TOPIC 1 CRIMINAL LAW SYSTEM

Stages of the Canadian Criminal Law System

Stage 1: Parliament Creates Offence

Stage 2: Police Enforcement (Investigation, Arrest and Detention)
Stage 3: Prosecutorial Charge (Crown Counsel cannot violate Charter rights of accused, or
s.24(2) applies)
Stage 4: Pre-trial detention and bail
Stage 5: Pre-Trial Proceedings
Stage 6: Courts
Stage 7: Corrections (prisons and parole boards)
Stage 8: Appeals – accused OR Crown can appeal

Underlying principal and purpose of criminal law is designed to denounce inherently wrong
behaviour and deter people from engaging in behaviour that presents a serious risk of harm.
One of the ways is “sentencing". Some behaviours need to be denounced because harmful.

Deterrents – there are 2 types of deterrents – General and Specific

Imprisonment – liberty of person is taken away. This keeps them from committing any more
crimes. But expensive.
Retribution – not so prevalent in Canada.
Reparations and Rehabilitation – plays an important role in the harm principal.

Principles of Canadian Criminal Law:

1. Denunciation
2. Deterrence
3. Incapacitation
4. Retribution
5. Reparation to Victim and
Community
6. Rehabilitation
7. Harm Principle

The Harm Principle

The ‘Harm Principle’ is an important and influential principle in the Canadian criminal law
system. The Harm Principle is commonly referred to by the Supreme Court of Canada in

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their decisions. The Harm Principle is not restricted to harms that only harms society (R. v.
Malmo- Levine).

This is a long-established principle in Canadian Criminal law. We need govt and laws to
maintain order in society.

One of our greatest attributes as Human beings is that we are born free – John Stuart Mill.

So - Why would we want to establish institutions that take away our liberty?
We need order in society and so we need to forego some liberties. We cannot go around
doing what we please. We give up freedom and expect others to do so as well so the world
would be a better place.
Mill attached a caveat to this principle - We do not need laws governing every aspect of our
lives. We want laws but we also want to maintain our liberties at all costs. The Bill Of Rights
protects our right to life, liberty and pursuit of happiness. The Charter guarantees us right to
life, liberty and security of person.
Mill: The Govt power ought to be used as sparingly as possible preserving an individual’s
freedom of thought and expression, it should only be used to ensure that we are not
harming others. This presents some problems – what is meant by Harm? It is subjective and
each person has their own outlook/ interpretation.

First case on Harm principle-

R. v. Malmo- Levine, 2003 SCC 74

2 appellants, Malmo and Caine. Both charged with possession of marijuana and trafficking
it. Case primarily focussed on the possession and the harms related to possession. SC relied
on harm principle and held that the offence of the “simple possession of marijuana” in the
criminal code was valid.
Caine had claimed it was unconstitutional. Making the “simple possession of marijuana” an
offence against the principles enshrined in the Charter. He said he was only harming himself
if he was possessing it for personal use. BC court of appeal and SC upheld the validity of the
offence of “simple possession of marijuana” because the parliament had a legitimate right
to protect harm directed at others as well as harms against individuals themselves.
The court singled out schizophrenic people, pregnant women and chronic users and said risk
of harm was present to these vulnerable groups. Parliament has a mandate to protect
vulnerable groups in society.

Harm can take many forms. Economic- fraud, identity theft laws, physical harm – sexual
assault, murder, assault, etc. This includes people from hurting themselves – seatbelts.
Social harm – cannibalism.

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Marijuana- is no longer illegal – but the principles from Malmo-Levine still applicable.

Question of Harm addressed more closely in – Sharpe case and also below
Reference re: Section 293 of the Criminal Code of Canada, 2011 BCSC 1588

Polygamous community in BC - Bountiful. They call themselves Fundamentalists Church of

Jesus Christ of the Latter Day saints (FLDS)
1000 people living there. As of June 2010 accused admitted to having 25 wives. Would
criminal offence of polygamy stand freedom of religion test?
Section 293 – Prohibited participation in polygamous event.

The government can also enact legislation that violates the Charter if they can justify that
the provisions help to prevent harm to a vulnerable segment of society, even if those people
are consenting to the harm (Reference re: Section 293 of the Criminal Code of Canada).

Held – Sec 293 is consistent with the Charter.

No harm done.- Labaye case

The Constitution has had an influence on the tests used to establish harm (R. v. Labaye). In
Labaye, the Supreme Court of Canada had to decide if the operation of a swingers club met
the definition of indecent in the Criminal Code. The Supreme Court moved away from the
‘community standard’ test of indecency and adopted a test that required a harm that
impacted a value reflected in the Constitution. SC said – if harm is established then
criminalisation may ensue.

In the case of R. v. Sharpe, Chief Justice McLachlin did an excellent job of laying out the
various harms of child pornography. An example of her analysis is at paragraph 103.

103 In the vast majority of the law's applications, the costs it imposes on freedom of
expression are outweighed by the risk of harm to children. The Crown has met the burden of
demonstrating that the possession of child pornography poses a reasoned apprehension of
harm to children and that the goal of preventing such harm is pressing and substantial.
Explicit sexual photographs and videotapes of children may promote cognitive distortions,
fuel fantasies that incite offenders, enable grooming of victims, and may be produced using
real children. Written material that advocates or counsels sexual offences with children can
pose many of the same risks. Although we recently held in Little Sisters Book and Art
Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120, 2000 SCC 69, that it may be
difficult to make the case of obscenity against written texts, materials that advocate or
counsel sexual offences with children may qualify. The Crown has also met the burden of
showing that the law will benefit society by reducing the possibility of cognitive distortions,

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the use of pornography in grooming victims, and the abuse of children in the manufacture
and continuing existence of this material. Explicit sexual photographs of children, videotapes
of pre-pubescent children, and written works advocating sexual offences with children -- all
these and more pose a [page106] reasoned risk of harm to children. Thus we may conclude
that in its main impact, s. 163.1(4) is proportionate and constitutional.

Sources of Criminal Law

There are 3 main sources –
1. Constitution, - Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982,
being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
2. Statute – Criminal Code
3. Common law –
 Frey v. Fedoruk, [1950] S.C.R. 517
 R. v. Mack, [1988] 2 S.C.R. 903
 R. v. Jobidon, [1991] 2 S.C.R. 714
 Levis (City) v. Tetrault, [2006] 1 S.C.R. 420
 Criminal Code, s. 8
 Criminal Code, s. 9

Common law cannot be used to create offences in criminal law. Everything in criminal law
must be set out in statute. Section 9 of Code states this.
Only contempt of court is not listed in the Code.

Frey v. Fedrouk – courts cannot create offence at common law.

Section 8(1) of code states that accused can still rely on common law defences so far they
are not inconsistent with statute.
Some defences available only in criminal law and not in statute
Criminal law of England in force immediately before April 1954- continues to be in force so
long as not inconsistent.
Common law can create defences. Many defences solely covered by common law. Some
defences are dealt by both common law and statute (self defence/ intoxication).

SC borrows principles from common law and uses them to interpret criminal code offences
and elements required to satisfy offence.

Mistake of Fact defence was Established in Levis (City) v. Tetrault, [2006] 1 S.C.R. 420

Division of Power

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The Constitution Act 1867 assigns the heads of power to the provincial and federal
governments. Under s. 91(27), the federal government has jurisdiction over enacting
criminal laws and procedures. The federal government also has jurisdiction over
penitentiaries for sentences over 2 years under s. 91(28). Under s. 92(14), the provinces
have jurisdiction over enforcement of the administration of justice. This includes the
imposition of fines for regulatory offences.

Section 91(27) for fed govt. has authority to enact criminal offences through statute. Most
offences set out in the code and called true crimes.

Apart from this- regulatory offences – eg pollution, health and safety, property/ civil rights.
Provinces can enact regulatory offences (public welfare offences) through 92(18) and also
have right for administration of justice.
But if they enact law which entrenches on fed criminal law power then
3 steps to determine if criminal offence – Para 73 to 79 of Crown v. Malmo Levine
a. Purpose must be a Prohibition
b. Prohibition backed up by Penalty
c. Law must be aimed at criminal public purpose.

For an offence to be classified as criminal, the provision must satisfy a 3-part test. The
purpose of the provision prohibit an act; this prohibition must be backed up by a penalty;
and the law must be aimed at a legitimate criminal public purpose. The Supreme Court
expands on these principles at paragraphs 73-79 in R. v. Malmo- Levine. If all three of these
elements are met, then the provision is considered a criminal law under s. 91(27), and it falls
under the jurisdiction of the federal government.

In Morgantaler – law struck down as invasion of Fed law power. In R v. Morgentaler, this
test was applied to a regulatory offence that was enacted by the province of Nova Scotia.
The Supreme Court held that the offence — the restriction of abortions outside of hospitals
— was an exercise of a federal head of power, and the law was declared ultra vires.

Indictable offences – prosecution begins with an indictment and a preliminary inquiry. Have
a maximum penalty and a mandatory minimum sentence.
Generally these are more serious offences. Examples include aggravated sexual assault and
murder. Maximum penalties are as severe as life in prison. Some indictable offences have
minimum mandatory sentences.

Summary convictions
Lesser offences. The prosecution, instead of beginning with and inquiry/ indictment, but
conducts a summary conviction with a charging document.
Trials are held in provincial court.

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These are usually less serious offences. They usually carry a maximum penalty of a $5,000
fine and/or six months in jail. Some summary offences can have a higher maximum penalty.

Hybrid offences – These are offences that can be either summary or indictable. The Crown
has the choice of how the with to proceed., Eg. Sexual assault. Crown / prosecution can
elect to charge accused with an indictable offence or a summary conviction offence
depending on the nature of the offence and the offender.

Sec 553 allows court to try an accused for an offence without accused’s consent.

Interpreting Criminal Provisions

Definitions

Definitions in Criminal Law are no different than most other

areas of law. Definitions are provided for at the beginning of
each Part, and the common law is used to define concepts not
defined in the Criminal Code.

Strict Construction and Purposive Interpretation

Code provisions historically interpreted strictly as accused’s liberty a stake. An exception is

made for provisions for which parliament believes there should be a purposive approach.

As a general rule, the Court interprets criminal provisions strictly, affording the Accused the
benefit of any ambiguities.
However, under the “purposive interpretation” approach, the language used in a specific
provision being construed is interpreted by reading the statute as a whole, with the
underlying purpose of the provision in mind. The goal is to achieve the underlying purpose,
but keeping in mind that the language actually used in the statute should take precedent. In
R. v. Sundman, the courts used purposive interpretation to determine that the victim had
been “unlawfully confined” while murdered, even though he was technically out of
confinement when murdered. To arrive at this conclusion, the Court looked at the entirety
of the circumstances.

R v. Sundman – Confinement persisted even after victim ran off- causal connection
approach

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Languages of the Code – it must be in both languages as it’s a federal law. Court will
interpret inconsistencies.
The Criminal Code is a federal statute, and must be printed in both French and
English. The Court will use one version to clarify in ambiguities in the other
version (R. v. Mac). This also applies with other statue, such as the Charter of
Rights and Freedoms (R. v. Collins).

R. v. D.(J.), 2002 CanLII 16805 (Ont. C.A) French version better protected an accused’s right
to fair trial. So that was adopted. –

R. v. Mac, [2002] 1 SCR 856. - Ambiguity arising from English version of Criminal Code
resolved by clear language in French version 

Charter
The Charter plays a significant role in interpreting criminal provisions. Provisions are
presumed to be constitutionally valid and are interpreted as such (R. v. Labaye).
Statute is presumed to be constitutionally valid. If not valid then of no effect and force
under section 52.
In Labaye the question was – is indecency an offence?
Court moved away from community standard test of decency and adopted a standard that
required that “harm” must be directed to a value reflected in the constitution.

Canadian Foundation for Children, Youth & the Law v. Canada (A.G.), [2004
The foundation sought a declaration that sec 43 of Code violated section 7(12) and 15(1) of
charter. (Sec 43- spanking law) Deprivation not as per principals of fundamental justice.
SC held that provision does not violate charter sec 7 as it does not offend principles of
fundamental justice.
Does not violate sec 12 as it does not involve cruel and unusual punishment by state
Does not violate sec 15(1) as abusive and harmful conduct is still against law and no word
limit can be applied.
Court went into great detail of ability of parent to punish children.

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TOPIC 2 Adversarial Process

Canada has an adversarial legal system. Advocates representing both sides argue before and
impartial trier who then determines truth and imposes appropriate sentence.

Defence Counsel
Defence counsel owes a duty to their client first and foremost. Their role is to represent
their clients interests to the best of their ability. Defence counsel owes a fiduciary duty to
their client.
However, defence counsel is an Officer of the Court. Because of this, they must still
represent their client in a way that does not obstruct justice. For example, defence counsel
cannot hide incriminating evidence, mislead the court, or act in contempt of court.

Under s. 11(d) Charter of Rights and Freedoms, an Accused is innocent until proven guilty.
This entitles a guilty Accused to plead not guilty. Even if the Accused is guilty, the Crown
must still prove their case beyond a reasonable doubt.
Burden of proof is always on the Crown to bring forward a case and establish the guilt of the
accused beyond a reasonable doubt. Crown has to establish each element of the offence.
The evidentiary burden is always on the crown and never shifts to the accused. This means
that it is for the crown to put forward the evidence and prove that accused committed
crime.

There is no burden on accused to disprove the crown’s claim or elements of the offence
crime. BUT when it comes to defences, if accused choses to put forward a defence, then the
accused must establish that defence on a balance of probabilities.

“Balance of probabilities” is a lower standard than “Beyond reasonable doubt”. All that the
accused has to prove is that there is a greater than 50% chance that the offence was
legitimate. BUT – accused always has presumption of innocence. And accused also has right
against self incrimination. An accused cannot be called upon to incriminate himself/ herself
and can simply remain silent throughout the trial. It is for crown to prove case against
accused.
Rules that defence counsel must follow
Cannot hide incriminating evidence that goes against their client. Nor can they mislead the
court
Even if guilty, accused is entitled to plead “not guilty” as burden is on the crown to prove its
case.
So – even if accused may have committed a crime, the crown may not be able to meet its
evidentiary burden. They may not be able to put forward enough evidence to prove a crime
beyond reasonable doubt.

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If client admits to defence counsel that they are guilty of a crime and they satisfy the
physical and mental elements of the offence, defence counsel may still object to the
admissibility or sufficiency of evidence that the crown has put forward. BUT – counsel
cannot suggest that some other person committed crime, nor can they call evidence that
the lawyer believes to be false. Like false alibi.
Another principal is that D counsel cannot mislead the court. D counsel is an officer of the
court and therefore has duty for administration of justice. So they must act fairly and cannot
mislead the court. They cannot lie.

Defence counsel cannot encourage a witness to make misleading / false statement, give
false evidence, that someone else committed crime. When defending a guilty client, defence
counsel is not permitted to mislead the court. They can object to the admissibility or
sufficiency of the Crown’s evidence. However, they cannot put forward a false alibi, direct
witnesses, submit evidence defence counsel believes to be false, or suggest someone other
than their client committed the offence.

If crown is unable to prove guilt then the accused has the same rights as somebody who is
not guilty. This means it does not matter whether the accused is guilty or not. What matters
is whether the crown is able to put forward sufficient evidence to establish and prove that
the accused is guilty. This is an important distinction.

NOW- what if defence has evidence about accused being guilty. DO they need to disclose
this to the crown?

R. v. Murray – the Defence’s possession of evidence that proves guilt of accused was at
issue here.
Should Murray be convicted for obstructing justice for not disclosing tapes. Court held that
he had a duty to disclose. Court made clear that if anyone comes across evidence of a crime,
they have an obligation to turn the evidence over to the police, including a defence lawyer.
Murray could have sent anonymously. But they had to be given as they were evidence of
crime.

Summary of D counsel
- Unlike the Crown that has an overarching duty to the state, D counsel’s primary
loyalty to the client and they owe a fiduciary duty to client. They also have a duty of
confidentiality and a duty of solicitor client privilege, and they have to do their
utmost best to represent their client and put forward every fact and evidence
supporting their client’s case. BUT – D counsel is also an officer of the court and have
a duty to court. They cannot obstruct justice and cannot lead evidence that they
know to be false. EVEN if client instructs them to do so. They cannot direct witness
to change stories and if they know their client is guilty – they cannot put forward a

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 fake alibi or suggest that somebody else did it. They all cannot conceal incriminating
evidence from the police, even if it’s the smoking gun that implicates their client.

CROWN COUNSEL

Crown counsel is considered a public servant. The role is not to win cases; their role is to
ensure that justice is sought. This means that the Crown is not driven by securing a
conviction (Boucher v. The Queen). This is public duty that is imposed on the Crown.

Despite this public duty, the Crown is given discretion to manage their cases in a way that
allows them to still secure convictions or plea agreements that they believe is necessary in
the case at hand. The Supreme Court has held that this includes the Crowns’ right to revoke
a plea agreement both sides have agreed to (R. v. Nixon), and discussing dropping or adding
charges (R. v. Babos).

Crown Counsel does not have a duty to any particular client but a public duty to seek justice.
They are public servants and their mandate is to ensure justice is done. This precludes any
notion of winning or losing. Their sole purpose is to seek that justice is done. This seeking of
justice is why a crown counsel has both a professional and legal obligation to disclose to the
defence all relevant evidence in their possession. The same burden is not imposed on the
defence- Defence CANNOT conceal incriminating evidence. But the CROWN has a duty to
DISCLOSE ALL EVIDENCE- even evidence that might assist the defence.
Part of the Crown’s duty to the court is to disclose all evidence, even if that evidence is
damaging to their case (Krieger v. Law Society of Alberta). The Crown’s disclosure re-
quirements include not only putting forward all evidence, but doing so in a fair manner.

This was the issue in Krieger v. Law Society of Alberta – crown had evidence from DNA tests
that the murder with which the accused was charged, was committed by someone else.
Instead of informing defence Krieger proceeded with preliminary inquiry. Defence had
asked for the DNA evidence and Krieger told them he did not have the results. Krieger knew
that someone else had committed the murder and he knew the accused was innocent but
proceeded with preliminary inquiry anyways. Defence counsel discovered this and reported
Krieger. Court said that “Disclosure of relevant evidence is a matter of prosecutorial duty,
and transgressions related to this duty constitute a very serious breach of legal ethics”.

Role of prosecutor.
A breach of the obligation of prosecutor can be very serious. It can result in mistrial or in
stay of proceedings.

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Boucher v. The Queen - the purpose of a criminal prosecution is not to obtain a conviction, it
is to lay before a jury what the Crown considers to be credible evidence relevant to what is
alleged to be a crime.
So- crown has a duty not only to put forward all evidence but also to ensure that it is done
fairly. As justice Rand wrote – “The role of prosecutor excludes any notion 'of winning or
losing; his function is a matter of public duty” to see that justice is done.
Although prosecutor serves a public officer and must ensure justice is done, they are also
given some discretionary powers when it comes to managing their cases.

R. v. Nixon, 2011 SCC 34 – Scope of prosecutorial discretion in question.

Counsel initially entered into a plea agreement according to which the accused would plead
guilty to a charge of careless driving under the provincial Traffic Safety Act with a joint
sentence recommendation for an $1,800 fine in return for which the Crown agreed to
withdraw the Criminal Code charges. 
 Crown counsel was thus instructed to withdraw the plea agreement and to proceed to trial.
In response, the accused brought a s. 7 Charter application alleging abuse of process and
seeking a court direction requiring the Crown to complete the plea agreement. The
application judge held that negotiations between counsel after charges are laid are matters
of tactics or conduct which are subject to review by the court, and that the repudiation of
the plea agreement, in this case, was not justified. He concluded that the accused's s.
7 Charter right to security of the person had been breached and he directed the Crown to
proceed with the agreement. The Court of Appeal allowed the Crown's appeal, finding that
the repudiation of a plea agreement is a matter of prosecutorial discretion not reviewable
by the courts, subject to the doctrine of abuse of process.

Section 7 right security of person is breached.

In appeal crown claimed that agreement was a matter of prosecutorial discretion not
reviewable by the courts.
Later appeal to SC who dismissed appeal. SC said subject to abuse of process doctrine,
supervising one litigants process is beyond legitimate reach of court. To be a breach of
process, crown’s action must amount to
A. Prosecutorial conduct affecting fairness of trail
B. Conduct that contravenes fundamental notions of justice.
SC said so long as proceedings are ongoing, crown will be afforded prosecutorial discretion.
A plea agreement did not bring an end to proceedings Therefore Prosecutorial discretion
was not terminated.
The accused was able to be restored without prejudice to the same position as before the
plea agreement therefore it could not be said that the repudiation of agreement will render
the trial unfair.

R. v. Babos, 2014 SCC 16

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SC Set the threshold of conduct amounting to prosecutorial abuse of process.
It is within the power of the prosecution to discuss dropping or adding charges. + when it
comes to the behaviour of prosecution, threats, such as the one made in this case must be
taken in context. Threats were made 1 year before trial. 18 months delay in bringing the
threat to the attention of the court indicated that they did not consider threats seriously.
They did not consider threats serios enough to justify a stay in proceedings.

R. v. Anderson, [2014] 2 S.C.R. 167

Dealt with the issue if crown was constitutionally under any obligation to take into
consideration he aboriginal status of the accused.
SC said there was no constitutional requirement imposed on the crown to consider the
accused’s aboriginal status when deciding to seek the mandatory minimum for impaired
driving. And no principal of fundamental justice existed supporting such a constitutional
obligation.. Rather this was a matter of prosecutorial discretion which was only reviewable
by the courts for abuse of process.

PROSECUTORIAL DESCRETION AND ABORIGINAL OFFENDERS

Section 7(18) of code, a sentence must be proportionate to the gravity of the offence and
the degree of responsibility of the offender. The JURISPRUDENCE for the provision makes
mention of Jude’s obligation to take into consideration the accused’s aboriginal status. SC
did comment at para 25 of Anderson case that this obligation could be imposed on the
crown if the mandatory minimum requires the judge to impose a disproportionate sentence.

PRELIMINARY INQUIRY
Prior to trial accused will have a preliminary inquiry. At the PI, the PI judge determines if
there is sufficient evidence to set the matter down for trial. The judge must determine if
there is any evidence upon which a reasonable jury properly instructed could return a
verdict of guilty. R. v. Arcuri, [2001] 2 S.C.R 828
Judge does not ask if they WOULD convict. They are not making a determination on the
strength of crown’s case. They are only making a determination of whether a jury COULD
convict. Then trial will proceed and case will be put before the jury.

After PI, there is pre-trial motions.

D counsel and crown appear before court for pretrial motions. These motions are to settle
any points of contention before commencement of trial.

Once trial commences, the accused will have their case heard by a neutral impartial trier of
law and a neutral impartial trier of fact.

In Jury trial

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  neutral impartial trier of law – judge - to make legal rulings
 neutral impartial trier of fact – jury - to decide the facts of the case

Judge’s role is to make legal rulings. They will decide if certain evidence is admissible or
should be excluded etc. They make all legal and procedural decisions.

Jury determines on the basis of the evidence, weigh it and come to determination of case.
he jury’s role is that of an impartial trier of fact; they makes the factual decision and decide
the case. In a trial in front of a judge, the judge assumed both roles

It is Important that judge does not overstep its role as a trier of law.

This was at issue in case of R. v. Gunning, [2005] 1 S.C.R 627

Although it is required that the judge must be impartial, its not required that the judge
remain impassive.

- R. v. Hamilton, [2004] O.J. No. 3252 (Ont. C.A.

Trial judge gave above relatively light sentences. Crown appealed saying that in the trial the
judge had taken on combined role of advocate, witness and judge, thereby losing the
appearance of a neutral arbitrator. The crown argued that judge had raised various issues
on its own initiative, directed crown to present evidence on these issues and also presented
their own evidence on some issues, then gave sentences largely based on the material
produced by the judge and his own personal experiences.
Court of appeal said judge has some deference while sentencing and has right to focus on
some factors more than others. This will amount to an error in principle only when
exercising one factor or not giving weight to another factor results in trail judge exercising
his/ her discretion unreasonably.

JURY TRAIL
In Canada this is used far less than in US/ UK.
But this is provided for u/s 11(f) of the charter. As per this section if a person faces 5 year
sentence or more they have right to trial by Jury. Sec 471 Criminal Code says a person
charged with an indictable offence must have a trial by jury unless another part of the Code
says otherwise

Jury has 12 people. A diverse sampling of the public. Before jury is selected they get a poll of
potential jurors and defence and crown counsel get to ask them questions to determine
whether or not these people are fit to be jurors. If potential jurors show any type of bias (eg.
Racial prejudice) it can be a ground for exclusion.

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Sec 628 allows challenges for cause. allows defence counsel to challenge prospective
members of the jury if their is the potential of partiality of jury members. Defence counsel is
required to show that there is a realistic possibility jurors might be partial.

An example of a realistic possibility is of partiality is the prevalence of racial bias in the

community (R. v Williams)

R. v. Williams, [1998] 1 S.C.R 1128 – Right to challenge potential jurors is protected by the
charter.
Not allowing Williams to challenge jurors under section 638 of code prevented a fair trial by
an impartial jury.
To clarify, to challenge jurors u/s 638, accused must demonstrate a "realistic potential for
partiality" is possible.
There was a history of racial discrimination in the area and realistic possibility that jurors
may be racially biased.

This

Can be contrasted with the R. v. Find, 2001 SCC 32

The nature of the charges against the Accused is not sufficient for the defence counsel to
challenge jurors for cause (R. v. Find)
Accused charged with 1 counts of sexual offences involving the children of age of 6 and 12.
Accused challenged jurors for cause arguing that nature of charges against him gave rise to
a realistic possibility that some jurors may be partial.
SC dismissed claim of accused, as nature of charges did not give rise to the right to challenge
jurors for cause

R. v. Yumnu, 2012 SCC 73

SC held that the disclosure requirements imposed on crown do not extend to jury selection.
Crown did not share info on jurors with defence. Defence claimed violation of sec 7 right to
fair trial.
SC said – no miscarriage of justice
BUT did say that non-disclosure will amount to violation of sec 7 of the defence can
establish that
1. crown failed to disclose info relevant to the selection process that it was obliged to
disclose
2. had the requisite disclosure been made there was a reasonable possibility that jury
would have been differently constituted,
HERE there is no evidence that disclosure would have impacted jury selection So crown’s
conduct did not interfere with admin of justice.

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Representativeness In jury trial – this was at issue in R. v. Kokopenace, 2015 SCC 28
For proving province at fault, accused must show appearance of a systemic bias when jury
roll was compiled.
Representativeness focuses on the process to compile jury roll and not its ultimate
composition.

In 2019 parliament abolished accused person’s pre-emptory challenge of jurors.

Pre-emptory challenge is the ability in jury selection for a lawyer reject a potential juror
without stating a reason.
SC held in R. v. Couhan, 2021 SCC 26 that this abolition does not violate an accused’s rights
u/s 11(d) or (f) of the charter

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TOPIC 3 CHARTER OF RIGHTS AND FREEDOMS

Charter plays an important role in Canadian Criminal law. (topic 24-28 of NCA syllabus)
There are a number of rights within the Charter that limit the State’s exercise of power in a
criminal context. The Accused’s liberty is at risk during the investigation and trial, and the
Charter protects the rights of the Accused.
Charter can be used to invalidate offences that parliament has created (Polygamy case we
saw)
Charter famously struck down prostitution law in Canada in R v. Bedford (check from
constitution notes).

Its important to refer the Oakes test here.

If accused argues Charter right has been infringed, court will determine if right is infringed. If
it has then court will apply Oakes test to determine if infringement is justified u/s 1.

Eg – in Polygamy Reference case – it was held – Criminal Code provision violated Bountiful’s
freedom of religion and liberty. Once this was determined – court applied Oakes test and
held that parliament was justified in criminalising polygamy. British Columbia Court of
Appeal held that s. 293 violated the s. 2(a) Charter and s. 7 Charter rights.
However, after the Oakes Test was applied, the Court decided that the
government was justified in criminalizing polygamy.

NOTE- For criminal law exam - No need to go into nuances of Oakes test Just be aware of its
relevance and where it should trigger.

The Court came to the same conclusion when it analyzed the child
pornography provisions of the Criminal Code in R. v. Sharpe.
R. v. Sharpe, 2001 – accused said he should be allowed to create content of child
pornography because limiting a restriction is in violation of his charter right of free
expression. SC agreed that its violation. But after this they applied Oakes test to justify child
pornography provisions (discussed in detail in sexual offence).

WHAT IS THE ROLE OF THE CHARTER?

Charter has a significant impact on Criminal justice system, and there are a number of
restrictions on exercise of state’s criminal power.

The ACCUSED’s liberty is always at stake – resources of Criminal justice system grossly
outweigh the resources of the accused, And this is where CHARETR intervenes. Charter

16
restricts the state’s ability to interfere with an individual’s rights. These safeguards are
meant to protect the innocent and avoid risk of wrongful conviction.
Canadian Charter creates a complex system that governs the interaction of police, agents of
state, prosecutors and all those persons involved in the criminal justice system leading upto
and after the accused has been convicted in order to try and protect the accused and their
rights.
Number of rights designed to significantly curtain police power, and prevent misuse of
police power, section 8, 9, 10(b) curtail abusive process and abuse of power.

IN case of – R v. Mand – court stated that Charter rights are activated at every stage of
police action and police have a burdensome responsibility.

REMEDIES

s. 24(1) allows the Court to award a remedy to the Accused in instances where their Charter
rights have been violated:

24(1). Anyone whose rights or freedoms, as guaranteed by this Charter,

have been infringed or denied may apply to a court of competent
jurisdiction to obtain such remedy as the court considers appropriate and
just in the circumstances

The remedies available under s. 24(1) are broad. Common remedies include a stay of
proceedings, striking down a provision, damages, and the exclusion of evidence that was
obtained in the breach of a Charter right, The exclusion of evidence is provided for in s.
24(2) Charter.

Starting point for analysis is sec 24(1) of Charter.

REMEMBER – sec 24(1) deals only with rights and freedoms guaranteed by the Charter only.
24(1) is broad and vague and court has gone to length to interpret what these rights
encompass.

Some remedies can be awarded to an accused whose rights and freedoms have been
infringed in criminal law context. –
a. Exclusion of unconstitutionally obtained evidence is the most common remedy for
a breach of a charter right. It is under separate section – 24(2)
b. Another remedy is stay of proceedings. Its only a release of accused and not their
acquittal. Stay – is the court stopping trial, trial ceases to be heard and proceedings
do not progress any further. A stay of proceedings may be called if example the
Prosecution is so tainted by a charter breach that there is no other remedy hat court

17
 can see are fit in the circumstances. Example - delays that are considered egregious
(2 years or more) will result in a stay of proceedings

Exclusion of evidence
Sec 24(2) allows court to exclude evidence which is improperly obtained and in a matter
that in- fringed the Charter rights of an Accused . This remedy is often awarded where
the breach is a breach of s. 8 right to be secure against unreasonable search or
seizure or s. 9 right not to be arbitrarily detained or imprisoned. Typically, when
evidence is improperly obtained it happens because of breach of sec 8 of charter which is
right to be secure against un-reasonable search and seizure. It could also be due to sec 9 of
charter – right not to be arbitrarily detained/ imprisoned.

