurring in the offence aided
o Sexual assault has a possible consequence of bodily harm, so manslaughter is open to the jury here
Ratio


R v Logan
[1990] 2 SCR 731 CB 561
Facts
L was involved in a robbery where the cashier was seriously wounded
He was charged with attempted murder
Issue
Was he guilty of attempted murder based on objective foreseeability of death?
Holding
No.
Reasons (Lamer CJC)
It is not a PFJ that a party to an offence must have the same standard of MR as the principal
Objective component of 21(2) could restrict s 7 rights in some cases, where the offences fit into the criteria discussed in
Vaillancourt as requiring subjective MR
MR for attempted murder must be subjective foresight
Must read down words or ought to have known in 21(2) when considering whether a person is party to an offence
where the Charter requires a subjective MR (like attempted murder)
Ratio
21(2) does not include an objective component for crimes for which the Charter requires a subjective MR

Counselling
s 22 provides liability for counselling a crime that was actually committed
Liability where counselling is decisive in the motivation of the one who committed the crime (OBrien)

R v OBrien
2007 NSCA 3 CB 564
Facts
O sold drugs to B regularly
O told B to rob a depanneur to get money so he could sell her drugs
Issue
Is O guilty of counselling?
Holding
Yes.
Reasons (Hamilton JA)
B had not made up her mind to rob the store before she talked to O
Motive is not an element of counselling, it can be taken into account when considering intent
O was supportive of the robbery: told her it would be easy, she did not have to worry, and she should paint her face
Ratio

41
Accessory After the Fact
Defined by ss 23, 23.1, and 463
o 23(1) An accessory after the fact to an offence is one who, knowing that a person has been a party to the
offence, receives, comforts or assists that person for the purpose of enabling that person to escape
Accessory is not a party to the offence, but rather a purpose in a distinct offence of facilitating the escape
Conviction is not contingent on the conviction of a party to the offence
Accessory must know the principal committed a crime (Duong)

R v Duong
(1998), 124 CCC (3d) 392 (ONCA) CB 566
Facts
Ds friend L told D that he (L) was in trouble for murder and asked to stay at his place
D didnt inquire any further, and let L stay with him
Issue
Can Ds wilful blindness satisfy the MR for accessory after the fact?
Holding
Yes.
Reasons (Doherty JA)
Accessory must know the principal committed the offence when the assistance was provided
o Knowledge of the offence is sufficient
Accessory after the fact to murder has its own penalty, which is more severe than accessory to other crimes (s 260 vs s
463)
Where the Crown proves the existence of a fact and knowledge of that fact is a component of MR for the crime, wilful
blindness to the existence of the fact is sufficient to establish MR
Actual suspicion and a conscious decision not to make inquires to confirm the suspicion constitution wilful blindness
(both are subjective)
Ratio
Accessory must know the principal committed a crime.

Defences
Necessity
Common law defence, recognized in Canada since 1984 (Perka)
Excuse, not a justification
Test (Perka)
o Imminent peril or danger (modified objective standard)
o No reasonable legal alternative (modified objective standard)
o Proportionality between harm inflicted and harm avoided (objective standard)
Does not apply to
o Murder (Dudley and Stephens, Latimer)

Morgentaler v The Queen
[1976] 1 SCR 616 CB 880
Facts
M performed an illegal abortion
He claimed necessity because without the abortion the woman might do something foolish
Issue
Can he use necessity as a defence?
Holding
No
Reasons (Dickson J)
Necessity cannot justify: killing (R v Dudley and Stephens), the starving stealing food, squatting by the homeless
If a necessity defence does exist, it only does so to justify non-compliance in urgent situations of clear and immediate
peril when compliance with the law is demonstrably impossible
Test for necessity
o In good faith the accused considered failure to abort could endanger life or health
o Upon a reasonable view of the facts compliance with the law was impossible
Necessity cannot arise out of purely economic circumstances
Ratio
Introduced the possibility for necessity defence.

R v Morgentaler et al
(1985), 22 CCC (3d) 353 (ONCA) CB 883
Reasons
Necessity must be based on truly involuntary action
Compliance with the law must be demonstrably impossible no legal way out
Here, the accused consciously agreed to violate the law
Defence is not premised on dissatisfaction of the law
Law cannot create necessity, only the facts can
Ratio
Necessity only available where there is no legal way out.

Perka v The Queen
[1984] 2 SCR 232 CB 884
Facts
P was an officer on a ship that was forced to port in a storm
The ship was carrying 34 tons of marijuana from Colombia to Alaska
The officers and crew were charged with importing a narcotic and possession for the purpose of trafficking
Issue
Is necessity a defence for the charge of importing?
Holding
Yes.
Reasons (Dickson J)
Necessity is an excuse realistic assessment of human weakness
Compliance with the law must be demonstrably impossible action must be involuntary
Situation must be urgent and peril imminent
Must ask: was there a legal way out? reasonable legal way out invalidates the defence
Response must be proportional
Onus on the crown to disprove BARD where there is an air of reality
Wilson J (dissenting) necessity might be used as a justification sometimes, and this would reduce the imminence
requirement
Ratio
Necessity is available in an urgent situation of clear and imminent peril when compliance with the law is demonstrably
impossible

Latimer v The Queen
[2001] 1 SCR 3 CB 890
Facts
L killed his critically disabled daughter
Claimed necessity because she was in pain and would have undergone more horrible surgery
Issue
Was there an air of reality to the defence of necessity?
Holding
No.
Reasons (The Court)
Necessity requires true involuntariness
Perka test imminent peril, no reasonable legal alternative, proportionality
Not enough that peril is foreseeable or likely, must be on the verge of transpiring or virtually certain to occur
Two harms must be, at a minimum, of comparable gravity
Modified objective test for first two steps objective evaluation taking to account situation and characteristics of the
particular accused
Proportionality is assessed with an objective test
Gravity of act is matter of community standards infused with constitutional considerations
Jury is only left with the defence if there is an air of reality
Ratio
43
Peril must be imminent, not just foreseeable.
Duress
Codified in restrictive form in s 17
o Offence committed under compulsion by threats of immediate death or bodily harm from a person who is
present when the offence is committed is excused if the person believes the threats will be carried out
o Does not apply to treason, murder, piracy, attempted murder, sexual assault (with a weapon, aggravated),
threats causing bodily harm, forcible abduction, hostage taking, robbery, assault with a weapon (causing bodily
harm, aggravated), arson, abduction of young persons
o Only for principals (Paquette)
o Immediate and from a person who is present when the offence was committed are read down (Ruzic)
o Accused must believe the threat will be carried out.
Common law defence of duress
o Legitimate because the Code preserves common law excuses and justifications (s 8(3))
o Available for parties to an offence (Paquette)
o Available for murder (Paquette) and attempted murder (Hibbert)
o Test
Threats (serious)
No safe avenue of escape in accuseds perception of the facts
Objective standard, considering context and accuseds human frailties (Hibbert)
Defence can raise a reasonable doubt about whether the accused has MR
Duress does not negate intent to be a party to a crime (Hibbert)
Not available where there is a safe avenue of escape (Mena)