We will see cases that deal with Q. what process are incidental to arrest / detention, and
specifically what search and seizure functions are incidental in such case.
These questions are imp because when police arrest or detain a suspect, they do have a
right to conduct a search within certain circumstances and certain restrictions. Sometimes
there is the question if they exceeded the power after they detained accused.
Another argument that can be raised is that police did not have right to detain in the first
place. So, any search they conducted was illegal and unjustified under the charter.

 WHAT CRCUMSTANCES can a person be detained?

 WHEN IS A DETENTION LAWFUL/ Reasonable?
 Assuming its is lawful/ legal , WHAT IS THE SCOPE OF POLICE SEARCH POWER
incidental to detention/ arrest .

Keep remedy in mind when we do sec 8 and 9 of charter.

The test for determining whether evidence should be excluded under s. 24(2) was
established in R. v. Grant.

LANDMARK CASE FOR EXCLUSION OF EVIDENCE:

R. v. Grant, 2009 SCC 32

3 part test to determine if evidence to be excluded u/s 24(2)
1. Court first looks at seriousness of police conduct (state conduct)?
2. Impact of the breach on rights of accused,
3. Society’s interests in an adjudication of the case on its merits
The court will weigh up these 3 considerations and decide if the evidence is admissible.
When doing this analysis, make sure you consider the relevance and reliability of the
evidence.

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When it comes to exclusion or admissibility IMPORTANT to DISTINGUSH b/w conscriptive
and non non-conscriptive evidence,
 Conscriptive evidence — evidence that emanates from the Accused - eg. Statement,
body sample (blood test)— This is seen as more personal, private and sensitive than
non-conscriptive evidence as it emanates from the accused. Violations which
interfere with the conscriptive evidence of accused are seen as more serious than
those involving non- conscriptive evidence

This goes to another charter principle- YOU CANNOT COMPEL a person to speak.
Accuse has a right against self-incrimination. Accused always has right to remain
silent.
This right also goes to taking physical evidence form accused. – cannot take blood
sample without warrant. That will be against conscriptive evidence.
Breaches involving conscriptive evidence are far more serious than non-

Courts are less likely to allow the admission of conscriptive evidence that is obtained
in breach of a Charter right

Test in Grant is objective: Would a reasonable person consider that the admission of
evidence bring the administration of justice into disrepute- and this is the general
framework for exclusion of E u/ 24(2)? ‘If you pay attention to words of 24(2)- it uses
“would” not “could”.
This gives leniency to accused and gives them benefit of doubt with any evidence whose
admissibility has been questioned.

SEARCH AND SEIZURE

Section 8 – right to be secure against unreasonable search and seizure.

Hunter v Southam, [1984] 2 SCR 145

SC stated that a search is unreasonable if it violates a person’s reasonable expectation of
privacy. Any search without a warrant is presumed unreasonable

What is a person’s “reasonable expectation of privacy” is a difficult question.

With the advances of technology, the notion of what a “reasonable expectation of privacy”
is has changed drastically, and continues to change.

The Canadian concept of ‘reasonable expectation of privacy’ is re- flects US jurisprudence of

the Fourth Amendment (US v Katz).

19
(Note: before charter was adopted in Canada, Canada based its rights and freedoms on the
US bill of rights. That is why some jurisprudence US cases referred).

In Katz v. United States, 389 U.S. 347 (1967) – demonstrates the principle of reasonable
expectation of privacy.
Main principle of case – what a person knowingly exposes to others is no longer deemed to
have a reasonable expectation of privacy.

Facts: Phone calls made in public telephone booth. FBI recorded conversation without
warrant.
Katz argued that his 4th amendment right against unreasonable search & seizure had been
violated. When he went into the phone booth and closed the door he was exercising a
reasonable expectation of privacy. When listening in, his privacy interfered with and search
was unjustified. SC of US held in favour of Katz.
Court Said- one who occupies a telephone booth shuts the door and pays toll to place a call,
is surely entitled to assume that the words he utters are not going to be broadcast to the
world.
TEST applied to see if right had been infringed was
a. Whether his reasonable expectation of privacy had been interfered with.
US SC said – yes interfered with and police needed warrant.
The determining question of whether katz had reasonable expectation of privacy hinged
on whether door was open or closed. When he closed door, he was exercising his right to
privacy.
So- based on long standing principle of what is knowingly exposed outside confines of
HOME is no longer protected with privacy expectations.

Note: Canada has held that garbage in the street can be searched without warrant,

In R. v. Wong, [1990] 3 S.C.R. 36

Sc said when a person retires into a hotel room and closes door they have a reasonable
expectation of privacy in that room. Judicial authorization is a requirement for a search and
seizure

R. v. Plant, [1993] 3 S.C.R. 281

Facts: Marijuana grown at home. Police checked electricity records without warrant. Plant
argued that this violated the reasonable expectation of privacy of these residents.
SC said NO there is no violation. Concept of biographical core established. Sec 8 protects a
biographical core of PI which individuals would wish to maintain and control
dissemination of such information to state. This does not extend to RECORDS HYDRO.

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This principle again articulated in - R v Tessling, [2004] 3 S.C.R. 432.
Facts: Police used FLIR imaging device to look into people houses. See how much heat is
emanating form a house. If a lot – then marijuana growing inside.
ISSUE – they did not have warrant
SC relied on principle of biographical core of PI. SC said accused could not have any
reasonable expectation of privacy since the technology used did not touch upon the
biographical core personal information. Only heat noticed.

Reasonable expectation of privacy also extends to an individual’s workspace, R. v. Cole,

2012 SCC 53.
SC said an individual’s personal information stored on a computer owned by their employer
may attract reasonable expectation of privacy.
Facts: Photos found, copied, laptop seized, photos handed to police who reviewed and
copied without warrant. Trail judge excluded all of them as breach of sec 8.
SC eventually said that police had infact infringed sec 8 right and accused had an expected
measure of privacy in his personal information on the laptop. However, since this was not
his personal computer., Cole had a diminished expectation of privacy.
“A reasonable though diminished expectation of privacy is nonetheless a reasonable
expectation of privacy, protected by s. 8 of the Charter. Accordingly, it is subject to state
intrusion only under the authority of a reasonable law.”
However, court did not exclude evidence under 24(2) as evidence would not bring the
administration of justice into disrepute and would have a negative impact on the truth
seeking function of criminal trial process.

39 Whether Mr. Cole had a reasonable expectation of privacy depends on the

"totality of the circumstances". In Cole the totality of circumstances supported the
objective reasonableness of the accused’s subjective expectation of privacy

Unconstitutionally obtained evidence should be excluded under s. 24(2) if, considering all of
the circumstances, its admission would bring the administration of justice into disrepute.
The conduct of the police officer in this case was not an egregious breach of the Charter.
While the police officer did attach great importance to the school board's ownership of the
laptop, he did not do so to the exclusion of other considerations. The officer sincerely,
though erroneously, considered the accused's Charter interests. Further, the officer had
reasonable and probable grounds to obtain a warrant. Had he complied with the applicable
constitutional requirements, the evidence would necessarily have been discovered. Finally,
the evidence is highly reliable and probative physical evidence. The exclusion of the material
would have a marked negative impact on the truth-seeking function of the criminal trial
process. The admission of the evidence would not bring the administration of justice into
disrepute and therefore the evidence should not be excluded.
"totality of the circumstances".- expanded on in R. v. Spencer, 2014 SCC 43

21
Police identified an IP address used to download child pornography. Without warrant
obtained subscriber details from internet provider. This info led police to Spencer. Spencer
said his Sec 8 rights are breached as police obtained subscriber info for IP address without
warrant. Evidence should be excluded as search was un constitutional.
SC said police obtaining subscriber info constituted a search (was held otherwise by trial
and appeal court of Saskatchewan). This search was not authorised by law. Despite this
court said evidence need not be excluded. Reason- whether there is a reasonable
expectation of privacy depends on “totality of circumstance”. This requires weighing a
large number of interrelated factors.

The wide variety and number of factors that may be considered in assessing the reasonable
expectation of privacy can be grouped under four main headings for analytical convenience:
(1) the subject matter of the alleged search; (2) the claimant's interest in the subject matter;
(3) the claimant's subjective expectation of privacy in the subject matter; and (4) whether
this subjective expectation of privacy was objectively reasonable, having regard to the
totality of the circumstances.

On the proper understanding of the scope of the search, Mr. Spencer's subjective
expectation of privacy in his online activities can readily be inferred from his use of the
network connection to transmit sensitive information: Cole, at para. 43. Mr. Spencer's direct
interest in the subject matter of the search is equally clear. Though he was not personally a
party to the contract with the ISP, he had access to the Internet with the permission of the
subscriber and his use of the Internet was by means of his own computer in his own place of
residence.

20 The main dispute in this case thus turns on the subject matter of the search and
whether Mr. Spencer's subjective expectation of privacy was reasonable. The two
circumstances relevant to determining the reasonableness of his expectation of
privacy in this case are the nature of the privacy interest at stake and the statutory
and contractual framework governing the ISP's disclosure of subscriber information.

GIVEN THE TOTALITY OF CIRCUMSTANCES IN THIS CASE ACCUSED HAD REASONABLE

EXPECTATION OF PRIVACY.
SO NOW QUESTION whether the evidence should be excluded. Test from Grant applied.

The offences here are serious and carry minimum prison sentences. Society has both
a strong interest in the adjudication of the case and also in ensuring that the justice
system remains above reproach in its treatment of those charged with these serious
offences. If the evidence is excluded, the Crown will effectively have no case. The
impugned evidence (the electronic files containing child pornography) is reliable and
was admitted by the defence at trial to constitute child pornography. Society

22
 undoubtedly has an interest in seeing a full and fair trial based on reliable evidence,
and all the more so for a crime which implicates the safety of children.
81 Balancing the three factors, my view is that exclusion of the evidence rather than
its admission would bring the administration of justice into disrepute, and I would
uphold its admission.

Held Evidence admissible and new trial ordered

TEST (detailed below)

The three requirements for a lawful search are: (1) the search must be authorized by law;
(2) the law must be rea- sonable; (3) the search must be carried out in a reasonable manner
(R. v. Collins). An exception to this rule is where exigent circumstances make it impossible to
get a warrant (R. v. Grant)

R. v. Marakah, [2017] 2 SCR 608

Question – does an accused have a reasonable expectation of privacy in text message
conversation recovered on the device of an accomplice and whether the messages were
admissible as evidence?

Fact- message for sale of illegal firearms.

SC allowed appeal and acquitted the accused and said admissibility to be decided in totality
of circumstance. A person does not lose control over information for the purpose of sec 8
simply because another person possess that information or has access to it. Even in present
technological age person may lose exclusive control over their PI, they may still reasonably
expect that information to remain safe from state scrutiny. Just because Winchester could
show message to 3rd parties does not mean Marakah surrendered his privacy interest.
Since court was able to demonstrate that accused had privacy interest in the messages, he
had standing to challenge the admissibility of evidence. SC said police had breached Sc 8
right and message excluded u/s 24(2).

Warrant and Warrantless searches

– Case of Hunter- you must have warrant to search. And any search without warrant is
unreasonable
R. v. Collins, [1987] 1 S.C.R. 265 – SC laid down 3 requirements for a lawful search. Search
will be reasonable if it is
a. authorized by law, - Must have warrant
b. if the law itself is reasonable and (provisions in code authorise warrant)
c. if the manner in which the search was carried out is reasonable (police that has
warrant should not exceed the scope of the warrant. Doing so will make search
unreasonable)
Warrantless searches are PRESUMED unreasonable- Hunter v. Southam.

23
Exceptions to where warrant requirement will not apply.

In R. v. Grant, 2009 SC said if there are exigent circumstances that make it impossible to get
a warrant, then a warrantless search will be appropriate.
What are exigent circumstances – Sec 487.11 provides Where warrant not necessary

487.11 A peace officer, or a public officer who has been appointed or designated to
administer or enforce any federal or provincial law and whose duties include the
enforcement of this or any other Act of Parliament, may, in the course of his or her duties,
exercise any of the powers described in subsection 487(1) or 492.1(1) without a warrant if
the conditions for obtaining a warrant exist but by reason of exigent circumstances it would
be im-practicable to obtain a warrant.”

Example – imminent danger that evidence of crime will be destroyed, someone will be
harmed, reasonable search incident to arrest. BUT does not include strip search or DNA
search as these are conscriptive evidence.

Warrantless search is also appropriate where a person consents to a search.

Warrantless searches necessary. - Child leering cases- child at risk, police need to locate
suspect ASAP. No need for warrant.
Other than these exceptions police will always need a warrant.

Sech 487 subsection 1 lays out the requirement for a warrant. Either through a judge or
justice of the peace. Police must show reasonable and probable ground that an offence has
or will be committed. And that the search will afford evidence of that offence. Warrant
cannot be issued on a hunch. There should be some sort of crime underway or an imminent
crime and search should be directly related to that effect,

This was demonstrated in R. v. MacDonald, [2014] S.C.J. No. 3

Facts: Police responding to noise complaint from neighbour. Asked questions, pushed door
open to investigate. Struggle ensued and police disarmed a shotgun from the accused. He
was charged with Gun related offences.
Mac Donald argued at trail that by opening the door further- officers violated section 8
rights.
SC dismissed the appeal – Said that officers may conduct protective searches when they
have reasonable ground to suspect that an individual is armed and dangerous. Search
justified as apprehension of public at risk. Opened door no more than reasonably necessary
to address the threat.

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R. v. Stairs, 2022 SCC 11
Fact: 911 call placed, man repeatedly hitting woman in car, police located car, entered
driveway, announced presence, entered to find woman with injuries.
After arrest, search or basement area, container and plastic bag containing _____. Accused
charged with possession of controlled substance for trafficking and assault,
Accused said his sec 8 right was violated.
SC said common law concept of search incident to arrest continues to apply when police
searches an area of arrested person’s home that is within accused’s physical control.

Common law standard of search incident to arrest permits search of person arrested and his
surrounding area when
a. Arrest is lawful
b. Search is incidental to the arrest such that there is some reasonable basis for the
search connected to the arrest and the search is for a valid law enforcement purpose
– safety, evidence preservation, evidence discovery.
c. Nature and extent of search is reasonable

SC in this case distinguished between the areas of home within and outside of the arrested
person’s physical control at the time of the arrest. Where the searched area in arrested
person’s home is outside that person’s physical control at the time of arrest, the common
law standard of search incident to arrest must be made stricter in 2 ways, in order to pass
constitutional muster under sec 8:

“Specifically, where the area searched incident to arrest in a home is outside the arrested
person's physical control at the time of the arrest, the common law standard for search
incident to arrest must be modified in two ways that make the standard stricter.

1. First, the police must have reason to suspect that there is a safety risk to the police,
the arrested person, or the public which would be addressed by a search. Reasonable
suspicion is a higher standard than the common law standard for search incident to
arrest. The police require a constellation of objectively discernible facts assessed
against the totality of the circumstances giving rise to the suspicion of the risk.
Relevant considerations include (a) the need for a search; (b) the nature of the
apprehended risk; (c) the potential consequences of not taking protective measures;
(d) the availability of alternative measures; and (e) the likelihood that the
contemplated risk actually exists. Moreover, when assessing police conduct, the
reviewing judge must be alive to the volatility and uncertainty that police officers
face -- the police must expect the unexpected.
2. Second, the police must carefully tailor their searches incident to arrest in a home to
ensure that they respect the heightened privacy interests implicated. The search
incident to arrest power only permits police to search the surrounding area of the

25
 arrest. The nature of the search must be tailored to its specific purpose, the
circumstances of the arrest, and the nature of the offence. The search should be no
more intrusive than is necessary to resolve the police's reasonable suspicion.”

SUMMARY NOTES:
In determining the admissibility of evidence, the court considers the totality of the circum-
stances. In looking at the circumstances, the court will consider more than the ownership
interest an Accused has. The court has held that an individual has a reasonable expectation
of privacy to information stored on a work computer (R. v. Cole), subscriber information
held by an internet service provider (R. v. Spencer), text messages sent by an individual that
are on another person’s phone (R. v. Marakah), and a hotel room (R. v. Wong). However,
this reasonable expectation of privacy does not extend to electricity records from a power
company (R. v. Plant), or heat that emanates from an individual’s house (R. v. Tessling).

Upon detention, police can perform a protective pat-down of an individual if they believe
that their safety or the public’s safety is at risk (R. v. Mann). A pat-down that exceeds the
scope of a protective pat-down can is intrusive and an infringement of a person’s s. 8 right
(R. v. Mann).

In order to claim s.8 protections, an accused must prove a subjectively held and objectively
reasonable expectation of privacy in the subject of the search. In R. v. Mills, the accused
could not claim an expectation of privacy when communicating with someone he believed
to be a child whom he did not know, and the undercover officer knew this when the ‘fake’
underage girl was created.

26
Section 9 - Right not to be arbitrarily detained or imprisoned

s. 9 protects an Accused or suspect from being detained if police do not have reasonable
suspicion to detain a person. If a person has not been detained, then the police have no
right to investigate them. Detention does cover a broad range of encounters between police
officers and members of the public. There are two circumstances in which detention can
arise: through physical constraint, or through psychological constraint. – SEE GRANT NOTES
BELOW

Any violation of this section has fairly broad consequences.

First ask When is anyone detailed? How do we know if somebody is detained?
Second – what are the police procedures incidental to detention – what are the search
powers or investigative powers.

If a person has not been detained then the police have no right to investigate.

There steps at which charter is activated along investigative process.

R. v. Mann, [2004] 3 S.C.R. 59

Fact: Police intimated of break in in area. Saw Mann walking, he fitted description of
suspect. Asked him for name and DOB, surrounded him, pat down search, marijuana found-
subsequently Mann charged for possession of Marijuana for trafficking.
MANN argued that search was unconstitutional.
Brings forward question of scope of investigative detention?
Did officers have right to detain?
What circumstances led to detention – did they have right to ask him in circumstances
ANS Yes- the key phrase that backs officers authority to stop and question Mann leaving the
search aside is reasonable suspicion. – on objective view of totality of circumstances. What a
reasonable person would ask is –
Has an offence occurred or likely to occur?
Is there a clear nexus b/w accused and offence
In this case – there had been breakin so a crime was ongoing.

BUT- there is a distinction b/w asking questions and performing pat down search. Where
this line is drawn is important for sec 9 cases.
Test set out by court for detention of person for investigative purposes u/s 9
1. Officer must have a reasonable suspicion that crime has occurred or about to occur
2. Clear nexus b/w individual being apprehended and the offence.
SO- police can detain a person if there is reasonable suspicion.

Now that they have detained- what can they do with them

27
What are the physical search powers?
Police are allowed to conduct a protective pat down search If they believe on reasonable
ground that their safety or safety of public is at risk.
So ask this question

In case of Mann – there was a reasonable risk as he was in area and matched description-
police would want to be sure he had no weapon before detaining him so search is justified
BUT – intrusive search into Mann’s pocket was unreasonable
“The police were entitled to detain M for investigative purposes and to conduct a pat-down
search to ensure their safety, but the search of M's pockets was unjustified and the evidence
discovered therein must be excluded.”
Evidence excluded as per 24(2)

NOTE: if the detention is not reasonable, then the pat-down search will also be
unreasonable and amount to a breach of s. 8

IF facts have details of individual who may or may not have rights violated
Start by asking question –
 What is the accused’s charter rights?
 What are the rights related to any arrest – the detention, serach and seizure and
power to arrest?
 Is the person’s charter right infringed? If no then end. If yes – then what remedy is
the individual afforded?
Sec 24(1) says court can award any remedy it deems fit
Sec 24(2) specifically deals with exclusion of evidence and that is the most common remedy.

R. v. Aucoin, [2012] S.C.J. No. 66

While overall search ok, was keeping him in car (confining) reasonably necessary?
Officer close to accused and also called for backup which was 10 mins away. No real need
for securing Aucoin at back of cruiser.
39 Accepting, as the trial judge did, that Constable Burke was concerned about the appellant
walking away, I am nonetheless of the view that in the context of this case, in order to justify
securing the appellant in the back seat -- knowing that this would also entail a pat-down
search -- detaining the appellant in that manner had to be reasonably necessary. 2 In other
words, the question to be asked is whether there were other reasonable means by which
Constable Burke could have addressed his concern about the appellant disappearing into the
crowd, short of doing what he did. If there were other reasonable means to ensure the
appellant would not flee the scene, then detaining him in the police cruiser could not be said
to be reasonably necessary and would thus have constituted an unlawful detention within
the meaning of s. 9 of the Charter

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40 Without wishing to second-guess the actions of the police and recognizing, as I do, that
the police are often required to make split-second decisions in fluid and potentially
dangerous situations, I am nonetheless of the view that Constable Burke's actions, though
carried out in good faith, were not reasonably necessary.
41 In fairness to the trial judge, she was not asked to consider the matter from that
perspective. I believe however, that had the trial judge applied the proper test, she would
have found that the "necessity" component of it had not been met in the circumstances.

At the same time SC said that though search was unlawful, it was not an egregious violation
that warranted the exclusion of evidence under sec 24(2). Given the totality of
circumstances, the cocaine was admissible.

In both Mann and Aucoin detention not unlawful. In Mann through the search unlawful. In
Mann retaining in car back unlawful.

R. v. Grant, 2009 SCC 32

Meaning of detention u/s 9 further clarified. What qualifies as detention?
18 yr black walking in daylight. Officers approached and questioned. Marijuana and gun
possession admitted.
AT trial Grant said police breached sec 9 right. He was arbitrarily detained. Also argued that
his sec 8 right breached and there was unreasonable search + seizure. And 10(b) also
violated as not informed of right to retain counsel.
Crown argued that he was never detained. Police only stopped and questioned him.
SC acknowledged this and said – not all police – citizen interactions involving some physical
delay or questioning will amount to detention within meaning of sec 9.

SC laid out what detention is – 2 kinds

a. Through physical constraint – self explanatory- holding someone, restricting their
movement, surrounding them are clear examples.
b. Psychological constraint – occurs when individual has a legal obligation to comply
with a request or demand.
In Grant – police told him to keep his hands in front and surrounded and questioned
him. Grant had a legal obligation to comply with officer’s restrictive request.
Reasonable person would believe that they had no choice but to comply. And the
court developed a test to determine if a reasonable person in the circumstances
would conclude that they had no choice.
Check facts/ circumstances, nature of police conduct and
In grant the exclusion of evidence would bring disrepute. But violation of sec 9 and
10(b) rights significant. Firearm serious offence when public at risk. Considering all
factors evidence was admissible.

29
SO – police can do investigative detention if they have reasonable suspicion. In all such cases
sec 10(b) rights arise almost immediately.

R. v. Suberu, [2009] S.C.J. No. 33 – helps understand both section 9 and 10(b).
Facts: Stolen gift cards etc. - Suberu argued that he was detained from the moment officer
asked him to stop. QUETSION- was he detained at that time?
SC said no. – Reason being that suberu felt that he could leave anytime. He was not subject
to any physical or psychological constraint. The exchange between officer and suberu
merely discussion for officer to obtain more information and no attempt to obstruct his
movement and discussion brief.

The police may not enter onto property and detain people immediately and arbitrarily. IF
someone is arbitrarily detained, the evidence may be excluded as a remedy for the breach.
(R. v. Le).

SECTION 10(B) RIGHTS.

When an individual is arrested, they have the right to be immediately informed of their right
to instruct counsel. A common issue with these cases is whether the individual was
detained. If an individual is not detained, then they do not need to be informed of their right
(R. v. Grant).

This right commonly arises with section 9 cases. Because issue arises of whether somebody
is detained or not. With a section 10(b) violation accused is claiming that they had a right to
consult a lawyer and be informed of the right to consult.

So before answering that we need to ask – was the person detained in the first place?

So if accused makes a claim that 10(b) violated – you may have to first determine if there is
sec 9 violation,

Sec 10. Everyone has the right on arrest or detention

(b) to retain and instruct counsel without delay and to be informed of that right

This begs the question – when is it an arrent/ detention and when is it a restraint?

R v. Grant
Sets out 3 factors in determining if police have detained the individual?
a. How would the circumstances of the encounter b/w individual and police have been
reasonably perceived by the individual i.e. were the police providing general
assistance or singling out the individual for focussed investigation?

30
 In R. v. Lafrance A warrant to search an individual’s house would be a targeted
investigation.
b. What was the nature of the police conduct during investigation.
Specifically, in totality of the circumstances, the police actions, use of physical
contact, presence of others and duration of encounter to be considered. In R. v.
Lafrance, the continued presence and supervision of a police officer for the duration
of the lengthy encounter contributed to perception of having been detained.
c. What was the individual’s age, physical stature, minority status and level of
sophistication? In R v. Lafrance, the accused’s youth and Indigenous background
weighed in favour of a finding of detainment.

Court made it clear in both Grant and Suberu that Sec 10(b) rights arise at the moment of
detention and for right to counsel to be effective detainees must have access to this advice
before they have to answer questions or are asked to provide evidence.

The purpose of s. 10(b) is to inform the detainee of his rights and

obligations (“informational component”), but also, to allow him to
obtain advice as to how to exercise those rights
(“implementational component”). (R. v. Sinclair).

Sec 10(b) imposes an obligation on the police to provide detainees with a reasonable
opportunity to exercise their right to retain and instruct counsel without delay. This includes
providing facilities like phone. Further – police must stop questioning or attempting to elicit
information from a detainee until he has had a reasonable opportunity to retain and instruct
a counsel.

SC has said that the duty to facilitate contact with counsel includes the duty to offer suspect
the use of the phone. And they have to stop attempting to elicit information.

In R v. Lefrance – SC further elaborated on nature of right to counsel –

While a single consultation with lawyer is constitutionally sufficient, for the purposes of
satisfying sec 10(b), the implementational component of sec 10(b) imposes on the police a
further obligation to provide a detainee a reasonable opportunity to consult a counsel again
if there is reason to question detainees understanding of their rights.
In R. v. Lefrance, there were clear signs to the police that legal advice received either
incorrect or not understood by detainee how sec 10(b) rights applied in circumstances. By
refusing detainee another opportunity to consult counsel – police violated sec 10(b) rights.

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RIGHT TO REMIAN SILENT AND RIGHT AGAINST SELF INCRIMINATION

Section 7 and sec 11(c) accused has these rights

s. 7 and s. 11 protects an Accused’s right from self-incrimination and their right to silence.
The right to silence is protected as a principle of fundamental justice.

R. v. Hebert, [1990] 2 S.C.R. 151

Facts: Arrested for robbery. Informed of right to counsel and given opportunity to connect
with counsel. Lawyer asked him to remain silent and he did not make any statement to the
police.
Officer engaged in conversation with him and during this he made statements incriminating
himself in the robbery.
SC said that this had violated his right to silence because he was deprived of a meaningful
choice to remain silent. IF a suspect chooses to talk it’s up to him. You can’t force someone
to speak and also can’t stop them from speaking if they chose to do so.
The issue here – Herbert did not know he was talking to an undercover officer. If he had
known he would not have spoken. So, choice to speak was not a meaningful one. The police
used trickery to deprive him of right to silence, and his ability to make that meaningful
choice that his statements were excluded as evidence.
So statements made not knowingly to police after your right to silence is exercised is not
admissible.

R v. Singh [2007] 3 scr 405

Facts: Singh accused of shooting at a pub. He was identified as shooter.
He was arrested and given waring of sec 10(b) and given opportunity to speak to lawyer.
After speaking to lawyer, Singh came back and told the police that he did not want to make
a statement.
Police then interviewed – Singh continued to deny involvement and continued to assert
right to silence 18 times. Eventually he broke down and admitted he was in pub at time of
shooting. And identified himself in photos. ‘AT trial he argued that his right to silence had
been breached.
The SC held that no violation. His statement to police were voluntary. He was not denied the
silence and was not tricked.
He had an operating mind and chose to say what he said.
It was asserted that police persuasion does not breach the right to silence. The police can
persuade short of denying the accused the right to choose.

Summary: If an individual exercises their right to silence, police cannot use trickery to illicit a
confession (R. v. Hebert). The statements must be made voluntarily to the police (Boudreau
v. The King). Police persistence is not sufficient to negate voluntariness (R. v Singh).

32
CONFESSION
Before the Charter, Courts used common law to exclude confessions that were involuntary.
Now with adoption of charter, if suspect confesses to the police and they want to argue that
confession was unlawfully obtained and violated their charter right u/s/ 7 the issue with
court is going to be whether the confession was voluntary.

Voluntary confession was articulated in case

BOUDREAU v. King [1949] 2 scr 151. ‘

The question to be asked is - was the confession voluntary. Test to determine if confession
voluntary was developed in case of R v Oickle, 2000 SCC 38
If there is a confession, you need to pass 4 part test laid down in this case –
a. Was the confession induced by a threat or promise
b. Did an atmosphere of oppression compel suspect to speak to bring ordeal to an end
c. Did the suspect lack an operating mind eg drunk?
d. Did police use trickery?

RIGHT TO BAIL

U/s 11(e) detainee has right not to be denied reasonable bail without just cause

However, if there is a risk that person may commit another crime then they can be denied
bail.
They can also be denied bail if accused is going to flee – which would be an interference
with administration of justice/
Burden on crown to show that the detention is necessary in the circumstances.
In R. v. Morales, [1992] 3 S.C.R. 711
SC said that the bail system does not function properly if individuals who are released can
go and commit more crime when out on bail.

Public safety at risk if he is released.

In R. v. St. Cloud, 2015 SCC 27

Expanded scope of detention and held accused without bail.
88 In conclusion, if the crime is serious or very violent, if there is overwhelming evidence
against the accused and if the victim or victims were vulnerable, pre-trial detention will
usually be ordered.

This decision does not mean there will be a flood of accused that will be denied bail
In St cloud, the Crown’s case against the accused was overwhelming. It included the video
footage from buss of him assaulting bus driver and the crime was of violent nature.

33
Although scope of pretrial detention is broadened , it is still limited to cases where there is
SIGNIFICANT EVIDENCE and SAFETTY OF PUBLIC AT RISK.

SC recognized that sec 11(e) rights in the R. v. Antic, 2017 SCC 27

Fact: Charged with drug and firearm offence. Denied bail despite offering assurance because
he was considered to be a flight risk. Sought bail review in 3 separate instances. 3 rd time
challenged the constitutionality of section 515(2)(e) of Criminal Code claiming it infringes s.
11(e) of Charter (right to bail)
SC said that the bail judge erred. Sec 515(2)(e) did not have effect of denying accused bail.
It was bail judges misapplication of the bail provision that resulted in denial of bail

A person has a right to bail unless that person poses a risk to

the public (R. v. Morales). The court will consider the
seriousness of the crime, the evidence against the Accused,
and if it was a violent crime (R. v. St. Cloud).

DISCLOSURE OF EVIDENCE
As a principle of fundamental justice, s.7 affords the Accused the right to make full answer
and defence.
The accused needs to have access to the evidence the crown intends to rely on. This is
because it will be impossible to make a defence if the accused does not know the case the
crown intends to rely on.

All evidence must be disclosed to the defence even if crown does not intend to use it. – this
is the principle under lying the right to make full answer and defence
This is a very high threshold to meet for crown.
Landmark case for disclosure of evidence - R. v. Stinchcombe, [1991] 3 S.C.R. 326
In order to make a full and answer and defence, there are wide-ranging disclo- sure
requirements imposed on the Crown

THE SAME STANDARD DOES NOT APPLY TO THE DEFENCE

Because accused has right to make full answer the Crown’s obligation is sweeping. All
material including evidence of marginal value should be disclosed even if crown does not
intend to use.

Consequences for not disclosing can be significant for the crown’s case and can have actual
procedural implications. – It can result in lengthy delays which can under sec 11(b) result in
stay of proceedings which is not ideal for crown.
‘Also- question – what happens if material in possession of 3 rd party and 3rd party has privacy
issue in material? This was the issue in R. v. O’Connor, [1995] 4 S.C.R. 411

34
Fact: Accused was a headmaster- 4 students complained of sexual assault – complaints
documented in medical and school records – case heard in 1995 – 35 years after alleged
assault occurred – O’Connor’s lawyer requested the material and records from the school
complaints – as defence they wanted to review – complainant said they cant show record as
the have privacy interest – complainant’s psychologist also said no as they are privileged
material – crown tried to argue that records were protected by privilege –
The SC set out 2 part test for evidence that should be disclosed by the crown to defence
where a 3rd party claims privacy interest (eg medical record)
1. Defence must file written application to the judge to get the record. They have to
tell the judge why information in record is likely to be relevant. Para 19
2. Then Judge looks at case and asks is there is a reasonable possibility that this
information is probative to the issue at trial? And the competence of a witness to
testify – if this is YES then judge can order production of record to court
The judge then looks at documents and performs a balancing test – he considers interests of
the persons who have a claim in privacy interest against the right of accused to make full
answer as well as the full probative value of the records to an issue at trial.
Judge must determine if the records weigh in favour of disclosure or not- how important are
the records? How strong is the privacy right versus right of accused to make answer/
defence and for the accused to know the evidence against them
30 We agree with L'Heureux-Dubé J. that "upon their production to the court, the judge
should examine the records to determine whether, and to what extent, they should be
produced to the accused" (para. 153). We also agree that in making that determination, the
judge must examine and weigh the salutary and deleterious effects of a production order
and determine whether a non-production order would constitute a reasonable limit on the
ability of the accused to make full answer and defence. In some cases, it may be possible for
the presiding judge to provide a judicial summary of the records to counsel to enable them
to assist in determining whether the material should be produced. This, of course, would
depend on the specific facts of each particular case.
31 We also agree that, in balancing the competing rights in question, the following factors
should be considered: "(1) the extent to which the record is necessary for the accused to
make full answer and defence; (2) the probative value of the record in question; (3) the
nature and extent of the reasonable expectation of privacy vested in that record; (4)
whether production of the record would be premised upon any discriminatory belief or
bias" and "(5) the potential prejudice to the complainant's dignity, privacy or security of
the person that would be occasioned by production of the record in question" (para. 156).
32 However, L'Heureux-Dubé J. also refers to two other factors that she believes must be
considered. She suggests that the judge should take account of "the extent to which
production of records of this nature would frustrate society's interest in encouraging the
reporting of sexual offences and the acquisition of treatment by victims" as well as "the
effect on the integrity of the trial process of producing, or failing to produce, the record,
having in mind the need to maintain consideration in the outcome" (para. 156). This last

35
factor is more appropriately dealt with at the admissibility stage and not in deciding
whether the information should be produced. As for society's interest in the reporting of
sexual crimes, we are of the opinion that there are other avenues available to the judge to
ensure that production does not frustrate the societal interests that may be implicated by
the production of the records to the defence. A number of these avenues are discussed by
the Nova Scotia Court of Appeal in R. v. Ryan (1991), 69 C.C.C. (3d) 226, at p. 230:
As the trials of these two charges proceed, there are a number of protective devices to allay
the concerns of the caseworkers over the contents of their files. The trial judge has
considerable discretion in these matters. It is for the trial judge to determine whether a ban
shall be placed on publication. It is for the trial judge to decide whether spectators shall be
barred when evidence is given on matters that the trial judge deems to be extremely
sensitive and worth excluding from the information available to the public. High on the list
is, of course, the matter of relevance. Unless the evidence sought from the witness meets the
test of relevancy, it will be excluded. The trial judge is able to apply the well-established rules
and tests to determine whether any given piece of evidence is relevant.

If there is a third party interest in the records, the trial judge

will look at the records and weigh the interest of the parties
claiming the privacy interest with the right of the Accused to
make a full answer and defence and the probative value of the
records to an issue at trial (R. v. O’Connor).

EVEN if there is no privacy interest, the privacy of the parties can still be protected from
public, - public van, moving spectators can be employed to protect?

R. v. McNeil, 2009 SCC 3 All records sought by the de- fence must be disclosed,
unless they are privileged (R. v. McNeil).

Expands on principles of O’Connor and R. v. Stinchcombe.

The arresting officer who was the primary officer in this case was himself a drug user and
being prosecuted.
Defence wanted the police records to question the arresting officer’s untrustworthiness at
trial. And the Arresting officer said he had a privacy interest –
SC affirmed Stinchcombe principle – any records that are relevant to accused’s case – unless
privileged need to be disclosed and these disclosure obligations are sweeping. ALL
RELEVANT INFO MUST BE DISCLOSED
SC also said – if there is a 3 rd party asserting interest in information then O’Connor test must
be undertaken.
Although arresting officer has privacy interest in the police disciplinary record, on a balance
the records should be disclosed because relevant to case – investigating officer has duty to

36
hand over all relevant information to crown and defence has to make an O’connor
application to get the record.
The police had wrongly withheld from crown so lack of information not necessarily the
Crown’s fault. Police and crown went hand in hand and supposed to ensure handover of all
relevant information.

27 Stated briefly, the procedure to be followed on an O'Connor application is the following.


o (1)The accused first obtains a subpoena duces tecum under ss. 698(1) and
700(1) of the Criminal Code and serves it on the third party record holder.
The subpoena compels the person to whom it is directed to attend court
with the targeted records or materials.
o (2)The accused also brings an application, supported by appropriate
affidavit evidence, showing that the records sought are likely to be
relevant in his or her trial. Notice of the application is given to the
prosecuting Crown, the person who is the subject of the records and any
other person who may have a privacy interest in the records targeted for
production.
o (3)The O'Connor application is brought before the judge seized with the
trial, although it may be heard before the trial commences. If production is
unopposed, of course, the application for production becomes moot and
there is no need for a hearing.
o (4)If the record holder or some other interested person advances a well-
founded claim that the targeted documents are privileged, in all but the
rarest cases where the accused's innocence is at stake, the existence of
privilege will effectively bar the accused's application for production of the
targeted documents, regardless of their relevance. Issues of privilege are
therefore best resolved at the outset of the O'Connor process.
o (5)Where privilege is not in question, the judge determines whether
production should be compelled in accordance with the two-stage test
established in O'Connor. At the first stage, if satisfied that the record is
likely relevant to the proceeding against the accused, the judge may order
production of the record for the court's inspection. At the next stage, with
the records in hand, the judge determines whether, and to what extent,
production should be ordered to the accused.

The question of privilege is beyond the scope of this appeal. However, I will elaborate on
each stage of the O'Connor test for production of third party records in turn.
5.1 First Stage: Screening for Likely Relevance
5.1.1 Burden is on the Applicant
5.1.2 Burden on Applicant is Significant but not Onerous

37
 Likely Relevance Under the Common Law Regime

5.2 Second Stage: Balancing the Interests at Play

34 If likely relevance is demonstrated by the applicant, the third party record holder may be
ordered to produce the documents for inspection by the court in order to determine whether
production should be ordered to the accused.

Guarding Against Unnecessary Intrusions Into Privacy Interests

DISCLOSURE OF EVIDENCE AND CRC AMENDMENT

In 2018 parliament introduced section 278.92 and 278.94 to restrict defence counsels use of
complainant’s personal records such as medical to attach character of complainant
This was to remove barriers that deter complainants from coming forward. The 2018
amendment introduced a 2 stage process for the introduction of record in sexual assault
trials.
Stage 1 – judge determines whether the proposed evidence submitted for consideration by
the accused meets certain threshold requirements
If threshold is satisfied it moves to next stage
2nd stage – Judge hold hearing to determine if evidence is admissible.

R. v. J.J., 2022 SCC 28 - SC said that these 2018 reforms do not breach section 7 disclosure
rights or section 11(d) rights even though the new provision restricted what could be
disclosed by the accused, the SC found that they still embody fundamental principle of
admissibility of evidence – relevant evidence should be admitted and irrelevant evidence
should be excluded subject to the qualification that probative value of evidence must
outweigh its potential prejudice to the conduct of a fair trial as was underscored in the
decision an accused’s right to fair trial does not include an unqualified right to to have all
evidence in their defence submitted. The right to make full answer in defence will only be
violated is accused is prevented from adducing relevant material the probative value of
which is not outweighed by its prejudicial effect.

s. 11(d) innocent until proven guilty

Accused has right to be assumed as innocent and the role of crown is to establish the guilt
BEYOND REASONABLE DOUBT.
What does BEYOND REASONABLE DOUBT mean?
Explained in case of
R. v. Lifchus, [1997] 3 S.C.R. 320
R. v. Starr, [2000] 2 S.C.R. 144

38
R. v. Lifchus, [1997] 3 S.C.R. 320 and R. v. Starr, [2000] 2 S.C.R. 144

In Lifchus –
Trail judge tried to instruct jury about what it means “BRD” and he said its how you use in
an ordinary sense.
The SC said that this is INCORRECT – the term does not arise in ordinary language and it’s a
legal term that has special meaning.
Model charge of how to direct the Jury:
Suggested Charge
39 Instructions pertaining to the requisite standard of proof in a criminal trial of proof
beyond a reasonable doubt might be given along these lines:
o The accused enters these proceedings presumed to be innocent. That
presumption of innocence remains throughout the case until such time as the
Crown has on the evidence put before you satisfied you beyond a reasonable
doubt that the accused is guilty.

o What does the expression "beyond a reasonable doubt" mean?

o The term "beyond a reasonable doubt" has been used for a very long time
and is a part of our history and traditions of justice. It is so engrained in our
criminal law that some think it needs no explanation, yet something must be
said regarding its meaning.

o A reasonable doubt is not an imaginary or frivolous doubt. It must not be

based upon sympathy or prejudice. Rather, it is based on reason and
common sense. It is logically derived from the evidence or absence of
evidence.

o Even if you believe the accused is probably guilty or likely guilty, that is not
sufficient. In those circumstances you must give the benefit of the doubt to
the accused and acquit because the Crown has failed to satisfy you of the
guilt of the accused beyond a reasonable doubt.

o On the other hand you must remember that it is virtually impossible to prove
anything to an absolute certainty and the Crown is not required to do so.
Such a standard of proof is impossibly high.

o In short if, based upon the evidence before the court, you are sure that the
accused committed the offence you should convict since this demonstrates
that you are satisfied of his guilt beyond a reasonable doubt.

39
Decision in Lifchus was reaffirmed in Starr:
Trial judge had instructed Jury the term “BRD” had no special connotation or meaning that
is peculiar to the law.
SC said BRD standard has a special legal significance and requires significantly higher
quantum of proof than the balance of probabilities.
Failure of trial judge to sufficiently inform jury of the importance of BRD did not satisfy the
Lifchus standard.

IN R. v. J.H.S., 2008 SCC 30

The SC dismissed any notion of a direction to the Jury needing to follow a precisely worded
and formulated instruction.

The test for a judge instructing a jury is whether a Jury could not have
In my view, with respect, the reasoning of the majority brushes uncomfortably close to the
"magic incantation" error. At the end of the day, reading the charge as a whole, I believe the
instruction to this jury satisfied the ultimate test formulated by Cory J. in W. (D.) as being
whether "the jury could not have been under any misapprehension as to the correct burden
and standard of proof to apply" (p. 758).
If there is no misapprehension or realistic possibility of misunderstanding then the
instruction will be sufficient. Conversely, it is not possible to prove something with absolute
certainty and the crown is not required to prove ABSOLUTE CRETAINITY. if based on the
evidence you are sure the accused committed the offence then you should convict – as you
are satisfied of guilt beyond a reasonable doubt. Based on evidence you may not be 100%
sure they are guilty but you are certain they are guilty and that is sufficient.

40
ACTUS REUS

Actus reus along with Mens Rea is the most important element that must be established
beyond a reasonable doubt by the crown
Actus Reus element is in effect the required ACT of the offence. For accused to be held liable
it must be shown that the accused committed the ACT or OMMISSION this must be proven
by the crown beyond a reasonable doubt. It is more than simply an act or omission. It
comprises of multiple elements that together constitute the guilty Act. It requires a
physically voluntary Act or Omission.

With some offences – provisions within the CODE will set out certain prescribed certain
circumstances for each offence. Different offences will have different requirements for the
actus reus.

Each of these components within the prescribed components is central in defining the Actus
Reus of a specific offence. To be convicted of an offence in Canada, the accused must be
prohibited by statute. And in order to establish liability for an Act or Offence – it must be
committed in a specific way as mentioned in the statute.

This is illustrated by cases”

R. v. D.(J.), (2002 CANLII 16805 (Onc. C.A.)
This is an example of how court will look specifically to the wording of the actual provison in
order to determine whether the actus reus has been made out.
Fact: Accused break and enter- running away from police- came to Bernanrd house (his
friend)- said pretend I live here- ran to exit by backdoor, caught by police – JD charged with
forcibly entering house – Crown looked at both French and English version of sec 72 of CRC.
Both versions equally authoritative – Ontario court looked at wording in each language
which was diff,.
In English – it says its forcible entry “when person enters property”

In French it says “when person takes possession”

Based on French working court said it seems to imply simply more than just entering the
property. It implies taking physical control over a place by threat or force. No such physical
control was present. JD was invited by person who knew him and had lawful authority to
grant JD entry. SECOND – JD was not trying to take control of house but trying to run away
from the police. So according to French interpretation the Actus Reus element of offence
was not satisfied.
This is an example of how the wording of statute can dictate whether an offence has been
made out or not. The other important principle to be aware of is that the actus reus and

41
mens rea must come together – this is from latin principle – An act is not guilty unless there
is also a guilty mind.
So an accused must know what they are doing or going to do is wrong.

Both the mens rea and actus reus must present during the commission of an offence. This is
called contemporaneity (for example, Fagan v Metropolitan Police Commissioner).

They don’t have to co-exist throughout the offence – but should come together at some
point. This concept of contemporaneity exemplified in
Fagan v Metropolitan Police Commissioner, [1969] 1 QB 439
Fact: Fagan was reversing car – constable directed him to move to kerb for questioning –
Fagan irritated by request drove forward on to officers foot.- officer asked him to get off –
Fagan said “Fuck you..you can wait” and shut engine – officer kept protesting - eventually he
got off officer’s foot –
Not relevant whether he knew he was on officers foot or intended to drive on to his foot.
What mattered was when Fagan said “” and turned off ignition, it was obvious he knew he
was on his foot. When officer said to get off and Fagan said no – that was when the assault
was proven. And court said it is not necessary that Mens rea be present at the inception of
Actus Reus. They can be imposed onto an existing Action. Initially Fagan’s action may have
been unintentional. But moment he became aware that he was on foot and decided to
REMAIN and switched off ignition was when intent of offence was clearly made out.

Another case that exemplifies principle of contemporaneity is English court of appeal case:
R v Miller [1982] UKHL 6
Fact: A squatter was squatting in someone’s house – once he was smoking cigarette and fell
asleep – woke up and found mattress smouldering – instead of putting out fire he went into
another room and back to sleep and house burnt down – At trial he said he did not intend
house to burn down- Court said his falling asleep with the lit cigarette was an unintentional
act – this was followed by the INTENTIONAL and reckless omission to rectify. – In the court’s
eyes the whole conduct from time he lit cigarette till he left smouldering mattress and
moved to room is seen as one act – and we can see intention is there – he did nothing to put
fire out – he just said oh well and left.
So his omission to Act on fire was sufficient Mens rea component. And that is the principle
of contemporaneity.

NEXT we look at R v. Gunning [2005] 1 SCR 627

This shows the importance of giving the jury the authority to decide whether the crown has
met their burden and proved actus reus BRD.
Gunning said victim has assaulted him and refused to leave which is why he grabbed
shotgun to get him to leave and gun discharged accidently – Issue at trial – is shooting
intentional or accidental ?

42
Trail judge instructed Jury that the offence of careless use of firearm was made out and
accused guilty of 2nd degree murder. Court of appeal upheld conviction - SC said in decision
that it’s a basic principle of law that the jury has to decide whether offence is committed
based on the facts. If the Jury has a reasonable doubt to that question then accused entitled
to be acquitted.
Appeal was allowed the conviction was set aside and new trial was ordered.

The actus reus is a question of fact, not law. The trier of fact
decides whether the elements of the actus reus has been
satisfied.

 Voluntariness
This is an important element of Actus reus,
This is the physical voluntary act or omission in the commission of a crime.
It is required that the Accused commit the actus reus
voluntarily. The actus reus must be the result of a willing
mind at liberty to make a definite choice or decision (R. v.
King).

R v King, [1962] SCR 746

The voluntariness element of Actus reus discussed.
Given anaesthesia at dentist – told not to drive – did not comprehend – drove and ran into
another car. King charged with impaired driving – Court Said - The actus reus must be the
result of a willing mind at liberty to make a definite choice or decision. Here king’s mind was
impaired heavily because of the anaesthetic he was given. He did not make a willing choice
to drive. And he was not drunk. He did not have the will power to do an act prohibited by
law and he was found not guilty.

Omission
In Canadian law an omission will only form an actus reus if the individual had a specific duty
to act and failed to do so.
Unlike TORT there is no general duty of care in Canadian CR law.
There is no good Samaritan law- no duty to offer assistance unless required by legislation
However there are some limited situations where a person has specific duty of care to the
activity that they are performing.

There is a narrow list of circumstances where duty to assist – eg 215. Anyone who
contravenes the duty then will be held liable for omission.
But other than that no general omission requirement

43
Example – a life guard has a legal duty to make reasonable effort to save drowning person
but an ordinary person does not. SO somebody will be liable for an omission only if they
have a specific legal duty to Act, and these specific duties are prescribed in the code.

CRC omissions include

215 – failure to provide necessaries of life for child, spouse, sick or mentally disabled or
unable to care for themselves.
217 – Everyone who undertakes to do an act is under a le-gal duty to do it if an omission to
do the act is or may be dangerous to life.

218- you cannot abandon a child.

129(b) Every one who …..b) omits, without reasonable excuse, to assist a pub-lic officer or
peace officer in the execution of his duty in arresting a person or in preserving the peace,
after having reasonable notice that he is required to do so, or…
You cannot fail to assist a police officer when requested

Sec 242 A female person who, being pregnant and about to be delivered, with intent that
the child shall not live or with intent to conceal the birth of the child, fails to make provision
for reasonable assistance in respect of her de-livery is, if the child is permanently injured as
a result thereof or dies immediately before, during or in a short time after birth, as a result
thereof, guilty of an indictable offence and is liable to imprisonment for a term not
exceeding five year.
YOU CANNOT FAIL TO TAKE ASSISTANCE IN CHILDBIRTH

350 – failure to stop after accident

Other than these there is no legal duty to Act,

In order to be held liable for omission the crown has to establish that you failed to follow
through with one of these specified acts. The first case –

R. v. Peterson, [2005] 2005 CanLII 37972 (Ont. C.A.)

Sec 215 at question
In this case Peterson lived with accused His som. Father had Alzheimer’s and unable to care
for himself. Son did not care for father who lived in his own part of the house. Father
frequently found himself locked out of house, days without food, no proper clothing in
winter, his area of house not kept clean.
Neighbours took father in to feed/ clothe- son charged with offence under sec 215 and
sentenced. 6 months in prison for neglect of father.
23 The trial judge correctly stated the three essential ingredients that the Crown had to
prove beyond a reasonable doubt to show that Dennis was under lawful duty to provide the

44
necessaries of life to his father. The duty arose only if "his father was (a) a person under his
charge (b) ... unable by reason of age, illness, mental disorder or other cause to withdraw
himself from that charge, and (c) ... unable to provide himself with the necessaries of life".
24 After making his findings of fact, the trial judge concluded that Arnold was in his son's
charge.

AT 42- court talked about exercise of control and dependency. The father was dependant on
son and Sons liability was imposed on objective basis and was reasonably foreseeable that
sons failure to provide necessaries of life would endanger the life and health of father

42 Used in these contexts the word "charge" connotes, among other things, the duty or
responsibility of taking care of a person or thing. Similarly, one of the definitions of charge in
Black's Law Dictionary, 8th ed. (St. Paul, Minneapolis: West Publishing, 2004) is "to entrust
with responsibilities or duties e.g. to charge the guardian with the ward's care". What the
definitions have in common is the exercise of an element of control by one person and a
dependency on the part of the other.
In R. v. Peterson, the son of a man who was in need of care
failed to provide the necessaries of life to his elderly father
and was sentenced for omitting to provide this care.

NEXT CASE
R. v. Browne, (1997), 1997 CanLII 1744 (Ont. C.A.)
Both drug dealer – police on way – greener swallowed a plastic bag of cocaine – went back
to Brown’s house – there Greener began overdosing – Brown said he will take her to
hospital – called taxi – waited 10/ 15 mins – put her in and told driver to take her to hospital
– Taxi took 15 mins to get to hospital where she was pronounced dead
At trial the question was – did Brown give an undertaking that gave rise to a legal duty
within meaning of sec 217?
When he told her he will take her to hospital did it crate duty of binding nature under 217?
The SC said –
In my view, the evidence does not disclose any undertaking of a binding nature. These were
two drug dealers who were used to swallowing bags of drugs to avoid detection by the
police. There was no evidence that the appellant knew that Audrey Greiner was in a life-
threatening situation until 2:00 a.m., when he immediately phoned for a taxi. His words to
her at that time -- "I'll take you to the hospital" -- hardly constitute an undertaking creating
a legal duty under s. 217. He said he would take her to the hospital when he saw the
severity of her symptoms, and he did. There is no evidence either that a 911 call would have
resulted in a significantly quicker arrival at the hospital at that hour, or even that had she
arrived earlier, Audrey Greiner's life could have been saved.
Did not create a legal duty u/s 217.

45
Court does not specify what would constitute a binding undertaking and what more could
brown have done to express to Greener his intent? Should he have called ambulance?
SC said there is no evidence that a 911 call would have resulted in a quicker arrival to
hospital or evidence that life would have been saved?
SO we need to ask if this is not an undertaking then what would constitute an undertaking
under 217????
In, R. v. Browne, ‘I’ll take you to the hospital’ was not an
undertaking constituting a legal duty for the purposes of s.
217.

These are omission offences in code. Impose duty and consequences for failure to discharge
said duty. But again unless the duty is specified in code a person cannot be held criminally
liable for an omission.

CONSENT

Another factor to be considered in context of actus reus is consent. This is codified in

Criminal Code, s 265(3).

R. v. Jobidon, [1991] 2 S.C.R

Fact: Accused in fight at bar- bartender kicked them out – took fight outside – victim
knocked out and he died – Jobidon charged with unlawful act – manslaughter – at trial
argued that victim consented -
Sec 265(3) lists circumstances where NO consent is obtained. And sec 14 states that a
person CANNOT consent to have death inflicted upon them. NONE of consent related
sections mention a consenting fight.
SC looked at common law and adopted principle that consent cannot be given where
serious bodily harm or death may result in context of fist fight or brawl.

R. v. Mabior, 2012 SCC 47

Fact: Accused lived in a party house in Winnipeg – people would come to party including
young women – he had sex with several and did not mention he was HIV positive – they
would sometimes use protection but haphazardly – no one contracted HIV – but 8 women
came forward saying they would not have had sex if they knew he was HIV positive –
women claimed they were sexually assaulted because u/s 265(3)(c) “fraud” was present and
this vitiated consent. – 265 also applies to sexual assault.
Under 265(3) if consent obtained by application of force, threat, fraud or exercise of
authority then CONSENT IS VITIATED.
SC said – A person may be found guilty of aggravated sexual assault if he fails to disclose
HIV-positive status before intercourse and there is realistic possibility HIV will be
transmitted

46
The absence of a realistic possibility of HIV transmission precluded a finding of fraud
vitiating consent under s. 265(3) (c). In the case at hand, no realistic possibility of
transmission was established when the accused had a low viral load and wore a condom.

What constitutes a realistic possibility of transmission?

Research evidence looked at – people adhered to regime of antiretroviral treatment and
wore high quality latex condoms would be at very low risk of transmitting disease – non
disclosure only becomes criminal only if realistic possibility of transmission.
In this case accused not guilty – as no realistic possibility.

In some circumstances, consent will negate the actus reus,

absolving the Accused of criminal liability (R. v. J.(D.))

s. 14 Criminal Code states that a person cannot consent to

having death inflicted on them. The Supreme Court of Canada
has held that a person cannot consent to serious bodily harm
or death in the context of a fight (R. v. Jobidon). In cases
where an Accused falls to disclose that they are HIV positive,
consent is only vitiated where there is a realistic possibility of
transmission (R. v. Mabior). A person can only consent to
sexual activity if they are con- scious throughout that activity
(R. v. J.A.).

CAUSATION
Important element of actus reus.
There are two tests that are often referred to in Canadian criminal law: (1) the ‘substantial
and operating cause test’; and (2) the ‘reasonable foreseeability Test’. These tests try and
take into account factors that are not always within the direct control of the Accused.
This is to afford a level of fairness to accused – if he did not have control over all external
factors then we may not want to hold them responsible for all consequences – depending
on whether result was foreseeable
Key question – was accused involved in a situation where consequence was reasonable
foreseeable or completely unforeseeable.

CR law treats this as Black and White.

The Substantial and operating cause test states that if accused participation meets
threshold requirement amounting to substantial contribution to the harm, then accused will
be held to have caused the event.

47
This is the approach taken in manslaughter cases where there is more than 1 causative
factor and question is whether the accused’s action were the substantial underlying case for
the event.
- Eg – accused gets in fight with victim, knocks him out, leaves him on street in winter
and victim freezes to death – accused will be liable if their action underlying cause of
the death.
This can be phrased as a BUT FOR Test
But for the act of the accused, would the harm have occurred?

If the accused’s participation meets the substantial underlying threshold and was the
underlying cause of the harm the accused will be liable regardless of what other
circumstances came into play.
The reasonable foreseeability test is also used in context of intervening events. The question
here is whether the harm suffered by victim was a reasonably foreseeable consequence of
the accused’s action.

Thin SKULL Rule is an important consideration for causation. This basically states that you
take your victim as you find them. This means that accused cannot use the victim’s defect as
a defence – cannot say the victim had a condition which made them more susceptible to
harm than average person.
There are 2 scenarios
a. Pre-existing condition due to which victim more susceptible to injury
than avg person.
R. v. Smithers).
b. Victim decides not to rely on medical assistance that allows them to
live – cases where person refuses medical treatment on religious
ground.

Just because the injuries the victim suffered may have been
unexpected and unforeseeable, does not absolve the Accused
of liability. One who assaults their victim must take him as he
finds them (R. v. Smithers). In Smithers, the Accused kicked
the victim in the chest. Unknown to the Accused, the victim
had a malfunctioning epiglottis, which contributed to the
death of the victim.

There are two scenarios where this arises: (1) where the
victim is suffering from a pre-exist- ing condition that makes
them more susceptible to the injury than an average person;
and
(2) where the victim decides not to rely on medical assistance.

48
R. v. Smithers, [1978] 1 S.C.R. 506
Fact: Smithers (black) playing hockey against victim – Cobey hurling racial slurs throughout –
after game fight in parking lot – Smithers teammate held Cobey – smithers kicked him in
chest – cobey collapsed, stopped breathing- died. COBEY had a malfunctioning epiglottis –
aspirated vomit into lung and choked – suffocating to death -
SC applied Thin Skull test – this may have been unforeseeable but that does not absolve
accused of liability – one who assaults victim must take him as he finds them.
It was immaterial that the death was in part caused by a malfunctioning epiglottis to
the malfunction of which appellant may, or may not, have contributed. A person
commits homicide when directly or indirectly, by any means, he causes the death of a
human being and it was therefore no defence that appellant did not expect that
death would ensue. Finally there could be no criticism of the judge's charge on self-
defence. For some considerable time before the incident appellant alone was the
aggressor.
Using But for test we can say – but for the kick, cobey would not have died.

2nd scenario- not relying on medical assistance

_____________________
In an English court of appeal case – victim refused to take blood transfusion even though it
would have saved their life. On religious ground (Jehova’s witness) – she was stabbed with
knife and had life threatening wound – took to hospital told she needs surgery and
therefore transfusion.
She refused to transfusion and so died.
BALAow argued he did not kill her – she killed herself – had she undergone surgery she
would have survived. Her decision not to have surgery resulted in death.
English court of appeal held him liable as he was the substantive cause of her death.
BUT FOR the stab wounds she would never have needed transfusion. Her religious beliefs is
in a sense akin to her THIN SKULL and he will take victim as he found them. As long as she
died due to stab wounds and no other act intervened the chain of causation, he was the
substantial cause of death.

The causation test in a criminal charge for manslaughter or

murder is ‘a contributing cause of death outside the de
minimus range.’ However, for second degree murder, it is
better to use positive terms such as ‘significant contributing
cause.’ (R. v. Nette).

REASONABLE FORESEEABILITY – INTERVENING ACT

Next consideration with regard to causation is reasonable foreseeability

49
This comes into play when talking about intervening acts (novus actus interveniens – a new
intervening act).

Unforeseen causes may intervene and break the chain of causation between the
Accused’s action and a victim’s injuries. The intervening act must be something that
was not reason- ably foreseeable in the circumstances (R. v. Maybin).

The law recognizes that other events may intervene and break the chain between accused’s
action and the victim’s death. If the intervening act causes the death of the accused and
not the accused’s action, then the accused will not be liable.

How do we determine what the intervening act is?

Ask – was the intervening act abnormal and not reasonably foreseeable?