Paquette v The Queen
[1977] 2 SCR 189 CB 904
Facts
C told P to drive him to the Pop Shoppe, and threatened to kill P with a gun if he didn't
The robbery went bad, and resulted in murder
Issue
Is duress available for P?
Holding
Yes.
Reasons (Martland J)
Section 17 is limited to principals
Duress is available to a person who aided and abetted a murder, and it is also available as a defence to charges under
21(2)
Ratio
Common law defence of duress available for parties to crimes; s 17 only available for principals

R v Mena
(1987), 34 CCC (3d) 304 (ONCA) CB 907
Reasons
Section 17 is only available for principals, not for liability under 21(1)(b) or (c), or 21(2)
Section 17 requires subjective assessment of the accuseds belief
Where on the facts not in dispute the accused had an obvious safe means to escape and no reasonable jury could come to
any other conclusion, the judge is entitled to hold, as a matter of law, that the defence of duress is unavailable
Ratio
Duress only available where there is no safe means of escape

R v Hibbert
[1995] 2 SCR 973 CB 909
Facts
H was friends with the victim
X made H call his friend down to the lobby so X could kill the friend, threatening to kill H if he didnt
H stood by while X shot the victim
Issue
Did duress negate Hs MR for attempted murder?
Holding
No.
Reasons (Lamer CJC)
Paquette says duress can excuse conduct or negate MR
Situations where duress negates MR will be exceptional
o Structure of the offence requires a specific MR which duress can negate
o In these situations, accused can point to duress when guilt is being assessed
Purpose does not mean desire in 21(1)(b), synonymous with intention
o Cannot be negated by duress
Duress is a freestanding offence, it does not negate AR or MR
o Invoked despite being found guilty of the crime
Particular variety of necessity
Safe avenue of escape
o Existence of safe avenue of escape means compliance with the law was not demonstrably impossible
o Determined objectively taking into account circumstances and human frailties of the accused
o Must consider accuseds perception of the facts
Ratio
Duress does not negate the MR in most cases, but operates as a freestanding excuse after guilt is established.

R v Ruzic
[2001] 1 SCR 687 CB 917
Facts
M threatened to kill Rs mother if she did not act as a drug mule
M was arrested at the airport for unlawful importation of a narcotic
Issue
Are the requirements of immediacy and presence of threatening party contrary to s 7 of the Charter?
Holding
Yes.
Reasons (LeBel J)
Withdrawal of a defence does not generally violate s 7, especially when a defence is inconsistent with the offence
prescribed, in that it would excuse the very evil which the offence seeks to prohibit or punish
Test for PFJ
o Consider nature, sources, rationale, essential role within legal system
o Capable of being articulated with precision
o More than broad generalization about ethical or moral beliefs
o Measure of consensus
Morally involuntary conduct is not always free from blame
Necessity and duress are concessions to human frailty
It is not a PFJ that morally involuntary acts should not be punished
Basic principle that absence of volition is always a defence
Moral involuntariness does not negate AR or MR, it deserves protection under s 7
Immediacy and presence requirements preclude threats of future harm
S 17 must include threats against third parties
Immediacy and presence criteria invalidate the defence in hostage or other third party situations violates the Charter
Common law defence does not have the immediacy requirement
Threats of furture harm are sufficient to invoke common law defence
Must be a close temporal link between the threat and the commission of the offence
Proportionality and lack of safe avenue of escape are central to the defence
Ratio
Immediacy and presence requirements in s 17 violate the Charter.

Entrapment
Generally arises in consensual crimes, where the participants dont complain to the police
Procedural issues
o Results in a stay of proceedings
o Matter for the judge, not the jury
o Accused must demonstrate entrapment on a BOP
45
Test for entrapment (Mack)
o Authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion
that the person is already engaged in criminal activity or pursuant to a bona fide inquiry
o Police go beyond providing an opportunity and actually induce the commission of the offence
Factors to consider (Mack)
o Type of crime involved and availability of other techniques for detection
o Average person in the position of the accused would be induced to commit a crime
o Persistence and number of attempts made by police
o Type of inducement (deceit, fraud, trickery, reward)
o Timing (whether the police have investigated the offence or became involved in on going activity)
o Whether police conduct exploits human characteristics such as compassion, sympathy, friendship
o Whether the police have exploited a vulnerability like a handicap or substance addiction
o Proportionality between police involvement and accuseds act, commission of illegal acts by the police
o Threats made by the police
o Police conduct directed at undermining constitutional values

R v Mack
[1988] 2 SCR 903 CB 143
Facts
M was a former drug user with several convictions
He was repeatedly asked by an undercover cop to supply drugs, and threatened when he refused
After repeated attempts by the cop, the accused delivered 12 ounces of cocaine, and was charged with trafficking
Issue
Was the defence of entrapment available?
Holding
Yes.
Reasons (Lamer J)
Crucial distinction between providing an opportunity to commit a crime, and the state creating a crime for the purposes
of prosecution
Concern in entrapment is law enforcement techniques that involve conduct the citizenry cannot tolerate evidence or
convictions can at times be gained at too high a price
Police conduct will rarely negate AR or MR
Threats by police will be highly relevant
Focus is on the police conduct
Test for entrapment
o Authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion
that the person is already engaged in criminal activity or pursuant to a bona fide inquiry
o Police go beyond providing an opportunity and actually induce the commission of the offence
Objective assessment of police conduct
Must be a sufficient connection between past conduct and provision of an opportunity
Whether the police went beyond an offer, accuseds predisposition does not matter because the standard is objective
Police cannot engage in random virtue testing
Factors to consider
o Type of crime involved and availability of other techniques for detection
o Average person in the position of the accused would be induced to commit a crime
o Persistence and number of attempts made by police
o Type of inducement (deceit, fraud, trickery, reward)
o Timing (whether the police have investigated the offence or became involved in on going activity)
o Whether police conduct exploits human characteristics such as compassion, sympathy, friendship
o Whether the police have exploited a vulnerability like a handicap or substance addiction
o Proportionality between police involvement and accuseds act, commission of illegal acts by the police
o Threats made by the police
o Police conduct directed at undermining constitutional values
Entrapment is a question for the judge, not the jury
Onus is on the accused on a BOP he is not entitled to an acquittal, the Crown is disentitled to a conviction
Ratio
Defines entrapment