This was demonstrated in

R. v. Maybin, 2012 SCC 24
Fact: 2 bros in bar fight with victim – bouncer got involved- punched victim – he died-
accused argued that bouncer tried to kill victim. The SC affirmed Smithers test-
BUT FOR the act of brothers, would the victim have died – Ans – NO
Intervening act of Bouncers punch was not sufficient to break chain of causation. It was
reasonably foreseeable that in a crowded bar a bouncer will intervene in a fight. The harm
suffered flowed reasonably from conduct of accused and therefore significantly contributed
to the Victim’s death.
In Paget – below – foregone conclusion that police will return fire, also the act was caused
by accused’s own action and did not operate as an intervening act, Officer return firing was
directly caused by Pagett and it was reasonably foreseeable that pagett shooting at police
would cause police to return fire.

50
51
R. v. Reid, 2003 NSCA 104 R. v. Stratton, 2002 NSSC 103
Fact: Reid and Stratton at house party and in fight – one of victim in headlock and beaten
continuously till unconscious – people at party tried to give him CPR – all intoxicated –
botched CPR victim did not regain consciousness… He was sent to hospital where
pronounced dead.
Reid and Stratton charged with manslaughter –
DID Reid and Stratton cause death or due to botched CPR?
Evidence showed that beating suffered by victim was not serious and infact if he was left
alone- he would have come to. Instead the other people giving him CPR killed him. The
Botched CPR forced vomit in his lungs and he chocked and died.
- The recessitation could not be seen as a sufficient intervening act – it was open for
jury to conclude if he might have come to and open for jury to make that conclusion
- COURT OF APPEAL ORDERED A NEW TRIAL
-
Sec 225 If victim dies a s a result of immediate and proper medical treatment that was
applied in good faith, accused will not be able to rely on that treatment as an intervening
act. This makes sure that accused cannot make a claim that the doctor must have done
something resulting in death of victim.
SO – in some cases there are events that sever chain of causation – particularly where victim
would not have died otherwise. Such as in this case – Note that doc did not provide CPR but
drunk PPL – so sec 225 did not apply.

CAUSATION IN HOMICIDE CASES

The causation standard for first degree murder, second degree

Murder and manslaughter is ‘a significant contributing cause
of the victim’s death beyond the de minimis range’ (R. v.
52
 Smithers).

For murder under s. 231(5) Criminal Code, the causation

standard is higher. The test is ‘was the accused’s conduct a
‘substantial and integral cause’ of the victim’s death’ (R. v.
Harbottle).

SMITHERS – victim dies due to kick in chest and held smithers caused death and convicted
of manslaughter.
Test that was applied in this – was the kick a significant contributing cause of death beyond
the de minimis range?

WHAT IS MEANT BY de minimis range’ - too small to be significant.

Some trivial act such as slap cannot be considered to have caused as death.

While the medical experts did not speak in terms of absolute certainty the weight to be
given to that expert evidence was a matter for the jury which was entitled to consider all of
the evidence expert and lay. There was substantial evidence before the jury indicating that
the kick was at least a contributing cause of death, outside the de minimis range, and that
was all that the Crown was required to establish. It was immaterial that the death was in
part caused by a malfunctioning epiglottis to the malfunction of which appellant may, or
may not, have contributed. A person commits homicide when directly or indirectly, by any
means, he causes the death of a human being and it was therefore no defence that
appellant did not expect that death would ensue. 

R. v. Cribbin, [1994] O.J. No. 477

Fact: Victim suffered beating from accused – no life threatening injury – left him on road –
victim drowned in his blood.
Cribbin argued that he did not intend to kill – only beat him up.
Was the low threshold in Smithers -
In order to find that accused caused death you only need to satisfy that accused act
was a contributing cause beyond di minimus range

VIOLATIVE OF section 7?

Because the standard is so low there is a risk of convicting morally innocent people.

SC said morally innocent people will not be convicted due to element of fault- We don’t
need to only show causation as it only satisfies actus reus element – in addition to actus
reus you need to show some level of mental culpability – the mens rea.

53
60 This link between causation and the fault element, both being based on the same notion
of moral responsibility, leads me to conclude that the appellant's argument cannot succeed
in light of Creighton. Not only must I consider that the approval of Smithers by McLachlin J.,
although obiter, disposes of the issue; more importantly, I think that the articulation of the
fault element in unlawful act manslaughter in Creighton removes any danger that the de
minimis causation test casts the net so broadly as to risk punishing the morally innocent. As
the law of manslaughter stands, if a person commits an unlawful dangerous act, in
circumstances where a reasonable person would have foreseen the risk of bodily harm which
is neither trivial nor transitory, and the unlawful act is at least a contributing cause of the
victim's death, outside the de minimis range, then the person is guilty of manslaughter. Both
causation and the fault element must be proved beyond a reasonable doubt before the
prosecution can succeed. Combined in that fashion, both requirements satisfy the principles
of fundamental justice in that any risk that the de minimis test could engage the criminal
responsibility of the morally innocent is removed by the additional requirement of objective
foresight.

Crown must prove both elements beyond reasonable doubt. You need to prove objective
foresight of bodily harm which is neither trivial nor transitory in context of dangerous act –
DISCUSS MORE IN MENS REA.

Crown needs to prove BRD the fault element of objective foresight of bodily harm and
accused action was a contributing factor in event beyond a de minimus range.

If these 2 elements satisfied then conviction. As such no risk of convicting morally innocent.

R. v. Harbottle, [1993] 3 SCR 306

Court articulated a new SUBSTANTIAL CAUSE TEST for murder.

SC said this new test does not apply to all forms of murder but only to murder u/s 231(5) of
Code.
Harbottle with friends – kidnapped girl, confined and sex assault over time – then decided to
kill – strangled her – murder u/s 231(5) charge- Harbottle argued he did not satisfy the
elements of 231(5) as his participation was not sufficient to convict him using Smithers test.
SC distinguished Smithers and said a manslaughter case has to have a different element of
causation and the substantial case test from Smithers applies only in manslaughter case.
However for Murder u/s 231(5) the test must be very strict
The accused’s action must be a substantial and integral cause of the death of the victim. This
means that accused must play a very active role in death of victim. Often A physical role in
victims murder.

54
Harbottle had argued that all he did was hold legs and friend strangled – SC disagreed and
said Harbottle should be convicted of 1 st degree murder as he played a substantial role in
her murder.
Act must be a substantial and integral cause of death – HIGH Standard set because
conviction for murder carries most severe imprisonment in Canada – Life with no possibility
of parole for at least 10/ 25 years,

In R v Nette, [2001] 3 S.C.R 488

Harbottle test should only apply to constructive murder under 231(5).
If not under this section then Smithers standard is the authoritative test for causation.
Because wording of 231(5) specifies it will only apply to accused when death occurs while
committing another serious offence.

Fact: In NETTE_ old woman tied robbed, left- slowly suffocated to death.
Nette charged u/s 231(5) for forceful confinement and murder. He had committed murder
while unlawfully confining victim and so charged u/s 231(5) – SC said test from Harbottle
(Substantial and integral cause) should apply to constructive murder u/s 231(5) and
standard for causation for all other forms of murder is as per Smithers.

For 1st degree, 2nd degree and manslaughter cases Smithers test to be used. –
Was the accused’s conduct a contributing cause for victim’s death beyond the de minimis
range

For 1st Degree u/s 231(5) – apply Harbottle test.

2nd degree – is when person causes death and there was intent but it was not planned and
deliberate – all you need is objective foresight of death – either intent to kill or know that
likely to kill.

1st degree is planned and deliberate – takes staps to see plan through Premediated and
planned.

For 231(5) accused does not plan – but accused has subjective foresight of death, SO they
meet requirement of 2nd degree – and the kill while committing another serious offence u/s
231(5).
5) Irrespective of whether a murder is planned and de-liberate on the part of any
person, murder is first degree murder in respect of a person when the death is caused
by that person while committing or attempting to commit an offence under one of
the following sections:
(a) section 76 (hijacking an aircraft);
(b) section 271 (sexual assault);

55
 (c) section 272 (sexual assault with a weapon, threats to a third party or causing
bodily harm);
(d) section 273 (aggravated sexual assault);(e) section 279 (kidnapping and forcible
confinement); or
(f) section 279.1 (hostage taking)

The above plus a death elevates the homicide to 1 st degree murder – and so most severe
prison sentence – so causation standard is high

Causation and Aggravated offences

If accused is charge with offence that has aggravated consequence, crown must prove that
consequence BRD. This was at issue in

R. v. Williams, [2003] 2 S.C.R. 134

Fact: Convicted of aggravated assault as infected partner with HIV – was diagnosed but
had not told partner.
She then contracted HIV- on appeal – court substituted aggravated assault for attempted
aggravated assault – crown appealed to SC – upheld conviction of attempted aggravated
assault –
but the Crown was unable to prove an essential element of the actus reus,
Had they been able to prove that William infected after discovering he had HIV – the actus
reus would have been satisfied.
The absence of actus reus prevented Aggravated assault charge – no causal connection b/w
action and consequences.
Although unable to prove he had given her HIV after learning – able to prove that he had sex
after learning he had HIV but before telling and so Attempted aggravated assault satisfied.

56
MENS REA

Culpable state of mind, guilty mind or fault requirement – the 2 nd requirement for most
offences.
Intends to prevent convicting morally innocent. Those acting without fault or knowledge or
recklessness – to be liable for an offence the crown will have to prove that the required
degree of mens rea is met.
Many offences under code have the mens rea element that must directly relate to the actus
reus.
Example- property crimes – mens rea includes knowledge that accused is in possession of
stolen goods
Possession being the actus reus – and the KNOWLEDGE that goods in possession are stolen
was the mens rea.
To determine fault element – look at both common law principles and the Code. – In Canada
there is no uniform degree for fault requirement. Varying degrees of fault depending on
offence.
And CRC does not define each of the element that attaches to an offence – this definition
has been left upto courts to decide through jurisprudence. SO what this means that there
are some inconsistency b/w fault element for various offences.
The mens rea is the fault requirement of an offence. The mens
rea of an offence related to the actus reus. For example, with
property crimes, the Accused needs to be in possession of the
stolen property and have the knowledge that the goods were
stolen. Possession is the actus reus and knowledge is the
mens rea.

SUBJECTIVE AND OBJECTIVE MENS REA

Objective fault is the objective knowledge or intent – it asks question what a reasonable
person would have thought in the circumstances. Does not matter what accused knew at
that moment – only matters what a reasonable person would/ should have known in the
circumstances.

Subjective fault is that accused subjectively at the time had the knowledge or intent with
respect to the specific act that they committed.
It focuses on the actual state of mind of accused.
Practically – its impossible to know what any person is actually truly thinking at any given
time – but there is a principle in Canadian CR law that born out of case -
R. v. Buzzanga and Durocher, (1979), 25 O.R. (2d) 705 (Ont. C.A.)

57
Since ppl are usually able to foresee consequences of their act, if a person does an act in a
way likely to produce that consequence then it is reasonable to assume that he foresaw the
probable consequence of their act,
And then they intended that consequence.
. By satisfying the burden of proof required for subjective
mens rea, the Crown avoids convicting the morally innocent.

When it comes to subjective mens rea, there are varying degrees of fault.
The highest to lowest level of mens rea –
1. intent,
2. knowledge,
3. wilful blindness
4. recklessness

Important to distinguish b/w 3 and 4 as people commonly mistake the two.

We have these standards for subjective mens rea to avoid convicting morally innocent. We
are looking at what is subjectively in mind of accused at that time to see what they
intended.
Crown has to prove BRD that accused was aware that they are committing the offence they
were charged with.

A. INTENT
Highest level of mens rea is intent. This is where the accused has the very intention required
by the provision. AGAIN – crown must prove the mental intent BRD.
Important to be aware that where there is serious penalty, there is a requirement of
subjective intent to commit the offence.

EXAMPLE- to be liable for conviction of murder accused must have a subjective foresight of
death for both 1st and 2nd degree.
REMEMBER – only diff between 1st and 2nd degree is that 1st is premediated and planned.

R v Vaillancourt, [1987] 2 S.C.R. 636

SC said that given the stigma and punishment attached to murder, the mens rea element
can be nothing less than SUBJECTIVE FORESIGHT OF DEATH.

ENGLISH CASE NOT IN NCA SYLLABUS

English actor employed in Germany b4 start of WW2- moved to Germany with family-
Gobles had him arrested – asked him to conduct broadcast in favour of nazi – threat to
family so he agree – Steane charged with doing act likely to assist enemy with intent to
assist enemy – life sentence – This offence expressly describes mens rea element – intent to

58
assist enemy. The Actus reus element also laid out “doing act likely to assist enemy”. –
Clearly actus satisfied – he had helped nazi by participating in propaganda – QUESTION – did
he intend to do so?
Court said no evidence that he had intended to assist enemy – in fact he had refused and
only when family threatened he complied. SO mens rea element was not satisfied and he
was not guilty.

R v Vandergraaf, (1994) 93 CCC (3d) 286

Van was attending a Winnipeg Jets game – fans given sample jar of craft peanutbutter. Jets
lost – fans displayed displeasure by throwing jars on ice – Van threw his jar – did not throw
hard enough and it hit a girl sitting in the front row injuring her – Manitoba Court of appeal
said there is no intent on part of Van. COURT SAID - The intent that must be established is
the intent to apply force directly / indirectly to another person. This intent was not present
here, He had not intended to hit lady with Jar and his conviction was over turned.
In offences where the mens rea requirement is intent, the
Accused must intend to commit the offence. For example, in
assault cases, the Accused must intend to apply force to the
victim. Applying force to a victim without the intention of
applying force will not satisfy the mens rea element (R. v.
VanderGraaf).

This demonstrates the high threshold to satisfy intent element. Its is not enough to commit
offence – accused also has to intend to commit the offence.

R. v. Murray- - Discussed above also - Bernardo had told Murray of videotape location
depicting crime.
Murray charged with attempt to obstruct justice as per 139 of Code. Ultimately Murray was
not convicted – Court said Murray did not intend to obstruct justice – he was planning to
use tape to cross examine H’s credibility at trial.
INTENT CARRIES A VERY high threshold.

Duress is capable of negating the mens rea for some

offences, but it does not negate it for the commission of an
offence under s.21 of the Criminal Code. (R v Hibbert)

Knowledge
Next standard of subjective mens rea is knowledge. To show that the accused meets any
knowledge requirement it must be shown that accused was aware of prohibited act – like in
case of stolen property the Crown must prove that accused KNEW that property was stolen

59
– if drugs then show that accused KNEW that the substance they were in possession of was
an illegal drug.

PRINCIPLE ESTABLISHED IN R. v. Beaver, [1957] SCR 531

Bros drug dealers – found out one of the customers was an officer – sold him fake drugs –
unknown to bros one of associates had switched fake drug with actual heroin – charged
with possession and sale of illegal narcotic – Bros argued that they thought the substance
was milk sugar and so they did not meet the knowledge requirement – AND SC agreed –
beaver did not know substance was heroin and he was acquitted of possession – HOWEVER
– B did represent the milk sugar as narcotic and so convicted for selling of narcotic.
MISTAKE OF FACT principle also established here – where subjective knowledge forms the
mens rea of an offence in honest mistaken belief regarding circumstances can negate proof
of fault.
CROWN was unable to prove BRD that they believed they had heroin as they honestly
believed it to be milk sugar. This negated the fault element

R. v. Théroux, [1993] 2 SCR 5 (Fraud case)

Fraud u/s 380 requires that the accused DEFRAUDS another person KNOWING that a
deprivation will occur as a result and Crown MUST PROVE BRD that accused had this
knowledge.

T accepting deposit from investors for a building project – told them he had insurance – deal
failed – investors asked back for money – he said no insurance – convicted for fraud – as he
told he had insurance knowing it was not true – he had told because this will encourage
investment.

R. v. ADH, 2013 SCC 28

In this case the accused in early 20s unaware of pregnancy – gave birth in Walmart
washroom – believed that newborn had died so left child in bathroom – customer
discovered baby – notified police – accused charged u/s 218 for child abandonment –
COURT HELD although actus reus satisfied – Mens rea was not
Majority stated that required Mens rea for the offence was subjective knowledge of
abandonment – accused had to subjectively believe that she was abandoning the child –
here she did not KNOWINGLY abandon and she was not guilty.
It should be noted that minority also held accused not liable – but their reason was that
accused had believed that child is dead at birth.

WILFUL BLINDNESS AND RECKLESSNESS

Lower standard than intent/ knowledge but still a subjective state of mind.

WILFUL BLINDNESS - common in SA cases

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Wilful blindness occurs when a person is aware or has a suspicion of the need to make an
inquiry, but declines to do so because they don’t want to know truth. Accused Elects to
remain ignorant.
In cases of wilful blindness, the court will impute knowledge on accused. The accused knows
truth but just trying to ignore it – out of sight out of mind. COURTS imputing culpability on
accused is justified as accused is deliberately trying to resist an enquiry when they know
there is a need for enquiry.

Good example
R v Briscoe, 2010 SCC 13 - the court will substitute their Ac- cused’s wilful blindness with
knowledge
In this the B was charged with 1 st degree M, kidnapping and assault – 13 yr old kidnapped by
his friends – asked him to drive to Golf course – at golf course – B’s friends sex assaulted
and murdered girl – B said he had no knowledge – all he did was rive hi friends. – SC did not
buy his story – They said B’s own statement to police indicated that he strongly suspected
that someone would be murdered – chose to be wilfully blind to what was going to happen
to the victim – Court assumed B knew what was happening and imputed knowledge on him.
He had enough suspicion that something was happening but deliberately did not ask –
SO wilful blindness can be substituted for actual knowledge where knowledge is an element
of offence.

This is commonly seen in Sex assault cases.

R v Sansregret, [1985] 1 S.C.R. 570
S broke into house of Ex – threatened her with knife – asked her to undress and have sex –
she testified she was terrified but only pretended she was interested – she had sex out of
fear – as soon as he left she called police and filed complaint – SC said S was wilfully blind –
how in the circumstances could he believe that she was consenting?

R. v. Currie, (1975), 24 C.C.C. (2d) 292 (Ont. C.A.)

C had cashed cheque that was issued by B to X – C said X had approached him, gave him 5$
and asked to cash cheque. – as it turned out that X had stolen cheque from B – nothing led C
to believe that person had stolen – at trail Judge convicted C as he was wilfiully blind and
should have made enquiries – Ontario court of appeal overturned- in its decision it said that
there is no place in CR law for doctrine of constructive knowledge – Knowledge cannot be
imputed on someone for something they ought to have known
Wilful blindness in criminal settings is only applicable in circumstances where the accused
has knowledge to make an inquiry and they DECIDE NOT TO ENQUIRE further.
C had no reason to suspect foul play and thought he was helping.

R. v. Vinokurov, 2001 ABCA 113

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 Recklessness cannot substitute wilful blindness where knowledge is a requirement of
the charge (R. v. Vinokurov)
V manager of pawn shop and received stolen property from a customer – V later testified
that had no knowledge item stolen – also complied with all paperwork – and made inquiries
to mother Owner who had told him to purchase – Crown unable to prove that he was
wilfully blind BUT – trial judge held he was reckless so convicted for possession of stolen
prop – Alberta court of appeal said recklessness did not satisfy the knowledge requirement
of a charge of possession of stolen property
so - RECKLESSNESS CANNOT SUBSTITUTE WILFUL BLINDNESS WHERE KNOWLEGDGE IS A
REQUIREMENT FOR THE OFFENCE.

Recklessness –
Recklessness occurs when a person becomes aware of a risk and proceeds anyway. Arises in
similar cases as wilful blindness BUT conceptually diff. With recklessness, the Accused
commits a prohibited act after becoming aware of the risks.

‘In sex assault cases for example accused is reckless if they realise that victim is not
consenting and proceed anyway – there is no need to make inquiry – accused knows no
consent still goes ahead.

R. v. Buzzanga and Durocher, (1979), 25 O.R. (2d) 705 (Ont. C.A.)

DISCUSSED ABOVE ALSO
Accused trying to gather support for construction of French language school – handed out
anti French pamphlets to persuade French community into action to persuade gov into
school construction. Charged with wilfully promoting hatred against an identifiable group,
u/s 319(2) and convicted – appealed that arguing that not intention to raise hatred –
Ontario court of appeal said one of the element of Sec 319(2) is wilfully promoting hatred –
as such the recklessness of accused not sufficient to meet mens rea requirement of willingly
promoting hatred. It would only have been sufficient if recklessness was mentioned in
provision.

R. v. Théroux, [1993] 2 SCR 5- Discussed at knowledge

Where an accused knowingly commits a prohibited act the mens reas of fraud is satisfied if
they intended the consequence of that act or they were reckless as to whether it would
occur.

When determining whether the legislative intent was to make a

provision of subjective fault, the courts will consider the words in the
provision, as well as the words not in the provision. (R. v. Zora)

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OBJECTIVE MENS REA
Only applied in Manslaughter and Cr negligence cases. (In detail in homicide)

We don’t look at what the accused knew or thought – but what a reasonable person in
accused’s position would have known or thought.
This is a lower threshold than Subjective MR
2 forms of manslaughter
- Manslaughter by unlawful act – hitting someone and causing death
- Manslaughter by criminal negligence
criminal negligence is a separate offence – and for this form accused must cause death by
committing offence of criminal negligence

– The mens rea test for Manslaughter by unlawful act is objective foresight of the risk of
bodily harm which is neither trivial nor transitory in the context of a dangerous act. (R. v.
Smithers).

When looking at these cases – ask if a reasonable person in the circumstances of accused
would have had foresight to see that unlawful act would cause bodily harm –

NOTE death can also be caused by CR negligence and it is another form of manslaughter -
and this has a diff test than unlawful manslaughter.
There are 2 criteria for mens rea test for Cr Neg –
a. Did accused show a want and reckless disregard for the lives and safety of others
(R v Tutton, [1989] 1 S.C.R. 1392)
b. and their actions showed a marked departure from the standard of care of a
reasonable person – this is also objective test - R. v. Beatty, 2008 SCC 5
This is a higher standard than unlawful ac manslaughter (R. v. J.F.)

R v Tutton, [1989] 1 S.C.R. 1392

2 parents convicted of Cr Neg manslaughter in death of 5 yr old – T’s believed in faith
healing did not give insulin to diabetic son. – he died – Court said – does accused show a
want and reckless disregard for the lives and safety of others
This standard applies to both act and omission.
14 In short, the phrase "wanton or reckless disregard for the lives or safety of other persons"
signifies more than gross negligence in the objective sense. It requires some degree of
awareness or advertence to the threat to the lives or safety of others or alternatively a wilful
blindness to that threat which is culpable in light of the gravity of the risk that is prohibited.

R. v. Beatty, 2008 SCC 5

B was driving a truck at night – all of a sudden merged into oncoming traffic and hit people –
killing many – no evidence that B had done anything wrong – he was in speed limit – road

63
good – not drunk – SC – marked departure from standard of care of a reasonable of person
for offence of Criminal negligence – in case of B this standard not met – no Marked
departure on behalf of B- it was just an accident – this type is called – non-culpable
homicide – this is where homicide occurred but fault element is absent – BUT where mens
rea is present we have to apply test –
In case of negligence Ask is accused showed a marked departure from the standard of
reasonable care of a reasonable person in the circumstances – In B’s case ANS is NO

IN UNLAWFUL ACT MANSLAUGHTER –

We apply smithers test for actus reus and objective foreseeability test for mens rea.

FOR CR NEGLIGENCE MANSLAUGHTER

Look at conduct of the accused and see if it showed marked departure from the standard
of reasonable care of a reasonable person. Other requirement is wanton or reckless
disregard for the lives or safety of other persons

Case for required Mens Rea in Murder cases –- Objective mens rea is not sufficient to convict
an Accused of murder (R. v. Martineau).
R. v. Martineau, [1990] 2 S.C.R. 633
M and friends got hands on tools – decided to commit crime – M under impression that
they will only break in entry – broke into trailer and robbed – M’s accomplice shot and killed
husband wife living in trailer – M charged with Sec 230(a) murder committed during break
and enter – M argued he did not have any intention to kill – still convicted – court of appeal
quashed conviction – Crown appealed to SC – SC said that a conviction of murder requires
proof beyond reasonable doubt that accused had subjective foresight of death – because
conviction of murder carries severe sigma and punishment – The crown must show that
accused intended to cause death – Any standard less that subjective foresight of death
amounts to an infringement of section 7 and 11 (d) of Charter

R. v. J.F. 2008 SCC 60

M 4 yr old boy died in foster care – M’s foster mother confessed to beating – pleaded guilty
to manslaughter – JF (M’s) foster father was charged with manslaughter by criminal
negligence, and manslaughter by failing to provide the necessaries of life. Convicted of 1
and acquitted for other –
Appealed – court of appeal over turned conviction and ordered new trial as verdict
inconsistent – Crown appealed on issue for inconsistent verdict – accused cross appealed for
new trial order contending that acquittal should be given (ought to have been entered)– SC
said verdict was inconsistent as both counts depend on exactly the same failure to perform
exactly the same duty

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With standard for Cr neg Manslaughter being higher – to find him guilty of first charge – he
must be guilty of other – accused given benefit of doubt of not being liable of more serious
charge and he was acquitted.

In R. v. Javanmardi, it was held that a slightly higher

objective fault of a marked departure from a standard of
reasonable care is required with regards to s.219 of the Code.

65
SEXUAL ASSAULT

Sexual assault is a hybrid offence. The crown can choose to prosecute an offence either as
an indictable offence or a summary conviction. Also – important to note that Cr C was
amended in 1992- as a result of amendments SC abolished old concept of rape.
In some older cases term “rape” is used. But now the term in Canada is “Sexual Assault".
The Canadian Criminal code has several sex assault cases such as sex assault with weapon
and aggravated sex assault.
Sec 265 – Sex assault introduced, Its subsumed under assault provisions.
Assault is when person applies force intentionally to that other person, But sex assault is
just not the intention of application of force – there has to be sexual in nature. What
constitutes sexual in nature is defined by courts in cases.

Sec 272 - Sexual assault with a weapon, threats to a third party or causing bodily harm
Sec 273 - Aggravated sexual assault – involves - wounds, maims, disfigures or endangers the
life of the complainant.

Sec 265 defines actus reus and Mens rea for all assault - applies force intentionally to that
other person – applies to all forms of assault.

The test for sexual assault is: ‘viewed in the light of all the
circumstances, is the sexual or carnal context of the assault
visible to a reasonable observer?’ (R. v. Chase). An Accused
can be liable for sexual assault even in circumstances where
the Accused was not seeking gratification (R. v. V(KB))

How do we know sex context or not? – left open for court to define
Court looks at all facts and circumstance in a case and asks whether in light of all details,
would assault be considered of a sexual nature to a reasonable observer.
2 cases help define sexual context :

R. v. Chase, [1987] 2 S.C.R. 293

15 yr old in basement – accused went to basement – assaulted her – said don’t fight back I
know you want it – SC in decision said
The test to be applied in determining whether the impugned conduct has the requisite sexual
nature is an objective one: "Viewed in the light of all the circumstances, is the sexual or
carnal context of the assault visible to a reasonable observer. In this case yes – clearly sexual
Court will look at part of body touched, nature of contact and situation in which it occurred,
Also consider any words or gestures. Accused will be liable for SA even when accused not
seeking Sexual gratification.

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This arose in case of R. v. V. (K.B.), [1993] 2 S.C.R. 857’
Although fathers intent not sexual the assault of sexual nature as the integrity of the son
had been violated.

MENS REA OF SA –
The mens rea of sexual assault is the intention to apply force
of a sexual nature without consent. This equates to knowledge
and intent. In cases of wilful blindness, the court will impute
knowledge on the Accused (R. v. Sansregret). Further, a
person can only consent to sexual activity if they are
conscious throughout that activity (R. v. J.A.). Silence is not
sufficient for consent (R. v. Ewanchuk). For the purposes of
the mens rea, the question is whether the accused honestly
had consented to sexual activity through words and actions
(R. v. Barton).

This requires that accused apply force of sexual nature and knows that victim is not
consenting. This equates to knowledge and intent - the 2 highest level of mens rea.
Mens rea of SA is at the physical contact with the result of an intentional act by the accused
who knew that victim not consenting – or accused was reckless or wilfully blind- THIS IS A
SUBJECTIVE MENS REA – so liability arises on what accused actually knew not what person
in reasonable circumstances would have known or thought –

R v Sansregret, [1985] 1 S.C.R. 570 also relevant here.

Court said accused was wilfully blind. Her consent stemmed from fear.

Sec 265 (3) specific provisions on when consent is not obtained, apply to SA also, applied in
this case.
Example of fraud in case of R. v. Mabior (covered above) where complainants tried to argue
that they were victims of SA as Miabior did not tell them he was of HIV positive. They were
unsuccessful in claim but that is an example of where this principle arises.

Consent has to be voluntary- cannot be obtained through coercion, inducement or fear of

harm.
Consent has to be related to the specific sexual activity at specific time with specific person.
Revocation is always possible
Passivity, silence or non-refusal will not constitute consent for the purpose of AR.
Consent must be communicated either through words or conduct (here it can get a little
difficult to ascertain if consent obtained or not. )

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In R v. JA the SC said that a person can only consent to sexual activity if they are conscious
to the whole activity.
Elaborate framework for mistaken belief of consent – u/s 265(3)(2), 273.1 and 273.2,
common law consent principles also used to determine if accused had mistaken belief of
consent.
If accused successfully shows that victim was consenting or they were under mistaken belief
that victim consented – then they will not be liable.
One of the 1st sec court will look at is sec 265(3). They will ask if consent was obtained by
any means mentioned there –

Sec 265(4) mistaken belief consent may not be considered unless the accused satisfies the
air of reality test – is evidence sufficient enough that they could be believed by jury and
lead to acquittal.
Purpose of air of reality test is to ensure that any defence put before the jury could succeed
if the jury is properly instructed and understands the defence could acquit the accused.
How this defence works is the defence counsel would say they want to raise a mistake of
fact defence – the judge will then relieve the jury and holds a VIOD DEAR hearing,
The judge then considers the believability of the defence and decides if defence should be
out to jury.
Question for judge is whether the defence is such that a reasonable trier of fact i.e the Jury
could conclude that defence is successful.
This prevents accused from putting forward an outlandish/ unbelievable defence.

Sec 273.1 further sets out meaning of consent. In drafting this section Parliament specifically
said voluntary consent of complainant is needed to engage in the sexual activity- again
consent has to be voluntary and not coerced under any of the circumstances in sec 265(3)-
where its vitiated.
273.1 sets out further criteria When no consent is obtained. These include instances where
consent is obtained through a word or conduct of a 3 rd party. (i) If the complainant incapable
of consenting – intoxicated or mental disability – if accused induces complainant to engage
in sexual activity by abusing position of trust power or authority (ii) if complainant at any
time indicates lack of consent – meaning revoked – then air of reality threshold for mistaken
belief of consent cannot be satisfied because consent is vitiated – meaning no consent
obtained.

Further criteria set out by parliament in 273.2

Accused cannot say complainant consented because of self-induced intoxication (so drunk –
did not know what we were doing) etc ….

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Wilful blindness and consent – again recklessness or wilful blindness simply indicates that
the accused was indifferent or had callous disregard – did not take reasonable steps to
determine whether the complainant was consenting.

Relevant question here – WAS THE ACCUSED AWARE OF ANY REASON TO BELIEVE THAT
CONSENT WAS NOT VOLUNTARY OR PRESENT OR WAS CONSENT TAINTED BY ANY OF THE
FACTORS LISTED IN SEC 265(3) or 273.1
IF answer is YES –
Then we can say that accused was either reckless or wilfully blind.

SO what do we mean by “reasonable steps” - reasonable steps determine what the accused
subjectively knows at the time. But it’s both subjective and objective. Court considers how a
reasonable person in the circumstances of the accused would act based on what they
subjectively knew at the time. Failure to take reasonable steps would be seen as callous
disregard and knowledge will be imputed on the accused.
This analysis is not always straight forward:

Pappajohn v. R., [1980] 2 S.C.R. 120

The Accused can rely on a mistaken belief of consent. A
defence of mistaken believe of consent must pass the ‘air of
reality’ test before it will be put before the jury (R. v. Pappa-
john).

This was prior to amendment – P met with victim for lunch. To discuss sale of house – drank
– P invited victim to house – in for few hours then victim ran out naked – hand tied –
screaming and found by neighbour – at trial Victim claimed she had not consented to Sexual
activity which she physically and verbally resisted. P claimed everything was done with
consent – there was evidence of consent – necklace/ car keys in living room – blouse in
closet – clothes folded – no clothing damage and no prior attempt to escape house – no
injury or struggle – only 3 scratches. – However – SC did not believe accused claim of
mistaken belief of consent. His defence did not meet the air of reality test. Though there
was a dissenting opinion –

R. v. Ewanchuk, [1999] 1 S.C.R. 330

17 yr old complainant at mall- E driving his pickup. – approached girls and asked if
interested in job – said yes exchanged numbers. – later E phoned Complainant and met at
parking lot – E asked her to join him in trailer – then body massage – and trying to touch and
she kept saying NO – but eventually gave up – encounter lasted 2.5 hrs. – After that he gave
her 100 dollars and told her not to tell anyone. – AT trial question if E had mistaken belief of
consent – argued that she was consenting on basis of implied consent – at no point she said
wanted to leave – evidence showed she was afraid – he was older and larger – she thought

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door had been locked – had said no many time so she laid afraid – SC said no defence of
implied consent to SA and E convicted of SA.
The absence of consent, however, is purely subjective and determined by reference to the
complainant's subjective internal state of mind towards the touching, at the time it
occurred.
How do we ascertain subjective state of mind - While the complainant's testimony is the
only source of direct evidence as to her state of mind, credibility must still be assessed by
the trier of fact in light of all the evidence –
Court found victim to be a credible witness and believed her when she said her state of
mind was a state of fear ad she only went along because scared and thought cannot escape
SC said – SILENCE DOES NOT EQUAL CONSENT –
Consent cannot be implied, presumed – non communication of consent assumed to be no
consent
A valid consent must be communicated verbally or non-verbally conduct. BUT SILENCE and
passive consent are not consent

REASONABLE STEPS

R. v. Levigne, [2010] 2 S.C.R. 3

L charged with luring a child u/s 172.1. – after communicating with undercover officer whom
he believed to be 13 yr old boy. L argued he believed by was 18 based off his online profile.
On adult only chatroom – trial judge accepted defence and acquitted L. – Crown appealed –
SC said – L should be convicted of child luring. – SC said accused had a requirement to take
reasonable steps to ascertain age of boy – in conversation officer repeatedly said by is 13
and L made no effort to clarify his age.
As such he had not taken reasonable steps to ascertain age of boy whom he was
communicating with.

AOTHER DEVELOPMENT WITH 1992 amendment to Cr Code was the limit the use of sexual
history evidence at trial.
Prior to amendment sexual history of complainant was allowed to be out forward to show
that complainant was more likely to have consented or to impeach the credibility of
complainant. Eg – if prostitute that could be used against her to say she was more likely to
have consented
276(2) and 276(3) say an accused can put forward this evidence in limited circumstances
Eg – its probative value outweighs its prejudicial effect it can be used to support the claim of
honest but mistaken belief of consent .

Eg- prior relationship b/w parties.

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The admissibility of this evidence is not automatic. And its is up to the trial judge to consider
its probative value to the accused’s ability to make a full answer and defence, weighing it
against the prejudicial effect towards the complainant.

Child pornography
Sec 163.1- criminalises the making, distribution, possession and accessing of CP material.

Definition of CP is 163.1(1) – includes photographs, films, videos or other visual

representation
any written material, visual representation or audio recording _ eg sketches drawing
cartoon story
An image of a real child treated same as sketch or drawing - a person who is or is depicted a

So an adult posing as child still constitutes CP.

Stories – stories by paedophiles/ for paedophiles describing SA with children
Any material describing sexual activity with a person under 18.
WHY DID WE GO TO SUCH LENGTH TO CRIMINALISE SUCH WORKS OF FICTION AND
SIMULTANEOUS PRAISE CLASSIC WORKS LIKE LOLITA – (man obsessed with 13 yr old).
u/s 163.1(6) there is an exception.
So CP provision is very broad and relates back to Harm principle.
Recall we cannot prohibit activity or conduct in our society or charter right unless some
justifiable harm that allows for criminalisation of such behaviour. And CP is considered
protected u/s 2(b) of charter – freedom of expression.
So what harms present justifying legislating against CP (3.05 mins at 6.4 vid)

Case of R. v. Sharpe, [2002] B.C.J. No. 610

Charged with possession of CP – Sharpe plead guilty of photo depicting Sexual abuse of boys
– but challenged the constitutionality of 163.1 wrt to stories as protected by 2(b) –
In Canada freedom of expression not only protects free speech but also our right to express
in variety of ways including drawing/ writing – claim of S that parliament cannot criminalise
possession of imaginary work because its not actually harming anyone – no kinds involved
on making of work- BC court of appeal and SC said that criminalising these imaginary works
did violate 2(b) rights – BC said we can’t tell ppl what they can/ cannot have in privacy of
their home or diary – this is hallmark of a totalitarian state and not kind of society we want
to live in.
SC - the number of ways CP could cause ham – 2 categories – direct/ indirect – no body can
deny direct ham, it exploits children, internet has created a platform that furthers
production and dissemination of material and promotes more child abuse and exploitation
There is a need to criminalise real CP and objective has been achieved.

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BuT WHAT ABOUT THE IMAGANIRY WORK?
Court Said – a number of harm flow from them only if the wrong people possess these
works. These stories and drawings can reinforce cognitive distortions amongst paedophiles.
– these could also fuel fantasies and encourage ppl to act on their urges. Further some child
molesters could show this material to children to desensitise them and normalise this type
of behaviour – these were the harms identified by court.
These harms then be had to be balanced on how denying these material to defend PPLs
freedom of expression and 2 exceptions were made u/s 163.1
So if someone makes story/ drawing for own personal use – its not CP, but as soon as shared
or disseminated – they fall u/s 163.1 definition.
This protects ppls rights and privacy while at the same time protecting harm from CP to
children,
Courts also made exception to couples under age of 18 to have photo video etc in
possession only if consensual and held exclusively by them- as soon as disseminated /
passed/ facebook then CP – and those in possession can be prosecuted.

IMP to note that CP is a hybrid offence penalties listed u/s 163.1 (4)
Crown can look at NATURE AND SEVERITY of offence and offender and the victim to decide
if they should charge for indictable offence or summary conviction
ALSO NOTE – accessing and looking at what you know to be CP, online is punishable u/s
163.1(4.1)
Defences for CP – 163.1(6) – but it’s not a defence for the accused to claim that person
show is above the age of 18 if they THOUGHT person was under 18. Accused must take all
reasonable steps to ascertain the age of victim.
Also, NOT a defence if the person shown is over the age of 18 and is being depicted as under
age of 18 and this is specified in sec 163.1(5)

CHILD LURING
Closely related to CP>
In CL cases offender often tries to get the child to take pictures of themselves on webcam or
send on email
Victims generally b/w 13-17 yr old. Predators aware of their curiosity – promises them love
romance – try to get victim to trust them- they will make victim think they are in relation. ‘
Sec 172.1 of code addresses this
s. 172.1 Criminal Code makes it an offence to lure a child. An individual must take
reasonable steps to ascertain the age of the person they are communicating with. Child
luring is an offence of communication, not contact. An Accused can be criminally liable even
if they never meet the person they are communicating with (R. v. Legare).

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Vagueness of provision results in creative defences from accused,
The mens rea of child luring is satisfied once the Accused
speaks with someone they be- lieve to be under 18 years old.
It is irrelevant if the person is an undercover cop over the
age of 18 (R. v. Alicandro).

R. v. Alicandro, 2009 ONCA 133 – posing as 13 yr old undercover officer – Alicandro

arrested – he argued that he dd not expose to anyone below 18 so not illegal –
CL provision protects both real children and people who the accused believes is a child.
Accused had taken no reasonable steps to ascertain the age of girl. Court said IT WOULD
UNDERMINE THE PURPOSE OF THESE PROVISIONS if accused could escape liability where
they were exposing themselves to someone they believed to be a child. Fact that in this case
it was an undercover officer should not absolve the accused. It is the belief of accused that is
relevant.

Inchoate offence – a preparatory offence where the accused engages in otherwise legal
conduct in order to facilitate illegal act. – This was the issue on -----
R. v. Legare, 2009 SCC 56 – accused started talking to 12 yr old on internet. He used explicit
language and sexual topics. L charged for CL u/s 172.1. He argued at trial that he did not lure
anybody but only spoke to her. DID not speak to facilitate one of the many offences listed
u/s 172.1.
SC SAID – 172.1 is an offence of communication. Not physical contact. Its an intent
offence.
To be liable for an inchoate offence all that is required is an intentional communication via
a computer with a person that accused knows or believes is a child for the purpose of
facilitating one of the secondary offences listed in 172.1

Accused does not have to commit an act but just intend to commit an act.
It is not in element to the offence that accused meets victim or intends to meet victim. The
fact the accused goes out of way to meet victim is evidence they were interested in
committing any of the specified secondary offences.

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HOMICIDE OFFENCE

Clarify mens Rea and AR for each of the homicide offences.

3 main categories of homicide

B. murder
C. manslaughter
D. infanticide
First – distinguish culpable Homicide from Non culpable homicide.

Culpable homicide is homicide in which an individual is liable for the homicide – eg murder
Non-culpable homicide is homicide an individual is not liable or the homicide is justified.- eg
homicide in self defence.

2 broad categories of murder . 1st and 2nd degree

1st – constructive murder u.s 231(5)- constructive murder is where person commits
homicide while committing one of the offences u/s 231(5) which elevates murder to 1 st
degree even though not mediated.

NEXT Category of homicide is manslaughter. Manslaughter is define as culpable homicide

that is not murder or infanticide

Third category is infanticide. – rare – occurs where woman suffering from post partum
depression by wilful act or omission causes the death of new born child. (under 1 yr age) No
minimum penalty for infanticide. –

Staring point for homicide is sec 222(1) of code. This sec laid out what constitutes homicide
and distinguishes b/w culpable and non-Culpable

Homicides are only criminal if they are culpable. So just because a person causes death of
another does not mean they are criminally responsible.
There are cases where death when though caused by another is result of an accident or
fault element is not satisfied.
Sec 222 needs to be read with 229 which defined murder, and manslaughter as CH that is
not murder or infanticide.

Murder is distinguished from manslaughter based on required fault element. MURDER

REQUIRES SUBJECTIVE FORESIGHT OF DEATH. This is a constitutional requirement as
established in R v Vaillancourt discussed above at subjective MR.

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Manslaughter on other hand only requires objective foreseeability of harm. This standard
applies to unlawful act Manslaughter

Manslaughter can also be committed by Cr negligence.

These are the categories of Manslaughter.

Unlawful Act manslaughter [222(5)(a)] caused by an unlawful act typically some form of
assault- such as punch or stabbing. Unlawful act manslaughter occurs when a victim dies as
a result of an unlawful act commit- ted by the Accused.
The actus reus standard of unlawful act manslaughter is: a
contributing cause of death be- yond the de minimis range (R.
v. Smithers). An intervening act can break the chain of causa-
tion (R. v. Reid).

The men rea of unlawful act manslaughter is: the mens rea of
the unlawful act and objective foresight of bodily harm that is
neither trivial nor transitory in the context of the dangerous
act (R. v. Creighton).

Cr Negligence manslaughter [222(5)(b)] is when accused causes death while doing

something reckless, and by having a wanton and reckless disregard for life and safety of
others. This occurs when ppl engage in activities that are inherently risky or dangerous
(street racing could lead to injury or death).
The actus reus standard of criminal negligence manslaughter
is: a marked departure from the standard of a reasonable
person in the circumstances (R. v. Beatty).

The mens rea element of criminal negligence manslaughter is:

a wanton, reckless disregard for the lives and the safety, and
the standard is that of a reasonable person in the
circumstances (R. v Creighton).

Imp to note that Cr negligence does not always result in death or homicide.
There can be cases where person convicted of Cr negligence because they injured someone.
So sec 234 defines manslaughter and says CH that is not murder or infanticide is
manslaughter.
Homicide can be culpable or non-culpable. NC homicide is an act that is justifiable.

In case of R. v. Beatty, - discussed at objective MR. Beaty swerved car – oncoming traffic –
accident and death. Beatty charged with dangerous driving causing death. And SC said that
there must be a marked departure from standard of care of reasonable person. Here only a

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momentary lapse in judgement. Here there was only a momentary lapse in judgement.
Beaty could not have prevented accident
Sec 236 sets out the punishment for manslaughter. Max – life imprisonment – elevated 2 yrs
if manslaughter committed with firearms.

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First category of manslaughter is unlawful act – Most common
Was in smithers case - Both actus reus and mens rea analysed
Death due to some unlawful act, Can be voluntary or Involuntary-
 Voluntary manslaughter involves cases that would be murder and the charge is
reduced to manslaughter because of a defence – such as provocation,
Imp – provocation is a partial defence – it can only be used to reduce murder to
manslaughter. Cannot be used for any other offence.
In exam – provocation not a defence if accused is charged with manslaughter. It only
applies to murder.
Makes sense because murder was voluntary – this would imply intent knowledge or
willingness – and murder requires subjective intent such as knowledge
Manslaughter is generally not voluntary. In smithers – he did not intend to kill the victim. He
wanted to hurt but killed accidently – involuntary.
Voluntary manslaughter is Murder that is reduced to manslaughter because of some
defence / defects in the elements.

Involuntary manslaughter on the other hand is where fault element cannot be established.
The actus reus of manslaughter is in effect voluntarily or in voluntarily causing the death of a
human being – usually by an unlawful act – and the unlawful act is usually dangerous and
likely to injure.,

The actus reus standard of unlawful act manslaughter is Smithers which was contributing
cause of death beyond a de minimus range?
This standard applies to all forms of homicide except sec 235 – constructive murder – where
the standard is Harbottle standard.

The mens rea standard for manslaughter was established in –

R. v. Creighton, (1993) 3 S.C.R. 3
To satisfy the mens rea element the crown must prove BRD the mens rea of the unlawful act
and objective foresight of bodily harm that is neither trivial nor transitory in the context of
the dangerous act,
So if you have a manslaughter question – DO NOT ASK YOURSELF WHETHER THE ACCUSED
INTENDED TO KILL VICTIM ‘
All that is needed is objective foresight of harm so just ask if a reasonable person in the
circumstances of the accused foresee bodily harm that is neither trivial nor transitory –
Coming back to actus reus – smithers set standard – contributing cause beyond de minimus
range. So if its established that the unlawful act (kick in Smithers) was at least a contributing
cause of death beyond de minimus range then both causation and actus reus is established.
We also know that accused takes victim as he finds him – not a defence to say that death
would not have ensued if victim a normal person

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This applies when victim is frail, refuses medical treatment or has pre-existing medical
condition,- thin skull rule

Recall that an intervening act can sever the chain of causation.

In this case the accused’s unlawful act is no longer significant contributing cause of death,
Saw this is Reid/ Stratton botched recessitation broke chain of causation and accused not
guilty
Criminal negligence manslaughter
Start at sec 222(5)(b) – person commits cr negligence either through an act or omission.
The AR element to be satisfied the accused must neglect to do something that is their duty.
So there has to be a duly at law- we have already talked about this Omissions. The omission
of the duty forms an AR.

Duties of accused are defined in Cr Code.

First question applies to both acts and omissions. – is AR established?

The test was set out in R. v. Creighton

C drinking and cocaine with friends – C and friends agreed to inject themselves – C injected
– victim convulsing – stopped breathing – tried giving CPR- instead of calling 911 – C cleared
evidence and left – returned later and called police – charged with manslaughter.
In judgement CJ set out test for Cr Negligence
 First part of test – is actus reus established? There must be a marked departure from
the standard of care of a reasonable person in the circumstances. This marked
departure test was applied in R v. Beatty. In that case Judge said – in order to convict
someone there needs to be a marked departure. This means a high or significant
marked departure. And in beatty that test was not met as it was a momentary lapse?
The standard is of reasonable person – i.e. a person in the circumstances of the
accused and this is an objective test. Typically this concept of Marked departure
means accused carried out an activity in a dangerous fashion – or accused engaged
in a dangerous activity when it is unreasonable or risky to do so – and that is the
essence of Cr negligence.
 Next step is – Whether the MR is established and whether the accused failed to
appreciate the risk and take reasonable care – this is the element of recklessness.
Remember – discussed above that when person apprehends the risk but proceeds with little
regard for the risk.

In some cases they don’t even apprehend the risk because they are being overly reckless.
To satisfy the MR element it must be proven that accused failed to direct his mind to the risk
and the need to take care – how can this be established? the accused must show a wanton
and reckless disregard for the lives and safety of others – and standard is that of a
reasonable person in the circumstances. Again it’s a objective test.

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Wanton means foolhardy or self serving. Being negligent or reckless such that you don’t
have anyone’s well being or safety in mind.
This was also discussed in Creighton.

Case –
Ochoa v. Canadian Mountain Holidays Inc., 7 BCLR (3d) 182
Civil law case –
O on skiing trip – avalanche – O died – O’s widow unable to take care of children as no
income – sued Canada mountain holidays – alleged Cr negligence against defendants who
were guided – Question – were guides negligent? Court applied test in Creighton –
And looked at conditions.
Evidence of defendant showed guide had tested snow with pole.
SC – Guide Had met standard of a reasonable guide in the circumstances and they met
standard f care – No marked departure or guide did not show a wanton and reckless
disregard for life and safety of Skiers

Cr negligence can be through an OMISSION- Sec 219 (1).

Examples of duties listed in Code include – reckless discharge of firearm, being reckless as to
whether another person is present – dangerous operation of a mv, vessel, surfboard, street
racing etc.
Sec 219 helps establish liability
219(1) Every one is criminally negligent who(a) in doing anything, or(b) in omitting to do
anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of
other persons.
The mens rea for an omission is a wanton and reckless
disregard for the lives and safety of others. To satisfy this
standard, the Accused must have a legal duty imposed by law.

If the Accused omits to perform their duty, then they can be

charged with criminal negligence if they showed a wanton
and reckless disregard for the lives and safety of others.

This specifically lays out the MR for the wanton and reckless disregard for the life and safety
of other. To prove that this element is satisfied you must show that accuse dis bound by a
duty.
For Cr Neg purpose it has to be a duty imposed by law – Common law cannot used to create
offence – so it has to be a duty in the code.

Then you have to show that accused in neglecting that duty showed a marked departure
from standard of care of a reasonable person and they had a wanton or reckless disregard.

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R v. Peterson – where son neglected father with Alzheimer’s is an example of omission that
was a marked departure. Charged u/s 215 .

In R. v. Brown where he promised to take gf to hospital but sent her in a cab alone Brown
was charged u/s 217 – though he was found not guilty. ‘
If an accused omits one of their duties, then they can be charged with Cr Neg. This should
show a wanton and reckless disregard for the lives or safety of other persons.

When we talked about mistake of fact defence – for this accused needs to put forward
a=enough evidence to show that well informed/ instructed jury could acquit.

This is the air of reality threshold.

McLaughlin held that a reasonably held mistake of fact may provide a complete defence IF
based on accused’s reasonable perception of fact they demonstrated requisite standard of
care.
Eg – Driver of bus tour believes bus in working condition – maintenance is up to date etc –
night b4 teens tamper with wheel – unknown to driver – bus driver did everything in power
for safe trip – but because someone tampered tyre – the driver might have a reasonably
held mistaken belief of fact based on a reasonable perception of the facts and his conduct
will meet standard of care,

Omissions - Criminal Code, s 129(b), s 215, s 217, s 218, s 242, s 252

MURDER
The mens rea of both first degree and second degree murder
is subjective foresight of death (R v Vaillancourt).

The actus reus of murder is: directly or indirectly causing the death of
another person.

SECOND DEGREE MURDER

3 sub sections of 229 (a, b and c) all deal with diff situations where a person means to cause
bodily harm and he knows its likely to cause death to another person.

The MR for this is subjective MR. Enquiring knowledge or intent and we know this from R. v.
Vaillancourt – this is the case where SC said sec 7 of charter requires that murder have a
subjective MR bcoz the consequences of being convicted of murder extreme.

So accused must mean to cause death or cause bodily harm, they know is likely to cause
death – this requires knowledge and intent.

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Its important to be aware of diff b/w
a. meaning to cause person’s death
b. planned and deliberate
That is key diff b/w 1st and 2nd degree murder.
1st degree is planned and deliberate.
2nd degree more in heat of moment

AR of murder is same as manslaughter. The directly or indirectly causing death of another

person usually by means of unlawful act,

Intentional or Reckless killing

Sec 229(a)

person who causes the death of another and either means to cause death or means to
cause bodily harm that he knows is likely to cause death is guilty of second degree murder.

This was seen in R. v. Cooper, 79 CCC (3d) 289 (SCC

Cooper and female friend drinking – argument – cooper strangled her – he blacked out and
when came to she was dead – C pleaded that he did not intend to cause death. – court said
although he may not have intended to kill her he did intend to cause bodily harm – accused
should have known that by strangling her and applying that amount of force he was likely to
cause death – he was reckless whether death resulted or not – Court talked about single
transaction approach. How the MR and AR need to come together. – Court dismissed
Coopers defence and said if death results form a series of wrongful acts that are part of
single transaction then we can ASSUME THAT MR COLLIDED WITH AR.

Although an Accused may not have intended to kill their

victim, if they intended to cause bodily harm that it would
likely result in death, then they can be liable for second
degree murder (R. v. Cooper).

Transferred Intent - Sec 229(b) is 2nd degree murder by means of transferred intent.
Eg – if A aims to kill B, misses and hits C, then intent to kill is transferred from B to C. and
MR for 2nd degree can be established.

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R. v. Fontaine, 2002 MBCA 107, 7 CR (6th) 139
Tried suicide – took ppl in car – drove into trailer – F survived – passengers died – charged
u/s 229(b) – F’s intent to suicide could be transferred to passengers – Court rejected
argument –
Suicide is not illegal and not an offence under code. Not the same as murder. As such F did
not have intent to kill someone else – but himself which is not an offence – so he was found
not guilty

Sec 229(c) unlawful object murder.

Note provision used to say – “knows or ought to know” but SC has struck down the “ought
to know" as its objective standard and we know MR FOR MURDER MUST BE SUBJECTIVE.
What this means is – if accused is doing something unlawful that they know will likely result
in death and somebody dies then they can be liable for 2nd degree

In order for conviction of unlawful object murder crown must prove BRD that accused in
doing that unlawful object, knew that death was likely to result.

R. v. J.S.R., 2008 ONCA 544

Shootout in busy street in Toronto – 15 yr old girl hit by bullet and die – bullet that hit her
did not come from JSR – but Ontario Court of appeal said JSR in committing an unlawful
object (discharging his firearm) knew he was likely to cause death of another being and this
significantly contributed to death o victim – ‘
Not convicted for transferred intent coz it was not his bullet that hit victim. Also – it would
have been impossible to show that JSR had participated in shootout with intent of killing -
u/s 229(c) all that crown had to prove that JSR by engaging in the unlawful act had to know
that someone other than shooter was likely to die and crown was able to prove this.

Final comments on MR for 2nd degree murder. IMP

Remember for 2nd degree murder the required MR is subjective MR.
Accused needs to cause death and must know that death likely to result. This is the
subjective MR. or knowledge.
This can be distinguished from manslaughter – which is an objective MR – what a
reasonable person in the circumstances of the accused would know.

Subjective MR at issue in

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R. v. Roks, [2011] O.J. No. 4266
R met Magnos bro who owned hardware store – M planning to set fire to claim insurance –
recruited 2 other PPL to raid all valuables and set store on fire – on Christmas eve – the 2
men went to store to start fire - - while poring gasoline and furnace turned on – flame
ignited gasoline and massive explosion – one person died in explosion – accused convicted
of 2nd degree murder – in satisfying MR element – trial judge relied on 2 inferences
A. by taking the precautions of setting fire, the conspirators were aware
that someone’s death was a likely consequence of their conduct-
B. causing death is a likely consequence of spreading gasoline and
setting fire
 Accused appealed that they had no MR of the subjective foresight of the likelihood
of death.
Court of appeal said that a trier of fact must be cautious of inferring actual knowledge based
entirely on a common sense inference. To do so risks substituting the requirement of a
subjective foresight with a constitutionally impermissible objective foresight of death. So
when it comes to murder – the accused must have the intent or knowledge of foresight of
death. An objective intent is not sufficient for constitutional reasons.

First Degree Murder 231(2) and 231(5)

For this MR standard is the same as 2nd i.e. subjective knowledge and intent that is planned
and deliberate.
Accused must have an actual subjective foresight of death and an intention to cause death.
This intent must be planned and pre mediated.

This us u/w

A person can also be convicted of 1 st Degree murder even if they kill a police officer or any
other peace officer.

Recall accused who commits a constructive murder u/s 231(5) can have crime elevated to 1 st
degree.

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Under s. 231(5) Criminal Code, second degree murder can be
elevated to first degree mur- der if death is caused by a person while
committing or attempting to commit an offence listed in s. 231(5).

WITH 2Nd DEGREE courts take a Single Transaction approach like in case of R v. Cooper. –
Cooper blacked out+strangled.

Principle first adopted in R v. Sundman

Which is also discussed earlier. – accused had unlawfully confined victim in moving truck
and repeated assaulted him. – Victim jumped and ran but chased by accused, ultimately
died– Crown argued that because killed while committing unlawful act of confinement – the
crime was a 1st degree murder u/s 231(5)(e)
- Sc said that victim was still confined when running away because though not
physically restrained – mentally yes through violence, fear and intimidation.

- If there is a sufficient nexus between the offence being

committed and the murder of the victim, then a break in time
will not negate the ‘while committing’ element of s. 231(5). An
Accused can be liable under s. 231(5) even if the victim of the
murder and the victim of the offence are two separate people
(R. v. Russell).

R. v. Russell, [2001] 2 SCR 804

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Single transaction approach applied where SA victim and murder victim 2 diff ppl (girlfriend
and person in basement)
R convicted u/s 231(5) for murder while committing SA. Court took Single Transaction
approach. – and said there was a temporal and causal connection between SA and murder.
The existence of a temporal link having been conceded, the only issue is whether a sufficient
causal link existed between the murder and the forcible confinement. In finding that the
Crown had presented sufficient evidence to allow a jury to find the requisite causal
connection, Wake Prov. J. focused on the fact that the appellant went to the basement to
confront Whittaker even though the two normally avoided one another, and on the fact that
Seccombe was still bound and gagged [page827] when the appellant went downstairs to
confront Whittaker. Wake Prov. J. found that "[t]he jury would be entitled to infer from the
evidence that the accused on becoming aware of Mr. Whittaker's presence in the house
would be concerned that Mr. Whittaker might readily discover his house-mate bound and
gagged upstairs and raise an alarm which might thwart the accused's efforts to make use of
her credit card and her car".

The causation test for s. 231(5) is ‘was the Accused’s conduct

a ‘substantial and integral cause’ of the death of the victim?’
(R. v. Harbottle, R. v. Nette).

Last case of Harbottle – where H held victim’s legs while co accused strangled – SC
established substantial and integral causation standard for constructive murder u/s 231(5)
which is later affirmed in Nettes – accused needs to play and active role – usually a physical
role in the murder of the victim – if this standard is applied then accused who did not
actually commit killing an still be liable 231(5).

PROVOCATION DEFENCE-

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Partial defence - this can only be used to reduce Murder to Manslaughter. This is only a
defence for Murder and not a defence for manslaughter.
This is a common law defence that is codified u/s 232(1)
Sec states

It only applies if the accused had the necessary intent for murder.
Defined

Provocation must come directly from the victim and it has to be something that would cause
an ordinary person to react in an extreme way, and the Accused has to act on it suddenly-
see case-

Case – R. v. Tran, [2010] 3 S.C.R. 350

Charged with 2nd degree – at trial Tran claimed he was provoked.
SC said he was not entitled to a provocation defence-he did suddenly see them in bed but
he did have prior suspicion. Act did not amount to INSULT
Claim that he was met by an unprepared suddenness does not hold. SO Tran unable to
rely on defence of provocation
Furthermore, there was nothing sudden about the accused's discovery and it cannot be said
that it struck upon a mind unprepared for it.

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R. v Simard severed s.232(2) and amended it so that it instead read,
‘Conduct of the victim 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 their passion to cool.’ This
removed the need for the victim’s conduct to be an indictable offence
that would be punishable by five or more years. s.232(2) violated s.7
of the Charter.

In R v Land, it was stated that even in situations where violence may

be anticipated, the defence of provocation may still be available.

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Property Offences

Possession – Sec 4(3)

Starting point for property offences is the act of possession.
Accused must be aware (has KNOWLEDGE) that he is in possession of it at all - We saw this
in R. v. Beaver, where he was acquitted of possession of heroin as he believed the
substance was sugar,
The same principle applies to any possession charge including possession of stolen property
– this is set out in sec 4(3) of code. – which states that a person “knowingly” has possession.

For convicting someone of property offence the accused must be in possession of stolen
property and have the knowledge that that property was stolen.
This requires an intention to deprive the rightful owner (R. v.
York) and some form of control over the property (R. v
Terrence).

Cases address same principle that Knowledge is an essential requirement of stolen property.

R. v. York, (2005), 193 C.C.C. (3d) 331 (B.C. C.A.)

Stolen goods truck at warehouse – York acquitted as no evidence of intention to deprive.
Only reason he was in possession as he was trying to get it away from his property – no
intention to retain.