R v Barnes
[1988] 2 SCR 893 CB 149
Facts
Police buy and bust operation in an area where drug dealers were known to operate
Issue
Was it random virtue testing?
Holding
No, bona fide inquiry.
Reasons (Lamer CJC)
Exception to the rule the police can only present the opportunity bona fide inquiry in an area where it is reasonably
suspected criminal activity is occurring
Location must be defined with sufficient precision
Police can present any person associated with the area the opportunity to commit an offence
Police need reasonable suspicion that
o Person is already engaged in the particular criminal activity
o Physical location with which the person is associated is a place where the particular criminal activity is likely
occurring.
Ratio
Police can present opportunity in the course of a bona fide inquiry
I gnorance of the Law
Section 19 says ignorance of the law is no defence
Not knowing your license is suspended is a mistake of fact (Pontes)
Colour of right
o No offence if there is colour of right (Howson)
o Accused has an honest belief the act is justified

R v Howson
[1966] 3 CCC 348 (ONCA) CB 502
Facts
H worked for a towing service, and refused to return someones car until he paid certain expenses
H was charged with theft
Issue

Holding

Reasons (Porter CJO)
There is no offence if there is colour of right
For colour of right, tribunal must be satisfied the accused acted upon an honest, but mistaken belief that the right is based
upon either fact or law, or mixed law and fact
Magistrate should have considered colour of right, which would in this case lead to acquittal
Ratio
Colour of right is a defence; ignorance of the law is not.

Jones and Pamajewon v The Queen
[1991] 2 SCR 821 CB 504
Facts
J+P were charged with operating an unlawful bingo
They were operating it on a reserve, where they renounced the jurisdiction of federal and provincial governments
They claim mistake WRT the law
Reasons
The defence of honest mistake is not available for this crime
Any mistake here is a mistake of law, which is no offence
Mistake is in believing the law does not apply, which is not a mistake of fact
Ratio
Mistake of law is no defence.

47
R v Pontes
[1995] 3 SCR 44 CB 516
Facts
Decided based on the new provision made to replace the impugned one in BC Motor Vehicle Reference
Motor Vehicle Act provided absolute liability for driving with a suspended license even if the accused didnt know his
license was suspended
Issue
Is a license suspension a legal or factual element?
Holding
Fact.
Reasons (Cory J)
Defence of due diligence must be available for strict liability
In this case the only defence is ignorance that the license was suspended therefore it must be a mistake of fact to save
the constitutionality of the section.
Ratio
Not knowing you have a suspended license is a mistake of fact.
Officially Induced Error
Test (Jorgenson)
o Error of law or mixed law and fact
o Accused considered legal consequences of his actions
o Advice came from an appropriate official
Government official involved in the administration of the law in question accused would normally
consider responsible for advice about the particular law in question
o Advice was reasonable
Presumed reasonable unless it is on its face utterly unreasonable
o Advice was erroneous
o Accused relied on the advice
Advice obtained before actions in question
Procedure
o Accused must prove on a BOP
o Question for the judge to decide
o Results in a stay of proceedings

Molis v The Queen
[1980] 2 SCR 356 CB 507
Facts
M manufactured MDMA for a long time, beginning before it was criminalized
He was charged after it was criminalized, but claimed ignorance of the law and due diligence ascertaining the law
Ratio
Defence of due diligence in Sault Ste Marie is of due diligence in relation to the fulfilment of a duty imposed by law and not
in relation to the ascertainment of the existence of a prohibition or interpretation

R v Cancoil Thermal Corporation
(1986), 27 CCC (3d) 295 (ONCA) CB 507
Facts
Safety inspector examined a new piece of machinery and said it was OK
It wasnt safe, and C was charged
C claims officially induced error
Issue
Is officially induced error an available defence?
Holding
Yes.
Reasons (Lacourcire JA)
Modern society characterized by intense involvement in a complex society by all levels of Government with
corresponding reliance
So long as mistake of law is no defence, there must be a defence of officially induced error
Defence available where accused reasonably relied upon erroneous legal opinion or advice of an official who is
responsible for the administration or enforcement of the particular law
Consider efforts made to ascertain the proper law, complexity or obscurity of the law, position of the official, clarity
definitiveness and reasonableness of advice
Accused proves misleading by a BOP
Ratio
Accepts defence of officially induced error

R v Jorgenson
[1995] 4 SCR 55 CB 508
Facts
J sold a movie that the Ontario Film Review Board said was OK
The Crown says its obscene
Issue
Is officially induced error available to J?
Holding
No, because it was not raised in the courts below.
Concurrence (Lamer CJC)
Rationale for ignorance of the law not being a defence
o Allowing the defence would bring evidentiary problems
o Ignorance of the law is not socially desirable
o Every person could be a law unto himself
o Ignorance of the law is blameworthy in itself
Officially induced error should be a defence
Exception to ignorance not being a defence unpublished law, colour of right
Due diligence is separate from officially induced error, due diligence in ascertaining the law is no excuse
Due diligence is a full defence, officially induced error does not engative culpability
For most true crimes, the defence is unlikely to be available
Test
o Error of law or mixed law and fact
o Accused considered legal consequences of his actions
o Advice came from an appropriate official
Government official involved in the administration of the law in question accused would normally consider
responsible for advice about the particular law in question
o Advice was reasonable
Presumed reasonable unless it is on its face utterly unreasonable
o Advice was erroneous
o Accused relied on the advice
Advice obtained before actions in question
Procedurally similar to entrapment
Accused must prove the elements on BOP
Ratio
Test for officially induced error, though not officially recognized.

Lvis (City) v Ttrault
[2006] 1 SCR 420 CB 542
Ratio
SCC accepts officially induced error test in Jorgenson

Self Defence
34(1) Everyone 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.
Test for 34(1) (R v Kong)
1. Unlawful assault
2. Assault was not provoked
3. No apprehension of death
4. Lack of intent to kill or cause grievous bodily harm
5. Force used is no more than necessary for self defence
49

34(2) everyone who is unlawfully assaulted and causes death or grievous bodily harm in repelling the assault is justified
if
o he is under a reasonable apprehension of death or grievous bodily harm
o he believes on reasonable grounds that he cannot otherwise preserve himself from death or grievous bodily
harm
Test for 34(2) (Ptel, Cinous)(each step has a subjective and an objective component, and both must have an air of
reality
o Unlawful assault
o Reasonable apprehension of a risk of death or grievous bodily harm
Danger does not need to be imminent (Lavallee)
o Reasonable belief it is not possible to preserve oneself from harm except by killing the adversary
Can be provoked
Can have the intention to kill
Excessive force can disentitle the accused the ability to raise the defence (Faid)

37 (1) everyone is justified in using force to defend himself or any one under his protection from assault, if he uses no more
force than is necessary
any one under his protection is interpreted generously means anyone who requires protection which the accused may
be able to provide
37 is a residual defence, where 34 does not apply. Examples:
o Responded with force having provoked an assault but did not apprehend death or grievous bodily harm
o Intended to cause grievous bodily harm or death despite not apprehending a reasonable risk of death


R v Bogue
(1976), 30 CCC (2d) 403 (ONCA) CB 933
Facts
Bs boyfriend M was beating on her
The neighbours came up to see what was happening and found B on the floor and M beating her; they left to call the
police
When the police got there B had stabbed M, claiming self defence
Issue
Is self defence an available excuse?
Holding
Yes.
Reasons (Howland JA)
34(1) is for when the force is not intended to be deadly
34(2) is for intentional killing no
o Reasonable apprehension of death or grievous bodily harm (objective)
o Reasonable belief the accused cannot preserve himself otherwise (subjective-objective) can be a mistaken belief
34(2) realizes sober reflection is impossible where life is in the balance
Must consider accuseds state of mind
Ratio
Must consider 34(2) from the accuseds point of view, compare it to reasonable person

R v Pawliuk
(2001), 151 CCC (3d) 155 (BCCA) CB 937
Facts
P saw Pr running across the street at him, P thought Pr was armed and intended to kill him
P shot Pr and claimed self defence
Issue
Is either 34(1) or 34(2) available?
Holding
Only 34(2).
Reasons (Ryan JA)
Sections are differentiated by a reasonable apprehension of death or grievous bodily harm; lack of intention is not
determinative
Ps entire defence was premised on a belief the victim was going to kill him
Improper to focus on intent in differentiating the sections
Pintar held that if there is a reasonable apprehension of death, the response need not be proportional
Ratio
34(2) applies where there is a reasonable apprehension of death. There is no proportionality requirement.

Reilly v The Queen
[1984] 2 SCR 396 CB 943
Facts
Accused claims trial judge erred in not instructing the jury to consider evidence of his intoxication when considering his
claim of self defence
Reasons (Ritchie J)
Apprehension of death must be reasonable and his belief must be based upon reasonable and probable grounds
Must consider acuseds appreciation of the situation and his belief as to the reaction it required, so long as there is an
objectively verifiable basis for his perception
Mistaken perception still grounds self defence, as long as the mistake is one the reasonable man would have made in the
circumstances
Intoxication can be a factor in inducing honest mistake, it cannot induce a mistake which must be based upon reasonable
and probable grounds the reasonable man isnt drunk
An intoxicated man may still hold a reasonable belief, but that would be held in spite of his intoxication
Ratio
Apprehension of death must be reasonable and his belief must be based upon reasonable and probable grounds

R v Faid
[1983] 1 SCR 265 CB 945
Ratio
Excessive force in self defence does not leave open a partial defence, nor does it reduce murder to manslaughter. The
difference between murder and manslaughter is determined with reference to intent described in s 212.

R v Cinous
[2002] 2 SCR 3 CB 946
Facts
C was a gangbanger who thought the other guys he was working with were going to kill him
He shot one of them in the back of the head at a gas station, and claims self defence
Issue
Was his apprehension of death reasonable enough to ground a defence in 34(2)?
Holding
No.
Reasons (McLachlin CJC & Bastarache J)
Three conditions of self defence were not met, so the defence lacked an air of reality
Test for 34(2)
o Unlawful assault
o Reasonable apprehension of a risk of death or grievous bodily harm
o Reasonable belief it is not possible to preserve oneself from harm except by killing the adversary
All three steps must have an air of reality for the defence to be put to the jury
Accuseds perception is subjective, but must be reasonable based on his perception of the situation
Each step has a subjective element, then an objective analysis of reasonableness each must have an air of reality
Existence of unlawful assault is not necessary, just a reasonable perception on the part of the accused
The defence here fails on the objective branch of the third step it was not reasonable for the accused to believe he had
no alternative except to kill Mike
o For the claim to appear reasonable, the reasonable man would need to think like a member of a gang, which is the
antithesis to public order
o C could have called the police, the only reason why he thought this was unreasonable was because he was a
criminal, which doesnt fly
Ratio


R v Lavallee
[1990] 1 SCR 852 CB 955
51
Facts
L lived with her boyfriend R, who often beat her
One night after their friends had left after a party, R told L he was going to kill her that night unless she killed him, he
handed her a shotgun
L shot R in the back of the head as he was leaving the room
Issue
Can L claim self-defence?
Holding
Yes.
Reasons (Wilson J)
Expert evidence about domestic violence is relevant and necessary battered wife syndrome
No man has a right to abuse a woman under any circumstances
Jurys common sense cannot apply to a battered woman, because they cannot know her psychological situation
The definition of reasonableness must be adapted to the circumstances of the case, which can only be done with expert
evidence in cases of battered women
34(2)(a) does not require imminent danger, but case law has read that requirement in
Time lag between assault and self-defence often leads one to suspect revenge rather than self defence
Battered women tend to be able to anticipate their partners violence better than a stranger can anticipate violence
Expert testimony can help the jury understand whether an apprehension of death is reasonable
Law does not require the fear to be correct, just reasonable
Society gains nothing by requiring the accused to wait until the beatings began to respond
Environmental factors impair a womans ability to leave an abusive relationship
Situation of a battered woman is like that of a hostage
Ratio
Danger need not be imminent.

R v Ptel
[1994] 1 SCR 3 CB 963
Facts
P lived with her daughter and granddaughter and her boyfriend E, who frequently threatened and beat her
E worked with R, and one day went to Ps house and forced her to weight some cocaine, hide a weapon, and he
threatened to kill her, her daughter, and her granddaughter
P did some coke, shot and wounded E and shot and killed R when she perceived him to be lunging at her/
Issue
Was the trial judge in error when not relating evidence of past abuse to the elements of 34(2)?
Holding
Yes.
Reasons (Lamer CJC)
Elements of 34(2)
o Unlawful assault
o Reasonable apprehension of death or grievous bodily harm
o Reasonable belief it is not possible to preserve oneself from harm except by killing the adversary
Apprehension must be a reasonable one and belief must be based upon reasonable and probable grounds
Honest but reasonable mistake as to the existence of the assault is permitted
Accused (not the victim) must be given the benefit of a reasonable doubt when considering if there was an assault
Danger does not need to be imminent
Judge erred in not relating earlier threats to the elements of self defence relevant to determining reasonable
apprehension and belief integral part of the circumstances on which the accuseds perception might have been based
Ratio
Confirms Lavallee, belief there is no way out must be reasonable.