Constructive possession – can possession be imposed on a party –

Case - R. v. Marshall, 1968 CanLII 999 (AB CA)
Marshall on weekend trip with friend in car – on returning – learned there was marijuana in
car. – he did not smoke – pulled over Marshall charged with second degree murder.

At trial Marshall testified that he remained in car as he had no money and had to get back to
class- trial judge convicted him – on appeal – court said error in convicting him simply
because he was in the car – Alberta court of appeal said that while Marshall had knowledge
that drugs in car he had no CONTROL over drugs being in car. Nor did he consent to drugs
being in car.

Evidence of control also in issue in

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R. v. Terrence, [1983] 1 S.C.R. 357
Ride in stolen car – T knew car was stolen and went anyway – court said T had knowledge
but no control – convicted despite this. On appeal – conviction overturned – crown
appealed SC – SC upheld court of appeal decision – to convict accused Crown must prove
BRD that accused had some measure of control-
IT SHOULD BE NOTED that it is not a defence to hide an object in place not immediately
accessible ?
R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253
M charged with possession of child porn and convicted at trial. –
Case made it to SC - Question in case – what amounted to possession of electronic data
To have possession of something – the accused must have knowledge of possession and
CONTROL of object. This becomes complicated for electronic data, also issue of caching –
automatic storing.
Ultimately quashed conviction – as evidence was obtained in violation of sec 8
(unreasonable search and seizure )

Theft – colour of right

Sec 322 (1) – diff ways of theft
These include to deprive the owner of the property, to pledge or deposit property or to
convert the property.
Sec 322(1) also, says that theft occurs when someone fraudulently and without colour of
right converts to his use or to the use of another person, anything, whether animate or
inanimate,

Colour of right means an honest belief that an act is justifiable. – so to be liable an accused
must know that they do NOT have a right or claim to that property,

Case below is within the context of conversion –

R. v. Milne, [1992] 1 S.C.R. 697
M did some work for company – company paid – M deposited cheque – later company
issued another cheque by mistake which they again deposited and used to pay bills. –
Court said test for theft satisfied WRT conversion – M had converted the money for his own
use – the fact issue mistake is not relevant – Milne converted money to his own use when
he KNEW he did not have a right to it,,- so right to money had not passed to M.

Property offence defence Mistake of fact

A common defence that arises in property offences - mistake of fact defence arises when
the Accused genuinely believes that they have a right or interest in the property

R. v. DeMarco, [1973] OJ No 533 (Ont. C.A.)

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D rented car for a day used car and left it at sister’s house for a month – charged with theft
pf rental vehicle – D argued she did not intend to steal – and was going to return – Crown
argued if intent to return she would have done so or at least called rental company to tell
them she will retain it longer – She could not rely on a defence of mistake of fact-
SEE WHAT HELD BUT?

Forcible and other offences against property –

Just be aware in case they show up in exam
Forcible entry already discussed in JD case where kid wanted to run away – went to friend’s
house – charged with FE but acquitted and found not guilty – on the basis that French
version of code had element of forcibly “taking possession” and here he was granted entry
by owner – FE – 72(1)

Apart form this break and entry at sec 348 – applies to someone who commits or INTENDS
to commit a crime of breaking in and entering – the mens rea for this crime is INTENT
There are also defences for property offences in the code. u/s 494(2)- a person can perform
a citizen’s arrest on another person whom they find unlawfully on their property.

Fraud – Sec 380

Fraud already discussed in Theroux case. It is covered u/s 380 of code
Fraud requires DECEIT , FALSEHOOD, or OTHER FRAUDULENT MEANS to defraud the public
or any person of their property.
FRAUD requires KNOWLEDGE.
The accused must knowingly deceive somebody with the intent of depriving them of their
property – Theroux case.

In Theroux accused had accepted deposits for investment in real estate project – no
insurance but told them he had – project fell through – investors asked for investment back
- Court said he should be convicted of fraud as he knowingly deceived investors and put
their money at risk,

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Criminal Complicity and Inchoate Offences

Parties to an offence and principles

Aiding and abetting, counselling, attempts and accessory - These crimes generally involve
participation of someone other than the perpetrator.
Often, in these cases, the Accused may not be the person who committed the primary
offence. These offences have a high level of MR requirement and have subjective mens rea
requirement. Code limits Liability for these offence is limited to individuals who have intent
and knowledge.
These offences are laid out in sec 21, 22 of the code. Diff modes of party participation..

Principles Sec 21 (1)(a)-

Everybody is a party to an offence who actually commits the offence
It can get tricky because a person may be guilty as a principle even though crime was
committed through an agency. Eg- if a person hires a hitman to kill.

R. v. Thatcher, [1987] 1 S.C.R. 652

There was no direct evidence to convict Thatcher, but there was overwhelming
circumstantial evidence. – including a receipt found near murder scene with Thatcher’s
name on it- report of car parked outside wife’s house – neighbour saw the license plate and
it matched car on Thatcher’s property – Thatcher had same gun model believed to be used
in the murder. – a man named Gary told police T had approached him to commit murder. –
T convicted at trial – T appealed to SC
SC upheld conviction – 3 alternatives – 1 T killed wife, 2 – he hired someone to commit, or 3-
he was innocent
Jury believed wither 1 or 2 had happened. And in eyes of court no diff btw scenario 1 and 2.
So T was guilty.

AIDING and abetting and offence - Sec 21(1)(b) and 21(1)(c)

While commonly set together, these are 2 diff offences with diff meanings.
Aiding – refers to giving assistance (usually physical) in committing a crime
Abetting is encouraging, instigating or procuring the crime to be committed.
The mens rea and Actus reus help define these terms.

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AR requirement – is providing acts of encouragement or acts of assistance, AR is a positive
act and not an omission
MR is satisfied by accused, knowingly or intentionally aiding or abetting a crime,

SO – an accused who aids, must do so for the purpose of aiding. This implies an INTENTION
to aid in committing of crime. Person aiding or abetting must be aware of the type of
offence being committed. Sec 21(1)(c) does not refer to any mental element –
BUT Case law demonstrates that Accused must intend to assist or abet the principle to be
convicted.
Example of cocaine dropped in bag – not aware so you are not abetting
NOW Look at wilful blindness – a person who is wilfully blind to the circumstances of the of
the offence may have the knowledge imputed and could be liable for aiding or abetting.
THE QUESTION THAT ARISES for WB is whether the person was a participant or mere
bystander?

Dunlop and Sylvester v. The Queen, [1979] 2 S.C.R. 881

Mere presence is not sufficient (R. v Dunlop and Sylvester).

A person is not guilty for A&A simply by being present at scene, to be liable for A&A accused
must have some knowledge and must further must stake some positive steps that aids or
abets,
So D and S did not have a positive obligation to help the girl – they only had a legal duty to
NOT aid.

Next R v Briscoe,
Discussed under wilful blindness - A person who is wilfully blind to the circumstances of an
offence may have that knowledge imputed and could be liable for aiding or abetting (R. v.
Briscoe)

Driven friends to golf course where they raped/ killed girl – SC said that B strongly suspected
someone was going to be killed at golf course but chose not to enquire further – he told
police that he knew something bad was going to happen – so court imputed knowledge
onto Briscoe.

If an abettor counsels two or more people who go on to commit an offence, but the Crown
is unable to prove who acted as a principal or as a party, the Crown is not required to prove
the identity of ‘the principal’ of an offence. All that is required is to show that the accused
had encouraged at least one of the individuals who participated in the commission of the
offence, be it as a principal, or a party (R v. Cowan). In Cowan, the Court was unable to
identify which of Cowan’s friends had been the principal in a robbery, but determined that
this did not prevent Cowan from being found guilty as an abettor

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COMMON INTENTION
Defined in sec 21(2) of Code- An accomplice is criminally liable for an act committed by the
principal offender when the accomplice knew of the probable commission of the offence

Notice – section says – knew or OUGHT to have KNOWN – this still applies, however in R. v.
Logan the court struck down the “ought to have known” for crimes of Murder or Attempted
murder because as we know Murder requires subjective Mens rea. In Logan court said it will
be unconstitutional to hold someone liable for murder if they ought to have known that
murder would be a probable consequence of carrying out an offence like armed robbery.
Logan – check facts. L had not shot clerk but involved in planning robbery. Court of appeal
overturned conviction on ground that MR criteria of objective foreseeability was
unconstitutional, and the MR required subjective foresight. Crown appealed to SC – appeal
dismissed – CS said for a crime with stigma as severe as murder, the required MR is
subjective knowledge, by the accused. – What common intention is if 2 or more ppl form a
comment intent to commit an act , they will both be liable for any offence that occurs, if
they knew or ought to have known that the offence would be a probable consequence. SO –
if A and B robbing together- A assaults some one – A & B both liable. – But if B murders,
crown will have to prove that A KNEW that murder would likely result from the offence of
robbery.

In effect – the accomplice of a primary offence will be liable in effect for any secondary
offences committed to another if it falls within the scope of the original plan – IF THE
ACOMPLICE KNEW OR OUGHT TO HAVE KNOWN that a second offence was a probable
consequence of carrying out crime. (exception of murder)

R. v. Kirkness, [1990] 3 SCR 74 – not in NCA syllabus.

An Accused will not be liable for murder if they do not share
the common intention of the principal to commit murder (R.
v. Kirkness).
Helps demonstrate where an accused is not liable for an offence of accomplice.
K and friend S out drinking – S suggested that 2 break into home of old woman – did break
in – K barricaded front door – K went on stealing S went into bedroom and SA. S then
dragged woman to hallway and was choking her – K asked him to stopped – S suffocated her
and she died – Both charged with 1 st degree M u/section 231(5) under Code – THE
QUESTION was whether they had common intention to commit murder. The court said - K

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was a party to SA – he knew S was assaulting and did nothing about i- went to barricade
door and then proceeded to steel – however – he is not a party to Murder – he had told S to
stop and at that time K removed himself from any common intention to commit murder.

R. v. Gauthier, 2013 SCC 32

The Accused must take steps to separate them-selves from the
crime (R. v. Gauthier).
G and husband made murder / suicide pact to kill 3 children plus themselves by overdose of
sleeping pills – G purchased drug – G took drugs and her husband also slit her wrist – but
she ended up surviving – other 4 died – and she was charged with 3 counts of 1 st degree
murder u/s as a party u/s 21(1) for supplying drugs – At trial argued she was in a dissociative
state while buying precluding her from forming a specific intent for murder – If that defence
failed – she also claimed defence of “abandonment” saying she had abandoned the intent of
murder – G was found guilty – appealed conviction to SC – appeal dismissed and G;s
conviction upheld –
She had taken active role in plot – did nothing to stop it – the abandonment defence did not
meet AIR OF REALITY test
(Trial judge was not required to put the defence to Jury)

R. v. Cowan, 2021 SCC 45

Subway - R robbed – one wore mask – other at door – C arrested for robbery – C denied any
involvement but admitted he had told friends how to commit – at trial court said C could be
convicted only if crown could establish that C friends did commit the robbery – but
concluded that evidence for this fell short – Court of appeal allowed crown’s appeal and
allowed new trial – said that T judge had made an error on issue of party liability – SC Said
that in determining liability the Criminal Code does not distinguish between principal
offenders and parties to an offence.
Therefore liability can be assigned to an accused who is a principal and one who participates
in an offence by abetting or counselling

The Crown was only required to prove that any one of the individuals encouraged by C went
on to participate in the offence either as a principal offender -- in which case C would be
guilty as both an abettor and a counsellor -- or as a party -- in which case C would be guilty
as a counsellor. 

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There is no need to establish the identity of a given principal so ling as the person
encouraged by the counsellor actually participated in offence.

Counselling s 21(1)(b), s 22(1), s 22(2), s 22(3)

Section 22(1) says that a person who is a party to an offence, is counselled by the accused to
commit that offence, then the accused is liable for Counselling.
He is then held to be a party to the offence, even if offence committed in a way that is
different from how the accused counselled the person.
Sec 22(2) If a person commits an additional offence that goes beyond the offence that was
counselled then the counsellor is liable if they knew or ought to have known that the
offence would be committed as a likely consequence.
It must be shown that accused KNEW or OUGHT TO HAVE KNOWN – but remember – ought
to have known does not apply for murder or attempted murder.
22(3) def of counselling includes soliciting, procuring or inciting

R. v. Hamilton, [2005] 2 S.C.R. 432

The Accused must actively and wilfully seek to persuade
others to commit a crime (R. v. Hamilton)
AR and MR of counselling laid down.
 Actus reus was defined as the deliberate encouragement or the active inducement
of the commission of a criminal offence.
 MR defined as nothing less than an accompanying intent or conscious disregard of
the substantial and unjustified risk inherent in the counselling: that is, it must be
shown that the accused either intended that the offence counselled be committed, or
knowingly 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
accused's conduct.
SC ordered a new trial for the fraud charge and upheld rest of acquittals as Hamilton did not
have the requisite MR.
To commit offence of counselling, the accused must actively seeks to persuade the person
counselled to commit the crime.
Here there was insufficient evidence that H had intended to induce the commission of
offence.
An Accused can also be liable for any additional offence
that results from the initial of- fence. However, for
murder, the Accused requires subjective foresight of
death.
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Last offence - Attempts
Sec 24(1) says that any person who does or omits to do anything for the purpose of carrying
out the intention to commit an offence is guilty of an attempt to commit the offence and
may be liable for the same.
In other words, a person who tries to commit a criminal offence but does not succeed can
be held guilty of attempting to commit it.
How can we know if they have attempted?
1. For attempt offences- the MR is essential. Question is if there was a clear intent to
complete the offence.
2. Ay act beyond mere preparation may satisfy the actus reus.

R. v. Deutsch, [1986] 2 S.C.R. 2

SC upheld that attempt offences are highly contextual. There is no general framework for
distinguishing preparation ad attempt. It is a fact based qualitative test. Court must look at
various factors including time, location, proximity of acts that would have completed the
offence and how close the accused was to actually completing the offence.

R. v. Ancio, [1984] 1 S.C.R. 225

For murder, the Accused must have the requisite mens rea to
commit murder (R. v. Abcio).

Addresses MR of attempted Murder. - A had broken into ex-wife house- carrying gun – new
partner went to investigate noise- saw him, threw chair, gun accidently discharged but no
one shot – 2 in fight
At trail judge found A had broken into house with intent to force ex to leave. A was
convicted of attempted murder.
Court of appeal overturned and order new trial.
Crown then appealed to SC- question – whether MR for attempted murder was (a) intention
to cause death or to cause bodily harm knowing it is likely to cause death or whether it was
(b) the intent to do some act constituting murder. SC dismissed appeal
Said - The mens rea for attempted murder is, in my view, the specific intent to kill. A mental
state falling short of that level may well lead to conviction for other offences, for example,
one or other of the various aggravated assaults, but not to a conviction for an attempt at
murder. 

SO with Attempt to murder cases the accused must still intend to kill the victim – the MR of
another offence cannot substitute a MR for Murder or AT murder.

R. v. Déry, 2006 SCC 53

There must be some progress undertaken to commit a crime.

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 Talking about a crime is not sufficient (R. v. Dery).

No evidence of conspiracy, save the overheard discussion _ T judge acquitted accused. But
convicted of Attempting to conspire.
Court of appeal upheld conviction.
SC set aside conviction and D was acquitted.
SC said - An attempt to conspire to commit a substantive offence is not an offence under
Canadian law. 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. Here, though D discussed a crime hoping eventually to commit it with S, neither
D nor S committed, or agreed to commit, the crimes they had discussed. The criminal law
does not punish bad thoughts of this sort that were abandoned before an agreement was
reached, or an attempt made, to act upon them.
No discussion or agreement to see plan through, so no attempt actually committed. This
was basically just a bunch of friends talking and that in no way CR offence.

The court looks at various factors, including the time,

location, and proximity of the acts that would have
completed the offence and how close the Accused was to
completing the offence (R. v. Deutsche).

R. v. JF, 2013 SCC 12

Party to a conspiracy is limited to cases where the Accused
encourages or assists in the initial formation of an agreement,
or encourages or assists new members to join a pre-existing
agreement (R. v. JF).

JF learnt that 2 of his friends T and R planning to murder their mom by getting her drunk and
then drowning – messages found b/w 2 and accused where they discussed death by
drowning – suggesting sister should give mom nicotine instead in addition to alcohol – said
he would provide false alibi for sis. – Trial judge instructed jury that J could be convicted for
conspiracy to commit murder u/s 465(1) either as principle or as a party u/s 21(b) or (c), J
was convicted of c to murder and appealed to SC.-
Question – should party liability be restricted to those who aid or abet the agreement that
form basis of conspiracy or does party liability extend to those who aid or abet the
furthering of an unlawful object conspiracy.
Court held that the aiding and abetting of a conspiracy is a offence n Canadian law. The
offence is made out when person aids or abets the actus reus of the conspiracy - namely
the act of agreeing.

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While party liability to conspiracy includes aiding or abetting the formation of a new
agreement (the Trieu model), it also includes aiding or abetting a new member to join a pre-
existing agreement. Such assistance or encouragement facilitates the new member's
commission of the offence of conspiracy -- that is, the act of agreeing.

63 To sum up, party liability to a conspiracy is limited to cases where the accused
encourages or assists in the initial formation of the agreement, or when he encourages or
assists new members to join a pre-existing agreement.
The evidence against JF in this case was overwhelming. It was not relevant that he was not
involved in the actual murder.
The assistance he provided to R and T in facilitating the murder, which they eventually
committed, could well have led to a charge of first degree murder against him.

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REGULATORY OFFENCES
2 broad types crime that exist in Cr Canadian law.
a. True crime or public welfare offences OR
b. regulatory offences.
Key diff is the absence of a MR requirement/
Regulatory offences are those which are not criminal but prohibited for public interest
reasons.
This ties back to the harm principle. It is in the public interest to prevent and deter certain
offences, and punish them.

2 category of R offences – strict liability and absolute liability.

Although no MR in Regulatory offences, when it comes to strict Liability offences it is open
to the accused to show Due Diligence or the absence of negligence.
However, there is no requirement for Crown to prove fault Or the mental fault element
when it comes to either Strict or Absolute L.

SO all the Crown needs to show is that the wrongful act was committed and then their
case is established.

When we come to public offences, we see a shift from ordinary Cr law. And a move towards
strict or Absolute liability and complete absence of MR.

So why do these offences have such strict standard. These are created as part of a
regulatory scheme designed to protect PUBLIC HEALTH, SAFETY and GENERAL WELFARE.
And typically they involve more sophisticated individual and corporation. These individuals
are able to hide behind a corporate veil.
So for efficiency and simplicity – regulatory offences are used for such entities.

Another motivation is deterrence – it is in best interest of public to deter such behaviour by

Corps. Deterrence may be the most effective way to change a Corps approach to risk taking.
As a matter of fact, these provisions have been effective in changing corporate attitude
about the risk and harm they are willing to take.

Eg - The implementation of fines have helped increase safety standard for employees at
workspace.
So, these offences focus on protecting public from harm and the interest of public in the
modern state. For benefit of society at large- eg workers, consumers, person effected by
pollution, etc.
These offences can be enacted by Fed, provincial or municipal level of govt. But they must
be sure not to encroach on the jurisdiction of another level of gov. – In Morgentaler – Nova
S tried to enact law to prohibit abortion in clinics, was struck down as not a regulatory

99
offence but a criminal offence. As such it was unconstitutional as it was an invalid exercise of
federal power and therefore ultra vires the province.
It is unlikely that you will have to discuss constitutionality in this paper but be aware that
jurisdiction can be relevant.

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Absolute liability
Absolute liability offences only require the Crown to prove a
wrongful act was committed. Proving the actus reus of an act
or omission is sufficient for criminal liability. There is no
mens rea requirement (R. v. Pierce Fisheries).

Most public welfare or regulatory offences create absolute liability on the part of the public
offender.
With AL offences Crown only needs to prove that a wrongful act was committed BRD.
Proving the AR of an act or omission is sufficient for criminal liability. No requirement for a
MR or fault element. – Guilty knowledge or Intent. It is not available to the accused to
exculpate themselves by showing they were morally innocent. The crown only needs to
show that the offence was committed.

R. v. Pierce Fisheries Ltd., [1971] S.C.R. 5- NOT IN SYLLABUS

P fisheries a sea food processing plant brought in 50-60 K pounds of lobster into facility.
Upon inspection it was found that P had in its possession 26 undersized lobster – charged
pursuant to sec 3 of lobster fishery regulation.
Sec 3 states that no person shall at any time have in possession any lobster of a length less
than specified in schedule.
THE SC held on appeal that provision did not have any MR requirement in it. And crown did
not have to prove any knowledge or intent. The fact that PF had 26 undersized lobster in
possession was sufficient for conviction.

WHY DO WE HAVE SUCH A HIGH STANDARD.?

The AL approach is seen as the most administratively efficient way and effective means to
ensure corporate compliance with legislation by limiting the need to prove fault on part of
the accused.

This was discussed in case of

Having an absolute liability offence — where there is no
mens rea element, coupled with imprisonment is a violation
of s. 7 Charter (Reference re Section 94(2) of the Motor
Vehicle Act (B.C.)).

Reference re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486
Tricky case – Sec 94 of BC MV Act created offence for driving without a DL that was under
suspension- this was an AL offence – guilt was established on proof of driving irrespective of
whether or not the driver as aware of the suspension.
BC gov asked BC court of appeal to determine if provision was valid, Considering prison
sentence attached to violation. The reference made way to SC. SC held that having an AL

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offence where the MR of an offence is not considered coupled with the imprisonment
sentence violated sec 7 of the charter and could not be justified u/s 1.
The AL along with imprisonment was in violation of principles of fundamental justice. The
accused in such situations must be afforded the chance to show DD. DD in context of
Regulatory offences is the opportunity to demonstrate that they did not have requisite
NEGLIGENCE or FAULT to be guilty. The accused has a chance to show DD on their part.
This was affirmed in -
R. v. Wholesale Travel Inc., [1991] 3 S.C.R. 154
The statutory punishment for the offence was a fine of upto 25k dollars and 5 years
imprisonment.
SC said an AL coupled with penal consequences violates sec 7 of the Charter and is not
justified u/s 1.

If you have any AL offence that carries a imprisonment – it is unconstitutional.

In this case court can rebrand AL coupled with a prison sentence as a strict liability offence
and in order to preserve the provision and by doing this the court give accused chance to
prove DD>

STRICT LIABILITY OFFENCES

Strict liability offence are similar to absolute liability offence:

the Crown does not need to prove the mens rea. All they must
prove is the existence of the actus reus.
With strict liability offences, once a prima facie case has been
established by the Crown, it is open to the Accused to
exculpate them self by showing due diligence, which is an
absence of negligence on a balance of probabilities.

SL were in effect created in 1978 by SC in case –

R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299

As we know, offences cannot be created at common law. But that’s not what happened
here. The SC created a new category of offence by reading down AL offences as SL offences.
So offence already created by parliament and existed in statute – they were not created by
courts.

SL is essentially the same as AL. the crown does not need to prove any MR. all that must be
shown is existence of AR BRD>
However, where SL differs is – when a prima facie case is established by crown, it is open to
the accused to exculpate themselves by showing DD, which is an absence of negligence on a

102
balance of probabilities. And if the defendant elects to raise a defence – that defence has to
be proven on a balance of probabilities
Remember - THE BRD Standard only applies to the Crown.
So, when it is allowed to make a DD defence, its open for accused to put forward a defence
and show DD. If they can prove an absence of negligence or fault on a balance of
probabilities then they will not be liable.
Now how do we determine if an offence can be classified as Strict or Absolute.
In R. v. Sault Ste. Marie
The SC set out 3 considerations.
1. The overall regulatory pattern of the legislation
2. The subject matter of legislation
3. The importance of the penalty and precision of language.
Taking into account these consideration if incarceration is imposed – then that suggests a SL
offence. If it is an AL offence the drafters will use a very clear language suggesting that guilt
follows proof of a prescribed act. Conversely if its SL, the drafters will impose a language
that will suggest DD defence can be made out. This is achieved by using words like willingly,
knowingly, wilfully, with intent, etc.
When looking at penalty, a prison sentence suggests a SL offence. And when looking at
precision of language, strict language creates an AL. This is where the legislature makes it
clear that guilt follows proof of a prescribed act,
In the an unanimous decision of the Court, Dickson defined three types
of offences:

1. True crimes. These offences require mens rea.

2. Offences of strict liability. These offences are those in

which there is no necessity for Crown to prove the
existence of mens rea, but the defendant can be
discharged crime by proving that they acted
reasonably in the circumstances.

3. Offences of absolute liability. For these offences, the

Crown does not need to prove mens rea, and the
defendant has no chance to exculpate himself by
showing he was acting reasonably

DUE DILIGENCE
DD was also defined in Sault Ste. Marie case. Court said that DD defence is satisfied if
accused can show on a balance of probabilities took all reasonable steps to avoid the act or
event. Its open to defendant to prove that all due care is taken. Burden of proof on

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defendant. The defence is also available if accused reasonably believed in a mistaken set of
facts, which if true would render the act or omission innocent. This is a mistake of fact
defence.
DD defence is determined on a fact to fact basis. Diff parties with diff capacities will be
judged by diff standards and the require to prove reasonableness on a diff scale.
Specific factors to be taken into account –
c. Likelihood and gravity of risk of harm
d. The operation engaged in by the company ; its Size, location
e. Any inherent risk in material used
f. General standard of case.
In case of Sault Ste. Marie, Ontario entered into agreement with 3rd party to dispose
garbage – this 3rd party responsible for a landfill that leaked into nearby river polluting it.
Result – city was charged under Ontario water resources Act. At trial the trail J dismissed
charges against city. On 1st appeal the acquittal overturned and Ontario convicted. –
overturn on the basis that MR needn’t be satisfied –
SC appeal – SCS said NEW trial.
SC created the concepts of Strict Liability offences to Regulatory offences and DD. Said that
once the crown proves the prohibited act BRD, it is open to accused to establish on a
balance of probabilities that it took all reasonable steps needed to avoid prohibited act or
made a reasonable and honest mistake.

R. v. Raham, 2010 ONCA 206 (C.A.) Page of 4054

If a regulatory offence has a prison sentence attached, then the
Accused is entitled to raise a due diligence defence (R. v.
Raham).

R driving on a road with 80 kmph speed limit. She sped up to 130 to pass a truck, She was
pulled over and charged with stunt driving under Highway Traffic Act, sec 172. Which is
defined as going more than 5 kmph of speed limit and it carried a punishment of upto 6
months in prison.
R challenged the constitutionality of the provision, This was a strict L offence and she should
be given the chance of proving DD> She was unsuccessful a trial and appealed to O court of
appeal – O court agreed with Raham that its unconstitutional and new trial ordered. Held –
sect 172 is a public welfare offence that is properly regarded as a SL. Thus a DD offence
should be made available to accused.
A DD defence would look something like if going at a speed of more than 50 KMPH of the
speed limit, for 2 or 3 secs to get around traffic, a trier of fact could conclude that driver was
observing all reasonable care to avoid driving at 50KMPH over speed limit offence.

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Corporate Liability Sec 22.1, Sec 22.2

How we hold a company liable

Sec 22.1, Sec 22.2 make a company a party to offence.
2 ways of making company party to offence.
These 2 sections expand the test of liability to the directing mind test established at
common law.
No longer necessary for the crown to show that those at the top of the organisation knew
what is going or that they were at fault.
Fault only has to be pinned on low level managers and mid managers.
The laws surrounding corporate changed with intro of Bill C75. The provisions under this are
much broader allowing judge put corporate on probation and can require it to take steps for
rectifying harm caused and prevent similar harms in future.
Sec 22.1 only deals with situations involving negligence. It applies in situations where if an
Offence occurs, AND employee involved in negligence and you want to hold the company
liable.
The crown must satisfy the elements that constitute offence under sec 22.1
1. Prove negligence on part of an employee
2. Crown must show that its representative were acting in scope of their authority (an
employee, partner, agent or contractor is a representative)
3. Senior office / Manager departs markedly from the standard of care which in the
circumstances could reasonably expected to prevent offence (Senior officer - person
plays key role in establishing policies or manages imp parts of the organisations
activities such as SM or director. The AR can come from any representative.
So you have to show that a representative was negligent. Establish negligence wrt
them and the AR and MR of criminal negligence as defined sec 219 – and this is
satisfies the AR of sec 22.1

Then MR element of 22.1 is established when a Senior officer departs Markedly from
reasonable standard of care that should be reasonably expected.
The actus reus is defined in s. 219 criminal negligence and
can be committed by any representative.

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Criminal Law Defences

Sec 12 focuses on criminal law defences.

Mental disorder and Automatism – these 2 defences apply to person who commit criminal
acts but cannot be held responsible because their mental process was impaired,
These defences have a great deal of overlap.

Next is self-defence and intoxication, duress and necessity. Some defences have arisen
solely from common law others from statute such as self defence.
Some a hybrid of common law and statute – e.g. duress- initially a common law defence and
later codified in sec 17, similar case with Mental disorder and Automatism

MENTAL DISORDER
The starting point for mental disorder is whether someone is fit or unfit to stand trial.
Defined in sec 2 of code

In order to have a mental disorder one of these 3 criteria u/s 2 should be affected
Sec 2 codifies long standing principle that the accused who due to a mental disorder is
unable to appreciate the nature or quality of their act are not morally responsible for
actions and should not be punished, rather they deserve to be treated and helped as much
as possible.
An Accused is presumed fit to stand trial unless the court is
satisfied on the balance of probabilities that the accused is
unfit to stand trial.

An Accused must satisfy one of the three criteria under s. 2 to

rely on a defence of mental disorder.

Defence of MD is directed towards the accused’s conduct at the time the offence is
committed. And asks if the accused was sane or not at the time the offence was committed,
In some cases though MD can persist after the crime is committed up to and through trial.
Given this MD the accused is deemed unfit to stand trial. As a result of MD accused is unable

106
to understand the nature or object of proceedings, possible consequence of proceeding or
communicate with counsel
Sec 672.22

There are only 2 circumstances in which this defence can be

raised: (1) when the Accused places their own mental
capacity at issue; (2) if the Accused is found guilty.

In the event the defence wishes to raise a MD defence there will be a ____ hearing to
determine the fitness of accused. And this application can be made by
a. Accused
b. Crown (motive gen not to secure conviction but seek truth)
c. Courts own motion by judge
2 circumstances in which this defence can be raised
1. Accused places their own mental capacity at issue (eg – 3.35
2. When accused is found guilty –
Whoever raises a defence must establish it on a BoP. If accused is convicted then the crown
or defence can raise issue of MD – raise issue saying sec 16 should apply allowing the
accused to be detained - If the accused is convicted, then the Crown or the defence can
raise the issue of mental dis-order and argue s. 16 Criminal Code should apply.
This would occur after guilty verdict is reached but before conviction has occurred.
In this case there is an inquiry to determine whether the accused is sane. If it is determined
the accused was not sane at time of offence, then a verdict of not guilty by reason of
insanity is entered.
Under s. 16(1), an Accused is not criminally responsible for
their crimes if a mental disorder rendered them incapable of
appreciating the nature and quality of their act or omission, or
knowing that it was wrong. Mental disorder mean a disease
of the mind. To be a disease of the mind, a mental disorder
must impair the human minds functionality (R. v. Cooper). A
lack of emotion or not ‘feeling’ anything is not sufficient to
being a lack of appreciation (R.v. Kjeldson).