R v Malott
[1998] 1 SCR 123 CB 968
Facts
Mr M was a police drug informant who often abused Mrs M emotionally, psychologically, sexually, and physically
Mrs M shot Mr M when they were at a drugstore, and then shot and stabbed his girlfriend S
Reasons (Major J)
Expert evidence on battered woman syndrome is admissible
Jury must understand
o Why a woman might remain in an abusive relationship
o The nature and extent of the violence that may exist in a battering relationship
o Accuseds ability to perceive danger from her abuser
o Whether the accused believed on reasonable grounds that she could not otherwise preserve herself from death or
grievous bodily harm
Jury was properly charged, and it still found murder, not self defence
LHeureux-Dub (concurring)
o Admission of expert evidence in Lavallee is the court recognizing women have been unfairly treated
o battered woman syndrome is not a defence in itself
o Perspectives of battered women must inform the defence
o Possible women who cant fit themselves within the stereotype of a victimized, passive, helpless, dependent,
battered woman will not have their claims to self defence fairly deicided
o Focus must remain on the reasonableness of a womans actions, not whether she can claim to be a battered woman
o Focusing too much on battered woman syndrome reinforces societal stereotypes of women.
Ratio
Focus on reasonability of actions, not battered woman syndrome.
Provocation
232(2) A wrongful act or insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of
self control is provocation for the purposes of this section if the accused acted on it on the sudden and before there was
time for his passion to cool
Reduces murder to manslaughter
o Not available for attempted murder (Campbell)
Test for provocation (Hill)
o Would an ordinary person be deprived of self control by the act or insult?
o Was the accused in fact provoked, regardless if the ordinary person would have been or not?
o Was the accuseds response sudden and before there was time for his passion to cool?
Ordinary person standard
o Average temperament and level of self control (Hill)
o Considered
Any non-idiosyncratic factors that would give the wrongful act special significance to the accused
(Thibert)
History of the relationship between the accused and victim (Thibert)
Age, sex, race
Cultural background (Nahar)
Jury does not need to be instructed on age, sex (Hill)
o Not considered
Drunkenness (Hill)
Beliefs that are irreconcilable with fundamental Canadian values (Humaid)
Mental disorders (Mancini)

R v Hill
[1986] 1 SCR 313 CB 742
Facts
P was Hs Big Brother
P claims that H tried to have sex with him, so P murdered him claiming provocation
Issue
Should the ordinary person in relation to provocation be of the same age and sex as the accused?
Holding
Yes.
Reasons (Dickson CJC)
Test for provocation
o Would an ordinary person be deprived of self control by the act or insult?
o Was the accused in fact provoked, regardless if the ordinary person would have been or not?
o Was the accuseds response sudden and before there was time for his passion to cool?
Jury cannot consider drunkenness when assessing reasonableness
Ordinary person has a normal temperament and level of self control
Has any characteristics to the relevant provocation in question (ex is black if its a racial slur against blacks)
53
Can ascribe sex, age or race to the ordinary person any characteristics that are not peculiar or idiosyncratic
The judge doesnt need to charge the jury about this, the jury will naturally assume the ordinary person to be of the age
and sex of the accused
Wilson J (dissenting) the judge needs to specifically charge the jury to consider the accuseds age and sex when
judging reasonableness.
Ratio
Accuseds particular characteristics should be ascribed to the reasonable man, as long as the characteristics arent
idiosyncratic. The jury need not be instructed on the matter.

R v Thibert
[1996] 1 SCR 37 CB 750
Facts
T killed his wifes lover, S
S taunted T while T was holding a gun, and continually told T to kill him
T claims provocation
Issue
Was there an air of reality to the defence of provocation?
Holding
Yes.
Reasons (Cory J)
Provocation should be left to the jury if
o Some evidence to suggest the insult would cause the ordinary person to be deprived of self control
o Some evidence showing the accused was actually deprived of his self control by the insult
Background of the relationship, including earlier insults, is relevant to the ordinary person analysis
Ordinary person shares such factors as would give the act or insult special significance to the accused
There can be a build-up, but immediately before the last insult the accused must not intend to kill
The insult cannot be something the victim has a legal right to do difference between something a person can do
without incurring liability (free speech), and a right which is sanctioned by law
There was an air of reality to the defence
Major J (dissenting) the ordinary person would not have lost control in the situation, so the defence had no air of
reality
Ratio
Ordinary person considers any non-idiosyncratic factors that would give the wrongful act special significance to the accused

R v Campbell
(1977), 38 CCC (2d) 6 (ONCA) CB 761
Reasons
Provocation is only available for murder, not attempted murder
Provocation reduces murder to manslaughter notwithstanding the intent to kill
Unnecessary to invoke provocation until all the elements of murder have been proven
Provocative conduct of the victim might be a relevant item of evidence on the issue of intent whether the charge be
murder or attempted murder
In attempted murder, the provocation wouldnt be a defence, but evidence on the issue of intent.
Ratio
Provocation is not available as a defence for attempted murder.

R v Nahar
(2004), 181 CCC (3d) 449 (BCCA) CB 766
Facts
N stabbed and killed his wife Mrs N because she smoked, drank, socialized with men, and was generally not a good
Sikh in his opinion
Issue
Was there an air of reality to provocation?
Holding
No.
Reasons (Lowry JA)
Provocation is a wrongful act or an insult that is of such nature as to be sufficient to deprive an ordinary person of the
power of self control
The ordinary person must have experienced the same series of insults as experienced by the accused, as well as age, sex,
and any other factors that would give the wrongful act or insult special significance to the accused.
Factors can include cultural background
Even considering this, the ordinary person would not have been provoked here.
Ratio
Ordinary person can consider accuseds cultural background.

R v Humaid
(2006), 208 CCC (3d) 43 CB 770
Facts
H killed his wife because he either wanted out of the marriage or he thought she was cheating on him
Reasons (Doherty JA)
It is not enough to lead evidence that Muslims, or any other group, have certain religious or cultural beliefs that could
affect the gravity of the provocative conduct in issue and that the accused is a member of that group extent to which
any one Muslim would act depends on many factors
Must avoid stereotyping verdicts that rely on stereotyping are no less offensive because they benefit the accused
The alleged beliefs which give the insult added gravity are premised on the notion that women are inferior to men and
that violence against women is in some circumstances accepted, if not encouraged. These beliefs are antithetical to
fundamental Canadian values, including gender equality.
The ordinary person cannot be fixed with beliefs that are irreconcilable with fundamental Canadian values.
Ratio
The ordinary person cannot be fixed with beliefs that are irreconcilable with fundamental Canadian values.
Automatism
Full defence, negates MR
Involuntary action which does not stem from a disease of the mind gives rise to a claim of non-insane automatism and an
acquittal
o Reasonable person expected to suffer the ordinary stresses and disappointments of life (Rabey)
Test
o Conduct was involuntary (accused proves by BOP)
o Is the automatism caused by a disease of the mind (if yes, MD, if no non-MD automatism)(presumption of MD,
burden on the accused to prove otherwise by BOP)
Test for disease of the mind (Stone)
o Internal cause theory
Would an ordinary person have entered an automatistic state from the same trigger as the accused?
For psychological blow automatism, ordinary person would only react to an extremely shocking
trigger
Contextualized objective test
Objective test only after there is an air of reality to the accuseds reaction being involuntary
Must balance protecting the morally innocent, and protecting the public
o Continuing danger theory
Any condition likely to present a recurring danger to the public should be a disease of the mind
Finding of no continuing danger does not preclude finding a disease of the mind
o Other policy factors
Must take a holistic approach to disease of the mind
Does society need protection from the accused?
Presumption there is a disease of the mind, accused must disprove it on a BOP (Stone)

Rabey v The Queen
[1980] 2 SCR 513 CB 812
Facts
R got shut down by a girl so he hit her with a rock
He testified that he blacked out and had no idea what happened
Issue
Can a psychological blow ground non-mental disorder automatism?
Holding
Yes.
Reasons (Ritchie J)
55
Central question is whether the accused was suffering from a disease of the mind
R was in a dissociative state
Disease of the mind is a question of law
Any malfunctioning of the mind or mental disorder having its source primarily in some subjective condition or
weakness internal to the accused (whether fully understood or not) may be a disease of the mind if it prevents the
accused from knowing what he is doing, but transient disturbances of consciousness due to certain specific external
factors do not fall within the concept of disease of the mind
Rs infatuation caused an abnormal condition in his mind influencing his actions
It is unthinkable that a person found not guilty on account of insanity because of a transient mental disorder constituting
a disease of the mind, who was not dangerous and who required no further treatment, should continue to be confined.
Dickson J (dissenting) automatism is easily feigned, and opening it to emotional blows would open the floodgates.
Ratio
Psychological blows can create automatism.

R v Parkes
[1992] 2 SCR 871 CB 816
Facts
P was a very deep sleeper, had a good relationship with his parents-in-law, but he was under a lot of stress in his life
One night, when he was asleep, he drove to his parents house and killed his mother-in-law and almost killed his father-
in-law, then drove to the police station and turned himself in
Issue
Is the defence of non-mental disorder automatism available for sleepwalking?
Holding
Yes.
Reasons (Lamer CJC)
Sleepwalking is not a disease of the mind and gives rise to a defence of automatism a state of mental
unconsciousness or dissociation without full awareness
Sleepwalking is not a neurological, psychiatric illness, there is no medical treatment for it
Laforest J (concurring) there are no compelling policy reasons not to allow the acquittal
Ratio
Sleepwalking gives rise to the defence of automatism.

R v Stone
[1999] 2 SCR 290 CB 818
Facts
S stabbed his wife 47 times after she insulted him
S raised mental disorder automatism and non-mental disorder automatism.
Issue
Can S raise the defence of either kind of automatism?
Holding
Mental disorder automatism
Reasons (Bastarache J)
Automatism: person is capable of action but is not conscious of what he is doing; unconscious involuntary acct where
the mid does not go with what is being done
Involuntary action which does not stem from a disease of the mind gives rise to a claim of non-insane automatism and an
acquittal
Middle ground between criminal responsibility and legal insanity
Burden for automatism is on a BOP on the party raising it
The presumption of voluntary action is to avoid placing too high a burden on the Crown, and is saved under s 1.
What constitutes a disease of the mind is for the judge to determine
Factors to classify something as a disease of the mind
o Internal cause theory
Would an ordinary person have entered an automatistic state from the same trigger as the accused?
For psychological blow automatism, ordinary person would only react to an extremely shocking trigger
Contextualized objective test
Objective test only after there is an air of reality to the accuseds reaction being involuntary
Must balance protecting the morally innocent, and protecting the public
o Continuing danger theory
Any condition likely to present a recurring danger to the public should be a disease of the mind
Finding of no continuing danger does not preclude finding a disease of the mind
o Other policy factors
Must take a holistic approach to disease of the mind
Does society need protection from the accused?
A normal person would not have reacted by becoming an automaton, so the only possible defence is mental disorder
automatism.
Binnie J (dissenting) The burden on the accused to raise automatism should be an evidentiary burden, not a legal one
where he must satisfy BOP.
Ratio
Non-insane automatism only arises where the contextualized ordinary person would react that way.

R v Luedecke
(2008), 236 CCC (3d) 317 (ONCA) CB 835
Reasons (Doherty JA)
Impact of Stone
o Trial judge must begin from the premise that the automatism is caused by a disease of the mind and look to the
evidence to determine whether it convinces him that the condition is not a disease of the mind direct contrast to
Parks which allowed automatism because the Crown didnt prove otherwise
o Trial judges do not limit their inquiry only to the risk of future violence in evaluating the danger to the public
o At the pre-verdict stage, social defence concerns dominate risk posed by potential recurrence of conduct.
Where that risk exists, the risk combined with the occurrence of the conduct in question will almost always
justify further inquiry into the accuseds dangerousness so as to properly protect the public
o Post verdict emphasis on individualized assessment of the person found NCR-MD
Where personalized assessment does not demonstrate significant risk, the convict is absolutely discharged
Ratio
Stone raised the onus at the pre-verdict stage.
Mental Disorder
16(1) No person is criminally responsible of 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 knowing that it was
wrong
16(2) presumption of sanity
16(3) party seeking to raise insanity must do so on a BOP
Crown can raise evidence of insanity if accused brings it up, or post-verdict independently (Swain)
Mental disorder includes mental and physical problems: mental disease, psychoses, minor forms of mental disorder,
disorders of the development of the personality (psychopathic personality), hardening of the arteries, psychomotor
epilepsy (Cooper)
Appreciate the nature and quality of the act (Cooper)
o Cognition, emotional and intellectual awareness of the significance of the conduct
o Perceive the consequences, impacts, and results of an act
o The legally relevant time is the time when the act was committed
o Lacking remorse is not sufficient to invoke the defence (Kjeldson)
o Failure to appreciate legal consequences cannot ground the defence (Abbey)
Knowing that it was wrong
o Wrong must mean contrary to the ordinary moral standards of reasonable men and women (Chaulk)
o Must know the particular act in question was morally wrong (Oommen)
Consequence
o Accused must be discharged unless the Review Board/court finds him to be a significant public threat (Winko)
Unfit to stand trial
o Test: on account of a mental disorder, accused cannot (s 2)
Understand the nature or object of the proceedings
Understand the possible consequences of the proceedings
Communicate with counsel
o Different from the s 16 defence much lower threshold when considering fitness to stand trial (Whittle)

R v Whittle
[1994] 2 SCR 914 CB 778
Reasons (Sopinka J)
57
Section 16 means those suffering a disease of the mind are sick as opposed to blameworthy, should be treated rather than
punished, and should be exempted from criminal liability
Not exempted from being tried
Fitness to stand trial is predicated on the existence of a mental disorder and focuses on the ability to instruct counsel and
conduct a defence
o Requires limited cognitive capacity to understand the process and communicate with counsel
Provided the accused possesses this limited capacity, it is not a prerequisite that he or she be capable of exercising
analytical reasoning in making a choice to accept the advice of counsel or in coming to a decision that best serves her
interests.
Ratio
Defence of mental disorder available to those who are nonetheless fit to stand trial.