The reason this defence is limited to these 2 circumstances is that it allows accused the right
to control its own defence. And again, the Burden of proof rests on parties raising issue and
it must be proved on a B of Probs u 16(2) and 16(3) - How is a person found to be insane –
sec 16
Sec 16 (1) -----wrong in this context is both morally and legally wrong
The Supreme Court has held wrong under s. 16 means both morally and

107
 legally wrong (R.v. Landry). The Accused must posses the intellectual
ability to know right from wrong and also possess the ability to apply
that knowledge in a rational way to the criminal act (R. v. Oommen)

Important question- what do we mean by MD-

This concept is a legal one not a medical one. It is a question of law for the TJ to determine
what medical conditions are included. SO the medical community identifies different
disorders and the court will decide which of the constitutes a MD under Canadian law.

R. v. Cooper, [1980] 1 S.C.R. 1149

This case is imp as SC set out a range of conditions that constitute a MD. The court said that
to be a disease of the mind a MD must impair the human mind’s functionality except self
induced incapacities such as – disorder caused by drug.
These include psychopathic personality disorders, brain damage, severe mental disability. It
also includes delirium tremens that is caused by alcohol abuse.
This definition does not include circumstances where someone takes too many drugs and
trips out. But does include diseases caused by chronic drug and alcohol abuse.
16(1) – Test
a. accused must first show that there is an MD that legally recognized
b. show that they were suffering from disorder at the time they were committing the
offence, and as a consequence of suffering from the condition at the time of the
offence they were incapable of appreciating the nature and quality of the acts or
knowing what they were doing was wrong.
The issue of the accused knowing something wrong is complex.
Court has said that wrong within sec 16(1) includes both legally and morally wrong.
So its not sufficient that accused knew they were doing something contrary to the law.
They must also show that the accused was incapable of knowing that the act was
morally wrong.

A good example of above is – R. v. Landry, [1991] 1 SCR 99 (Not in NCA syllabus)

L was charged with 1st degree murder. – he believed that former friend is satan and that
he must kill him to save the world from destruction – so killed – L truly believed that his
friend was satan – Court said there was a disease of the mind, that rendered him
incapable of knowing that what he had done is wrong –
SO a person may know and appreciate that an act is illegal and wrong but may feel
compelled by some higher power to commit the act.

R. v. Oommen, [1994] 2 S.C.R. 507

O was suffering from paranoid delusions. Believed that members of a local union
conspiring to destroy him – One night a friend was sleeping on couch – when O believed

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that union members had surrounded apartment building with intent to kill him – He also
believed friend in on the conspiracy – so he killed her- O shot her multiple times with
semi automatic rifle –
Question at trial – was O able to distinguish right from wrong in the situation
He understood that killing her was wrong BUT was left with NO choice except to kill her.
SC said that accused must possess
The accused must possess the intellectual ability to know right from wrong in an abstract
sense. But he or she must also possess the ability to apply that knowledge in a rational
way to the alleged criminal act.
Subjectively the accused did not believe act to be wrong

R. v. Kjeldson, [1981] 2 S.C.R. 617

Accused raped and killed victim by hitting with rock – shattering skull – At trail accused
took defence of insanity – 2 psychaitrist called by defence and by crown were all of the
opinion that accused a dangerous psychopath. There was disagreement on question
whether the accused was capable of appreciating the nature and quality of his acts.
Accused was convicted and defence appealed to SC.
Issue before SC was the definition of Appreciating
Defence had argued that the definition should not be restricted to an ability to foresee
the consequences of ones acts, but also the ability to foresee and understand the
subjective and emotional reactions of those affected.
Court dismissed defences appeal –
This case is authority for the fact that PSYCHOPATH can be a disease of the mind
howvere a lack of emotion or not feeling anything cannot be sufficient for a lack of
appreciation
Appreciation within sec 16 includes not only the capacity know what one is doing – but
also understanding the physical consequences of the
K may not have felt anything while killing victim but this does not mean he did not
understand the consequences of killing
Conviction upheld.

PROCEDURE FOR FINDING AN ACCUSED NOT CRIMINALLY RESPONSIBLE

Sec 672.45 lists what happens when someone found not cr responsible on account of
MD
a. within 45 days of being found NCR the court must hold a disposition hearing to
determine if accused can be released or must be confined to mental institution
Accused can only be confined to an institution if the pose a serious threat to the
safety of the public.
If it is determined that accused no longer poses threat to public safety they can be
set free. If the contrary is the case, then they are confined to institution and given
treatment.

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If set free – accused is given a conditional discharge
If at hospital then held indefinitely – and review board conducts review every 12
months until the accused no longer deemed a threat to public safety and released or
they die.

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 Automatism

The accused has not satisfied the acts reus if their act was
not done so wilfully and voluntarily.

Defence was developed at common law and lot of overlap btw this and MD

2 categories of automatism –
a. insane automatism which is same as MD – because accused in dissociated
mental state or automatamic state which negates voluntariness. If an accused is
not found cr responsible on account of insane automatism or MD then they fall
u/s 672.45
when we think automatism, we generally think of non-insane automatism –
concussion/ sleepwalking. The actions are not voluntary and such person can be
acquitted.
This defence is not found in code as CL.

Insane automatism is the same as mental disorder. The Accused is in a dissociative

mental state and autonomic state, which negates the ‘voluntariness’ of the
Accused’s actions. If the voluntariness of the Accused’s action is negated, then the
are not criminally liable. The de- fence of insane automatism is established on a
balance of probabilities and requires the ‘air of reality’ test to be satisfied.

In R v. Swaby (2001) court held that voluntariness is a requirement for an offence even if
not expressly required. Accused must voluntarily commit the act for the AR to be satisfied.
And defence of automatism negates this mental element of the accused’s act.
Automatism will threated in the same way as an MD and will result in conviction of “not
criminally responsible” and sec 672.45 applies to the accused.
Insane automatism is established on Balance of probs and requires the air of reality test be
satisfied.
This requires the accused being unable to control actions – this requires independent
psychiatric evidence and that includes a. any similar past conduct; b. testimony from
witnesses,; and evidence of a strong triggering stimulus.

R. v. Stone, [1999] 2 S.C.R. 290

S was driving with his wife. Wife was insulting him – that she will go to police and make
assault charges - The accused testified that he felt a "whoosh" sensation washing over him.
He then tsabbed her 47 times-
@ trial S argued that the psychological shock he got due to the insulting comments cause
him to go into a dissociative state at which point he repeatedly stabbed. According to S the

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effect of shock was severe and any ordinary person would have reacted in the same way –
SO cause of automatism was external and nothing to do with him/ sanity –
At trial he was convicted of manslaughter and TJ said he was suffering from disease of mind.
Case made its way to SC, question – how should trial court approach this issue.
SC said presumption at law is that ppl act voluntarily. Since a defence of automatism
amounts to a claim that one's actions were not voluntary, the accused must rebut the
presumption of voluntariness. 
Must pass air of reality test.
Has to put forward enough evidence on basis of which jury could acquit
And this evidence must demonstrate that the accused’s action were involuntarily resulting
from being in dissociative state.

COURT identified a 2 step test for automatism.

1. Accused must establish on balance of probs that there is sufficient evidence to make
the defence operate. This requires testimony from accused themselves
2. Judge must determine is accused was suffering from disease of mind – if they were
then a special verdict is entered and sec 16 procedures are followed – if there is not
a disease of the mind that it is left to jury to determine if accused acted involuntary.
If jury decides that he did act involuntarily then the accused is acquitted

Here it was held that insults that triggered stone were not something that would reasonably
be expected from a normal person – and S’s conviction of manslaughter upheld.
There is a two-step test for whether the defence of
automatism can be put to the jury is ‘whether there was any
evidence in the record upon which the jury, properly
instructed and acting judicially, could reasonably conclude
that the defence of automatism by reason of mental disorder
had been made out’ (R. v. Fontaine).

The approach in S was slightly modified in –

R. v. Fontaine – F (a mechanic) received a call from a disgruntled employee who said he was
going to get few pegs. F later heard from Randall that a contract was out to kill him – R had
been told about contract by Don Pierre. – F believing he was being followed purchased gun
– one sight F saw Renoe outside house – R came to investigate but saw nothing unusual –
Later while smoking Marijuana – F though he heard someone breaking into the home – he
fired gun at door- window – wall – etc.
Next day at mechanic shop he saw Don pierre approaching and shot him and killed.
@ trial – defence tried to put forward defence of MD automatism - several psychologists
gave evidence that F was suffering from various MD- judge refused to put this defence b4
jury as it did not have the requisite air of reality
F convicted of 1st degree murder.

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Court of appeal quashed the conviction saying that defence should have been put to jury
and ordered new trial-
Crown then appealed to SC – Question – was the accused entitled to have his defence be put
forward to jury

The SC dismissed appeal – I judgement laid out test for when defence of C automatism
could be put to jury. New test – is there any evidence in the record upon which the jury
properly instructed and acting judicially could reasonably conclude that the defence of
automatism by reason of MD had been made out
In this court SC agreed with court of appeal that it should have been put b4 jury.

R. v. Parks, [1992] 2 S.C.R. 871-

If there is not a disease of the mind, then it is left to the jury to
determine if the Accused acted involuntarily. If they decide
he did, then the Accused is not guilty by reason of insanity
(R. v. Parks).

This deals with non – mental automatism or non - insane automatism eg sleepwalking
Parks got out of bed- drove to in-laws house – entered bedroom and attacked them with
knife – seriously injured FIL and killed MIL. – after attack Parks got back into car drove to PS
and confessed – he claimed that he had been asleep when attacking
The Ontario court of appeal and SC upheld TJ verdict of not guilty by virtue of automatism
on the premise that P’s action were not voluntary.
Crown had tried to argue that automatism is a disease of the mind. SC dismissed argument –
ridiculous to label someone who is sleep walking as insane.
Defence also presented evidence to satisfy defence on BOP and satisfy the air of really test.
Defence showed evidence that P a habitual sleepwalker and also did this when under lot of
stress- also had good relations with In laws so no motive to kill –
SO – Non insane automatism includes conditions that do not fall under disease of mind-
concussion, blow to head, etc and Other conditions clearly caused by external factors.
Although Non insane Psychological blow automatism has been raised as defence many
times – it has rarely been accepted by Canadian courts. The assumption is either that
accused is insane or a violent criminal. Courts have not accepted a defence of violence being
spurred by a psy blow.

R. v. Luedecke, 2008 ONCA 716

L was charged with SA – he admitted non consensual sex with victim but claimed that he
was asleep when SA occurred- therefore he argued that the defence of non mental disorder
automatism should apply to his case.
At trial it was held that accused acts were involuntary and they were not a product of
mental disorder- he acquitted the accused.

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Crown appealed to Ontario court of appeal - appeal allowed
In reasoning
A his automatism rendered actions non culpable in eyes of Cr law
However this makes his behaviour potentially dangerous and raises several public safety
concerns. presence a legitimate
SC said = Canadian Cr law responds to these public safety concerns by treating almost all
automatism as product of a mental disorder leading not to acquittal but verdict of non-
criminally responsible

As such court ordered new trial –

The concept of a mental disorder in the criminal law is used to describe those accused who
have committed criminal acts but because of some abnormal mental state are unable to
conform their behaviour to the dictates of the criminal law. A determination that an accused
suffers from a mental disorder is more a reflection of the need for a further inquiry into the
dangerousness of that accused than it is an assessment of his or her medical condition.

Intoxication Sec 331.1(1) and (2)

We mean intoxication by alcohol or Drugs. Intoxication not exactly accepted as a defence.
But there is a caveat.
There are 2 distinct types of offences – specific intent and general intent offences (GIO)
Specific Intent Offences (SIO) are more serious. MR includes performance of AR. And AR
requires intentional performance of that offence and some motive/ objective.
Offences that are considered SIO are murder/ robbery. Because committing these offences
require intent and a specific objective that accused intends to accomplish.
Robbery requires some intention and planning. Though that is not always the case with
murder. These offences require a specific level of intent. On the other hand, GIO are
offences that although intentionally committed don’t require preparatory or higher intent.
They can be offences that occur in heat of moment / impulsively. Like – assault, SA,
manslaughter
This distinction is important because the defence of Intoxication may apply if the proof of
the accused Intoxication raises a reasonable doubt over whether they had capacity to form
MR of offences.
Intoxication is only accepted as a defence with specific intent
offences (R. v. George, R. v. Robinson). Intoxication will not
be a defence with general intent offences (R. v. Tatton).

Intoxication can only apply for a very small group of offences requiring a specific intent.

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So – if an accused is acquitted of a SIO because of Intoxication, meaning he was so drunk
that he could not possibly form the MR, then they would almost always be convicted of a
lesser offence – a GIO – for which an Intoxication defence does not apply. .
So example - if an accused is charged with manslaughter and they successfully argue
intoxication then they will be convicted of Manslaughter. _ R v George WHAT!

s. 33.1(1) Code states that it is not a defence to an offence that

the accused, by reason of self-induced intoxication, lacked the
general intent or voluntariness required to commit an offence.
Under s. 33.1(2), this is restricted to offences that interferes or
threatens to inter- fere with the bodily integrity of another
person.

The Queen v. George, [1960] S.C.R. 871

G charged with Robbery and assault – he said he was so drunk and did not remember much
though he could recall hitting someone. The SC held – his intoxication prevented him from
forming specific intent for robbery and therefore was not able to satisfy required element of
that offence- But still liable for the GIO of robbery which was reduced to common assault.

Principle affirmed in R. v. Robinson, [1996] 1 S.C.R. 683

Defence of intoxication would only apply where state of intoxication prevented the accused
form forming the specific intent required by the offence.
This diff b/w GIO and SIO discussed recently in R. v. Tatton, 2015 SCC 33
T was extremely drunk and decided to start cooking – turned stove on high – left house to
get coffee – when retuned – house ablaze – home destroyed by fire – T charged with Arson,
-
At trial he raised defence of intoxication, TJ concluded that Arson was a specific intent
offence and acquitted T because he did not meet the required MR standard of intentionally
or recklessly starting the fire.
On appeal from crown – court of appeal upheld acquittal – crown appealed to SC.
SC held – allowed appeal and ordered a new trial. – Said that MR for arson is intentional or
reckless
Which requires no high level or sophisticated reasoning.
The risk of damage by fire is typically obvious, even when it involves a chain of events and
not the simple application of a match to the property in question.
50 I have difficulty seeing how intoxication short of automatism would prevent an accused
from foreseeing the risk of causing damage to someone else's property by fire. Complex
reasoning is not required to recognize the danger. 
So GIO requires only minimum requirement of intent.
Because the bar required to satisfy MR element so low, the intoxication cannot negate MR
or fault element. The accused will still be liable

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R. v. Daviault, [1994] 3 S.C.R. 63
Chronic alcoholic – one night consumed 8 beer + 40 oz brandy – experts at trail testified that
this much or alcohol can cause death/ coma in ordinary person – so after drinking so much
alcohol – D sexually assaulted elderly woman – AT trail he claimed he was so drunk he did
not know what happened – QUETSION before SC whether accused could be so drunk that
their condition could be similar to that of a diseased mind or automatism – and if it
constitutes a basis for defending a crime which requires only a general intent.
MR for getting intoxication cannot substitute MR of offence – this will violate 11(d) of
Charter ans crown will not prove that accused intended to commit crime- only that accused
intended to get drunk.
As such – being excessively intoxicated was a defence to crime requiring both GIO and SIO.
As we know crown must establish the MR of an offence - Prior to Charter- proof of voluntary
intoxication was sufficient to satisfy the MR of an offence – and this rule was iterated in
1978 case – R v. Leary
Court in Daviult reversed this standard.
It was said that voluntary intoxication is not a crime – diff to say that V intoxication should
always cause fault which in criminal sanctions should apply – you cannot make a MR of
getting drunk and then superimpose it on a crime that crown sees fit.

In response to this Parliament enacted 33.1 of Cr Code -

So – if a person is extremely intoxicated then they are negligent and have departed
markedly from the standard of reasonable care generally recognised in Canadian society –
and tehse ppl can be held liable for their actions. Thus MR of the crime is substituted by the
MR for getting negligently drunk.

R. v. Brown, [2022] S.C.J. No. 18

Brown consumed mixed drinks, beer and magic mushrooms – he described at trial how he
started feeling off the following day and began to lose touch with reality – at 3:45 am he
took off clothes and left house in agitated state- nearby house resident woke up due to very

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loud noise in her house – as she went to search, she was attacked by B. – at 5 am he broke
into another house and couple called police – He had no recollection of either event-
AT trial B argued that he lacked requisite MR for the crime since he was in a state of
automatism as a result of mushrooms – crown invoked 33.1 of code that barred accused
from using self-induced intoxication as a defence – B then brough constitutional challenge
to provision saying that 33.1 in violation of charter – SC held that 33.1 violated sec 11(d) and
7 of charter and cannot be saved u/s 1.
Said that 33.1 (1) of code eliminates defence of self induced intoxication AKIN to
automatism applied to violent offences identified in 33.1(3) – where accused departs
markedly from standard of care described in 33.1(2) –
Under 33.1 the law does not create a new predicate act offence of self induced extreme
intoxication – or a new Cr negligence offence – It deems a criminal fault for a violent offence
to be present based on accused’s choice of becoming intoxicated – Parliament sought to
impose liability for the charged offence and not the self induced intoxication –
However they said that 33.1 violates sec 7 of Charter by allowing a condition without proof
of MR or proof of voluntariness . While sec 33.1 applies to people who recklessly both their
self control – it also captures the unexpected involuntariness – example adverse reaction to
medication – It imposes cr liability where persons intoxication carries no objective
foreseeability of harm.
It breaches sec 11 of charter – right to be presumed innocent until proven guilty.
Sec 33.1 improperly substitutes proof of intoxication for the proof of the essential elements
of an offence – The fault and voluntariness of intoxication are substituted for the fault and
voluntariness of a violent offence- this is a constitutionally improper substitution.
Parliament had seen a lot of evidence showing correlation b/w alcohol and drug use and
violent offences – Parliaments public goals are considered in sec 1 analysis- However –
BECAUSE SEC 33.1 may result in a person who had no intention to believe that their
voluntary intoxication may lead to violent consequences – sec 33.1 fails the proportionality
test – it makes conviction where accused acted involuntarily – where accused did not
possess the minimum level of fault and where crown has not proven BRD the essential
elements of the offence.
Voluntary intoxication is defined as voluntarily consuming a
substance which one knows or ought to have known was an
intoxicant (R. v. Chaulk). A person who is in a state of
psychosis as a result of voluntary intoxication cannot rely on
a s 16 defence (R. v Bouchard- Lebrun). Disease of the mind
does not include self-induced psychosis (R. v. Cooper).

Canadian courts are split on the Charter compatibility with

s.33(1) of the Criminal Code as it may violate s.7 and s.11(d),

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 as was discussed in R. v. Sullivan. It is not clear whether
s.33(1) may be saved by s.1 of the Charter.
In Brown, the Court held that s.33.1 breached s.7 of the
Charter by allowing a conviction without proof of mens rea
or proof of voluntariness. s.33.1 could not be saved by the s.1
analysis.
NEW TOPIC
Self defence, necessity and duress- these defences require that the accused show that they
acted reasonably in response to external pressures, and they result in a complete defence –
the accused is acquitted. Similarity in all 3 on – Internal pressure or threat.

Duress typically caused by stress on another person. Eg – someone points gun at head and
says commit offence- then duress. Duress- counter force with force (common law + statute
defence)
Self defence occurs when person is defending themselves from another person or persons.
Self Defence - self preservation
Necessity arises when situation of peril – it may be through natural event – not typically
threat of another person, although it can be. Necessity if facing situation of immediate peril
(common law defence)

Self Defence s 24(1), s 34(1), s. 34(2)

Defence of the person – based both on statute and CL.
Sec 34 lays down when use of self-defence is justified OR when Is it acceptable to threaten
someone by use of force when defending themselves.

A person is not guilty of an offence if they believe, on reasonable grounds, that force is
being used, or that a threat of force is being made against them or another person. s. 34(2)
Criminal Code lists a number of factors that will be considered. This list is non-exhaustive (R.
v. Cormier). One does not have to retreat from one’s own home as they are legally entitled
to use force to remove an intruder. Removing a “barrier to self-defence” is simply one of
various factors in determining the reasonableness of response to threats against the per-
son. (R. v. Cormier)

Fairly recognized principle - a person has a right to defend oneself against the aggression of
another and provides justification of harming another

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Accused is allowed to defend themselves or another with force provided the force they use
ir threaten to use is reasonable.
And that reasonableness is an objective standard – (2) lists out the factors court will see to
determine if force reasonable. These factors show that SD is a highly fact specific and
contextual defence.
1 key factor that court looks at is whether there were other means available to accused.
(this is also the case in necessity).
Other factors that courts look at include size, age gender, etc. (see sec)

Relationship b/w parties is particularly relevant when issue is spousal abuse.

R. v. Cinous, [2002] 2 SCR 3

C, and 2 others went to steal computers. C suspected that the 2 would attack him. He had
heard rumours – acting in manner that was suspicious, they were armed – SC said that C’s
fear that he was going to be attacked were reasonable.
Also said there was an air of reality on accused/ account.
C while driving – pulled into gas station – shot M in back of head - @trail he was found guilty
of 2nd degree – On appeal – Quebec court of appeal overturned conviction and ordered new
trial. Then appeal to SC –
SC discussed the 3 elements of self defence (sec 34)
1. Existence of unlawful assault
2. A reasonable risk or apprehension of grievous bodily harm
3. A reasonable belief that we cannot avert harm except by killing adversary
McLaughlin said that
 All three of these elements must be established in order for the defence to succeed. The air
of reality test must therefore be applied to each of the three elements. If any of these
elements lacks an air of reality, the defence should [page53] not be put to the jury. See
Hebert, supra; Latimer, supra.

This is both an objective and subjective test.

Accused’s perception of the situation is the subjective part
The reasonableness of the accused’s belief on the basis of the situation they perceive -
Objective part
SO- court will subjectively look at the accused’s perception of the circumstance. Then
Whether the perception was objectively reasonable.

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In Case of C the problem was that - There was evidence upon which a properly instructed
jury could conclude that the accused’s perceptions were reasonable in the circumstances.,
Subjectively there was an air of reality to the accused’s perception that he was going to be
killed.
At this point first 2 elements present. However, court held that 3 rd element was not satisfied
so C could not rely to SD> court said there were alternatives.

R. v. Lavallee, [1990] 1 S.C.R. 852

Deals with spousal abuse – SC describes relation ship as one of systematic and relentless
abuse.
Party at house- during party Russ abused L in room – as per L he said “wait till everybody
leaves, youll get it then ” handed rifle saying wither you kill me or I kill you/

Russ left L shot him in the back of head.

Charged with 2nd degree - At trial – acquitted - Manitoba court of appeal overturned
acquittal and ordered new trial - Then to SC – question CAN SHE CLAIM Self Defence?
SC said she could rely on SD and her acquittal was restored
History of Spousal abuse considered – Diff to understand why women stay back in abusive
relation – and we cannot hold that against them.
Court said – SD applies even when you are not directly or immediately in harm

Discussed in R. v. Cormier, 2017 NBCA 10

Victim Elridge made repeated threats that he will harm C- one day E and another person
about to enter C’s father’s house. Pre-emptive move some of occupants armed and went
out – as soon as they went out C encountered E with pipe- felt threatened – stabbed him
Charged with 2nd degree -argued SD. Rejected and convicted.
Appealed to new Brunswick court of appeal who allowed appeal and ordered new trial.
SAID – new provisions codifies some of the points from Lavallee–
Imminence of attack no longer rigid requirement of SD. Only a factor to be considered.
New provision also codifies the nature of relationship of parties. Precondition of
reasonableness that existed under old provision were removed – sec 34(2) set out 9 non
exhaustive factors to consider

Court said that TJ had failed to assist jury by linking evidence to various factors that must be
considered.

R. v. Khill 2021 SCC 37

However, the Court will also consider the actions leading up
to the act of self defence (“role in the incident”) to see if it
was necessary. The Court will consider the acts and omissions
from the beginning to the end of the interaction (R. v. Khill).

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K awoken by partner, sound outside home – saw truck liht on – approached S- asked him to
hands up and as he turned he shot 2 times. @trial he claimed he acted in self defence
TJ did not refer to K’s role in incident – u/s 34(2)(c) - jury found him Not Guilty,
Court overturned the acquittal and ordered new trail saying that admission of Ks role in
incident as a discreet factor for the jury to consider as a material error. The entirety of
accused behaviour throughout the incident must be considered to determine the extent of
their responsibility for the final confrontation and the reasonableness of the underlying
offence.
K appealed to the SC to dismiss the appeal – the
 In the context of these provisions, the "incident" incorporates a broader temporal frame of
reference than the specific threat the accused claims motivated them to commit the act in
question.
SC stressed the importance of the full consideration of the Person’s role in the incident and
how this is broader temporally and behaviourally. The TJ had failed to communicate to Jury
that they had to consider all the acts omissions and exercising of judgement through the
entirety of incident. Ot would have been misleading for them to focus on the mere incident
between when K got gun and when he shot. – thus new trial ordered.

NECESSITY
Necessity is self-preservation in a situation of imminent peril
from an external force. The defence only applies in
circumstances of imminent risk where the action was taken to
avoid a direct and immediate peril. (R. v Perka).
Involves some outside force. Eg – nature. Accused has to be in a situation of clear and
imminent peril where no safe avenue of escape. The Accused must be threatened by
circumstances beyond their control – not another person. If another person causes peril,
then it will be duress.
Elements of Necessity laid out in

R. v. Perka, [1984] 2 S.C.R. 232

Accused smuggling Marijuana from Columbia to Alaska – travelled upto Vancouver Island –
hit storm – ship damaged – the only way to avoid death is to run ship aground- crew was
arrested – charged with intent to traffic – jury acquitted at trail- BC court of appeal
overturned – Accused appealed to SC
Question before SC – Could the accused rely on defence of necessity
SC said – While necessity does make an offence lawful. It does provide an excuse to escape
punishment – The defence only applies in circumstances pf imminent risk. Where the action
was taken in face of direct and immediate peril.
To successfully argue a defence of necessity – court set out 3 elements that must be
satisfied

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 A. An emergency involving clear and imminent peril – determined by
using an objective test – placing a reasonable person in the accused’s
shoes.
B. No reasonable legal alternative = determined using objective test
C. Look at the proportionality of the legal act compared to harm avoided
using an objective test.
o The burden is on the Crown to disprove presence of any one of these
elements.

R. v. Latimer, [2001] 1 S.C.R. 3

Famous case – L was a father – his 12 yr old daughter had severe cerebral palsy – as a result
she was a quadrapalaedic and completely reliant on her family. She had metal capacity of 4
month old and suffered painful seizures – did numerous surgeries – needed more to
improve chance of living –
The parents did not want Tracy to have surgeries though in best interest – DID Not want her
to suffer and live in constant pain – one day mom went out. L and Tracy home – L put her in
truck filled with exhaust gas eventually killed her – He then put her back in hose and told all
she dies in sleep – autopsy said CO poisoning – he confessed and charged with 1 st degree
murder. At trial L tried to argue a defence of necessity – SC said necessity did not apply here
as defence did not have an air or reality with respect to any of the 3 elements.

38 The first requirement is imminent peril. It is not met in this case. The appellant does not
suggest he himself faced any peril; instead he identifies a peril to his daughter, stemming
from her upcoming surgery which he perceived as a form of mutilation. Acute suffering can
constitute imminent peril, but in this case there was nothing to her medical condition that
placed Tracy in a dangerous situation where death was an alternative.
39 The second requirement for the necessity defence is that the accused had no reasonable
legal alternative to breaking the law. In this case, there is no air of reality to the proposition
that the appellant had no reasonable legal alternative to killing his daughter. He had at least
one reasonable legal alternative: he could have struggled on, with what [page25] was
unquestionably a difficult situation, by helping Tracy to live and by minimizing her pain as
much as possible. 
40 The third requirement for the necessity defence is proportionality; it requires the trial
judge to consider, as a question of law rather than fact, whether the harm avoided was
proportionate to the harm inflicted. It is difficult, at the conceptual level, to imagine a
circumstance in which the proportionality requirement could be met for a homicide. We
leave open, if and until it arises, the question of whether the proportionality requirement
could be met in a homicide situation. 
41 Assuming for the sake of analysis only that necessity could provide a defence to homicide,
there would have to be a harm that was seriously comparable in gravity to death (the harm
inflicted). In this case, there was no risk of such harm. The "harm avoided" in the appellant's

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situation was, compared to death, completely disproportionate. The harm inflicted in this
case was ending a life; that harm was immeasurably more serious than the pain resulting
from Tracy's operation which Mr. Latimer sought to avoid. Killing a person -- in order to
relieve the suffering produced by a medically manageable physical or mental condition -- is
not a proportionate response to the harm represented by the non-life-threatening suffering
resulting from that condition.
Necessity defence failed and L convicted of 2nd deg murder.

DURESS

Duress is when an Accused is forced to commit a crime under

threat of death or bodily harm. It provides an excuse for the
commission of an offence. The Accused’s must show their
actions have an air of reality, and there must be enough
evidence to satisfy a judge that a reasonable and properly
instructed jury could acquit. Duress requires an immediate
threat of death or bodily harm from a person who is present
when the offence is committed (R.v. Ryan).
The defence has a long history. Long standing principle that an accused that has committed
a crime under the threat of death or bodily harm should not be liable for their actions.
So duress like necessity provides excuse for commission of offence
What the accused did is still illegal but we excuse the accused because forced to commit a
crime. To be able to rely on this defence there must be an air of reality and there must be
enough evidence to satisfy judge that a reasonably and properly instructed jury could
acquit. ‘
If defence satisfies this test – then they will be out before jury.