R v Swain
[1991] 1 SCR 933 CB 780
Issue
When is the Crown allowed to raise mental disorder?
Holding
Only after the accused leads evidence of it, or after guilt is determined.
Reasons (Lamer CJC)
Crown raising evidence of mental disorder against the accuseds wishes interferes with his ability to conduct his defence
Crown can bring evidence of mental disorder after the accuseds own evidence puts his mental capacity into question
Reasons to let the Crown raise evidence so the system does not label insane people as criminals, to protect the public
from dangerous people who require hospitalization
Crown can also independently raise the issue of insanity after the accused is already found guilty
Wilson J (dissenting) Crown should not be allowed to raise evidence of insanity independently
Ratio
Crown can raise evidence of mental disorder after the accused brings it into question, or after guilt is determined.

R v Chaulk and Morrissette
[1990] 3 SCR 1303 CB 782
Issue
Does the s 16(4) presumption of sanity violate s 11(d) of the Charter?
Holding
Yes, but it is saved under s 1.
Reasons (Lamer CJC)
Fact of insanity precludes a verdict of guilty
The presumption in 16(4) allows a factor which is essential for guilt to be presumed, rather than proven by the Crown
BARD
It also requires an accused to disprove it (or prove insanity) on a BOP
The accused can be convicted despite the existence of reasonable doubt WRT an essential element of guilt
The limit on 11(d) passes proportionality and minimal impairment, and passes s 1
McLachlin J (concurring) there is no violation to 11(d) because sanity is not an element of guilt, but rather a
precondition to criminal liability
Wilson J (dissenting) the violation cannot be justified by s 1, it should just be an evidentiary burden
Issue
Did the accused appreciate the act was wrong?
Holding
No.
Reasons (Lamer CJC)
Appellants suffered a paranoid psychosis that made them believe they were under divine charge to kill the victims
Schwartz is wrong in concluding wrong only means against the law
Wrong must mean contrary to the ordinary moral standards of reasonable men and women
Criminal liability predicated on the ability to tell right and wrong
Knowing an act is wrong either according to the law, or to the standard of moral conduct society expects of its members
Incapacity to make moral judgements must be causally linked to a disease of the mind
Accused will not benefit from substituting his own moral code for that of society
McLachlin J (dissenting) only thing that should matter is whether the accused knows the act is legally wrong
Ratio
Presumption of sanity does not violate the Charter. Accused must prove insanity on a BOP.

Winko v British Columbia
[1999] 2 SCR 625 CB 516
Issue
Do the sentencing provisions for mental disorder (Part XX.1) violate the Charter?
Holding
No.
Reasons (McLachlin J)
Requires an absolute discharge be granted unless the court or Review Board is able to conclude that the offender poses a
significant risk to public safety
Significantly better for the accused than the old system of detention at the Lieutenant Governors pleasure
Swain struck down the provision for automatic indefinite detention
Twin goals: fair treatment and public safety
Psychiatric treatment can only be carried out if the offender consents and the court or Review Board considers it
reasonable and necessary
Further reviews every 12 months
There is a provision for appeal on a questin of law or of mixed law and fact
Part XX.1 does not presume the mentally ill are inherently dangerous
The provisions are a new alternative for the NCR-MD based on assessment and treatment
Ratio
Assessment and treatment scheme for NCR-MD is constitutional.

R v Simpson
(1977), 35 CCC (2d) 337 (ONCA) CB 788
Reasons (Martin JA)
Determining the accused suffers from a disease of the mind is a question of law for the judge
Personality disorders or psychopathic personality are capable of constituting a disease of the mind
Concept is capable of evolving with medical knowledge
Existence of a disease of the mind alone does not constitute insanity, only if the disease of the mind has such a severe
effect that the accused is incapable of appreciating the nature and quality of the act or that it is wrong.
Ratio
No liability if the accused is incapable of appreciating the nature and quality of the act or that it is wrong.

Cooper v The Queen
[1980] 1 SCR 1149 CB 789
Reasons (Dickson J)
R v Kemp rejected the idea that when considering a disease of the mind, the law should distinguish between mental and
physical diseases
Any mental disorder which has manifested itself in violence and is prone to recur is a disease of the mind
Includes mental disease, psychoses, minor forms of mental disorder, disorders of the development of the personality
(psychopathic personality), hardening of the arteries, psychomotor epilepsy
Trial judge can permit a psychiatrist to be asked directly if something is a disease of the mind, but the answer is not
conclusive
No reason to give a narrow or limited interpretation to disease of the mind
Disease of the mind embraces any illness, disorder or abnormal condition which impairs the human mind and its
functioning, excluding however, self induced states caused by alcohol or drugs, as well as transitory mental states such
as hysteria or concussion
To support a defence of mental disorder, the disease of the mind must be severe enough to render the accused incapable
of appreciating the nature and quality of the act or that it is wrong.
Appreciating the nature and quality: cognition, emotional and intellectual awareness of the significance of the conduct
Distinction between mere knowledge and appreciation
Mental capacity to foresee and measure the consequences
At the time of the act, could he appreciate the nature, character and consequences of the act
Requirement is to perceive the consequences, impacts, and results of an act.
Ratio


59
R v Abbey
[1982] 2 SCR 24 CB 794
Facts
A brought cocaine back from Las Vegas knowing it was against the law but thinking a higher power would protect him
from the laws consequences
He suffers from hypomania
Issue
Is A criminally responsible for importing a narcotic?
Holding
Yes.
Reasons (Dickson J)
Appreciate means knowing more than the mere act being committed
Inability to appreciate the nature and quality of the act negatives the MR for the crime
A delusion which renders an accused incapable of appreciating that the penal sanctions attaching to the commission of
the crime are applicable to him does not to go the MR of the offence, does not render him incapable of appreciating the
nature and quality of the act, and does not allow the insanity defence.
wrong means according to law A knew what he was doing was forbidden by law
Borg denied the defence of irresistible impulse, though it may be a manifestation of a disease of the mind.
Ratio
Inability to appreciate penal sanctions is no defence.

R v Oommen
[1994] 2 SCR 507 CB 803
Facts
B lived in Os house
O was under a paranoid delusion that B was trying to kill him, so he killed her
Issue
Did O appreciate it was wrong to kill B?
Holding
No.
Reasons (McLachlin J)
There is no doubt Os insane delusions provoked the killing
O can tell right from wrong, but on the night of the killing, his delusions deprived him of the capacity to know killing B
was wrong, on the contrary he thought it was necessary and justified
Ability not to know right from wrong generally, but that the particular act was wrong
Accused must possess the ability to apply knowledge in a rational way to the alleged criminal act
Ratio
Accused must know the criminal act in question is morally wrong.
I ntoxication
Canute charge on drunkenness (approved in Daley)
o Drunken intent is still intent
o When considering intent, you should take into account his consumption of alcohol or drugs along with other
factors on intent
Common law defence
o Only available for crimes of specific intent (Beard, George)
o Daviault exception
If accused proves on a BOP that he was so drunk that he was in a state of non-insane automatism, he
will be found not to have had the requisite MR
Only available in extreme cases
o Daviault does not apply where: (s 33.1)
By reason of self-induced intoxication, lacks the general intent or voluntariness required to comment
the offence; AND
Departs from the standard of care set out in s.33.1(2) (i.e., the accused, while in a state of self-
intoxication rendering him/her unaware of, or incapable of consciously controlling, his/her behaviour,
voluntarily or involuntarily interferes with, or threatens to interfere with, another persons bodily
integrity).
o Daviault exception still applies to
Property offences
Specific intent offences
Self-induced intoxication
o Substituted for MR of the general intent crime if the accused was too drunk to draw the common sense
inference (Bernard)
o Test (Chaulk)
Accused voluntarily consumed a substance
He knew or ought to have known it was an intoxicant
The risk of becoming intoxicated was or should have been within his contemplation
Specific Intent Crimes
o Murder 1/2
o Attempt, Conspiracy, Incitement
o Theft
o Fraud
General Intent Crimes
o Assault (incl sexual)
o Manslaughter
o Arson
o Negligence

DPP v Beard
[1920] AC 479 (UKHL) CB 839
Reasons
19th C voluntary drunkenness was no defence
Crimes of specific intent can have their MR negated by drunkenness if he was so drunk he was incapable of forming the
specific intent
Insanity, whether produced by drunkenness or otherwise, is a defence
Evidence of drunkenness should be taken into consideration with other facts to determine intent
Drunkenness an no more cannot rebut the common sense presumption
Ratio
Drunkenness is a defence to crimes of specific intent

R v Daley
[2007] 3 SCR 523 CB 843
Facts
D murdered his common law wife while he was drunk
Issue
Did he have the requisite MR?
Holding
Yes.
Reasons (Bastarache J)
Canute charge on drunkenness
o Drunken intent is still intent
o When considering intent, you should take into account his consumption of alcohol or drugs along with other factors
on intent
MacKinlay charge makes an explicit difference between capacity to have intent and actual intent
When there is evidence of drunkenness there must be a direct link drawn between the effect of intoxication and the
common sense inference
Common sense inference cannot be drawn if the jury has a reasonable doubt about intention
Trial judge must instruct on the link between foreseeability and intoxication, but it need not be expressly charged as such
A separate charge on capacity, like in MacKinlay, is not necessary, but the judge can charge on capacity if there has been
expert evidence concerning it, or if the accused specifically requests it
Two step charge confuses the jury should use a one step Canute type charge
Fish J (dissenting) it was an error that the judge made no mention at all of the possibility of intoxication negating MR
Ratio
Intent can consider intoxication.

R v George
[1960] SCR 871 CB 849
61
Facts
G got drunk and beat up and robbed an old man.
Issue
Can intoxication negate MR for theft? For common assault?
Holding
Yes. No.
Reasons (Ritchie J)
Theft is a specific intent crime
G violently manhandled the old man and knew he was hitting him
Voluntary drunkenness cannot be a defence for common assault because there was no permanent or temporary insanity,
and G clearly knew he was hitting a man.
Ratio
Drunkenness is only a defence for specific intent crimes, not general intent.

Bernard v The Queen
[1988] 2 SCR 833 CB 853
Facts
B beat a girl and had non-consensual sex with her
Claims that he was drunk when he did it so he didnt realize what was going on, and when he did he got off her
Issue
Does drunkenness provide a defence?
Holding

Reasons (McIntyre J)
Difference between general and specific intent is for drunkenness
Specific intent = intent or purpose going beyond the mere performance of the act in question
Drunkenness is no defence to general intent, except maybe if someone gets so drunk he is an automaton
Can find MR in two ways common sense inference (which might not fly if the accused is too drunk); invoking
voluntary intoxication, which applies where the accused was so intoxicated as to raise doubt about the voluntariness of
the action
The recklessness in getting drunk is substituted for the particular MR
Proof of voluntary drunkenness is proof of a guilty mind
By getting drunk, the accused was no longer morally innocent
Wilson J (concurring) should allow for defence of drunkenness when the accused is so drunk the state is akin to
automatism
Dickson J (dissenting) the specific/general intent dichotomy is an artificial one, and voluntary drunkenness should not
substitute for MR because it basically creates absolute liability for drunk people
Ratio
MR for a general intent crime can be substituted for intent to get drunk.

R v Davivault
[1994] 3 SCR 63 CB 862
Facts
D raped a handicapped woman when he was drunk
He claims to have no recollection, and the amount of liquor he drank (8 beers and a 40 of brandy) would kill any normal
person who is not an old alcoholic like D
Issue
Does extreme drunkenness negate MR for the general intent crime of sexual assault?
Holding
Yes.
Reasons (Cory J)
Charter requires that there must be an exception to the general rule drunkenness does not provide a defence to general
intent crimes when the level of drunkenness is so extreme that the accuseds actions were not voluntary
Substituted MR to get drunk cannot establish the MR for sexual assault
Link must exist between minimal mental element and prohibited act
Violation cannot be saved under s 1
The defence is still only available to those whose drunkenness is so severe they enter a state akin to insane automatism
Extreme intoxication should be established on a BOP
Sopinka J (dissenting) the Leary rule precluding a defence of voluntary intoxication should be maintained even in
cases such as this
Ratio
Extreme intoxication can negate MR for crimes of general intent.

R v Chaulk
(2007), 223 CCC (3d) 174 CB 871
Facts
C was drunk and assaulted Mr M and a girl
He claims that he took a pill someone gave him that he thought was a caffeine pill, but was clearly something else
because it made him go crazy
Issue
Was Cs intoxication self induced, thereby not providing a defence?
Holding
No.
Reasons (Bateman JA)
Section 33.1 says it is no defence if the accuseds intoxication was self induced
Self-induced intoxication where the accused intended to be intoxicated knowing or having reasonable grounds to know
the subject was dangerous, and being reckless as to the result
The accused need not contemplate the extent of intoxication, nor must he intend a certain level of intoxication
Test for self induced intoxication
o Accused voluntarily consumed a substance
o He knew or ought to have known it was an intoxicant
o The risk of becoming intoxicated was or should have been within his contemplation.
Ratio
Test for self induced intoxication.