R. v. Ryan, 2013 SCC 3

R was a victim of violent domestic abuse – husband violent and constantly threated to kill R
and daughter. Evidence at trial supported image of R facing torture- TJ described Mr R as a
manipulative, controlling and abusive husband –
Failed attempt to kill by hired person – undercover officer called R and offered to take care
of job- she accepted offer and was charged with counselling for murder - @ trial the Crown
able to easily establish elements that offence was satisfied.
R claimed acted under duress – WHY DID THEY NAT MAKE CASE of SD – SD requires
repelling force with force- here R had not used force but tried to hire contract killer.
TJ found common law defence of Duress was applicable to R and she was acquitted.
Crown appealed to Nova Scotia CoA who upheld decision.
Crown appealed to SC – Question – whether defence of duress was available to Ryan at law.
SC allowed the appeal and ordered stay of proceeding’

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HELD – the defence of D is available when accused commits an offence while under the
compulsion of threat made for the purpose of compelling him/ her to commit it – this
requires immediate threat of bodily harm from person who is present when offence is
committed – However if no element of compulsion in threat then only defence available is
SD.
In this case – R wanted to kill husband because he was threatening to kill her and daughter -
not because she was being threatened for the purpose of compelling her to commit a crime.
Final point – SC ordered stay because defence of Duress unclear and te crown had changed
position b/w trial and appeal – As such it was unfair to R’s defence and they did not want
her to suffer through another trial.

Use of defence of duress against MURDER has been a point of contention within courts.
R. v. Aravena, 2015 ONCA 250 – court held that Duress should be availbe is murder cases.
Accused charged with 7 murder and 1 manslaughter case – at trial TJ said defence of duress
was not available to person charged with murder – Ontario court of appeal dismissed appeal
saying defence is not a justification to the act of accused – but an excuse that may be taken
into consideration
Further Court said SC jurisprudence permits duress as defence to murder
Diff stance in - R. v. Willis, 2016 MBCA 113
Willis facing death threat for unpaid drug debt. – drug dealer for unrelated reason wanted
another woman to be killed – T)
To avoid threats he was facing – stabbed miss Tran to death – in parking lot.

Willis charged with 1st degree murder - @trial W argued that his action was under duress
and this was a case of kill/ be killed –
His defence rejected and he was convicted of 1st degree –
Manitoba CoA decided not to follow decision of New Brunswick CoA (in Aravena)
Said – Murder of an innocent person can never satisfy the proportionality requirement of
moral involuntariness – Court found it difficult to see how certain death of an innocent was
a proportionate response to an uncertain threat of murder.

ERROR OF LAW – Sec 19

Not generally accepted as a defence –
Sec 19(1) -

However, if the accused had a genuine misconception of fact

or law, an offence is not committed. (Regina v. Howson). This
is not always the case (R. v. Jones).
Some exceptions made in limited circumstances –
1st – Colour of right –

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R. v. Lilly, [1983] 1 S.C.R. 794
SC said that an honest but mistaken belief is always a defence of theft–
Accused real estate agent – convicted of theft of 27K approx. – Accused argued that he
believed he had a colour of right and in 18 of the 21 transactions he thought that he could
lawfully transfer money from trust account to agency’s office account – once offer to
purchase property had been accepted.
Appeal dismissed by Saskatchewan COA
Accused appeal to SC – claiming TJ misdirected jury as the to meaning of colour of right
SC said TJ did misdirect and new trail ordered.
TJ’s direction to jury was that colour of right depends upon what the jury thought his rights
were. That did not matter – what mattered is whether the accused believing / having honest
belief that he had right to the money- If jury believed that Lilly believed he had a colour of
right then they would have to be satisfied that he had not committed the theft –

However, if the accused had a genuine misconception of fact

or law, an offence is not committed. (Regina v. Howson). This
is not always the case (R. v. Jones).
R. v. Jones, [1991] 3 SCR 110
Accused argued defence of colour of right
J unlawfully conducted lottery – prior to setting up bingo game he was advised by residents
of province that these types of game illegal without license – conviction was upheld by court
of appeal abd accused went to SC
Argued that they had colour of right because of the belief that provisions did not apply to
them – Since their activities were conducted on Indian reserve. SC dismissed the appeal – SC
said this was a mistake of law – not fact- Accused mistakenly believed that the law did not
apply because its was an operation on Indian reserve – A MISTAKE OF LAW Is no defence to
an offence.
Referred to sec 19 of code and said that : “the appellants mistaken belief that the Code does
not apply to them is no answer to the charges. I would dismiss the appeal.” Is not a defence

R. v. MacDonald, [2014] S.C.J. No. 3 (Primarily deals with sec 8 of charter)

See details at pg 20.
The Court of Appeal overturned the conviction of possession of a loaded restricted firearm. It
found that the accused, who was licensed to possess and transport the handgun in Alberta
but not Nova Scotia, had made an honest mistake
SC said that the court had erred in treating a mistake of law as mistake if fact-
60 In sum, the Court of Appeal erred by treating Mr. MacDonald's mistake of law as a
mistake of fact which exonerated him of the charge resulting from his actions. I would allow
the Crown's appeal on this issue and restore the conviction under s. 95(1).

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Another exception – officially induced error defence
Levis (City) v. Tetrault, [2006] 1 SCR 420
- SC created common law defence of officially induced error (OIE)- OIE is an exception
to rule that mistake of law is not an excuse
- OIE – advice given to accused in error that accused relies on in committing a criminal
act

ENTRAPMENT
Entrapment operations occur when the police provide The
accused with an opportunity to commit a crime without either
a reasonable suspicion or a bona fide inquiry. The presence of
reasonable suspicion enables the police to present a person
with an opportunity to commit an offence (R. v. Barnes).

There is an issue of balancing a person’s interest with the state’s interest of preventing harm
before it happens.
The general principle is that police may only present the
opportunity to commit a crime to an individual who is already
predisposed to that criminal activity. (R. v Mack).

Landmark Case is R v. Mack. General Principles articulated here:

Police may only present the opportunity to commit crime to an individual who is already
predisposed to the commitment of that crime. (Pretend to be drug dealer and arrest people
who approach him – ppl who approach him already predisposed to buy- BUT officer cannot
approach them ad try and sell)
R. v. Mack, [1988] 2 S.C.R. 903
SC listed the considerations that established the extent of these police operations.
The absence of a reasonable suspicion or a bona fide inquiry is significant in assessing the
conduct of the police because of the risk that the police will attract people otherwise without
involvement in a crime and because it is not a proper use of the police power to randomly
test the virtue of people.
This is to prevent risk of police running operations that result in arresting people who would
otherwise not have committed or attempted to commit the crime.
Factors to look at:
(1) the type of crime being investigated and the availability of other techniques for the police
detection of its commission; (2) whether an average person, with both strengths and
weaknesses, in the position of the accused would be induced into the commission of a crime;
(eg – if Police left $5000 on the street avg person might take it so not fair. This is an example
of police trickery. – Fair example- undercover officer posing as a child in chat room.
Predators are likely going to be the only ppl attempting to communicate with children And if
by chance an innocent person starts speaking to a kid, they will end conversation if they find

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out so, further predators is only person who will turn conversation sexual*) (3) the
persistence and number of attempts made by the police before the accused agreed to
committing the offence; (4) the type of inducement used by the police including: deceit,
fraud, trickery or reward; (5) the timing of the police conduct, in particular whether the
police have instigated the offence or became involved in ongoing criminal activity; (6)
whether the police conduct involves an exploitation of human characteristics such as the
emotions of compassion, sympathy [page905] and friendship; (7) whether the police appear
to have exploited a particular vulnerability of a person such as a mental handicap or a
substance addiction; (8) the proportionality between the police involvement, as compared to
the accused, including an assessment of the degree of harm caused or risked by the police,
as compared to the accused, and the commission of any illegal acts by the police
themselves; (9) the existence of any threats, implied or express, made to the accused by the
police or their agents; (10) whether the police conduct is directed at undermining other
constitutional values. This list is not exhaustive

*Canada has developed Mr Big Investigations. (began in 1990) These are used for cases
involving serious crimes that were unsolved. They seek here confession and convictions in
such cases-
Police creates a fictitious criminal org and target suspect – earn his trust and try to get him
initiated in org – once trust earned they are told they have to meet the org Boss – to be a
made member he must confess all crimes committed to the boss, who is in reality the
undercover officer- so police extract confession and then arrest – BUT these operations can
take years and cost a lot.
SC in R v. hart – cracked down on these MR Big ops.

R. v. Hart, 2014 SCC 52

Mr Big investigation against Hart. H suspected of killing his twin daughter – took them to
lake and acc to him both drowned – he claimed that one fell into lake and he went to get
help – when later came back one was dead and another unconscious- taken off life support
next day.
Police suspected H but after 2 yrs of investigation no progress made so they put into
operation H. H was a loser – wife hated him and he is ostracized by community. Depressed
over death of kids – useless – When approached by under cover OFF quickly made friends
and considered them brothers. Over the course of operation H participated in 60 fictious
crimes that police set up - )all of this was v expensive and used taxpayer money- hotel food
etc lavish) – He opened up and confessed to drowning his daughters – eventually he had to
meet boss – here he confessed – took them to lake and showed them how – H was arrested
-
SC said evidence inadmissible –
, where the state recruits an accused into a fictitious criminal organization and seeks to elicit
a confession from him, any confession made by the accused to the state during the

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operation should be treated as presumptively inadmissible. This presumption of
inadmissibility is overcome where the Crown can establish, on a balance of probabilities,
that the probative value of the confession outweighs its prejudicial effect.
It was grossly prejudicial – Jury will be under impression that accused is a criminal as he did
willingly join the org. – committed crimes to earn trust – and confessed to enhance trust.
Prejudice has to be mitigated - the risk of prejudice can be mitigated by excluding certain
pieces of particularly prejudicial evidence that are unessential to the narrative, or by
providing limiting instructions to the jury.
Court also set out number of factors to determine whether confession evidence is reliable –
the level of detail contained in the confession, whether it leads to the discovery of
additional evidence, whether it identifies any elements of the crime that had not been
made public (e.g., the murder weapon), or whether it accurately describes mundane details
of the crime the accused would not likely have known had he not committed it (e.g., the
presence or absence of particular objects at the crime scene).
SO initial assumption is that confession is not admissible – then you consider these factors
for admissibility and if its PROBATIVE VALUE OUTWEIGHS PREJUDICIAL EFFECT –

Lastly court considers whether appropriate instruction to Jury will further mitigate risk.
Court said that –
On balance, the Crown has not met its onus. The probative value of H's confessions does not
outweigh their prejudicial effect. Put simply, these confessions are not worth the risk they
pose. It would be unsafe to rest a conviction on this evidence. It is accordingly unnecessary
to decide whether the police conduct amounted to an abuse of process.
Court upset that H had shown willingness and deep desire to join the Org- this created a
substantial risk of prejudice – also said ops cultivate risk of violence, creating impression
that those who betrayed org suffered greatly:
Undercover officers provide their targets with inducements, including cash rewards, to
encourage them to confess. They also cultivate an aura of violence by showing that those
who betray the criminal organization are met with violence. There is a risk these operations
may become coercive. Thought must be given to the kinds of police tactics we, as a society,
are prepared to condone in pursuit of the truth.
The court looked at the following

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In addition to all this – Ops was expensive – see conclusion from Cr list.
When the police recruits a suspect in an attempt to induce a
confession, then this confession is presumptively
inadmissible. This inadmissibility can only be overcome if the
Crown can establish that, on a balance of probabilities, it's
probative value outweighs is prejudicial ef- fect. (R. v. Hart).

R. v. Barnes, [1991] 1 S.C.R. 449

The Vancouver Police were conducting a "buy-and-bust" operation in an area -- the
Granville Mall -- considered to have a drug trafficking problem. In a "buy-and-bust"
operation, undercover police officers attempt to buy illicit drugs from individuals who
appear, in the officers' opinion, to be inclined to sell drugs.- B fitted description – Officer
approached B and asked if he had weed. – B said No Officer persisted – until B agreed to sell
small amt of cannabis. – B arrested
At trial Judge found B guilty but ordered Judicial stay of of proceedings because police had
engaged in a form of entrapment known as Random virtue testing –

Crown appealed to BC court of appeal who ordered new trial – B then appealed to SC
SC issue – Was the appellant subjected to Random virtue testing. – SC dismissed appeal –

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Said it only arises

This case important for RVT. In Mack court had held that police cannot do RVT. Howvere an
exception to rule in circumstances where police undertakes a bona fide investigation that

 An exception to this rule arises when the police undertake a bona fide investigation directed
at an area where it is reasonably suspected that criminal activity is occurring. When such a
location is defined with sufficient precision –
In case of Barnes the Granville area could be considered that of sufficient precision.

Entrapment was not made out where there is reasonable

suspicion that relates to a phone number with regards to drug
trafficking. The police may provide opportunities for the per-
son who answers the phone to commit crimes, even if there is
not specific suspicion relat- ing to the person who responds to
the police calls. (R v. Ahmad).

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Sentencing s 718, s 718.1, s 718.2, s 718.2(d),
The sentencing provisions are set out in Part 13 Criminal Code- sets out purpose and
principles of sentencing and factors that need to be considered while assessing what is a fit
and appropriate sentence for an offender.
Judicial Discretion (JD) is an important feature of the sentencing in Canada. But the difficulty
is that Cr Code provision are broad giving court a lot of discretion- Phrases such as fit,
appropriate sentence, just sentence are highly contextual and result in wide range of
sentence.
Sentencing is a question of law, not fact. Judicial discretion plays a significant role in
sentencing and shall not be interfered with (R. v. M(C.A.)).

R. v. M. (C.A.), [1996] 1 S.C.R. 500

SC said
The determination of a just and appropriate sentence is a delicate art which attempts to
balance carefully the societal goals of sentencing against the moral blameworthiness of the
offender and the circumstances of the offence, while at all times taking into account the
needs and current conditions of and in the community. The discretion of a sentencing judge
should thus not be interfered with lightly.

Historically sentencing in Canada highly subjective – coz in code sentencing provision do not
provide a structure – judges as a result interpret these sentencing provisions differently and
2 judges can reach very diff decision about what is a just sentence in a case with neither
being incorrect.

In addition to JD- parliament gives court deference in how sentencing provisions are
interpreted and implemented. This approach has made individualising sentences a primary
goal of judges when handing out sentences.
Example seen in
R. v. Pham, [2013] 1 S.C.R. 739 – risk of deportation as a result of 2 year sentencing- no one
informed judge of this risk to take into consideration.
Pham appealed seeking to reduce it by 1 day as sentencing judge had not taken into
consideration this collateral consequence the sentence would have on him.
Alberta CoA dismissed appeal . Pham appealed SC – sc allowed and reduced it to 1 day less.

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Collateral consequences may be considered in individual cases. In this case collateral
consequence on Pham’s immigration status warranted the SC reducing the sentence.

Many diff principles that factor into a judges analysis, such as:
1. Proportionality
2. Deterrence
3. Denunciation
4. Rehabilitation
5. Retribution
All listed in 781 sec of code- no order of priority / hierarchy
Even prosecutor and defence counsel given deference to argue which of the principles
should be given preference in a specific case.
So individual decision will be made by the judge – crown and defence can put forward their
position on the sentencing of offender in an attempt to persuade the judge,
Sec 718.2 lists other principles a judge may consider in making a decision, - depend on case
to case basis.

IM- u/s 718.2(d) imprisonment should only be used as LAST resort.

This sec clearly indicates how much of the decision making process is left open to the judge.
Its their discretion to determine how the principles should be waived and to what extent
they must be factored in the decision.
When we see 718.2 they list principles court should consider for a just and appropriate
sentence.
Some are more imp and we will discuss – victim below 18, accused relation in position of
trust/ authority, etc.
As 718.2(c) and (d) say – should not be unduly long, or harsh, and less restrictive sanctions
that will not be depriving offender of liberty to be considered if facts allow. – so
imprisonment are last resort and other options to be considered first –
Court will look at principles in 718.1, look at similar offences in previous cases, and avoid
prison when possible.

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 In R. v. Lloyd, the Supreme Court struck down a one-year mandatory minimum
sentence for violating s.12 Charter, which prohibits cruel and unusual treatment. The
Supreme Court looked at section 5(3)(a)(i)(D) of the Controlled Drugs and Substances
Act (CDSA) and concluded that it violated section 12 of the Charter and could not be
saved under section 1.Thus, the court rendered this provision of no effect, showing a
low tolerance towards mandatory minimums for drug offences

ABORIGINAL OFFENDERS Sec 718.2(e)

Principle that imprisonment is last resort should be particularly considered when offender is
an aboriginal –
This is imp to be aware of as a distinct sentencing regime is set up for aboriginals and AB
offenders should be treated with more sensitivity than cases involving no AB offender.
The purpose if this is to prevent overrepresentation of AB in Canadian prison.
Judges should consider broad systematic factors for the accused such as racism,
unemployment, chronic alcoholism, residential school system and other repressive factors.
IMP Case on principles judges should consider when sentencing AB offenders and the
particular treatment they should be given.
The purpose of this section is to reduce the over-
representation of Aboriginals in prisons. Judges. must take
into consideration broad systemic factors that of the
Accused’s situation, such as racism, chronic unemployment,
alcoholism, residential school system, and other repressive
factors (R. v. Gladue).

R. v. Gladue, [1999] 1 S.C.R. 688

Accused (G) celebrating 19th bday, suspected BF having affair, both got drunk, she stabbed
and killed, G pleaded guilty to manslaughter.
TJ took into consideration aggravating factors of crime, that she was aggressor and chased
victim, court also considered that there was lack of criminal history, considered AB status as
well and said there were no special circumstances that he would need to take into
consideration because among other factors G did not live on a reserve.
She sentenced to 3 years prison. Appealed to BC CoA. Dismissed appeal. Further appeal to
SC – SC looked at sec 718.2 and said sentencing judges are directed to use a diff approach
when sentencing an AB – regardless of whether they live on reserve or off it. This does not
give offender automatic right in reduction in sentence simply because they are aboriginal.
But judges must consider these unique or systemic factors which may have played a part in
bringing offender b4 court.
Further Courts must be particularly mindful of other sentencing options available for an
offender. Particular attn given to sentences that take into account their aboriginal heritage.
Sentencing judges are also meant to take judicial notice of broad systemic background
factors that affet AB and give priority to restorative approach in sentencing. So in all cases

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involving AB offenders judge should take J notice of racism, cultural isolation, chronic
substance abuse, residential school, systemic abuse and injustice, colonialism, and any
hardship that offender endured. These factors may not be relevant for each AB offender,
but they are common enough to be considered imp.

In this case – SC said TJ had erred in not taking into consideration these factors. However,
no new trail ordered and G’s appeal dismissed.

Separate Topic - Bill C-10 and Mandatory minimum sentences

Safe Streets and Communities Act .passed in March 2012.

Part of this law created mandatory minimum sentences for a number of criminal offences.
SO – a mandatory minimum sentence requires a Sentencing judge to sentence offender for
no less then prescribed time. And minimum sentences apply regardless of any mitigating
factors that may be present.

This Act increased the number of mandatory minimum penalties attached to serious
offences in Canada. Those in fav of this said that it acts as a deterrent – the prevent future
crimes by incapacitating offender by removing them from street – they serve as an
education by clearly communicating society’s disapproval and they reduce sentencing
disparity by giving clear guidelines that judges must adhere to.
There is a clash b/w principles of this bill and that of sec 718.1 and complementary cases –
which emphasises proportionality, individualised sentences and imprisonment as last resort.

R. v. Nur, [2015] S.C.J. No. 15

In this case accused charged with possession of loaded prohibited fire arc u/s 95. This one
was given a mandatory minimum sentence under Bill C-10. Crown charged Nur with
indictable offence triggering mandatory term of 3 years.
SC in decision was split – on the constitutionality of Mandatory minimum.
Writing for majority – McLaughlin said that the Mandatory minimum imposed by sec 95(2)
(a) – 3 yrs for first time and 5 years for repeat offender – is in violation of charter and not
saved by sec 1.

R. v. Morrisey, [2000] S.C.J. No. 39

M drinking with friends. – M and Teed decided to saw of barrel of shot gun, later M went
out to drive one fried home- returned to see that Teed had fallen asleep – M leapt on to bed
, missed and fell – loaded shot gun accidently discharged killing Teed - @trial M was
convicted for Cr negligence causing death by firearm – sec 220(1) had mandatory minimum

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sentence of 4 years which defence argued violated sec 12 of charter. (cruel and unusual
punishment)

TJ agreed and sentenced him to 2 yrs. – Nova Scotia CoA overturned this and sentenced to 4
years – appeal went to SC- question was whether sec 12 was violated and if so was it
justified u/s 1.
Sc dismissed appeal – said purpose of sec 12 is to protect against such punishment that is so
excessive that would outrage the society’s sentence of decency and minimum sentence of 4
years not considered cruel and unusual.

Can judges reduce sentence below the mandated minimum sentence –

R. v. Nasogaluak, [2010] S.C.J. No. 6

In this case police received tip that accused was driving drunk – attempted to arrest -high
speed chase – when finally caught N – he resisted – officer punched N 3 times in head as he
forced him out of car – Police got N to ground – face down one cop on top of him- another
cop punched him in back as still resisting – limb broke and lung punctured – required
emergency surgery – Police did not disclose the force they used in arrest – did not make any
attempts to give him medical attention – At trail N pleaded guilty to charges related to high
speed driving – the TJ while sentencing observed that police had used excessive force and
breached N’s sec 7 charter right,- TJ decided that its appropriate to reduce sentence to a 12
month conditional discharge on each count served concurrently and a 1 year driving
prohibition – below mandatory prohibition – TJ said he could do this u/s 24(1) of charter –
SC said sec 24(1) should not normally be used for purpose of reducing sentence – however if
remedy was awarded solely for misconduct by state agents then this is permissible.

THIS CASE was not exceptional enough to allow the remedy of sentence below minimum
and the minimum fine for 1st offence was ordered.

BUT IN SOME CASES an exceptional reduction below mandatory minimum may be possible
u/s 24(1) charter remedies.

Another case where constitutionality of minimum sentence challenged and sec 12 of charter
at issue –
R. v. Ferguson, [2008] S.C.J. No. 6

In this case Accused was an RCMP officer who shot and killed a detainee- Charged with 2 nd
degree murder – was convicted of lesser offence of manslaughter – although sec 236(A)
imposed mandatory minimum sentence of 4 years for manslaughter with firearm- TJ
sentenced F to a conditional sentences 2 years minus 1 day – TJ said given the

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circumstances of case – the minimum Mandatory sentence constituted a cruel and unusual
punishment – and violated sec 12 of charter – Alberta CoA overturned and said mandatory
sentence must be imposed – defence appealed to SC – who dismissed appeal –
Said mandatory minimum of sec 236(a) was not grossly disproportionate and as such did not
constitute cruel and unusual punishment u/s 12- Also said that even if 236(a) did violate sec
12 a constitutional exemption was not appropriate remedy – rather it will fall u/s 52 of
Constitution act 1982. And the provision will be of no force or effect –
SO JUDGES CANNOT CREATE CONSTITUTIONAL EXEMPTIONS FOR MANDATORY MINIMUMS
that are grossly disproportionate
There is no provision permitting judges to depart from the mandatory minimum, even in
exceptional cases where it would result in grossly disproportionate punishment.

A mandatory minimum sentence requires a sentencing judge to sentence an

offender for not less than the prescribed period of time. This minimum sentence
applies regardless of any mitigating factors

Joint Submissions
A joint submission is a sentence that both the Crown and defence counsel agree on. There is
no guarantee that the judge will follow the recommendations of counsel, and a judge can
still impose its own sentence they deem appropriate.

In deciding whether or not a joint submission should be rejected, the judge must apply the
‘public interest’ test (R. v. Anthony- Cook). The ‘public interest’ test is: ‘would the proposed
sentence bring the administration of justice into disrepute or is it otherwise contrary to the
public interest’?

R. v. Anthony-Cook, 2016 SCC 43

Accused had history of mental health illness and drug abuse – frequently visited a centre for
the same – one morning accused caused disturbance and told by volunteer to leave centre –
left – outside he saw Gregory and started hitting and punching him G fell hit his head on the
cement fracturing skull – died from injuries – accused charged with manslaughter – when
trail commenced accused agreed to a plead deal where he would plead guilty in exchange
for 18 moth sentence – (11 months already served by him ) and no probation period – the TJ
rejected the joint submission - he concluded that it did not give adequate weight to the
principles of denunciation, deterrence, and protection of the public. Imposed sentence of 2
years minus 1 day and 3 yrs probation - The Court of Appeal for British Columbia
unanimously dismissed Anthony-Cook's sentence appeal. – Appeal went to SC – SC
overturned TJ’s decision and sentenced accused to the sentence agreed upon in Joint
submission – in the reasoning the court said – when deciding whether or not a joint
submission should be rejected the TJ apply the public interest test – A joint submission will
fail the public interest test if the proposed sentence would bring the administration of

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justice into disrepute or is otherwise contrary to public interest – given the circumstances of
the accused and reasons of crown for entering into joint submission the court was satisfied
that public interest test was satisfied and the agreed sentence was therefore appropriate.

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APPEAL
Final Verdict made by a judge can be appealed. However interim decisions cannot be
appealed – athough they may be subject to JR where jurisdictional error is presnet.
A notice of appeal must be filed no later than 30 days from the date when sentence was first
imposed. 4 ways of appeal -

In the above cases, if you wait until end of trial, the damage that an accused seeks to
prevent may occur, thus, you need JR of interim decision before final decision of case is
made.

Appeals to SC can only be given by leave of court (in most instances) – leave of court is
where court gives party permission to present their case before the court – Most appeals in
cr law are only granted where appellant court grants the party seeking an appeal
permission.
If an appeal is not granted leave then it will not be heard.

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Appeals by Accused:

For question of fact, if accused is convicted for 2nd degree murder and sentences includes
parole ineligibility of greater than 10 years then leave of court is not required.
Where leave denied on any matter except accused’s sentence, the accused may file within
7 days a notice application of leave to have the appeal heard.
The basis of appeal passes through filters, each filter limits the grounds on which an
appeal might succeed. Sec 675 sets out basis on which appeal can be made. Sec 686(1)(a)
sets out the filter that restrict the ground on which appeal can be granted

Under s 686(1)(a)(i), an appeal is granted on the basis that the

verdict ‘is unreasonable or cannot be supported by the
evidence’. This can apply to both a conviction by jury that
was improperly instructed, or by conviction by a judge.

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 For there to be an unreasonable verdict, the court must determine what verdict a
reasonable jury, properly instructed, could have judicially arrived at and, in doing so,
they will review, analyze, and within the limits of appellate disadvantage, weigh the
evidence (R. v. Biniaris).

There are exceptions to these filter, even if an appeal meets the conditions above it may not
be granted. u/s 686(1)(b)(1) appeals can be dismissed on the grounds that

686(1)(1)(i) – can apply to both a jury that was properly instructed or conviction by a judge.
In R. v. Biniaris, [2000] 1 S.C.R. 381 test for unreasonable verdict set out.
Court must determine what verdict a reasonable jury properly instructed could have arrived
at and in doing so court will review analyse and within the limit of appellate disadvantage,
weigh the evidence. 
Based on this process, court will decide whether or not a reasonable jury could have arrived
at the verdict.

When comes to Question of law the standard of review is correctness.

An appellate court when looking at the correctness of a decision can substitute their own
opinion for that of a trial judge. This is because an appellate court delineates and defines
legal rules to ensure that there is universal application. This requires that the court have a
broad scope of review with respect to matters of law.

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When comes to Question of fact the standard of review is higher.
A finding of fact should not be overturned in the absence of a palpable and overriding
error. This prevents an appellate court from reviewing the TJs decision if there was some
evidence on which they could have relied to reach that decision.
The appealing court is not looking a right decision – they are looking for a reasonable
decision that a court could have made. u/s 675(1)(a)(ii) – the defence may appeal a
conviction because of an error of law. Where there has been an error of law, such as
evidence being improperly admitted and the evidence influencing the trier when verdict is
reached, the decision must be quashed, regardless of whether the admissible bit of
evidence support conviction. However – the court can dismiss an appeal and deny any
remedy u/s 686(1)(a)(ii) if court of the opinion that no substantial wrong or miscarriage of
justice occurred. In addition appeal might be decided in favour of accused even if court of
the opinion that no substantial wrong or miscarriage of justice occurred.

Appeals on an error of law that create no substantive wrong will be dismissed.

A miscarriage of justice can either be substantive or procedural.
a. Error that denies accused a fair trail is a legal error
A miscarriage of justice may arise in circumstances where there has been

If an appeal is successful u/s 686(1)(a) the court will quash the conviction
The court can either acquit the accused or order a new trial u/s 686(2)

Under s.606(1.1) A court may accept a plea of guilty only if it is

satisfied that

(a) the accused is making the plea voluntarily;

(b) the accused understands

(i) that the plea is an admission of the essential elements

of the offence,

(ii) the nature and consequences of the plea, and

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 (iii) that the court is not bound by any
agreement made between the accused and the prosecutor;
and

(c) the facts support the charge.

APPEALS BY CROWN
The rights of the Crown to appeal are narrower than the rights of the Accused. In the case of
a conviction, the Crown is unable to appeal a decision on the basis that an acquittal was un-
reasonable, or that it could not be supported by the evidence.
The crown may appeal a conviction of an indictable offence for reason in 676 of code –
However right of crown to appeal are narrower that right of accused.
In the case of conviction, the crown is unable to appeal a decision on the basis that an
acquittal was unreasonable, or that it could not have been supported by the evidence. The
crown bears a heavy burden on overturning an acquittal – particularly in cases where
acquittal was decided by jury.
In cases where there was a acquittal or accused found not criminally responsible the crown
has a right of appeal on grounds of

The crown has a right of appeal for acquittals only ON question of law. This acquittal based
on matters of credibility cannot be appealed.
In R. v. Walker, [2008] 2 S.C.R. 245 SC said - Caution must be taken to avoid seizing on
perceived deficiencies in a trial judge's reasons for acquittal to create a ground of
"unreasonable acquittal" 

In R. v. JMH, 2011 SCC 45 - in cases where there is an unreasonable verdict miscarriage of

justice there is little relevance for a crown appeal u/s 676(1)(a) for error of law.

APPEALLING SUMMARY CONVICTIONS

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U/s 813- defendant can appeal a summary conviction or order made against them, and the
crown can appeal ‘an order that stays proceedings on an information or dismisses an
information’
Same rules u/s 683 to 689 are followed
u/s 822(4) it is possible for an appeal of a summary conviction offence to take place in a de
novo hearing ((The Latin term “de novo” means “from the new.” It refers to a hearing in
which another court or judge decides a case on the facts without deferring to the other
court’s decision.

Appealing to SC
When appealing to SC the grounds of appeal can only be made on an error of law.

These are only 2 circumstances in which crown can appeal or where accused convicted at
trial can appeal.

JUDICIAL REVIEW OF A PRELIM DECISION

There is no procedure in the Code for appealing decisions at a preliminary Hearing. The only
review available is an action for certiorari to review the decision of a lower court.
In these cases you don’t need to prove anything other than jurisdictional error. An accused
who wants to bring forward application for certiorari must do so before entering a plea to
the charge. In addition to denying natural justice, it is a jurisdictional error for a TJ to fail to
comply with sec 548 of code. Jurisdictional error includes things such as not applying proper
elements of an offence, questions of law or questions of fact.

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